Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
2. No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to –
i. access to shops, public restaurants, hotels and places of public entertainment; or
ii. the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.3. Nothing in this article shall prevent the State from making any special provision for women and children.
4. Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
5. Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
6. Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent State from making:
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the clauses mentioned in clauses (4) and (5) insofar as such special provisions relate to their admissions to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.
For the purpose of this article and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantages.
Article 16: Equality of opportunity in matters of public employment
1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
2. 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 of, any employment or office under the State.
3. 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.
4. 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.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year (carry forward rule) which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
5. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
6. Article 16(6): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.
Article 340: Appointment of a Commission to investigate the conditions of backward classes
(1) The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition
Article 335: The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
The Constitution (Eighty-second Amendment) Act, 2000 i.e. Amendment of Article 335: In Article 335 of the Constitution, the following proviso shall be inserted at the end,
“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.
State of M.P. v. Kumari Nivedita Jain, 1981: The Executive Order dated 9th Sept., 1980 passed by the State Government completely relaxing the conditions relating to the minimum qualifying marks in Pre-Medical Examination for selection of students to Medical Colleges of the State in respect of candidates belonging to Scheduled Castes and Scheduled Tribes categories is not liable to be struck down as being violative of Regulation II or Art. 15 of the Constitution.
In Preeti Srivastava, Dr. v. State of M.P.1999 the court held Fixing of lower qualifying marks for SC, ST in Post graduate Medical course – Medical Council to decide – Disparity between marks fixed for reserved and general candidates should not be big.
Faculty Association Of AIIMS vs Union Of India & Ors on 18 July, 2013:The highly contentious issue of Reservation in favour of weaker sections of society in Specialty and Super-specialty Faculty posts/positions in the medical institution of national importance, the AIIMS came before the Supreme Court of India . The question before the Apex court 5 Judge Constitutional bench was in applicable to Specialty and super-specialty Faculty posts in AIIMS. The Supreme Court in series of its earlier decisions of Indra Sawhney, Jagdish Saran & Ors. v. Union of India & Ors. [(1980) 2 SCR 831], Dr. Pradeep Jain etc. v. Union of India & Ors. etc. [(1984) 3 SCR 942], Preeti Srivastava v. State of M.P [(1999) 7 SCC 120] have categorically held with respect to admission to medical courses at postgraduate level that there could be no compromise with merit at the super-specialty stage as this would defeat the very object of imparting the best possible training to the selected meritorious candidates who could contribute to the advancement of knowledge in the field of medical research and its application.
Article 341. Scheduled Castes
(1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause ( 1 ) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification)
Clauses (3) to (6) of Article 15 and Article 16 intend to promote substantive equality. These clauses provide a mechanism for positive discrimination in favour of the grossly under-represented and neglected sections of the society.
In the case DP Joshi v/s Sate of MP,1955 (Art 15), there was a medical college which was established in Indore and it was under the control of Madhya Pradesh Government. The govt, had made a rule which stated that all the students residing in Madhya Bharat wouldn’t be required to pay any “capitation fees”, but all the non resident students had to pay a nominal fees of Rs. 1300-1500 as capitation fees. This rule was challenged by filing a writ in Supreme Court under Article 32 claiming that it had violated the Fundamental rights guaranteed under Art 14 and Art 15(1). The court had passed a judgement stating that, this rule doesn’t violate article 15(1) since “Place of Birth” and Place of Residence” are two distinct terms.
State of U.P. v. Pradip Tandon 1975 (Art 15): The reservation of seats in Medical Colleges in U. P. for candidates from rural areas is unconstitutional but the reservation for candidates from hill and Uttrakhand areas is valid. The hill and Uttrakhand areas in Uttar Pradesh are instances of socially and educationally backward classes of citizens. The reservation on the basis of place of birth offends Article 15. Therefore the reservation of seats for candidates from rural areas is unconstitutional on this ground also because the incident of birth in rural areas is made the basic qualification.
Evolution of article 15 in State of Madras v. Champakam Dorairajan,1951, (Art 15) Supreme Court held that Madras governments decision to provide caste-based reservation in government jobs and college seats was in violation of Article 16 (2) of the Indian Constitution. This judgment led to the 1st constitutional amendment in 1951, resulting in the introduction of the Art. 15 (4). First landmark judgment that came out was M.R. Balaji and Ors. v. State of Mysore [1963] (Art 15). This judgment came against the order of the state of Mysore, providing as much as 68% reservation. SC in this judgment strike down the order and enunciated the following principles:
(1) Article 15(4) is a proviso or an exception to Clause (1) of Article 15 and to Clause (2) of Article 29.
(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though caste may be a relevant factor to consider, in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test.
(3) The reservation made under Article 15(4) should be reasonable. It should not be such as to defeat or nullify the main Rule of equality contained in Clause (1). While it is not possible to predicate the exact permissible percentage of reservations, it can be stated in a general and broad way that they should be less than 50 per cent.
(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an executive order.
(5) The further categorisation of backward classes into backward and more backward is not warranted by Article 15(4).
T. Devadasan v. Union of India 1964(Art 15): (over ruled in Indra Sawhney case) Reservation of vacancies for Scheduled Castes and Scheduled Tribes- Carry forward rule permitting reservation of more than 50% vacancies held unconstitutional . Also held Clause (4) of Art. 16 is by way of a proviso or an exception to cl. (1). A proviso or an exception cannot be so interpreted as to nullify or destroy the main provision.
State of Kerala v. N.M. Thomas 1976(Art 16) (over ruled in Indra Sawheny on certain points): Kerala State and Subordinate Service Rules (1958)- temporary relaxation for SCs and STs for Departmental Tests – held valid. The court held that Art. 16(4) is not an exception to Art. 16(1). The court observed that Art. 16 (1) as a facet of right to equality under Art. 14 permits reasonable classification. For making such classification two criteria were fixed (1) basis of classification must be ‘backwardness’ 2. should have nexus to the adequacy of representation 3. overall administrative efficiency.
Indra Sawhney v. Union of India (Art 16)In 1979 Morarji Desai govt formed Mandal commission to look into the job opportunities for backward classes. On this basis, 27% reservation was allocated to OBC communities. This decision of the government was challenged in SC in the case Indra Sawhney v. Union of India, also known as Mandal Commission Case. in this case, the Nine-Judge Bench of the Supreme Court enumerated the following essential points:
The SC held the government decided to allocate 27% reservation to backward classes valid.
SC also fixed a ceiling on the maximum reservation at 50%.
Reservation to socially and educational Backward people will subject creamy layer criteria.
SC also held that reservations for poor among forwarding castes on the basis of economic conditions is invalid.
It also observed that reservation under Article 16(4) — which allows the state to make provisions for “reservation of appointments or posts in favour of any backward class of citizens”, did not apply to promotions.
In the process of identification of backward class of citizens and under Article 16(4) among Hindus, caste is a primary criterion or a dominant factor though it is not the sole criterion.
Any provision under Article 16(4) is not necessarily to be made by the Parliament or Legislature. Such a provision could also be made by an Executive order.
The power conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power for the benefit of all those, namely, backward class for whom it is intended.
In order to nullify the effects of Indra Sawney judgment, Parliament enacted Constitution (77th Amendment) Act, 1995.
Amendment inserted clause (4A) after clause 4 of Article 16 of the Constitution of India. Clause (4A) provides for giving the benefit of promotion in service to the Scheduled Castes and the Scheduled Tribes.
Constitutional 81st amendment act inserted Article 16(4B) in the constitution.
Article 16(4B) provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year. It ensured that the ceiling on the reservation quota – capped at 50% by Indra Sawhney – for these carried forward unfilled posts, does not apply to subsequent years.
Constitution 82nd amendment act article 335 was amended and Proviso was added
“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.
The constitutional 85th amendment changed the words ”in matters of promotion to any class” to the words ”in matters of promotion, with consequential seniority, to any class”.
Bir Singh Vs. Delhi Jal Board & Ors (2014): (Art 16) Bench by a majority held that the Scheduled Castes or Tribes can avail benefit of reservation in government jobs only in their home states and they cannot access quotas in other states where they might have migrated. It was also held by a five-Judge Bench that a person from the SC or ST category should not claim benefits in another state or Union Territory. Upholding the “son of the soil” principle, the Bench said if a person’s status migrates with him it will amount to depriving the rights of SCs or STs of the host state. The court noted that a particular community is notified as SC or ST in relation to a state and that concept would become “nugatory” (of no value) if migrants from other states are in its ambit. It also held that the beneficiary lists cannot be changed by states and alterations of the presidential orders can only be done by Parliament. “Unhesitatingly, therefore, it can be said that a person belonging to a scheduled caste in one state cannot be deemed to be a scheduled caste person in relation to any other state to which he migrates for the purpose of employment or education” the court said. The Bench said the expression ‘in relation to that state or Union Territory’ and ‘for the purpose of this Constitution’ used in Articles 341 and 342 means benefits of reservation would be within the geographical territories of a state or UT in respect of which lists of SCs and STs have been notified by presidential orders, Court ruled that scheduled caste and tribe citizens moving from one State to another cannot claim reservation benefits, whether or not their caste is notified in the state where they migrate to, since the exercise of notifying scheduled castes or tribes is region (state) specific, i.e ” in relation” to the state of their origin.
T.M.A.Pai Foundation v State Of Karnataka, AIR 2003 SC 355(Art 15,16): and P.A. Inamdaar v State of Maharashtra In this case the court held that the single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slow-moving machinery, is unable to fully develop the genius of the Indian people. The Supreme Court held that the State cannot insist on private educational institutions which receive no aid from the State to implement State’s policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.
The Constitution (Ninety-third Amendment) Act, 2005 & Clause 5 to Article 15:As a consequence of T. M. A. Pai Foundation’s case, special provision relating to admission to educational institutions has been made by 93rd Amendment. This amendment has added clause 5 to Article 15. This clause enables the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes, in so far as, such special provisions relate to their admission to educational institutions, including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.
Ashoka Kumar Thakur v. Union Of India,(2008) 6 SCC 1: (Art 15,16)The fundamental question that arises in this case is whether Article 15(5), inserted by the 93rd Amendment, is consistent with the other provisions of the Constitution or whether its impact runs contrary to the Constitutional aim of achieving a casteless and classless society.
The Supreme Court upholds the validity of the Central Educational Institutions (Reservation in Admission) Act, 2006 providing 27 per cent quota to OBCs in the educational institutions but excludes the “Creamy Layer”. It was held that the Constitution (Ninety-Third Amendment) Act, 2005 does not violate the “basic structure” of the Constitution so far as it relates to the state maintained institutions and aided educational institutions.
This Court further held that clause (4) of Article 15 is neither an exception nor a proviso to clause (1) of Article 15. Clause (4) has been considered to be an instance of classification inherent in clause (1) and an emphatic restatement of the principle implicit in clause (1) of Article 15.
M.Nagaraj & Others vs Union Of India, 2006(Art 16): In this case, the Supreme Court upheld the constitutional validity of the 77th, 81st, 82nd, and 85th Amendments, however, certain riders were also laid down.
Some key observations that were made by Five-Judge Bench of the Supreme Court in context of “extent of reservation” are as under:
That the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
That with respect to the “extent of reservation” the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335.
That even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
Subject to above, the Bench upheld the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.
IR Coelho v State of Tamil Nadu, 2007(Art 16): All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.
The 103rd constitutional amendment act
It provides for the reservation to economically weaker sections from the upper castes over and above the existing reservation subject to a maximum limit of 10%.
It provides for reservation of jobs in central government jobs as well as government educational institutions.
It is also applicable on admissions to private higher educational institutions.
Article 15 (6) is added to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.
Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts.
In the case of Jarnail Singh vs Lachhmi Narain Gupta (2018) (Art 16) allowed Union government to go ahead with reservation in promotion for employees belonging to the SC and ST category in “accordance with law”. The bench approved Nagaraj’s insistence on
proof for the inadequate representation of classes for whom promotional posts are reserved, and
Submission of additional proof that efficiency would not be impacted by such reservation
In this case, the bench also held( as held in M. Nagaraj vs Union of India) that creamy layer principle is an essential aspect of the equality code, and therefore, exclusion of creamy layer while applying the principle of the reservation is justified, even in the case of SCs and STs.
((B K Pavitra v. Union of India 2019 SC decision – SC upholds Karnataka law giving reservation in promotions.)) (Art 16)
Reservation, particularly in promotions, has always been controversial. Article 16, which provides for “Equality of opportunity in matters of public employment” originally did not contain any explicit provision regarding promotion. However, Indra Sawhney, which came in the wake of the Mandal Commission in 1992, held reservation in promotion as unconstitutional. To counter this judgment and others like Virpal Singh and Ajit Singh, parliament passed the 77th, 81st and 85th constitutional amendments in 1995, 2000 and 2001 respectively. These Amendments added the current Article 16(4A) and Article 16(4B) that explicitly allowed reservations in promotions for SCs and STs. The constitutional validity of these provisions was challenged in Nagaraj.
The court in Jarnail Singh read the concept of creamy layer as part of the equality principle encapsulated in Article 14, 15 and 16. Borrowing from Indra Sawhney, a case that did not concern itself with SC/ST reservation, the court made the following broad observations. First, that for a class to be truly backward and for them to constitute a class, the ‘misfits’ among them i.e. the advanced individuals among them should be excluded. Second, excluding the creamy layer is necessary to make sure that the backward within the class have access to reservations and the better off within the group do not corner all the benefits of affirmative action. Third, not excluding the creamy layer violates the equality principle in as much as it amounts to treating equals i.e. forward castes and creamy layer of backward classes unequally, and unequals i.e. creamy layer of backward classes and the rest of the backward class as equals. It is worth noting that in applying this principle to SC/STs, neither Jarnail Singh nor Nagaraj engage in any discussion regarding the difference between OBCs and SC/STs or the appropriateness and risks of importing the concept and measurement of creamy layer to SC/STs. These are aspects that a constitutional court ought not to have ignored. The judgment consequently construes equality in ways that delivers inequitable results.
Creamy layer is an economic criterion. The assumption is that economic progress reflects social advancement and therefore, the person is liberated from his/her backwardness at attaining a certain economic standard i.e. when he/she becomes a part of the ‘creamy layer’. While the correctness of applying this standard even to OBCs may be debated, its application to SC/STs is fraught with grave risks….
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