Article 15 and some portion of reservation.

Article 15 of the Constitution is an extension of article 14. It applies the general

principle of equality provided by article 14 to certain specific situations. While
article 14 requires the making of certain classifications, article 15 talks of the
barring of certain classifications. It States-

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 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 places 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.

(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) 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.

(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.

Explanations:

Clause (1)

The Clause (1) of this article bars the State from discriminating citizens on
grounds only of religion, race, sex, caste, and place of birth or any of them. The
right which is guaranteed under this article is available to a citizen as an
individual. It bars the State from giving any unfavorable treatment to its
citizens. The Supreme Court in the case of Nain Sukh Das v. State of
U.P.[1] struck down an act of the U.P. Legislature as unconstitutional. The act
provided for elections on the basis of separate electorates for members of
different religious communities. Similarly, in A. Cracknell v. State of
U.P.[2] the Supreme Court held a law which deprived a proprietress to hold and
enjoy her property to be void and unconstitutional. In Sanghar Umar Ranmal v.
State[3], a law restricting the movement of certain communities by insisting on
their daily reporting to the police was declared to be invalid since it was
discriminatory on the basis of race. Another example where the court struck
down a law on its being violative of article 15 is the case of Jai Lal v. Padam
Singh[4]. In this case, the Madhya Pradesh High Court struck down the
provisions of a local act which favoured one set of debtors on the ground of
caste.

Further, in D.P. Joshi v. State of Madhya Bharat[5], it was held by the Supreme
Court that any law that discriminates on the basis of place of residence does not
violate article 15. Place of residence is different from the place of birth
mentioned in article 15(1). In this case, a state medical college demanded
capitation fee from non- resident students of Madhya Bharat. This rule was
challenged on the grounds of being violative of article 15(1). But the court held
this rule to be valid since the place of birth is different from the place of
residence.

 Clause (2)
Clause (2) provides that no citizen shall, on the grounds only of religion, race,
caste, sex, place of birth or any of them be subjected to any disability, liability,
restriction or condition with regard to-

1. Access to shops, public restaurants, hotels and places of public

entertainment

The word shop here is used in a generic sense. It may include a place where
goods are sold, whether in wholesale or retail or both. It may also include a
laundry, a hairdressing salon or such other places where such services are
rendered to customers. A doctor’s clinic or a lawyer’s office could be well
included within this expression. Hence, there cannot be shops exclusively
reserved for the members of a particular caste.

1. The use of wells, tanks, bathing ghats, roads and places of public resort,
maintained wholly or partly by the state funds and dedicated to the use of
the general public

This bar is applicable in cases where these places are maintained wholly or
partly by the state funds and dedicated to the use of the general public. A private
well or tank will not come within the meaning of this sub-clause.
In Lakshmidhar Misra v. Rangalal[6], the Privy Council held that there could
not be a dedication only to a limited section of the public like the inhabitants of
a village, though such a right could be claimed on the basis of a custom.

 Clause (3)

This clause provides that nothing in the article shall bar the state from making
any special provision for women and children. On reading the 3 clauses i.e.
clause 1, 2 and 3 together, it can be inferred that while the first 2 clauses
prohibit any discrimination on the basis of sex, still, certain special provisions
for women and children are permissible. For instance, it is permissible for the
State to reserve places for women at public entertainment or public conveyance.
In Thota Sesharathamma v. Thota Manikyamma[7], it was held that section 14
of the Hindu Succession Act, 1956 has been enacted in pursuance of article 15
(3). The language of this clause is in absolute terms and does not in any way
appear to restrain the ambit of special provisions which the State may make in
favor of women and children.

 Clause 4

This clause was added by the amendment act of 1951 after the case of State of
Madras v. Champakam Dorairajan[8]. In this case, the Madras Government has
issued an order, wherein the proportion of students in each community that
could be admitted to into the State Medical and Engineering Colleges was fixed.
The Court called this order communal and struck it down as unconstitutional. It
also held that although Article 46 lays down that the State should promote with
special care the educational and economic interests of the weaker sections of the
society the same cannot be contrary to the fundamental rights. Overruling that
interpretation in Indira Sawhney v. Union of India[9] it was held that this clause
enables the State to make special provisions for the advancement of socially and
economically backward classes or STs and SCs.

 Clause 5

This clause was added by the amendment act of 2006 after the case of P.A.
Inamadar V. State of Maharashtra[10] where the Court held that ‘neither the
policy of reservation can be enforced by the State nor any quota or percentage
of admissions can be carved out to be appropriated by the State in a minority or
non-minority unaided educational institution. The amendment counterbalances
the effect of this and other judgments on this point and restores the pre-
amendment position except that now a special provision can be made on by law
and not executive action.

[1] AIR 1953 SC 384

[2] AIR 1952 ALL 746

[3] AIR 1952 Sau 124

[4] AIR 1954 MP 23

[5] AIR 1955 SC 334

[6] (1948-49) 76 IA 271: AIR 1950 PC 56

[7] (1991) 4 SCC 32

[8] AIR 1951 SC 226

[9] 1992 Supp (3) SCC 217: AIR 1993 SC 477

[10] (2005) 6SCC 537

Important Judgments on Reservation in India

State of Madras v. Smt. Champakan Dorairajan [1951] S.C.R. 525

In the case by virtue of certain orders issued prior to coming into force of the
Constitution, popularly known as ‘Communal G.O.’ seats were apportioned in
the Medical and Engineering Colleges in the State of Madras.

Even after the advent of the Constitution, the G.O. was being acted upon which
was challenged by the Respondent as violative of the fundamental rights
guaranteed to her by Articles 15(1) and 29(2) of the Constitution of India.

A Special Bench of Seven Judges heard the matter and came to the unanimous
conclusion that the allocation of seats in the manner aforesaid is violative of
Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent
notwithstanding her higher marks, was based only on the ground of caste.

The Supreme Court in the case pointed out that while in the case of employment
under the State, Article 16(4) provides for reservations in favour of backward
class of citizens, no such provision was made in Article 15.
Pursuant to Supreme Court’s order in the case the Parliament intervened
amended Article 15 by inserting Clause (4), which reads:

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.]

M.R. Balaji and Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439

In this case, in the State of Karnataka, reservations were in force since a few
decades prior to the advent of the Constitution and were being continued even
thereafter. The State of Mysore issued an order under Article 15(4) of the
Constitution declaring all the communities except the Brahmin community as
socially and educationally backward and reserving a total of 75 per cent seats in
Educational Institutions in favour of SEBCs and SCs/STs. Such orders were
being issued every year, with minor variation in the percentage of reservations.
Later a similar order was issued wherein 68 per cent of the seats in all
Engineering and Medical Colleges and Technical Institutions in the State were
reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided
into two categories-backward classes and more backward classes.

Thus, the validity of the impugned order was questioned under Article 32 of the
Constitution.

The Five-Judge Bench of the Supreme Court while striking down the said
order, 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 in relation to Hindus 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. Christians, Jains and Muslims do not
believe in caste system; the test of caste cannot be applied to them. Inasmuch as
identification of all backward classes under the impugned order has been made
solely on the basis of caste, it is bad.

(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).

Indra Sawhney v. Union of India (AIR 1993 SC 477)

This case is also commonly referred to as the Mandal Commission Case– In

this case, the Nine-Judge Bench of the Supreme Court enumerated the following
essential points pertaining to reservation in Government employment under
Article 16(4) of the Constitution:

 That Article 16(4) is exhaustive of the provision that can be made in

favour of backward classes in matters of employment.
 That any reservation in excess of 50% for ‘backward classes’ will not
be violative of Articles 14 and/or 16 of the Constitution. But at the
same time, such reservations made either under Article 16(4)or
under Article 16(1) and (4) cannot be extended to the totality of 100%.
 No Reservation can be made under Article 16(4) for classes other than
backward classes. But under Article 16(1), reservation can be made for
classes, not covered byArticle 16(4).
 The expression, ‘backward class of citizens’ occurring in Article
16(4)is neither defined nor explained in the Constitution. However, the
backward class or classes can certainly be identified in Hindu society
with reference to castes along with other criteria such as traditional
occupation, poverty, place of residence, lack of education etc. and in
 communities where caste is not recognised by the above recognised
and accepted criteria except caste criterion.
 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.
 The provision for reservation of appointments or posts in favour of any
backward class of citizens is a matter of policy of the Government, of
course subject to the constitutional parameters and well settled
principle of judicial review.
 No maximum ceiling of reservation can be fixed under Article 16(4) of
the Constitution for reservation of appointments or posts in favour of
any backward class of citizens “in the Services under the State”. The
decisions fixing the percentage of reservation only up to the maximum
of 50% are unsustainable.

In the case, the Apex Court also recommended the Government to create a
permanent machinery either by way of a Commission or a Committee within a
reasonable time for examining the requests of inclusion or exclusion of any
caste, community or group of persons on the advice of such Commission or
Committee, as the case may be, and also for examining the exclusion of any
pseudo community if smuggled into the list of OBCs.

M. Nagaraj v. Union of India (2006) 8 SCC 212

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 16would 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.

I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors. (AIR 2007 SC
861)

Some of the points concluded by the Nine-Judge Bench of the Supreme Court
in the case are as under:

 A law that abrogates or abridges rights guaranteed by Part III of the

Constitution may violate the basic structure doctrine or it may not. If
former is the consequence of law, whether by amendment of any
Article of Part III or by an insertion in the Ninth Schedule, such law
will have to be invalidated in exercise of judicial review power of the
Court. The validity or invalidity would be tested on the principles laid
down in this judgment.
 The majority judgment in Kesavananda Bharati’s case read with Indira
Gandhi’s case, requires the validity of each new constitutional
amendment to be judged on its own merits. The actual effect and
impact of the law on the rights guaranteed under Part III has to be
taken into account for determining whether or not it destroys basic
structure. The impact test would determine the validity of the
challenge.
 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.
 Justification for conferring protection, not blanket protection, on the
laws included in the Ninth Schedule by Constitutional Amendments
shall be a matter of Constitutional adjudication by examining the
nature and extent of infraction of a Fundamental Right by a statute,
sought to be Constitutionally protected, and on the touchstone of the
basic structure doctrine as reflected in Article 21 read with Article
14and Article 19 by application of the “rights test” and the “essence of
the right” test taking the synoptic view of the Articles in Part III as
held in Indira Gandhi’s case. Applying the above tests to the Ninth
Schedule laws, if the infraction affects the basic structure then such a
law(s) will not get the protection of the Ninth Schedule.
 If the validity of any Ninth Schedule law has already been upheld by
this Court, it would not be open to challenge such law again on the
principles declared by this judgment. However, if a law held to be
violative of any rights in Part III is subsequently incorporated in the
Ninth Schedule after 24th April, 1973, such a violation/infraction shall
be open to challenge on the ground that it destroys or damages the
basic structure as indicated in Article 21 read with Article
14and Article 19 and the principles underlying thereunder.
  Action taken and transactions finalized as a result of the impugned
Acts shall not be open to challenge. We answer the reference in the
above terms and direct that the petitions/appeals be now placed for
hearing before a Three Judge Bench for decision in accordance with
the principles laid down herein.

A quick revisit of aforesaid verdicts

Indra Sawhney case (1992)– In this case, the Court ruled that reservation in
jobs under Article 16(4) of the Constitution of India is confined to initial
appointments only and does not extend to promotions. Creamy layer can be and
must be eliminated from the Backward Classes.

E.V. Chinnaiah case (2004)– It was held that the castes etc. specified as
Scheduled Castes under Article 341 of the Constitution is a homogeneous group
for the purpose of the Constitution. The benefits of reservation are available to
members of all such castes which have been specified as Scheduled Caste in
relation to a State/Union Territory.

M. Nagaraj case (2005)- In this case, Article 16(4A) was challenged before the
Supreme Court. A new clause (4A) was inserted in article 16 to enable the
Government to provide reservation in promotion in favour of the Scheduled
Castes and the Scheduled Tribes. The Supreme Court in the case stated
that Article 16 (4A), which was inserted through these amendments, was only
an enabling provision. In essence, every time a government or the legislature
sought to provide reservation in promotions under Article 16 (4A), it would
have to pass constitutional muster. While justifying each attempt to provide
reservation in promotions, the state would have to demonstrate backwardness,
inadequacy of representation and maintenance of efficiency.