Introduction
Part III of the Constitution of India describes the Fundamental Rights offered to the country’s citizens. Fundamental Rights are essential human rights that are offered to every citizen irrespective of caste, creed, race, religion, place of birth or gender. The Constitution of India guarantees six Fundamental Rights to the citizens. Right to Equality is the foremost right guaranteed to the citizens of India. The goal before the framers of the constitution was to provide equality in all respects to the citizens. To that end, they kept the "Right to Equality" as the first among all fundamental rights. Article 15 of the Constitution of India gives a concrete shape to the abstract concept of equality. In the background of Indian social structure, where people were discriminated on the basis of religion, caste, and sex quite openly, this article prohibits such discrimination altogether. It ends such discrimination by state. Article 14 embodies the general principle of equality before the law. A specific application of the same principle is provided in Article 15. Article 15 concretises and enlarges the scope of Article 14. It prohibits certain classifications even though they may be justified under Article 14 and expressly asks for making certain classifications which may impliedly be within the reach of Article 14. Article 15 prohibits discrimination against citizens on the ground ONLY of religion, race, caste, sex, place of birth or any of them. It may be noted that Article 15 secures the right against discrimination, only to citizens and for that non-citizens cannot invoke the provisions of this Article.1 The first clause of Article 15 directs the State not to discriminate against a citizen on grounds only of religion, race, caste, sex or place of birth or any of them. The second clause prohibits citizens as well as the States from making mak ing such discrimination with regard to access to shops, hotels, etc. and all places of public entertainment, of public resort, wells, tanks, roads, etc. The third clause empowers the State to make special provisions for the protection of women and
1
General Manager v. Rangachari, AIR 1962 SC 36.
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children. The fourth clause which was added by the Constitution (1st Amendment) Act 1951, enables the State to make special provisions for the protection of the interests of the Backward Classes of citizens and is, therefore, an exception to Articles 15 and 29 (2) of the Constitution. And Clause 5 talks of special provision for the advancement of socially and educationally backward classes in regard to their admission to educational institutions.
No Discrimination Against Citizens [Art. 15(1)]
Clause (1) prohibits the State from discriminating against citizens on grounds only of religion, race, sex, caste, place of birth or any of them. The right guaranteed in clause (1) is conferred on a citizen as an individual and is available against his being subjected to discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen generally. Commenting on Art. 15(1), the Supreme Court has obsereved:2 “Art. 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it".
Article 15 prohibits the state from discriminating against citizens on the grounds only of religion, race, caste, sex etc. Therefore it is only when the state as defined in Art. 12 3 discriminates that a citizen can complain of a breach of Art.15 and ask for relief under Art.32. 4 The right conferred by Art. 15(1) is only on a "citizen". Therefore, the same is an individual right or a personal right and not a right of a class of citizens.5 Just as the principle of classification applies to Art. 14 so it does to Art. 15(1) as well. The combined effect of Art. 14 and 15 is not that the state cannot pass unequal laws, but if it does pass unequal laws, the inequality must be
2
Valsumma Paul v. Cochin University, AIR 1996 SC 1011. In this Part, unless the context otherwise required, "the State" includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. 4 K.S Ramamurthy Reddiar v. Chief Commr, Pondicherry AIR 1963 SC 1464 5 John Vaiiantathom v. U.O.I. (2003)6 SCC 611.
3
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based on some reasonable ground (Article 140, and that, due to Art. 15(1), religion, race, caste, sex, or place of birth alone is not, and cannot be, a reasonable ground for discrimination. The word 'discrimination' in Art. 15(1) involves an element of unfavourable bias. According to the Oxford Dictionary, "to make an adverse distinction with regard to; to distinguish unfavourably from others". The use of the word 'only' in the Arts. 15(1) and 15(2) connotes that what is discountenanced is discrimination purely and solely on account of any of the grounds mentioned. A discrimination based on any of these grounds and also on other grounds is not hit by Arts. 15(1) and 15(2) though it may be hit by Art. 146. If religion, sex, caste, race or place of birth is merely one of the factors which the Legislature has taken into consideration, then, it would not be discrimination only on the ground of that fact. But, if the Legislature has discriminated only on one of these grounds, and no other factor could possibly have been present, then, undoubtedly, the law would offend against Art. 15(1). Further, to adjudge the validity of an Act under these Articles, a distinction is to be drawn between the object underlying the impugned Act and the mode and manner adopted therein to achieve that object. The object underlying the Act may be good or laudable but its validity has to be judged by the method of its operation and its effect on the fundamental right involved. The crucial question to ask therefore is whether the operation of the impugned Act results in a prohibition only on any of the grounds mentioned in Arts. 15(1) and 15(2). It is the effect of the impugned Act that is to be considered and if its effect is to discriminate on any of the prohibited grounds, it is bad. Art. 15 is a facet of Art. 14. Like Art. 14. Art. 15(1) also covers the entire range of state activities. But, in a way, the scope of Art. 15 is narrower than that of Art. 14 in several respects:
while Art. 14 is general in nature in the sense that it applies both to citizens as well as non-citizens, Art. 15(1) covers only the Indian citizens, and does not apply to noncitizens. No non-citizen can claim any right under Art. 15, though he can do so under Art. 14.
while Art. 14 permits any reasonable classification on the basis of any rational criterion, under Art. 15(1), certain grounds mentioned therein can never form the basis of classification.
6
Narasappa v. Shaik Hazrat, AIR 1960 Mys. 59.
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In D.P. Joshi v. State of Madhya Bharat 7 it was held that a law which discriminates on the ground of residence does not violate Article 15(1). In that case a rule of the State Medical College requiring a capitation fee form 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 form residence. What Article 15 (1) prohibits is discrimination based on place of birth and not that based on residence. In N. Vasundara v. State of Mysore 8 , the Supreme Court has sustained the constitutional validity of reservation based on the requirement of 'residence within the State for the purpose of admission to medical colleges. Under the City of Bombay Police Act, while a person bom outside Greater Bombay could be externed if he was convicted of any of the offences mentioned therein, no such action could be taken against a person born within Greater Bombay. This was discrimination on the basis of 'place of birth' and so was invalid under Art. 15(1)9. Under the U.P. Court of Wards Act, 1912, while a male proprietor could be declared incapable of managing his property only on one of the five grounds mentioned therein, and that too after giving him an opportunity of showing cause as to why such a declaration should not be made, a female proprietor could be declared incapable to manage her property on any ground and without giving her any show cause The provision is bad as it amounts to discrimination on the ground of sex. A law providing for elections to municipalities on the basis of separate electors for members of different religious communities, or delimitation of panchayat circles for purposes of election to a panchayat on the basis of castes, would offend Art. 15(1). Acting on reports that the inhabitants of certain villages were harbouring dacoits, the Government of Rajasthan sanctioned posting of additional police in those villages. The expenses were to be borne by the villagers but the Harijan and Muslim inhabitants of these villages were exempt from this liability. This was quashed being discriminatory on the ground of 'caste' or
7
AIR 1955 SC 334. AIR 1971 SC 1439. 9 In re Shaik Hussain Shaik Mahomed, AIR 1951 Bom 285. 8
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'religion' as it discriminated against the peace-loving villagers other than Harijans and Muslims.10
No Discrimination As To Use Or Access To Public Places [Art. 15(2)]
Article 15 (2) is a specific application of the general prohibition contained in Article 15 (1). Article 15 (2) 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 places 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. In Art. 15(2) occurs the expression 'a place of public resort'. There is difference of opinion on the exact significance of this phrase. One view holds that a place is a ‘place of public resort' only if the public have access to it as a matter of legal right 11. A broader view, however, regards a place of public resort as one to which members of the public are allowed access and where they habitually resort to12. The latter view appears to be more in accord with the tenor and purpose of the constitutional provision as it would bar discrimination on a wider front. The word 'shop' in this article is used in a generic sense and would include any premises where goods are sold either by retail or wholesale or both and would include a laundry, hair dressing saloon, or such other places where services arc rendered to customers. A doctor's clinic or a lawyer's office may well be included within the expression 'shop'. Hence there cannot be shops or public restaurants or other places of public entertainment like a cinema, theatre, coffee house, circus, fair, exhibition, music hall, race course, etc., exclusively reserved for members of a particular caste, religion, race. etc.
State of Rajasthan v. Pratap Singh , AIR I960 SC 1208 : (1961) 1 SCR 222. A.M. Deane v. Commr, of Police, 64 CWN 348. 12 Liberty Cinema v. Corp. of Calcutta, AIR 1959 Cal. 45 . 10
11
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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 individuals from making any discrimination. The object behind Clause (2) of Article 15 is to guard against the menace of discrimination which can possibly be practised, in a country like India, on a vast scale and in a relentless manner. The purpose is to eradicate the evil of the Hindu Caste System, under which a section of Hindus, the depressed classes, were considered untouchables and were prohibited entry to public places.13
Special Provision For Women And Children [Art. 15(3)]
Article 15(3) is one of the two exceptions to the general rule laid down in clause (1) and (2) of Article 15. It says that nothing in Article 15 shall prevent the State from making any special provision for women and children. Women and children require special treatment on account of their very nature. Article 15(3) empowers the State to make special provisions for them. Art. 15(3) recognizes the fact that the women in India have been socially and economically handicapped for centuries and, as a result thereof, they cannot fully participate in the socioeconomic activities of the nation on a footing of equality. The purpose of Art.15(3) is to eliminate this socio-economic backwardness of women and to empower them in such a manner as to bring about effective equality between men and women. The object of Art.15(3) is to strengthen and improve the status of women. Art. 15(3) thus relieves the state from the bondage of Art. 15(1) and enables it to make special provisions to accord socio-economic equality to women. The language of clause (3) is in absolute terms and does not appear to restrict in any way the nature or ambit of special provisions which the State may make in favor of women or children. The Supreme Court has held that the special provisions referred to in clause (3) need not be restricted to measures which are beneficial in the strict sense. The decision of excise authorities to prefer men over women in granting license for opening liquor shops was struck down as coming within the prohibition of Article 15(1) and not saved by Article 15(3).
13
Dr. Ambedkar, cited in B. Shiva Rao, The Framing of India’s Constitution, A Study, 1968 183.
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A doubt has been raised whether Art. 15(3) saves any provision concerning women, or saves only such a provision as is in their favour. The better view would appear to be that while the state can make laws containing special provisions for women and children, it should not discriminate against them on the basis of their gender only. This appears to be the cumulative effect of Arts. 15(1) and 15(3). Although there can be no discrimination in general on the basis of sex, the Constitution itself provides for special provisions being made for women and children by virtue of An. 15(3). Reading Arts. 15(3) and 15(1) together, it seems to be clear that while the state may discriminate in favour of women against men, it may not discriminate in favour of men against women. However, only such provisions can be made in favour of women under Art. 15(3) as are reasonable and which do not altogether obliterate or render illusory the constitutional guarantee mentioned in Art. 15(2). In Yusuf Abdul Aziz v. State of Bombay 14, the Bombay High Court upheld the validity of Section 497 of Indian Penal Code, I860 which only punishes man for adultery and exempts the women from punishment even though she may be equally guilty as an abettor and said that the impugned Section was justified on the ground that the discrimination was not based on the ground of sex alone, but for other reasons also. The Court explained that women in this country were married at a very young age and that their husbands could have a plurality of wives. The Legislature, therefore, took a lenient and charitable view of the weakness of the women in that particular situation. The Supreme Court, on appeal, ruled down that it was covered by the exception Clause (3) of Article 15. The “special provision” which the state may make under Article 15(3), can be in the form of affirmative action or reservation. In Government of A.P. v. P.B. Vijay Kumar 15, the Court gave a new dimension to Article 15(3) by holding that reservation.tor woman in State employment is also permissible under that provision notwithstanding separate provision in this regard under Article 16. In this case an A.P. Government rule which provided for: i.
preference for women in jobs better suited for them;
14
AIR 1954 SC 226. AIR 1995 SC 1648.
15
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ii.
preference upto 30% for women for which they are equally suited with man;
iii.
direct recruitment to posts reserved exclusively for women was upheld.
The Court held that Article 15(3) was wide enough to cover any special provision for women including reservation in jobs. Article 16 does not come in the way of such reservation. The two articles must be harmoniously construed.
The operation of Art. 15(3) can be illustrated by the following few cases:
Under S. 497, I.P.C., the offence of adultery can be committed only by a male and not by a female who cannot even be punished as an abettor. As this provision makes a special provision for women, it is saved by Art. 15(3).
S. 497, Cr.P.C., 1898, prohibited release of a person accused of a capital offence on
bail except a woman or a child under 16 or a sick man. The provision has been held valid as it metes out a special treatment to women which is consistent with Art. 15(3).
Under Article 42, women workers can be given special maternity relief and a law to this effect will not infringe Article 15(1),
Section 125 16 of the Criminal Procedure Code, 1974 which requires the husband to
maintain his wife and not vice versa, has been held not discriminatory, for it merely provides benefits and protection to women and children in certain circumstances.17
Section 14 of the Hindu Succession Act, 1956, absolutely vesting the inherited
property in women, which was earlier held by them as limited estates, has been held to be protected from attack under Article (15) (3).18
Order 5, Rule 15 of Civil Procedure Code, 1908 , which makes service of summon on
the male members of the family, has been held not discriminatory and it is a special provision covered by Article 15(3).
The Constitution (73rd Amendment) Act, 1992 and the Constitution (74th Amendment) Act, 1992 added Articles 243-D and 243-T to the Constitution, making provisions for reservation of not less than one third of the total seats for women in the constitution of the Panchayats and the Municipalities, respectively.
16
Section 488 of the Old Code V. Revathi v. Union of India, AIR 1998 SC 835; Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618; Dattaraya v. State of Bombay, AIR 1953 Bombay 311. 18 Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312. 17
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The proposed Constitution (84th Amendment) Bill, 1998 contains provisions for the reservation of 33 per cent of seats for women in the composition of the Lok Sabha and the Legislative Assemblies of the States.
Special Provision For Backward Classes[Art.15(4)]
Under clause (4) the State can make special provisions for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Such provisions include reservations or quotas and can be made in the exercise of executive powers without any legislative support.19 Article 15(4) is another exception to clauses (1) and (2) of Article 15, it was added by the Constitution (1st Amendment) Act, 1951, as a result of the decision in State of Madras
v.
Champakam Dorairajan 20. In this case the Madras Government issued an order [popularly
known as the Communal G.O] allotting seats in the State medical colleges community-wise as follows: Non- Brahmin (Hindus) 6; Backward Hindus, 2; Brahmins, 2; Harijans, 2; AngloIndians and Indian Christians, 1; Muslims, 1. This G.O. was declared invalid because it classified students merely on the basis of 'caste' and 'religion' irrespective of their merit. Although the Directive Principles of State Policy embodied in Article46 of the Constitution lays down that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice, the court held that "the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of fundamental rights”. A seven Judge Bench of the Supreme Court struck down the classification as being based on caste, race and religion for the purpose of admission to educational institutions on the ground that Art. 15 did not contain a clause such as Art. 16(4). In another case, a government order requisitioning land for construction of a colony for harijans was held to be discriminatory under Art. 15(1) because the facilities were being given to
19
Indra Sawhney v. Union of India, (1992) SCC 217. AIR 1951 SC 226.
20
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them as a 'community" as such when other members of the public were equally in need of similar facilities.21 To tide over the difficulties created by such decisions in the way of helping backward classes by making discriminatory provisions in their favour, Art. 15(4) was added to the Constitution in 1951. Art. 15(4) says that the state is not prevented from making any special provisions for "the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes". Thus, an order acquiring land for constructing a colony for harijans is now valid under Art. 15(4).
In Gulshan Prakash v. State of Haryana 22, the SC says that the power given by Art. 15(4) is discretionary in nature not mandatory.
The provisions made in clause (4) of 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.23 The class contemplated under the clause must be both socially and educationally backward. Thus under clause 15(4) two things are to be determined — (1) who are socially and educationally backward classes? (2) what is the limit of reservation?
Backward Classes
What are Backward Classes is 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 of the Commission the President may specify who are to be considered as Backward Classes. The decision of the Government is,
21
Jagwant Kaur v. State of Maharashtra, AIR 1952 Bom. 461. AIR 2010 (1) SCC 477. 23 Balaji v. State of Mysire, AIR 1973 SC 649. 22
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however, a justiciable issue. The Court can consider whether the classification made by the Government is arbitrary or is based on any intelligible and tangible principle. In Ram Krishna Singh v. State of Mysore 24 the Mysore High Court held that the determination of backward
classes made in 1959 cm the basis of the Census Report of 1941 cannot be said to be based on any intelligible principle as considerable changes had taken place between 1941 and 1959. So far as the Scheduled Castes and the Scheduled Tribes are concerned they are defined in the definitional Article 366 under clauses (24) and (25) respectively. As a matter of fact each State is experimenting with different tests influenced by social and political considerations as well as judicial decisions. The courts review State decisions and arrangements in this regard to ascertain if proper criteria for determining the backward classes have been adopted. In M.R. Balaji v. State of Mysore 25 it was held that the caste of a group of persons cannot be "the sole or even predominant factor though it may be a relevant test for ascertaining whether a particular class is a backward class or not. Backwardness under Article 15(4) must be social and educational, and that social backwardness is, in the ultimate analysis, the result of poverty. One's occupation and place of habitation could be the other relevant factors in determining social backwardness. The Court invalidated the test of backwardness which was based predominantly, if not solely, on caste. In this case the Court equated the "social and educational backwardness" to that of the "Scheduled Castes and Scheduled Tribes". The Court observed: "It was realised that in the Indian society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special provision ought to be made even for them." In R. Chitralekha v. State of Mysore 26, the Government of Mysore laid down thafclassification of socially and educationally backward classes should be made on the following basis: (i) economic conditions and (ii) occupations. But the order of the government did not take into consideration the caste of the applicant as one of the criteria for backwardness. The Supreme Court held that though the caste of a group of citizens might be a relevant circumstance for ascertaining their social backwardness, it could not be the sole or dominant or
24
AIR 1960 Mys. 338. AIR 1963 SC 649. 26 AIR 1964 SC 1823. 25
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even essential test in that behalf. The court accepted the criteria adopted by the Mysore Government for ascertaining the backwardness of a class. In P. Rajendran v. Stale of Madras 27 the Court upheld the test of backwardness which was predominantly based on caste. It said: "Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is socially and educationally backward class of citizens within the meaning of Article 15(4)." In State of A.P v. P. Sagar28 the Court invalidated an Andhra notification, apparently based on exclusive caste criterion, with (he observation that the expression 'class' in Article 15(4) means a homogeneous section of the people grouped together because of certain likeness or common traits in the determination of which caste cannot be excluded altogether. "But in the determination of a class a test solely based upon the caste or community cannot also be accepted.” In Triloki Nath v. State of J&K 29 the Court struck down a government Order reserving 50 per cent of the vacancies for the Muslims of Kashmir, 40 per cent for the Jammu Hindus and 10 per cent for the Kashmiri Hindus with the observation that 'backward class' was not synonym of backward caste or backward community. In A. Periakanuppan v. State of T.N.30 the Court upheld a caste based test of backwardness with the observation that it was permissible so long as such castes are socially and educationally backward though it warned against vested interests being created in favour of castes and asked for constant revision of the test. In the Stata of U.P. v. Pradeep Tandon31 in admission to medical colleges in UP. in favour of candidates from — (a) rural areas, (b) hill areas and (c) Uttarakhand areas was challenged. The classification was based on geographical or territorial considerations because in governments 27
AIR 1968 SC 1012. AIR 1968 SC 1379. 29 AIR 1969 SC 1. 30 AIR 1971 SC 2303. 31 AIR 1975 SC 563. 28
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view the candidates from these areas constituted socially and educationally backward classes of citizens. The Court held that the accent under Article 15(4) was on classes of citizens and the Constitution did not enable the State to bring socially and educationally backward areas within the protection of Article 15(4). It was emphasised that the backwardness contemplated under Article 15(4) was both social and educational and the socially and educationally backward classes of citizens were groups other than the groups based on castes. The traditional unchanging condition of citizens could contribute to social and educational backwardness. The place of habitation and its environment could be a determining factor in judging the social and educational backwardness. The Court upheld reservations fo persons from hill and Uttarakhand areas. It was found that the absence of means of communication, technical processes and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward. However, reservation of seats for rural areas was invalidated because the division of the people on the ground that the people in the rural areas were poor and those in the urban areas were not was not supported by the facts. Further, the rural population was heterogeneous and not all of them were educationally backward. The question was again considered in Jayasree
v.
Stale of Kerala 32 , where the Supreme
Court was called upon to determine whether the constitutional protection could be extended to a person who belonged to a backward community but the family's income exceeded the prescribed limit of certain amount per annum. The Court held that in ascertaining social backwardness of a class of citizens, it may not be irrelevant to consider the caste of the group of citizens. Castes cannot, however, be made the sole or dominant test as social backwardness is, in the ultimate analysis, the result of poverty to a large extent, though social backwardness which results from poverty is likely to be aggravated by considerations of caste. This shows the relevance of both caste and poverty in determining the backwardness of the citizens but neither caste alone nor poverty alone can be the determining test of social backwardness. It was, therefore, held that the impugned order prescribing the income limit was valid, as the classification was based not on income but on social and educational backwardness. It was recognised that only those among the members of the mentioned castes, whose economic means were below the prescribed limit were socially und educationally backward, and the educational backwardness was reflected to a
32
AIR 1976 SC 2381.
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certain extent by the economic conditions of the group. In State of Kerala v. N.M. Thomas33 , in a different context, Krishna Iyer, J. stated that the better-off among the Harijans, who should be given protection in the matter of employment, should not be permitted to negative the benefits of preferential treatment to Harijans as a class. From these and some other decisions of the highest Court of the land as well as of the High Courts, no clear and uniform policy, guidelines or test of determining backwardness for purposes of Articles 15(4) and 16(4) emerges. Tired with this judicial vacillation, perhaps, the State of Karnataka asked the Supreme Court to give clear guidelines on this vexed question in K.C. Vasanth Kumar
v.
State of Karnataka 34. But ironically five judges of the Supreme Court
expressed five separate opinions on the question. Chandrachud, C.J. said that the backward classes 'should be comparable to the Scheduled Castes and the Scheduled Tribes in the matter of their backwardness' and 'they should satisfy the necessary test such as a State Government may lay down in the context of prevailing economic conditions.' Desai, J. said 'The only criterion which can be realistically devised is the one of economic backwardness.' Chinappa Reddy. J. concluded: 'Class poverty, not individual poverty, is therefore the primary test.... Despite individual exceptions, it may be possible and easy to identify social backwardness with reference to caste, with reference to residence, with reference to occupation or some other dominant feature.' In the opinion of Sen, J. 'The predominant and the only factor for making special provisions under Article 15(4) or for reservation of posts and appointments under Article 16(4) should be poverty, and caste or a sub-caste or a group should be used only for purposes of identification of persons comparable to Scheduled Castes or Scheduled Tribes. Finally Vcnkataramiah. J. seems to be favouring a test in which the lowest among the castes similar to Scheduled Castes and Scheduled Tribes, the means or economic condition and the occupation may all be counted in making a determination of backwardness. From this divergence of opinions we may conclude that except Desai, J. who would consider poverty as the only test of backwardness, all others consider caste also a relevant consideration at least at this stage of the Indian society.
33
AIR 1976 SC 490. 1985 Supp SCC 714.
34
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Once again the question was considered by a nine-Judge Bench of the Supreme Court in Indra Sawhney v. Union of India35 (the Mandal Commission case). In that case the Court was
asked to pronounce on the constitutional validity of two office memoranda of the Central Government. One of them, which was initially brought before the Court, was issued on 13th August, 1990. Implementing partially the Mandal Commission Report, it reserved 27 per cent vacancies in civil posts and services under the Government of India to be filled by direct recruitment from the socially and educationally backward classes (SEBCs). Before the Court could decide the validity of this memorandum the other memorandum was issued on 25th September 1991. It provided for preference to the poorer sections of SEBCs in respect of 27 per cent reservation made by the first memorandum and also made additional reservation of 10 per cent vacancies for 'other economically backward sections of the people' who were not covered by any existing schemes of reservation. The first memorandum stated: “the SEBC would comprise in the first phase the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Government's list.” By a six to three majority (in which the four majority judges gave a common opinion while the two other judges concurred in separate opinions and the three minority judges gave three separate opinions) the Court upheld the first memorandum but invalidated the addition of 10 per cent by the second. Among others, one of the contentions before the Court was that the first memorandum was based on the Mandal Commission Report which took caste as a dominant, rather sole, criterion for determining the SEBCs. The Commission in fact had made a nationwide survey of the entire population and on that basis had evolved 11 indicators divided into social, educational and economic. Every indicator was assigned a weightage which together made 22 points. These
indicators were applied to 'castes/classes'. The castes/classes which scored SO per cent or more points under these indicators were listed as SEBCs. The Commission also took into account some other factors both with respect to Hindus and non-Hindus. Rejecting the contention of the petitioners, the Court held that 'class' or 'classes' in Articles 15(4) and 16(4) respectively are not to be construed in the Marxist sense. The Constitution does not define these classes nor does it lay down any methodology for their determination. The Court could also not devise any method for determination. The central idea and overall objective, the Court said, should be to consider all 35
1992 Supp (3) SCC 217: AIR 1993 SC 477.
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available groups, sections and classes in the society. Since caste represented an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one could, according to the Court, well begin with it and then go to other groups, sections and classes. Caste, however, was not an essential factor for determining the social and educational backwardness. It is also not necessary that SEBCs should be similarly situated as SCs and STs. Within SEBCs classification between the backward and more backward is permissible. To maintain the cohesiveness and character of a class the 'creamy layer' can and must be excluded from SEBCs. It also held that the economic criterion alone cannot be the basis of backwardness although it may be a consideration along with or in addition to social backwardness. The Court also suggested creation of a permanent body at the central and state levels to look into the complaints of over and under-inclusion as well as to revise the lists of SEBCs periodically. Following the Court's directions the Centre and the States have appointed backward class commissions for constant revision of such classes and for the exclusion of creamy layer from amongst them. Unreasonably high standard for determining the creamy layer have been invalidated36 and wherever any government has failed to implement the requirement of appointing a commission and exclusion of creamy layer it has issued necessary directions compelling them to do so.37 With this larger Bench decision, the matter seems to have been settled that caste can be an important or even sole factor in determining the social backwardness and that poverty alone cannot be such a criterion. If the primary intention of the Constitution makers was. as it appears to be, to compensate for the handicaps from which certain sections of the society have suffered under our social arrangements then caste cannot be ignored as an important factor in determining backwardness. It is only when distributive justice or utilitarian principle and not compensatory justice become the basis of protective discrimination that poverty and alienation may become important factors in determining backwardness. Some people argue, and rightly so. that the latter arrangement would not require the support of Articles 15(4) and 16(4), because that can be justified under the concept of equality enshrined in Article 14 itself and therefore these
36
Ashok Kumar Thakur v. State of Bihar. (1995) 5 SCC 403. Indra Sawhney v. Union of India, (2000) I SCC 168.
37
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provisions should be utilized only for ameliorating caste disabilities.38 Since birth in a particular caste or 'community is a determining factor for the availability of special provision under Article 15(4) or 16(4), a person who had the advantageous start in the life being born in forward caste but is transplanted in backward class by adoption or marriage or conversion at a later stage does not become eligible to the benefit of reservation under any of the above provisions.39
Quantum of Reservation
On the question of quantum of reservation also the Mandal Commission case40 seems to be settling the issue. In M.R. Balaji
v.
State of Mysore 41, where the validity of a Mysore
Government Order reserving 68 per cent of the seats in the engineering and medical colleges and other technical institutions in favour of backward classes including the Scheduled Castes and Scheduled Tribes was challenged, the Court held: "A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits.... In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case." Reservation of 68 per cent of seats in that case was found by the Court plainly inconsistent with Article 15(4).” Following Balaji, in Devdasan v. Union of India42, a rule of the Central Government which actually reserved only 17.5 per cent posts in the Central Services for the Scheduled Castes and the Scheduled Tribes but provided for carrying forward of their unfilled quota, in the absence of availability of suitable candidates, to the next two succeeding years was invalidated on the ground that accumulation of 17.5 per cent in three years would come to approximately 54 per
38
See B. Errabbi: "Protective Discrimination: Constitutional Prescriptions and Judicial Perception". 10 & II Delhi I. Rev. 66 ft. (1981-1982). Contra P.K. Tripalhi: Some Insights into Fundamental Rights. 203 ft (1972) who maintains ihai caste should not be a criterion at all. Also P. Singh, n. 96 below and. Promoting Equality through Reservations: A critique of Judicial Policy and Political Practice. P. Singh. 20 Delhi L. Rev.. 23 (1988). 39 Valsamma Paid v. Cochin University. AIR 1996 SC1011. 40 Indra Sawhney v. Union of India, (2000) I SCC 168. 41 AIR 1963 SC 649. 42 AIR 1964 SC 179.
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cent and in the instant case it had come to 64 per cent because out of 45 vacancies, 29 went to the reserved quota. Both, Balalji and Devdasan were decided on the argument that Articles 15(4) and 16(4) were exceptions to the general rule embodied in Articles 15(1) and 16(1) respectively as well as in Article 14. The general rule required that in the interest of the community as whole admissions to the institutions of higher learning or employment with State must be made on merit in order to ensure an efficient society and administration. An exception could not be so construed as to cat away or even substantially dilute the general rule. Upholding the validity of a total of 49.5 per cent reservation (22.5 per cent for SCs and STs and 27 per cent for SEBCs) in the Mandal Commission case 43, the Court has held that barring any extraordinary situations reservation should not exceed 50 per cent. As an example of extraordinary situation Court mentioned of a far-flung remote area whose population needs special treatment for being brought into the mainstream. For such cases the Court suggested extreme caution and making out of a special case. The 50 per cent limit does not include those members of SEBCs who get selected on their own merit. They are entitled to get adjusted against the open category. The 50 per cent limit, however, applies to all reservations, including those which can be made under Article 16(1), i.e., altogether the reservations should not exceed 50 per cent limit But this limit applies only to reservations and not to exemptions, concessions and relaxations. Therefore, 50 per cent limit may not apply to many situations under Articles 15(4) and 16(4). For the applications of 50 per cent rule a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be. So long as this limit is observed, carry forward rule is permissible. The Court overruled Devdasan44 on this point. In arriving at the 50 per cent limit the Court has rejected that Article 16(4) is an exception to 16(1) [or Article 15(4) is an exception to 15(1)] but has relied on the balancing of interests under these two provisions and on the reasonable exercise of power under Article 16(4). Between the Scheduled Castes and the Scheduled Tribes reservations under Articles 15(4) and 16(4) generally go in favour of the other if suitable candidates are not available in either of the class. The Court has held that this must be done as a matter of duty and therefore if for a seat
43
India Sanhney v. Union of India. 1992 Supp (3) SCC 217: AIR 1993 SC 477. Devdasan v. Union of India. AIR 1964 SC179.
44
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reserved for Scheduled Tribe a candidate from that category is not available it must go to a suitable candidate in the Scheduled Caste and not to a candidate from the general category. 45 The Court in the Mandal Commission case 46 has clearly held that Articles 15(4) and 16(4) are not exceptions to clauses (1) and (2) of those articles or to Article 14. They are rather the means of achieving the right to equality enshrined in those articles. However, they are exhaustive of all reservations, concessions, relaxations and exemptions for SEBCs. The Court also held that reservations in education for super-specialties and in certain services requiring special skills such as defense, technical and scientific services, university professors, pilots, etc. are not advisable. Some other aspects of the Mandal Commission case are discussed under Article 16 below. The Mandal Commission case is a long and constructive commentary on Articles 15(4) and 16(4) which resolves many contentious issues though it opens a few new ones also. The Mandal Commission case seemed to have resolved all controversies concerning the application of Articles 15(4) and 16(4). But alas!, it could not so happen. New controversies have been arising ever since relating to the kinds of facilities provided under these provisions, particularly with respect to admissions to higher professional courses. They relate, amon g others, to the quantum of favour particularly of minimum marks for admission, and the level of education at which they can be given such as super-specialities. Disagreeing with and overruling some of the decisions of smaller benches47, a constitutional bench of the Supreme Court in
Preeti Srivastava (Dr) v. State of M.P48 by majority of 4:1 invalidated admission criteria for the Scheduled Castes, Scheduled Tribes and SEBCs which provided lower percentage of marks for admission to post-graduate medical courses for these classes than provided for the general category. The difference was of more than 10 per cent. The Court held that though the difference of 10 per cent marks at the level of admission to M.B.B.S. course could be justified, bigger difference at the level of post-graduate courses could not be upheld. Without laying down finally the difference that could be upheld the court left it to Medical Council of India to determine that difference which should not be of more than 10 per cent marks. The dissenting judge did not agree with the majority that the Medical Council had any role to play in this regard and held that difference of 50 per cent minimum qualifying marks between the two categories was 45
Superintending Engineer, Public Health, Chandigarh v. Kuldeep Singh, AIR 1997 SC 2133. India Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477. 47 Sadhna Devi v. State of U.P., 1997 SCC 90. 48 1999 SCC 120. 46
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permissible. The Court left open the question whether reservation could be made for the classes of persons mentioned in Article 15(4) in the matter of admission to post-graduate courses.49 In Jagdish Saran v. Union of India50, a rule reserving 70 per cent of the seats in the postgraduate medical courses to Delhi University medical graduates and keeping 30 per cent open to all, including the Delhi University graduates, was challenged by a medical graduate from Madras University as violating Articles 14 and 15. Though the rule was not invalidated in view of imperfect, scanty, fragmentary and unsatisfactory materials, Krishna Iyer, J., explained that (i) where the aspiring candidates are not an educationally backward class, institution-wise segregation or reservation has no place in Article15; (ii) equality is not negated or neglected where special provisions are made with the larger goal of the disabled getting over their disablement consistently with the general good and individual spirit; (iii) exceptional circumstances cannot justify making of reservations as a matter of cou rse in every University and in every course; (iv) the quantum of reservation should not be excessive or societally injurious, measured by the overall competency of the end product, viz., degree holders; (v) a host of variables influence the quantification of the reservation and one of the factors is that higher the level of the speciality the lesser the role of reservation; (vi) the burden is on the party who seeks to justify the ex-facie deviation from equality. Speaking generally, Krishna Iyer. J. asserted that unless there is a vital nexus with equal opportunity, broad validation of university-based reservation cannot be built on the vague ground that all universities are practising it. or that medical graduates resorted to hunger strike to press for higher pe rcentage of reservation of seats.
Backward and More Backward Classes
In M.R. Balaji v. State of Mysore 51, the Supreme Court invalidated the Mysore Government Order so far as it distinguished between Backward Classes and more Backward Classes, for the purposes of Article 15(4).But, in Indra Sawhney v. Union of India 52, the Supreme Court has held the classification of Backward Classes into "Backward" and "More Backward" not only permissible but essential. The Court explained that the object of the special 49
Narayan Sharma v. Pankaj Kr. Lekhar, 2000 SCC 44. AIR 1980 SC 820. 51 AIR 1963 SC 649. 52 AIR 1993 SC 477. 50
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provision contained in the Constitution was not to uplift a few individuals and families in the Backward Classes, but to ensure the advancement of the Backward Classes as a whole. In this respect, Balaji decision stands overruled. Later on the Apex Court held the amalgamation of extremely Backward Classes and Backward into one group as tantamount to treating categories unequal’s as equals and hence violative of Article 14.53
Person born in forward caste, acquiring status of SC/ST etc. by marriage or adoption or conversion, does not become eligible for benefit of reservation under Arts. 15(4) and 16(4), as otherwise that would play fraud on the Constitution — Valsamma Paul v.Cochin
University54.
Special Provision Relating To Admission To Educational Institutions [Art. 15(5)]
Clause 5 : Added by Constitution (93rd Amendment) Act, 2006 : Provision for Reservation of Backward and S.C. & S.T. Classes including Private Educational Institutions. — The new Clause 5 provides that nothing in Article 15 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 Caste or the Scheduled Tribes in so far as such special provisions relate to 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 Court, i.e., T.M. Pai Foundation v. State of Karnataka 55, Islamic Academy v. State of Karnataka56 and P.A. Inamdar v. State of Maharashtra 57. In T.M. Pai Foundation and
53
A.P.B.C. Sangh v. J.S.V. Federation, AIR 2006 SC 2814. AIR 1996 SC 1011. 55 AIR 2003 SC 355. 56 AIR 2003 SC 3724. 57 AIR 2005 SC 3226. 54
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P.A. Inamdar cases it has been held that the State cannot make reservation of seats in
admissions in privately run educational institutions. There the admissions can be done on the basis of common admission test conducted by the State or these institutions and on the basis of merit. In Islamic Academy case the Court held that the State can fix quota for admissions to these educational institutions but it cannot fix fee and also admissions 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 fix the quota for admissions to private professional educational institutions". This Amendment enables the State to make provision for reservation for the above categories of classes in admission to private educational institutions. In April 2006, the Indian parliament passed a bill (The Central Educational Institutions (Reservation in Admission) Bill, 2006) to bring out an amendment in the constitution to provide for nearly 27% reservation of seats for students from the ‘Other Backward Classes (OBC) segment in institutes of higher learning in India. This would have reduced the seats for a general, unreserved candidate to about 50% (after taking into account other reserved seats). The 93rd Amendment was challenged in the case of Ashoka Kumar Thakur vs. Union of India58. In this case the Supreme Court upheld the amendment but the law relating to private
unaided institutions was left open. The Supreme Court said that (i) the Constitution (NinetyThird Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case, (ii) "Creamy layer " principle is one of the parameters to identify backward classes. Therefore, principally, the "Creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. Principle of exclusion of Creamy layer applicable to OBC's, (iii) the Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs)to balance reservation with other societal interests and to maintain standards of
58
[2007] RD-SC 609 (17 May 2007)
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excellence. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories, (iv) So far as determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the Creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. There has to be proper identification of Other Backward Classes (OBCs.).
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