Article 16(4) of Indian Constitution and Hohfeldian Concepts

 Article 16(4) of the Indian Constitution and the Hohfeldian concept of Rights:

 A critique

Part III of the Indian Constitution covers the Fundamental Rights of the citizens of the country. All these Fundamental Rights indicate that all the citizens are equally treated by the nation irrespective of caste, sex and creed.  Article 16(4) also, no doubt, fall within Part III of the Constitution comprising the fundamental rights. Article 16(4) of the Indian Constitution states that “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.[1]Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognize the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335.

The word “Right” which we use in our general parlance or in our day to day life, not even we but also our Judges and in our legal system differs a lot from Hohfeld’s concept of Right. Hohfeld's analysis of rights lies in the descriptive exercise of the legal positions which are connected with each other by means of logical relations of entailment and negation. Hohfeld's ambition was to provide a conceptual understanding for our use of right, duty etc in practice, thus facilitating a better understanding of the nature of our rights. Thus in the Hohfeldian analysis the term ‘right’ involves four ‘strictly fundamental legal relations’- ‘right( or claim)’, ‘privilege’, ‘power’ and ‘immunity’. He identified eight “fundamental” concepts that allow one to describe any legal position. These concepts are duty, claim, liberty, no claim, power, liability, disability, and immunity. Hohfeld explained how these concepts logically related to one another through what he called “correlation” and “opposition.[2]

 

Our Fundamental Rights are generally called as negative rights because they limit the power of the State to exercise over its citizens and thus the citizens gets a upper hand, and the State cannot interfere with any of the rights of the citizens as mentioned under part III of the Indian Constitution. If we look into the debate on negative rights and positive rights, we find that, negative rights are considered to be those rights which oblige others to refrain from interfering with someone's attempt to do something and positive rights are those which impose a moral obligation on a person to do something for someone. Now, if we take Article 16(4) into consideration, it comes within the purview of Part III of the Indian Constitution and so it must be considered to be negative right. But a bare reading of the text clearly shows that it empowers the State to make provisions for the backward classes of the State. Thus, if we follow the debate on negative rights and positive rights, then it is quite clear that, though Article 16(4) falls within Part III of the Indian Constitution, it cannot be called as a negative right but it’s a positive right.

 

In this paper I am going to analyse whether Article 16(4) of our Constitution is a Fundamental Right of the Citizen in the Hohfeldian Concept of Rights, keeping in view the scope of the provision discussed in various cases and also relating it with the different legal relations which Hohfeld has laid down.

 

As Article 16(4) falls within the purview of Part III of the Constitution, it is called as a fundamental right of the citizen. The first impression which comes into our mind, when we says that Article 16(4) is a Fundamental Right, is that, in Hohfeldian Concepts it must be a claim right. But a bare reading of the Provision reflects in our mind that the Right which is given under Article 16(4) is actually a privilege which is conferred into the hands of the State. Also if we analyse the decision of the Court in the case of P&T Schedule Caste/ Tribe Employee’s Association v. U.O.I.[3], in which the Court has observed that Article 16(4) is only an enabling clause and no writs can be issued ordinarily compelling the government to make reservation, we are clear that Article 16(4) is not a Claim right. As we know that, the Jural correlative of Claim Right is Duty, if the backward classes would having a Claim right, then the State would have under a Duty to provide reservation. But the decision of the Court in the abovementioned case, clearly says that, the State is under no duty to provide reservation on the wish of the Backward classes. Thus, as there is no correlative duty on the part of the State, it is quite clear that, Article 16(4) is not a claim right for the backward classes of the society.

Hohfeld described privilege or liberty as, to have a liberty to engage in a certain action is to be free from any duty to eschew the action, likewise, to have a liberty to abstain from a certain action is to be free from any duty to undertake the action. Like any right, each liberty is held by a specific person or group of persons against another specific person or group of persons. The person against whom the liberty is held has a no-right concerning the activity or state of affairs to which the liberty pertains[4].

Under Hohfeldian concept, the jural correlative and jural opposite of ‘Privilege’ is No-right and Duty. When Article 16(4) gives privileges to the State in providing reservation, it means that the class which is favoured by this reservation has no-right to claim and at the same time the State is also under no Duty to perform what it has been asked to do. This very concept of privilege has been clearly proved by the decision of the Court in the case of P&T Schedule Caste/ Tribe Employee’s Association v. U.O.I.[5], in which the Court clearly held that the State is under no duty to give reservation.

 

The scope of Article 16(4) was discussed in the case of Indira Sawhney v. U.O.I[6] and it was held that “Article 16(4) expressly permits the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State. As the power conferred on the State under this Clause (4) is to be exercised only if 'in the opinion of the State' that there is no adequate representation in the services under the State…[7]

 

We have seen that, our Courts while interpreting the provision has stated that, Article 16(4) gives power to the State. Now, I am going to analyse this term ‘power’ in the Hohfeldian sense and would see whether it is justified or not to use the term ‘power’ by the Courts while interpreting the provision.

 

Under Hohfeldian concept of rights, Power denotes ability in a person to alter the existing legal condition, whether of oneself or of another, for better or for worse. The correlative of power is liability which denotes the position of a person whose legal condition can be so altered.

 

Now, if we construe the term ‘power’ as stated in Indira Sawhney v. U.O.I[8] with that of the term ‘power’ as defined by Hohfeld, we will see that a lot of conflict will arise between the two. If the State has power under clause (4) of Article 16 of the Constitution, then in Hohfeldian sense it will mean that the State is vested with all the power of altering the existing legal condition. In contrast it means that, the community, i.e. the legal condition of the backward class is easily susceptible. Also, it has been mentioned that power itself doesn’t have any correlative duty attached to it. This also means that the State is under no duty to act, which is to provide reservation to the backward classes.

 

Let us go back to the debate over negative rights and positive rights, which we discussed earlier. We found that, though Article 16(4) falls within the purview of Part III of the Constitution, it is not a negative right in contrast that Fundamental Rights are negative rights, but it’s a positive right which the State uses to provide reservation to the backward classes of the community. Now, this was concluded from a bare reading of the provision which reads as “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”. Now, let’s analyse the debate over positive rights and negative rights while referring to the interpretation given by our Supreme Court while defining the scope of Article 16(4). The Court held that, the provision gives power to the State to make reservation in favour of the backward classes of the society. Thus, the debate over negative and positive rights clearly states that Privileges and powers cannot be negative rights; and privileges, powers, and immunities cannot be positive rights. For example the right to enter into a binding agreement, and the right to veto a bill, are neither negative nor positive. Thus, we have seen that, it is neither a positive right nor a negative right.

 

If this is the power which the Constitution provides to the State under Article 16(4), then there will be a great conflict. The main conflict which will arise is that, whether we should go by the interpretation which was made by the Court while defining the Scope of the provision or we have to go by the provision itself which is given under part III of the Constitution.

 

From the above discussions, we have seen that, the State is either having a privilege or power in Hohfeldian concept and thus it is not bound by the people of the backward class to provide any benefit to the particular community, for which the provision was added into our Constitution.

 

Thus, if we would look at the provision of Article 16(4) of our Constitution in terms of Hohfeldian Concept of Rights, we will find that it is not a Fundamental Right of the Citizens. The very nature of the Fundamental Rights is to limit the power of the State and to give the Citizens of the State an upper hand. But from the above discussions we have seen that, it is the State which is incurring power from the very provision of the Constitution and it is in contradiction to the very nature of Fundamental Rights.

 

Thus, we can conclude that, if we look at the provision of Article 16(4) of the Constitution, from Hohfeldian Concept of Rights, then Article 16(4) of our Constitution, though it’s come within the purview of part III of the Constitution, is not a Fundamental Right of the Citizen. But, from a general understanding of Rights and as understood by every person, Article 16(4) is still considered as a Fundamental Right. So, we can say that the Hohfeldian Concept of Rights is an abstract notion and we cannot apply it into any statutes e.g., like our Constitution, and if we would try to apply this to any working legal system then everything will go haywire.




[1] The Constitution of India, P.M. Bakshi, 8th Edn. (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2007)

[2] Siegfred Van Duffel, The Nature of Rights Available at www.hku.hk/ccpl/events/otherevents/.../Mar21-DrSVanDuffel.pdf 

[3] (1988) 4 SCC 147, 151

[4] Matthew H Kramer, N.E. Simmonds, Hillel Steiner, A Debate Over Rights, Indian Edn. Oxford University Press, 2003, Pa-10

[5] Supra Note 3.

[6] AIR 1993 SC 477

[7] Indira Sawhney v. U.O.I, AIR 1993 SC 477 Pa-15

[8] Supra note 6.

Ankush Parasor

3rd Year (5th Sem)

B.A. LL.B (5 years integrated course)

KIIT Law School

Bhubaneswar, Orissa

 

ankush parasor 
on 10 November 2009
Published in Constitutional Law
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