Fundamental Rights Article 14 to 18

◈ Article 14. Right to Equality

◈ Article 14 declares that “the State shall not deny to any person equality before the law
or equal protection of the Laws within the territory of India.”
(i) Equality before the Law
(ii) Equal protection of the Law
The phrase “equality before the law” finds a place in almost all written Constitution that
guarantees fundamental rights. This expression is of English origin and the second expression
‘equal protection of laws’ has been taken from the American Constitution. Both these
expressions aim at establishing what is called “equality of status” in the Preamble of the
Constitution. While both the expression may seem to be identical, they do not convey the
same meaning. While ‘equality before the law’ is somewhat negative concept implying the
absence of any special privilege in favour of individuals and the equal subject of all classes to
the ordinary law. “Equal protection of law” is a more positive concept implying equality of
treatment in equal circumstances.

◈ In state of West Bengal v. Anwar Ali Sarkar, AIR 1952, Patanjli Sastri, C.J., has
rightly observed that the second expression is corollary of the first and it is difficult to
imagine a situation in which the violation of equal protection of laws will not be the
violation of the equality before the law. Thus, in substance the two expression mean
one and the same thing.

◈ Equality before Law- The concept of equality does not mean absolute equality
among human beings which is physically not possible to achieve. According to Dr.
Jennings, “Equality before the law means that among equals the law should be equal
and should be equally administered, the like should be treated alike. The right to sue
and be sued, to prosecute and be prosecuted for the same kind of action should be
same for all citizens of full age and understanding without distinction of race,
religion, wealth, social status or political influence.”

◈ Rule of Law- The guarantee of equality before the law is an aspect of what Prof.
Dicey calls the rule of law in England. It means that no man is above the law and that
every person, whatever be his rank or condition, is subject to the jurisdiction of
ordinary courts. He gave three meaning of the Rule of Law :
(1) Absence of arbitrary power and supremacy of the Law – it means the absolute
supremacy of law as opposed to the arbitrary power of the Government.
(2) Equality before the Law – It means subjection of all classes to the ordinary law of the
land administered by ordinary law courts. This means that no one is above the law.
Everyone in England, whether he is an official of the State or a private individual, is
bound to obey the same law.
(3) The Constitution is the result of the ordinary law of the land – It means that the source
of the right of individuals is not the written Constitution but rules as defined and
enforced by the courts.

◈ Equal Protection of the Laws – The guarantee of equal protection of laws is similar to
one embodied in the 14th Amendment to the American Constitution. It means
subjection to equal law, applying to all in the same circumstances. It only means that
all persons similarly circumstanced shall be treated alike both in the privilege
conferred and liabilities imposed by the law. Equal law should be applied to all in the
same situation, and there should be no discrimination between one person and
another. Thus, the rule is that the like should be treated alike and not that unlike
should be treated alike.

◈ The words ‘any person’ in Article 14 of the Constitution denote that the guarantee of
the equal protection of laws is available to any person which includes both citizens
and non-citizens and to natural persons as well as legal persons.

◈ Exceptions to the Rule of Law

◈ The President of India and the Governor of States enjoy immunities under Article 361

◈ No person shall be liable to any civil or criminal proceedings in any court in respect
of the publication in a newspaper (or by radio or television) of a substantially true
report of any proceedings of either House of Parliament or either House of the
Legislature of a State (Article 361-A).

◈ No member of Parliament shall be liable to any proceedings in any court in respect of

anything said or any vote given by him in Parliament or any committee thereof
(Article 105).

◈ No member of the Legislature of a state shall be liable to any proceedings in any court
in respect of anything said or any vote given by him in the Legislature or any
committee thereof (Article 194).

◈ Article 31-C is an exception to Article 14. It provides that the laws made by the state
for implementing the Directive Principles contained in clause (b) or clause (c) of
Article 39 cannot be challenged on the ground that they are violative of Article 14.
The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.

◈ The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from
criminal and civil proceedings.

◈ Article 359 (1) provides that where a proclamation of emergency is in operation the
president may, by order declare that right to move any court for the enforcement of
such right conferred by part III (except Article 20 and 21) shall remain suspended.
Thus, the enforcement of Article 14 may be suspended during the proclamation of
emergency.

◈ Article 14 permits classification but prohibits class legislation – The equal

protection of laws guaranteed by Article 14 does not mean that all laws must be
 general in character. It does not mean that the same law should apply to all persons. It
does not mean that every law must have universal application for all as all persons are
not by nature, attainment, or circumstances in the same position. The varying needs of
different classes of persons often require separate treatment. In fact, identical
treatment in unequal circumstances would amount to inequality. So, a reasonable
classification is not only permitted but is necessary if society is to progress.

◈ Thus, what Article 14 forbids is class-legislation but it does not forbids reasonable
classification. The classification, however, must not be “arbitrary but be based on
some real and substantial distinction bearing a just and reasonable relation to the
object sought to be achieved by the legislation

◈ Article 14 applies where equals are treated differently without any reasonable basis.
But where equals and unequal's are treated differently Article 14 does not apply.

◈ Class legislation is that which makes an improper discrimination by conferring

particular privileges upon a class of persons arbitrarily selected from a large number
of persons, all of whom stand in a same relation to the privilege granted that between
whom and the persons not favoured no reasonable distinction can be found justifying
the inclusion of one and the exclusion of the other from such privilege.

◈ Test of Reasonable Classification – While Article 14 forbids class legislation, it

does not forbids reasonable classification of persons. But classification must not be
arbitrary. It must be based on reasonable grounds.

◈ Test of Reasonable Classification

◈ Classification to be reasonable must fulfill the following two conditions:-

(1) The classification must be founded on an intelligible differentia (difference capable of
being understand) which distinguishes persons or things that are grouped together
from others left out of the group: and
(2) the differentia must have a rational relation (nexus) to the object sought to be
achieved by the Act.
The differentia which is the basis of the classification and the object of the Act are two
distinct things. What is necessary is that there must be a nexus between the basis of
classification and the object of the Act which makes the Classification. It is only when there
is no reasonable basis for a classification that legislation making such classification may be
declared discriminatory.

◈ Principles for Determining Reasonable Classification as Laid Down in

Ramakrishan Dalmia v. Justice Tendulakar, AIR 1958 :
(1) The basic principle of Right to Equality is that all persons similarly circumstanced
should be treated alike both in privileges conferred and liabilities imposed.
(2) Single individual may be treated as a class by himself on account of some reasons
applicable to him and not applicable to others.
 (3) The Court will always presume in favour of constitutionality of an enactment and the
burden is upon the person who alleges violation of constitutional norms to prove any
such violation.
(4) Where classification is not based on reasonable grounds then this presumption of
constitutionality cannot be carried to the extent of always holding that there must be
some undisclosed reasons for subjecting certain individuals to discriminating
legislation.
(5) Members of Parliament as well as State Legislative Assembly are the representatives
of the people. They understand their need and make laws in order to find solution to
their problems.
(6) The statute itself cannot be condemned as discriminatory if it has clear and definite
legislative policy, an effective method of carrying out that policy and discretion
vested upon a body of administrators for selective application of law to certain classes
or groups of persons.
(7) Discretionary power would not necessarily mean discriminatory powers. It cannot be
assumed that the authority would always act in an arbitrary manner if discretion is
conferred upon it by law.
(8) The Classification may be made on different basis, e.g., geographical or according to
object or occupations or the like.

◈ Exercise:1

◈ In State of Bihar v. Bihar 10+2 Lecturers Association, AIR 2007 SC 1948

In this case Bihar Government by an order fixed different pay scale for trained lecturers than
untrained lecturers i.e., trained lecturers in the State would get more salary than the untrained
lecturers. This order was challenged as violative of Article 14 as their was no difference in
the working of trained and untrained lecturers.
Supreme Court held that there is clear distinction between a trained teacher (lecturer) and
untrained teacher (lecturer). Such a distinction is valid, rational and reasonable. Trained
Lecturers, therefore, can neither be said to similarly circumstanced nor they form one and the
same class. The Classification is reasonable and is based on intelligible differentia which
distinguish on class (trained) and the other class (untrained) which if left out. Such
classification or differentia has a rational nexus or reasonable relation to the object intended
to be achieved viz., imparting education to students. It cannot, therefore, be said that different
pay scale cannot be fixed for trained Lecturers on the one hand, and untrained Lecturers on
the other hand and not violative of Article 14.

◈ New Concept of Equality- Protection against arbitrariness

◈ In E.P. Royappa v. State of Tamil Nadu, AIR 1974, the Supreme Court has drifted
from the traditional concept of equality which was based on reasonable classification
and has laid down a new concept of equality. Bhagwati, J., observed that “Equality is
a dynamic concept with many aspects and dimensions and it cannot be cabined or
confined within traditional and doctrinaire limits. From a positivistic point of view,
 equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn
enemies; one belong to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political and constitution law and is therefore violative of
Article 14.”

◈ In Maneka Gandhi v. Union of India, AIR 1978, Bhagwati, J., again quoted with
approval the new concept of equality propounded by him in the E.P. Royappa case.
He said, “Equality is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at
arbitrariness in State action and ensures fairness and equality of treatment….”

◈ In R.D. Shetty v. International Airport Authority of India, AIR 1979, Bhagwati, J.,
reiterated the same principle in the following words:- “It must….therefore, now be
taken to be well-settled that Article 14 strikes at arbitrariness because an action that is
arbitrary, must necessarily involve negation of equality. The doctrine of classification
which is evolved by the court is not paraphrase of Article 14 nor is it the objective and
end of Article 14. It is merely a judicial formula for determining whether the
legislative or executive action in question is arbitrary and therefore constituting denial
of equality. If the classification is not reasonable and does not satisfy the two
conditions referred to above, the impugned legislation or executive action would
plainly be arbitrary and violative of Article 14.

◈ Thus, according to this doctrine the content and reach of Article 14 cannot be
determined on the basis of the doctrine of classification. Prior to this decision, the
view was that Article 14 prohibits discrimination and not classification provided the
classification fulfilled the two tests: (1) that it is based on intelligible differentia, and
(2) the differentia has a rational nexus with the object which the law seeks to achieve.
This was merely a negative aspect of Article 14. According to the new doctrine, the
doctrine of classification is merely a judicial formula for determining whether the
legislative or the executive action is arbitrary and, therefore, constitutes denial of
equality. The conclusion is that if the action of State is arbitrary it cannot be justified
even on the basis of doctrine of classification. Where an act is arbitrary, it is against
the principle of equality and therefore violative of Article 14.

◈ Exercise:

◈ In D. S. Nakara v. Union of India, AIR 1983, Rule 34 of the Central Services

(Pension) Rules, 1972 was challenged on the ground that classification made by it
between pensioners retiring before a particular and retiring after that was not based on
any rational principle and was arbitrary and violative of Article 14 of the Constitution.
By this rule pensioners retiring before a particular date were entitled to old rate of
pension and pensioners retiring after that date entitled to liberalized (higher rate) rate
of pension.

◈ Applying the test of reasonable classification Court held that the pensioners formed a
class and the classification between them on the basis of a particular date, viz., those
retiring before entitled to old rate of pension and those retiring after that date entitled
 to liberalized rate of pension, was not based on any rational principal nor related to
the object that was to help the retired government servants.

◈ Ajay Hasia v. Khalid Mujib, AIR 1981, The Regional engineering College made
admission of candidates on the basis of oral interview test after a written test. The test
of oral interview was challenged on the ground that it was arbitrary and unreasonable
because high percentage of marks were allocated for oral test, and candidates were
interviewed only for 2 or 3 minutes.

◈ The Court by applying the new concept of equality struck down the rule prescribing
high percentage of marks for oral test, i.e., allocation of one-third of total marks for
oral interview as it was plainly arbitrary and unreasonable and violative of Article 14
of the Constitution. The Court said that oral interview test cannot be regarded a very
satisfactory test for assessing and evaluating the capacity and caliber of candidate as it
is subjective and based on first impression and its results is influenced by many
uncertain factors and it is capable of abuse. It cannot be the exclusive test. It should be
resorted to only as an additional or supplementary test.

◈ However in D.V. Bakshi v. Union of India, AIR 1993, The Supreme Court held that
the test evolved in the case of Ajay Hasia v. Khalid Mujib, cannot be applied in every
case and particularly in selection of professionals. The test which may be valid for
competitive examinations or admission to educational institutions may not hold good
where it concerns selection for appointments in public services.

◈ In K.A. Abbas v. Union of India, AIR 1971, the validity of Cinematograph Act, 1952
was challenged on the ground that it makes unreasonable classification. Under the
Act, cinema films were classified into two categories, viz., “U” films and “A” films
according to their suitability for adults or young people. “U” films were meant for
unrestricted exhibition while “A” films could only be exhibited to adults. It was
argued that motion picture as a form of expression was, entitled to equal treatment
with other forms of expression.

◈ The Court held – the treatment of motion picture must be different from that of other
forms of art and expression due to, its versatility, realism and its co-ordination of the
visual and real senses. The motion pictures is able to stir up emotions more deeply
that any other product of art. Its effect particularly on children and adolescent is very
great and they also remember the action in the picture and try to imitate what they
have seen. Therefore, the classification of films into two categories of ‘U” films and
“A” films is a reasonable classification.

◈ Exercise:

◈ Air India v. Nargesh Meerza, AIR 1981, In this case Regulation 46 and 47 of Air
India and Indian Airlines Regulations was challenged on the ground that the
conditions laid down therein were entirely unreasonable and arbitrary. Regulation 46
provided that an air hostess would retire from the service of the corporation upon
attaining the age of 35 years, or on marriage, if it took place within four years of
service or on first pregnancy, whichever occurred earlier. Under Regulation 47 the
Managing Director had the discretion to extend the age of retirement by one year at a
 time beyond the age of retirement up to the age of 45 years if an air hostess found
medically fit.

◈ The Supreme Court held that the termination of service on pregnancy manifestly and
arbitrary and was, therefore clearly violative of Article 14 of the Constitution. Having
taken in service and after having utilized her services for four years to terminate her
service if she becomes pregnant amounts to compelling the Air hostess not to have
any children and thus interfere with and divert the ordinary course of human nature
and hence arbitrary and liable to be struck down. …..continued…..

◈ The provision under regulation 47 i.e., for extension of service of the Air Hostess “at
the option” of the Managing Director confers a discretionary power at the mercy and
the sweet will of the Managing Director without laying down any guidelines or
principles are arbitrary and unreasonable and liable to be struck down as
unconstitutional.

◈ In Pardeep Jain v. Union of India, AIR 1984, In this case Supreme Court held that the
whole sole reservation (all Seats) of seats in the MBBS and BDS Courses made by the
State Government of Karnataka, Uttar Pradesh and Union Territory of Delhi on the
basis of “domicile” or residence within the State excluding all the students not
satisfying the residence requirement, regardless of merit, was unconstitutional being
violative of Article 14 of the Constitution.

◈ Exercise:

◈ In Deepak Sibal v. Panjab University, AIR 1989, The appellant challenged the
Constitutional validity of the admission rule in the evening classes of the three year
LLB course of Panjab University on the ground that it was violative of Article 14 of
the Constitution. By the rule, admission to evening classes was restricted only to
regular employees of Government/Semi-Government institutions etc. and not
employees in general including private sector employees. The appellants were
employees in the private sector and hence they were denied admission.

◈ It was held that there was no reasonable basis for classification of employees between
government and semi-government employees and private sector employees for the
purpose of admission to LLB course. Both of them stand on the same footing and
there is no difference between the two. It is true that the service condition of
employees of Government/ Semi-Government institution etc., are different and they
may have greater security of service, but that hardly matters for the purpose of
admission in the evening classes.

◈ Exercise:

◈ In Vijay Lakshmi v. Panjab University, AIR, 2003. a Rule in Panjab University

Claender Vol.III Provided for appointment of only a lady Principal in women’s
College. This Rule was challenged on the ground that it violated Article 14 and
Article 15 of the Constitution.
◈ The Supreme Court held that the provision for appointment of lady principal or
teacher exclusively in Girls College is not violative of Article 14 and 15 of the
Constitution because the classification is reasonable and it has nexus with the object
sought to be achieved. There can be classification between male and female for
certain posts. The object sought to be achieved is a precautionary, preventive and
protective measures based on public morals and particularly in view of the young age
of the girl students to be taught.

◈ In Indian Council of Legal Aid & Advice v. Bar Council of India, (1995), The validity
of Rule 9, added by the Bar Council of India in Bar Council Rules which barred the
entry of persons who have completed the age of 45 years on the date of application for
enrolment as an advocate was challenged as discriminatory and unreasonable and
violative of Article 14 of the Constitution. On behalf of the Bar Council of India, it
was argued that the rules were intended to maintain the dignity and purity of the
profession by keeping out those who retire from various Government and Semi-
Government and other institutions since they on being enrolled as advocates use their
past contacts to canvass for cases and thereby brining the profession into disrepute
and also pollute the minds of young fresh entrants to the profession.

◈ The Supreme Court held that the rule is unreasonable and arbitrary. There is no
material to show that the persons mentioned above indulge in undesirable activity of
the type mentioned after entering the profession.

◈ In Mithu v. State of Punjab, AIR 1983, in this case the validity of Section 303 of
Indian Penal Code was Challenged on the ground that it violate Article 14. Section
303 prescribes that if a person under sentence of life imprisonment in jail commits
murder, he must be awarded sentence of death. But under Section 302, if a person
commits murder he may be awarded either the sentence of death or the sentence of
life imprisonment. The Court struck down Section 303 of Indian Penal Code as
unconstitutional on the ground that the classification between persons who commit
murders while under the sentence of life imprisonment and those who commit
murders while not under the sentence of life imprisonment for the purpose of making
sentence of death mandatory in the case of the former class and optional in the later
class was not based on any rational principle.

◈
Doctrine of Legitimate Expectation

◈ Legitimate expectation is a principles of fairness and reasonableness and it applies to

a situation where a person has an expectation or interest in a public body for retaining
a long-standing practice or keeping a promise. The doctrine of legitimate expectation
pertains to the field of public law. It protects an individual from an arbitrary exercise
of administrative action by the public body although it does not confer a legal right on
the claiming individual.

◈ Supreme Court in India has developed the doctrine of legitimate expectation in order
to check the arbitrary exercise of power by the administrative authorities. As per this
 doctrine the public authority can be made accountable on the ground of an expectation
which is legitimate.

◈ For example, if the Government evolves a scheme for providing electric poles in the
villages of a certain area but later on changed it so as to exclude some villages from
the purview of the scheme then in such a case what is violated is the legitimate
expectations of the people living in the villages excluded from the scheme and the
government can be held responsible if such exclusion is not fair and reasonable or
unless some overriding public interest comes in the way. Thus this doctrine becomes a
part of the principle of natural justice enshrining right to hearing to a person to be
affected by an arbitrary exercise of power by the public and no one can deprive a
person of his legitimate expectations without following the principles of natural
justice. The principle of legitimate expectation is concerned with the relationship
between administrative authority and the individual.

◈ The basic Principle relating to legitimate expectation was enunciated by Lord

Diplock in Council of Civil Services Unions v. Ministers for the Civil services,
where his lordship observed that the case for legitimate expectation is to arise where
the decision of the administrative authority affects the person by depriving him of
some benefit or advantage which either (i) he had in the past been permitted by the
decision maker to enjoy and which he can legitimately expect to be permitted to
continue until some rational grounds for withdrawing it are communicated to such an
individual or party and the affected person/party has been given an opportunity of
hearing, or (ii) the affected person has received assurance from the concerned
administrative authority that it will not be withdrawn without giving him first an
opportunity of advancing reason for contending that they should not be withdrawn by
the administrative authority.

◈ The principle means that expectations which are raised as a result of administrative
conduct of a public body may have legal consequences. Either the administration
must respect those expectations or provide reasons as to why the public interest must
take priority over legitimate expectation. Therefore, the principle concerns the degree
to which an individual’s expectations may be safeguarded in the light of a changed
policy which tends to undermine them. The role of the court is to determine the extent
to which the individual’s expectation can be protected with the changing objective of
the policy.

◈ In Navjyoti Co-op. Group Housing Society v. Union of India, AIR 1993, in this case
the seniority as per existing list of co-operative housing societies for allotment was
altered by a subsequent decision. The previous policy was that the seniority amongst
housing societies in regard to allotment of land was to be based on the date of
registration of the society with the Registrar. But on 20-01-1990 the policy was
changed by reckoning seniority as based upon date of approval of the final list of the
Registrar. This altered the existing seniority of societies for allotment of land. The
Court held that the societies were entitled to a “legitimate expectation” that the past
consistent practice in the matter of allotment will be followed even there was no right
in private law for such allotment. The authority was not entitled to defeat the
 legitimate expectation of the societies as per previous seniority list without some
overriding reason of public policy to justify the change in criterion.

◈ Administrative Discretion

◈ Administrative discretion refers to the flexible exercising of judgment and decision

making allowed to public administrators. Regulatory agencies have the power to
exercise this type of discretion in their day-to-day activities, and there have been cases
where regulatory agencies have abused this power.

◈ Many a times the Act or Statutes instead of making the classification itself leaves this
matter to the executive officers. In such case if the Act has laid down any principle or
policy for the guidance of the exercise of discretion by the Government in the manner
of selection or making classification then the statute conferring such power is not void
as offending Article 14. But where there is no policy or principle laid down for the
exercise of the discretion by executives under the Act, the Court will declare the law
invalid.

◈ Applicability-

◈ Under Article 247, parliament by law is empowered to set up Special Courts and to
provide special procedure for the trial of certain ‘offences’ or ‘classes of offences’.
Such a law will not be violative of Article 14, if it lays down proper guidelines for
classifying offences, classes of offences or classes of cases to be tried by Special
Court.

◈ In State of West Bengal v. Anwar Ali, AIR 1952, the validity of the trial of the
respondents, Anwar Ali and 49 others, by the Special Courts established under
Section 5 (1) of the West Bengal Special Courts Act, 1950, was at issue. The Act was
passed “to provide for the speedier trial of certain offences” as stated in the preamble.
It prescribed a special procedure which Courts had to follow in the trial of the cases
referred to it. This act did not provide for the classes of offences and classes of cases
to be tried by Special Courts. The Supreme Court held that Section 5 (1) of the Act
contravened Article 14 and was void since it conferred arbitrary power on the
Government to classify offences or cases at its pleasure and the act did not laid down
any policy or guidelines for the exercise of discretion to classify offences and cases.

◈ But in Kathi Ranning v. Satat of Saurashtra, AIR 1952, the validity of a similar Act
was upheld on the ground that it had laid down proper guidelines for the exercise of
discretion by the executive to refer cases to Special Courts for trial. The object as
mentioned in the ordinance was to provide for “public safety, public order and
preservation of peace and tranquility’ in the State of Saurashtra. It thus referred to
four distinct categories of ‘offences’ or cases which could be directed by the
Government to be tried by the special courts established under the Ordinance.

◈ The Supreme Court held that the Act was not violative of Article 14 of the
Constitution. The Court said the main distinction between the West Bengal case and
the Saurashtra Ordinance was that while in former there was no principle to be found
to control the application of discriminatory provisions the later clearly laid down the
 guiding principle, that is, to provide for public safety, maintenance of public order and
preservation of peace and tranquillity in State. The mere mention of the speedier trial
as the object in the West Bengal Act did not cure the defect.

◈ Administrative Discretion and Wednesbury Principle

◈ In Associated Provincial Picture House v. Wednesbury Corporation, (1947), It has

been ruled that the Court should not interfere with the administrator’s decision unless
it is illogical or suffers from procedural impropriety or is shocking to the conscience
of the court. It is thus held that an administrative action is subject to control by
judicial review on the following three grounds –
(1) If it is illegal
(2) that it is irrational; or
(3) that it suffer from procedural impropriety.

◈ Article 15. No Discrimination on Grounds of Religion, Race, Caste, etc.

◈ Article 15 provides for a particular application of the general principle embodied in

Article 14.

◈ Article 15 (1) provides that State shall not discriminate against a citizen on grounds
only of religion, race, caste, sex or place of birth or any of them.

◈ Clause (2) provides that No citizen shall, on grounds 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
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly
or partly out of State funds or dedicated to the use of the general public

◈ The first clause of Article 15 mentions the prohibited grounds in any matter which is
exclusively within the control of the State. The second clause prohibits both the State
and the private individual, whosoever is in the control of the abovementioned places.

◈ Clause (3) empowers the state to make special provisions for the protection of women
and children.

◈ Clause (4) provides that Nothing in this article or in clause (2) of 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.

◈ Clause (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 the 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 classes mentioned in clauses (4) and (5) 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, 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.

◈ Explanation.—For the purposes 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 disadvantage.

◈ Clause (1). – of Article 15 prohibited State to discriminate between citizens on

grounds only of religion, race, caste, sex, place of birth or any of them. The word
‘discrimination’ means to make an adverse distinction or to distinguish unfavourable
from others. If a law makes discrimination on any of the above grounds it can be
declared invalid.

◈ In Nainsukhdas v. State of U.P., (1953), a law which provided for elections on the
basis of separate electorates for members of different religious communities was held
to be unconstitutional.

◈ In State of Rajasthan v. Partap Singh, (1960), The Supreme Court invalidated a

notification under the Police Act of 1861 which declared certain areas as disturbed
and made the inhabitants of those areas to bear the cost of additional police stationed
there but exempted all Harijans and Muslims. The exemption was given on the basis
only of caste or religion and hence was contrary to Article 15 (1).

◈ The word ‘only’ used in Article 15 (1) indicates that discrimination cannot be made
merely on the ground that one belongs to a particular religion, race, caste, sex or place
of birth. In other words, if other qualifications are equal, caste, religion, sex, race,
place of birth should not be a ground for preference or disability. It follows from this
that discrimination on the grounds other than religion, race, caste, sex or place of birth
is not prohibited.

◈ In D.P. Joshi v. State of M.B., (1955), In this case a rule of the State Medical College
requiring a capitation fee from non-Madhya Bharat Students for admission in the
college was held valid as the ground of exemption was residence and not place of
birth. Place of birth is different from residence.
◈ Clause (2).- is a specific application of the general prohibition contained in Article 15
(1). It declares that no citizen shall be subjected to any disability, restriction or
condition on grounds only of religion, race, caste, place of birth or any of them with
regard to (a) access to shops, public restaurants, hotels and place of public
entertainment, or (b) the use of wells, tanks, baths, roads and place of public resort,
maintained wholly or partly out of State funds or dedicated to the use of the general
public.

◈ A place of public resort means places which are frequented by the public like a public
park, public road, a public bus, ferry, public urinal or railway, a hospital etc.

◈ It is to be noted that while clause (1) of Article 15 prohibits discrimination by the

State, Clause (2) prohibits both the State and Private individual from making any
discrimination.

◈ There are three exceptions to this general rule of non-discrimination

(a) Article 15 (3) – says that nothing in Article 15 shall prevent the State from making
any special provision for the women and children. In other words the state is
permitted to make any special provision for women and children. For example,
reservation of seats for women in local bodies or provision of free education for
children.

◈ Article 15 (4) – This clause was added by the Constitution (1st Amendment) Act,
1951. Under this clause the state is permitted to make any special provision for the
advancement of any socially and educationally backward classes of citizens or for the
scheduled castes and scheduled tribes. For example, reservation of seats or fee
concessions in public educational institutions. This Clause was added due to the
decision in State of Madras v. Champakam Dorairajan, AIR 1951.

◈ State of Madras v. Champakam Dorairajan, AIR 1951.

◈ In that case the Madras Government had reserved seats in State Medical and
Engineering College for different Communities in certain proportions on the basis of
religion, race, caste. The order was challenged as violative of Article 14 and 15. The
State defended the law on the ground that it was enacted with a view to promote the
social justice for all sections of the people as required by Article 46 of the Directive
Principles of the State Policy. The Supreme Court declared the law void because it
classified students on the basis of caste and religion irrespective of merit. The Court
held that Directive Principles of State Policy cannot override the Fundamental Rights.
Directive Principles have to confirm and to run as subsidiary to the Fundamental
Rights. To modify the effect of this decision Article 15 was amended and clause (4)
was added. After the amendment it would be possible for the State to make
reservation in favour of Backward Classes.

◈ The provision made in clause (4) of the Article 15 is only an enabling provision and
does not impose any obligation on the State to take any special action under it. It
merely confers a discretion to act if necessary by way of making special provision for
backward classes. A writ cannot be issued to the State to make reservation.
 ◈ Thus under clause (4) two things are to be determined-
(1) Who are socially and educationally backward classes?
(2) What is the limit of reservation?
What are the Backward Classes are not defined in the Constitution. Article 340, however,
empowers the President to appoint a Commission to investigate conditions of socially and
educationally backward classes. On the basis of the report the President may specify who are
to be considered as Backward Classes.

‘Backward’ and ‘more backward’ classification is bad.-

◈ In Balaji v. State of Mysore, AIR 1963, The Mysore Government issued an order
under Article 15 (4) reserving seats in the Medical and Engineering College in the
State as follows : Backward Classes 28%, more Backward Classes 20%, Scheduled
Castes and Tribes 18%. Thus 68 % of the seats available in the College were reserved
and only 32 % was made available to the merit pool. The validity of the order was
challenged by the candidates who had secured more marks than those admitted under
the order. Though qualified on merit they had failed to get admission only by the
reason of Government order.

◈ The Court held that the sub-classification made by the order between ‘backward
classes’ and ‘more backward classes’ was not justified under Article 15 (4).
Backwardness as envisaged by the Article 15(4) must be both social and educational
and not either social or educational. Though caste may be a relevant factor but it
cannot be the sole test for ascertaining whether a particular class is a backward class
or not. Poverty, occupation, place of habitation may all be relevant factors to be taken
into consideration.

◈ Indra Sawhney v. Union of India, AIR 1973, also known as Mandal Commission case
the Supreme Court while interpreting Article 16(4) by 6:3 majority has held that sub-
classification of backward classes into more backward classes for the purpose of
Article 16(4) can be done. But as a result of sub-classification the reservation cannot
exceed more than 50 per cent. The distinction should be on the basis of the degrees of
social backwardness. In fact, such a classification would be necessary to help the
more backward classes otherwise those of the backward classes who are little more
advanced than the more backward classes might take away all the seats. This
interpretation is equally applicable to Article 15 (4) , as the words ‘Backwards Classes
of Citizen’ in Article 16(4) are wider and includes the SCs and STs and other socially
and educationally backward classes also.

◈ In A. Periakaruppan v. State of Tamil Nadu, AIR 1971, the Supreme Court held that
classification of backward classes on basis of castes is well within the purview of
Article 15(4) provided those caste are shown to be socially and educationally
backward. But the Court advised that the Government should not proceed on the basis
that once a class is considered as backward it should continue as backward class for
 all the times. Such an approach, the Court said, would defeat the very purpose of the
reservation. The Government should always keep under review the question of
reservation of seats and only the classes which are really, socially, and educationally
backward should be allowed to have the benefit of reservation. Reservation of seats
should not be allowed to become vested interest.

◈ K.S. Jayasree v. State of Kerala, AIR 1976, The State of Kerala appointed a
commission to inquire into and to report as to what sections of the people in Kerala
should be treated as socially and educationally backward classes. On the basis of the
report of the Commission, the Government directed that candidates belonging to
families whose annual income was Rs. 10,000/- or above would not be eligible for
seats reserved for backward classes in Medical Colleges. The Supreme Court upheld
the Government’s direction. The Court held that neither the caste by itself nor the
poverty itself is determining factor of social backwardness. Though poverty is not the
sole test of backwardness, but it is relevant factor in the context of social
backwardness. Thus both caste and poverty is relevant in determining the
backwardness of citizens.

◈ Exercise:

◈ In Dr. Neelima v. Dean of P.G. Studies A.P. Agriculture University, Hyderabad, AIR
1993, In this case the appellant was born in a Reddy caste which is a forward class
and married to an Erukala tribe boy one of the Schedule Tribes in the State of Andhra
Pradesh. After marriage she sought admission to M.Sc. course in the Agriculture
University, Hyderabad under reservation quota for Schedule Tribes.

◈ The Court held that a high caste girl marrying a boy belonging to Schedule Tribe is
not entitled to the benefit of reservation available to Schedule Tribe.

◈ In Dr. Preeti Saagar Srivastva v. State of Madhya Pradesh, AIR 1999, in this case
The petitioners have challenged the Uttar Pradesh Post Graduate Medical Education
(Reservation for SC’s and ST’s and Other Backward Classes) Act and a Madhya
Pradesh Government order that had lowered the minimum qualifying marks for
admission to super speciality medical courses in favour of the reserved category
candidates. Supreme Court held that merit alone can be the criterion for selecting
students to the super speciality courses in medical and engineering. “At the level of
admission to super speciality courses, no special provisions are permissible”. The
court said “ the special opportunity which is provided by reservation cannot however,
be made available to those who are substantially below the levels prescribed for the
general candidates.

◈ Article 15(5) – By the Constitution (93rd Amendment) Act, 2005, the Parliament
inserted clause (5) in Article 15 with effect from 20-01-2006. It provides –

◈ “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”.

◈ The above amendment has been enacted to nullify the effect of the three decisions of
the Supreme.

◈ i.e., (1) T.M.A Pai Foundation v. State of Karnataka, AIR 2003, (2) Islamic Academy
v. State of Karnataka, AIR 2003, and (3) P.A. Inamdar v. State of Maharashtra, AIR
2005.

◈ In TMA Pai Foundation case, It has been held that State cannot make reservation of
seats in admissions in privately run educational institutions. There admission can be
done on the basis of common admission test conducted by the State or these
institutions and on the basis and on the basis of merit.

◈ In Islamic Academy case the court held that the State can fix quota for admissions to
these educational intuitions but it cannot fix fee and also admission can be done on
the basis of common admission test and on the basis of merit.

◈ In P.A. Inamdar, however, the Court has overruled the Islamic Academy ruling to the
effect that the “State could not fix the quota for admissions to private professional
educational institutions”.

◈ This Amendment enables the State to make provisions for reservation for the above
categories of classes in admission to private educational institutions. The Amendment,
however, keeps the minority educational institution out of its purview.

◈ In Ashok Kumar Thakur v. Union of India, AIR 2008, a five Judges Bench of the
Supreme Court held that the Constitution (93rd Amendment) Act, 2005 providing 17
percent reservation in admission to OBC candidates in Higher educational institutions
like, IIT’s and IIM’s is constitutional. However, the court left open the question of
reservation to these category of citizens to private educational institutions.

◈ Clause (6) of Article 15 was added by Constitutional (103rd Amendment) Act, 2019. It
provides:

◈ (6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of
article 29 shall prevent the 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 classes mentioned in clauses (4) and (5) 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, 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.
◈

Who will covered under new 10 % quota?

◈ The amendment Bill define Economically Weaker Sections (EWS) as one having;

◈ Annual household income below 8 lakh.

◈ Agricultural land below 5 acres.

◈ Residential house below 1000 sqft.

◈ Residential plot below 100 yards in notified municipality.

◈ Residential plot below 200 yards in non-notified municipality area.

◈ Article 16 - Equality of Opportunity in Public Employment

◈ Article 16 (1) provides that there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.

◈ Clause (2) 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 of, any employment or office under the State.

◈ Clause (1) and (2) of Article 16 lay down the general rule of equality of opportunity
or appointment under the State and that no citizen can be discriminated against or be
ineligible for any employment or office under the State on grounds only of religion,
race, caste, sex, descent, place of birth or residence. Clause (3), (4), (4-A), (4-B), (5)
and (6) of Art. 16 provide four exceptions to this general rule of equality of
opportunity.

◈ Prescription of qualification and selective tests -

◈ Article 16 guarantees equality of Opportunity in matters of appointment in State
services. It does not, however, prevent the State from prescribing the necessary
qualifications and selective tests for recruitment for Government services. The
qualifications prescribed may, besides mental excellence, include physical fitness,
sense if discipline, moral integrity, loyalty to the State and may include technical
knowledge.

◈ The selective test, however, must not be arbitrary. It must be based on reasonable
ground and have nexus between the qualification and the object that is, post or the
nature of the service.

◈ In Pandurangarao v. Andhra Pradesh Public Service Commission, AIR 1963, the

petitioner who was a lawyer in some district of the State, was applicant for the post of
District Munsif under the State Judicial Service. He was qualified in every respect,
except that he was not at that time practising as an advocate in the Andhra Pradesh
High Court.

◈ The Supreme Court held that the rule which required that only a lawyer practising in
the High Court and the notification issued there under was unconstitutional. There
was no reasonable nexus between the qualification and the alleged object of an
applicant possessing a knowledge of the local laws which could be acquired by any
lawyer practising in any court. For appointment to a particular post a minimum
educational qualification can be prescribed.

◈ C.B. Muthamma v. Union Of India, AIR 1979, a Provision in a service rules requiring
a female employee to obtain the permission of the Government in writing before her
marriage is solemnized and denying her the right to be promoted on the ground that
the candidate was married woman was held to be discriminatory against woman and
hence unconstitutional. The petitioner was denied promotion to Grade I of the Indian
Foreign Service only on this ground.

◈ Air India v. Nargesh Meerza, AIR 1981.

◈ Equal Pay for Equal Work

◈ In Randhir Singh v. Union of India, AIR 1982, It has been held that equal pay for
equal work, although not expressly declared to be a fundamental right is clearly a
constitutional goal under Article 14, 16 and 39 (c) of the constitution and can be
enforced by the courts in cases of unequal scales of pay based on irrational
classification.

◈ Article 16 Clause (2) : Descent and Residence – It is to be noted that the two
additional grounds “descent” and “residence” not included in Article 15 have been
added to Article 16 (2). No discrimination can be made on these grounds. This is just
to assure that parochialism and nepotism is eliminated in the matters of appointment
in Government services. Descent is another spot for individual discrimination.

◈ Clause (3) – provides that Parliament may make a law to prescribe a requirement as to
residence within a State or Union Territory for eligibility to be appointed with respect
 to specified classes of appointments or posts. Thus, Art. 16(2) which bans
discrimination of citizens on the ground of 'residence' only in respect of any office or
employment under the state, can be qualified as regards residence, and a 'residential
qualification’ imposed on the right of appointment in the State for specified
appointments. This provision, therefore, introduces some flexibility, and takes
cognizance of the fact that there may be some very good reasons for restricting certain
posts in a State for its residents. Parliament has passed the Public Employment
(Requirement as to Residence) Act, 1957. Thus act makes an exception for
employment in favour of residents of Himachal Pradesh, Manipur, Tripura and
Telangana. This exception is for five years because of the backwardness of these
areas.

◈ Reservation for Bacward Classes

◈ Clause (4)- the state may make 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 public services under the state.

◈ The term ‘State' denotes both the Central and the State Governments and their
instrumentalities.

◈ Explaining the nature of Art. 16(4), the Supreme Court has stated in Mohan Kumar
Singhania v. Union of India, that it is "an enabling provision" conferring a
discretionary power on the state for making any provision or 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 service of the state. Art. 16(4)
neither imposes any constitutional duty nor confers any Fundamental Right on any
one for claiming reservation.

◈ Types of Reservation

◈ Reservation is of two types i.e. vertical reservations and horizontal reservations.

Social reservations in favour of Schedule Caste (SC), Schedule Tribe (ST) and Other
Backward Class (OBC) under Article 16(4) are 'vertical reservations'. Special
reservations in favour of physically handicapped, women etc., under Articles 16(1) or
15(3) are 'horizontal reservations'. For example, if there are 200 vacancies and 15% is
the vertical reservation for SC and 30% is the horizontal reservation for women, the
proper description of the number of posts reserved for SC, should be : "For SC : 30
posts, of which 9 posts are for women". These two concepts have been discussed by
the Supreme Court in Indra Sawhney v Union Of India and Rajesh Kumar Daria v
Rajasthan Public Service Commission.

◈ Types of Reservation

◈ Vertical Reservation

◈ Where a vertical reservation is made in favour of a backward class under Article

16(4), the candidates belonging to such backward class, may compete for non-
reserved posts and if they are appointed to the non-reserved posts on their own merit,
 their numbers will not be counted against the quota reserved for the respective
backward class. The entire reservation quota will be intact and available in addition to
those selected under Open Competition category

◈ Horizontal Reservation

◈ Where a special reservation for women is provided within the social reservation for
Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes
in order of merit and then find out the number of candidates among them who belong
to the special reservation group of 'Scheduled Castes- Women‘. If the number of
women in such list is equal to or more than the number of special reservation quota,
then there is no need for further selection towards the special reservation quota.

◈ For Example:

◈ Out of 200 posts, there is 15% social reservation for SC and ST Category. It means
that out of 200 posts, 30 posts are reserved for SC/ST category. Suppose out of 170
seats in General Category, 40 SC/ST candidates got selected on merit basis in this
category only. Their selection will not affect the seats reserved for SC/ST. Their
selection will not affect the seats which are specifically reserved for SC/ST
candidates.

◈ If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC
candidates shall have to be first listed in accordance with merit, from out of the
successful eligible candidates. If such list of 19 candidates contains four SC women
candidates, then there is no need to disturb the list by including any further SC women
candidate. On the other hand, if the list of 19 SC candidates contains only two woman
candidates, then the next two SC woman candidates in accordance with merit, will
have to be included in the list and corresponding number of candidates from the
bottom of such list shall have to be deleted.

◈ Article 16 (4) applies only if two conditions are satisfied:-

(1) The class of citizens is backward; and
(2) the said class is not adequately represented in the services of the State.
The second test cannot be the sole criterion.
In Balaji v. State of Mysore (1963), the Supreme Court has held that the caste of a person
cannot be the sole test for ascertaining whether a particular class is a backward class or not.
Poverty, occupation, place of habitation may all be relevant factors to be taken into
consideration. Though the caste of a person cannot be the sole test for determining the
backwardness of a class, yet if an entire caste is found to be socially and educationally
backward, it may be included in the list of Backward classes. It does not mean that once a
caste is considered backward class, it should continue to be backward for all the times. The
Government should review the test and if a class reaches the state of progress where
reservation is not necessary, it should delete that class from the list of the backward classes.

◈ Carry forward Rule.

◈ The scope of Article 16(4) was considered by the Supreme Court in Devadason v.
Union of India, AIR 1964, In that case the constitutional validity of the “carry forward
rule”, framed by the Government to regulate appointment of persons of Backward
Classes in Government services was involved. This rule provided that if sufficient
number of candidates belonging the Schedule Caste and Schedule Tribes are not
available for appointment to the reserved quota, the vacancies that remained unfilled
would be treated as unreserved and filled by the fresh available candidates; but a
corresponding number of posts would be reserved in the next year for Scheduled
Castes and scheduled Tribes in addition to their reserved quota of the next year. The
result was to carry forward the unutilized balance, that is, unfilled vacancies in the
second and third years at one time. In actual effect 68 percent of the vacancies were
reserved for SCs and STs.

◈ The Supreme Court by majority of 4 to 1 struck down the carry forward rule as
unconstitutional on the ground that the power vested in Government under Article
16(4) could not be exercised so as to deny reasonable equality of opportunity in
matters of public employments for members of classes other than backward.

◈ In Indra Sawhney v. Union of India, AIR 1993, the Supreme Court overruled
Devadaso v. Union of India, on this point – and held the ‘carry forward rule’ valid so
long as it did not in Particular year exceed 50 percent of vacancies. The 50 percent
limit can only be exceeded in and extraordinary situation prevailing in a State, i.e., far
flung States Nagaland etc.)

◈ In State of Kerala v. N.M. Thomas, AIR 1976, the important question which came up
for consideration of the court was whether it was permissible to give preferential
treatment to SCs and ST’s under clause (1) of Article 16, that is, outside the exception
clause (4) of Article 16. The Kerala Government framed rules for promotion of
employees working in the Registration Department from the lower division clerks to
the higher posts of upper division clerks. The Promotion depended on passing
departmental test within two years. Rule 133-A, however, empowered the State
Government to further exempt for a specified period members of the schedule Caste
and Schedule Tribes from passing the test. Pursuant thereto the Government passed
the impugned order granting exemption for two years more to SC’s and ST’s
candidates to pass the test. This exemption was challenged as discriminatory under
Article 16 (1). A 7 judges bench of the Supreme Court by 5:2 held that Rule 133-A is
valid as the classification was a just and reasonable classification ‘having rational
nexus to the object of providing equal opportunity for all citizens in matters relating to
employment or appointment to the public office’. Court held that reservation for
backward classes may be made even outside the scope of clause (4) of Article 16.

◈ In K.C. Vasant Kumar v. State of Karnataka, AIR 1985, the State of Karnataka had
requested the Supreme Court to give clear guidelines to be followed in the matter of
reservation for SC’s and ST’s. The Supreme Court expressed following opinions:
(1) The reservation in favour of the SCs and STs must continue as at present, that is,
without the application of means test, for a further period of 15 years. Another 15
years will make it 50 from the commencement of the Constitution, a period
 reasonably long for these classes to overcome the baneful effects of social oppression,
isolation and humiliation;
(2) The means test, i.e., the test of economic backwardness ought to be applicable even to
the SCs and STs after 15 years;
(3) so far other backward classes are concerned two tests should be applied:-
(a) that they should be comparable to the SCs and STs in the matter of their
backwardness;

(b) that they should satisfy the means test such as the State Government may lay down, in
the context of prevailing economic conditions;
(4) The policy of reservation in employment, education and legislative institutions should be
reviewed every five years or so. This will afford an opportunity to the State to rectify
distortions arising out of particular facts of the reservation policy.
Indra Sawhney v. Union of India, AIR 1993, (The Mandal Case)
The Scope and extent of Article 16(4) has been examined thoroughly by the Supreme
Court in the historic case of Indira Sawhney v. Union of India Case. The facts of the case
were as follows:

◈ In 1979, the Morarji Desai Government appointed the Second Backward Classes
Commission under the chairmanship of Sh. B P Mandal, a Member of Parliament, in
terms of Article 340 of the Constitution to investigate the conditions of the socially
and educationally backward classes and suggest measures for their advancement.

◈ The commission submitted its report in 1980 and identified as many as 3743 castes as
socially and educationally backward classes. They constitute nearly 52% component
of the population, excluding the scheduled castes (SCs) and the scheduled tribes
(STs). The commission recommended for reservation of 27% in government jobs for
the Other Backward Classes (OBCs) so that the total reservation for all (SCs, STs and
OBCs) amounts to 50%. It was after ten years in 1990 that the V P Singh Government
declared reservation of 27% government jobs for the OBCs. Again in 1991, the
Narasimha Rao Government introduced two changes: (a) preference to the poorer
sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in
granting reservation, and (b) reservation of another 10% of jobs for poorer
(economically backward) sections of higher castes who are not covered by any
existing schemes of reservation.

◈ The 9 judges bench of the Supreme Court by 6 : 3 majority held that the decision of
the Union Government to reserve 27 % Government jobs for backward classes
constitutionally valid provided socially advanced persons- Creamy layer among them
– are eliminated. S.C. gave detailed guideline to be followed in the matter of
reservation such as;
(1) The advanced sections among the OBCs (the creamy layer) should be excluded from the
list of beneficiaries of reservation.
(2) Backward class of Citizen in Article 16(4) can be identified on the basis of caste and not
only on economic basis but caste alone cannot be the basis for consideration.
(3) Article 16(4) is not an exception to Article 16(1). It is an instance of Classification.
Reservation can be made under Article 16(1).
(4) The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not
violate 50% rule.
(5) A backward class of citizen cannot be identified only and exclusively with reference to
economic criteria.
(6) Backward Classes in Article 16(4) are not similar to as socially and educationally
backward in Article 15(4).
(7) Article 16 (4) permits classification of backward classes into backward and more
backward classes
(8) No reservation in promotions; reservation should be confined to initial appointments only.
(9) The total reserved quota should not exceed 50% except in some extraordinary situations.
This rule should be applied every year.

◈ Position after Indra Sawhney Case

◈ The Parliament enacted the Constitution 77th Amendment Act,1995 in order to bypass
the Court’s ruling on the point of no reservation in promotions in government service.
The Constitution 77th Amendment Act, 1995.- This amendment has added a new Clause (4-
A) to Art. 16 of the Constitution which provides that “Nothing in this article shall prevent the
State from making any provision for reservation in matters of promotion to any class or
classes of posts in the services of the State in favour of the Schedule Caste and Schedule
Tribes which in the opinion of the State, are not adequately represented in the services under
the State”.

◈ Thus the reservation in promotion in government jobs will continue in favour of SC’s
and ST’s even after the verdict of Indra Sawney case.

◈ Catch up rule

◈ Catch Up rule : means that if a Senior Candidate of General Category is promoted

after SC/ST candidate, he would regain his seniority in promotion over the juniors
promoted ahead of him under the reserved vacancies.

◈ Consequential seniority : means that seniority attained due to some consequences

will be retained, no matter what.

◈ In Union of India vs. Virpal Singh Chauhan – A five judges bench of SC held that
the candidate recruited under the reservation quota cannot continue to claim seniority
over general category as a matter of right. The court held that Article 16(4) and
 Article 16 (4-A) do not confer any fundamental rights nor do they impose any
constitutional duties but are only in the nature of enabling provision vesting a
discretion in the state to consider providing reservation if the circumstances
mentioned so warranted.

◈ The Court also held that the promoted reserved category candidate cannot count their
seniority in the promoted category from the date of their officiating in the promoted
post vis-a-vis the general category candidate who were senior to them in the lower
category and who were later promoted. On the other hand, a senior General Category
candidate at the lower level, if he reaches the promotional level later but before the
further promotion of the reserved candidate, he will have to treated a senior at the
promotional level to the reserved category candidate as he Catch Up his seniority
from the initial level even if the reserved candidate was earlier promoted to that level.
General category candidate will catch up his seniority from initial level.

◈ For example. 2 persons A and B. Both working at level-1 in a job. A is 3 years senior
to B and is in general Category. B is from reserved category (say, SC). Both are
waiting to get promoted to Level-2.

◈ While A is senior but due to reservation, B gets promoted first. Now B is at level-2
and A at level-1. So B becomes senior to A.

◈ Now, next year, A also gets promoted to level 2.

◈ What will be the relationship of seniority between A and B?

◈ As per consequential seniority, B will remain senior to A even when A had more
experience than B.

◈ In contrast, there is another rule, i.e. catch up rule. According to this, A will become
senior owing to his earlier senior position/or more experience.

◈ Constitution (85th Amendment) Act, 2001- This Amendment has substituted in clause
4A, for the words “ in matters of promotion to any class” the words “in the matters of
promotion with consequential seniority, to any class”. This amendment aims at
extending the benefit of reservation in favour of SC/ST in matters of promotion with
consequential seniority.

◈ Constitution (81st Amendment) Act, 2000- insertion of New clause (4-B) in Art. 16.
– In Idra Sawhney v. Union of India, the Supreme Court has held that 50% limit shall
apply to current as well as to backlog vacancies.

◈ Under Clause (4-B) of Art. 16, the vacancies which could not be filled up in the
previous year shall be treated as a separate class of vacancies and will be filled up in
any succeeding years and shall not be considered together with the vacancies of the
year or years, even if they go beyond the 50% limit.

◈ Clause (5)- provides that 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.

◈ This Clause is the third exception to the general rule laid down in Article 16(1) and
(2) which forbids the discrimination in public employment on the ground of religion.

◈ 103rd Constitution (Amendment Act), 2019 added Clause (6) in Art. 16 which
provides: 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 17.- Abolition of Untouchability

◈ Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The
enforcement of any disability arising out of untouchability shall be an offence
punishable in accordance with law.

◈ In 1976, the Untouchability (Offences ) Act, 1955 has been comprehensively

amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope
and make penal provisions more stringent. The act defines civil right as any right
accruing to a person by reason of the abolition of untouchability by Article 17 of the
Constitution.

◈ The term ‘untouchability’ has not been defined either in the Constitution or in the Act.
However, the Mysore High Court held that the term is not to be understand in its
literal or grammatical sense but to be understood as the ‘practice as it had developed
historically in the country. Understood in this sense, it is a product of the Hindu caste
system according to which particular section amongst the Hindus had been looked
down as untouchables by other sections of that society.

◈ Under the Protection of Civil Rights Act (1955), the offences committed on the
ground of untouchability are punishable either by imprisonment up to six months or
by fine upto 500 or both. A person convicted of the offence of ‘untouchability’ is
disqualified for election to the Parliament or state legislature. The act declares the
following acts as offences:

◈ (a) preventing any person from entering any place of public worship or from
worshipping therein;

◈ (b) justifying untouchability on traditional, religious, philosophical or other grounds;

◈ (c) denying access to any shop, hotel or places of public entertainment;

◈ (d) insulting a person belonging to scheduled caste on the ground of untouchability;

◈ (e) refusing to admit persons in hospitals, educational institutions or hostels

established for public benefit;
 ◈ (f) preaching untouchability directly or indirectly; and

◈ (g) refusing to sell goods or render services to any person.

◈ The Supreme Court held that the right under Article 17 is available against private
individuals and it is the constitutional obligation of the State to take necessary action
to ensure that this right is not violated.

◈ State of Karnataka v Appa Balu Ingale, AIR 1993, The respondent was convicted by
the lower court on the charge of restraining by show of force, the complainants from
taking water from a newly dug up bore well on the ground that they were
untouchable. The High Court, however, acquitted the accused disbelieving the
evidence deposed by the four witnesses who all were Harijans. The Supreme Court in
appeal upheld the conclusions of the lower courts and held that the prosecution
evidence did not suffer from any infirmity and was sufficient to prove the charge
beyond doubt.

◈ Abolition of Titles

◈ Article 18 abolishes titles and makes four provisions in that regard:

(1) It prohibits the state from conferring any title (except a military or academic distinction)
on any body, whether a citizen or a foreigner.
(2) It prohibits a citizen of India from accepting any title from any foreign state.
(3) A foreigner holding any office of profit or trust under the state cannot accept any title
from any foreign state without the consent of the president.
(4) No citizen or foreigner holding any office of profit or trust under the State is to accept any
present, emolument or office from or under any foreign State without the consent of the
president.

◈ Clause (3) and (4) has been added with a view that a person not being a citizen of
India should remain loyal to the State and should not commit the breach of trust
reposed in him.

◈ From the above, it is clear that the hereditary titles of nobility like Maharaja, Raj
Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by
colonial States are banned by Article 18 as these are against the principle of equal
status of all.

◈ Article 18 does not prohibit the State from conferring military or academic
distinctions like Bharat Ratna, Padam Vibhushan, Padam Shri etc. They are conferred
in recognition of good work done by citizens in various fields.

◈ These National Awards were instituted in 1954. The Janata Party government headed
by Morarji Desai discontinued them in 1977. But they were again revived in 1980 by
the Indira Gandhi government.
◈ In Balaji Raghavan v Union of India, (1996), the Supreme Court discussed the issue
that whether the Awards, Bharat Ratna, Padma Vibhushan, Padma Bhushan and
Padma Shri known as "The National Awards" are "Titles" within the meaning of
Article 18(1) of the Constitution of India. It was held that National Awards do not
amount to be titles within the meaning of Article 18 (1). They should however not be
used as suffixes or prefixes. The theory of equality does not mandate that merit should
not be recognized. Article 51A of the Constitution speaks of the fundamental duties of
every citizen of India. In this context, we may refer to the various clauses of Article
51A and specifically clause (j) which insists every citizen "to strive towards
excellence in all spheres of individual and collective activity, so that the nation
constantly rises to higher levels of endeavour and achievement." It is, therefore,
necessary that there should be a system of awards and decorations to recognize
excellence in the performance of these duties