Basic introduction of the article 15:
Article 15 of the Indian Constitution is a central right under Part III that disallows separation on grounds of religion, race, standing, sex, or spot of birth. It guarantees balance by prohibiting any limitation or disavowal of admittance to public spots, administrations, or amazing open doors in view of these variables. Furthermore, Article 15(3) and 15(4) engage the state to make extraordinary arrangements for ladies, youngsters, socially and instructively in reverse classes, and Booked Ranks and Planned Clans, advancing civil rights and governmental policy regarding minorities in society. This article is a foundation for cultivating correspondence in India's different society.
Article 15 of the constitution:-
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.
27 (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.]
28[(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 insofar 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) insofar as such special provisions relate to their admission to educational institutions including private educational institu-tions, whether aided or unaided by the State, other than the minority educational institu-tions 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.]
Article 15 applies the general principle of equality before law embodied in Article 14 to specific situations. It prohibits certain classifications which could be justified under Article 14 and expressly requires making of certain classifications which could impliedly be within the reach of Article 14.
CLAUSE (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. The expression "discriminate against", according to Concise Oxford Dictionary, means "make an unjust distinction in the treatment of different categories of persons". Discrimination in this sense involves an element of prejudice. If preju-dice is disclosed and is based on any of the grounds mentioned in Article 15, the law must be struck down as being violative of the constitutional prohibition. The Supreme Court in Nain Sukh Das v. State of U.P 30 invalidated a State law which provided for elections on the basis of separate electorates for members of different religious com-munities. Likewise, a law which deprived a proprietress to hold and enjoy her property on the ground of her sex was held violative of Article 15. In Saurashtra, a law which restricted the movement of certain communities by insisting on their daily reporting to the police, was invalidated because it was a discrimination based on race. A law which penalised old offenders born beyond Greater Bombay, but exempted those born within Greater Bombay, was held to be discriminatory on the ground of place of birth. The Madhya Pradesh High Court struck down the provisions of a local Act which favoured one set of debtors on the ground of caste;34 and the Supreme Court invalidated a notifi-cation under the Police Act, 1861 which in imposing the compulsory levy on the inhab-itants of a certain locality had exempted all Harijan and Muslim residents. 35 The court also invalidated a law that prohibited employment of women in any part of premises where liquor was served because it discriminated on the basis of sex. 36 Sex also includes transgenders and LGBTQs, therefore, they can also not be discriminated on the ground of their sex or sexual orientation. 37
In D.P. Joshi v. State of Madhya Bharat³ (D.P. Joshi), the Supreme Court held that a law which discriminates on the ground of residence did not infringe Article 15. Place of birth in Article 15(1) was different from residence. In that case, a rule of the State Medical College requiring a capitation fee from the non-Madhya Bharat students for admission to the college was held valid, as the reason for exemption from payment of capitation fee was bona fide residence and not place of birth. 39 Without overrul-ing D.P. Joshi, but rather admitting that residence conditions could be justified under Article 15(1), the Supreme Court in Pradeep Jain v. Union of India, where residence requirement for admission to medical colleges was challenged, held that such condi-tions were inconsistent with the idea of national unity and integration and though in given circumstances they could be justified both under Articles 14 and 15(1), at the time of decision not more than 70 per cent seats could be reserved on the ground of res-idence at the MBBS level. It also held that no reservation on the basis of residence was permissible at the MS and MD levels. However, up to 50 per cent seats at these levels could be permitted on institutional basis, ie. for those who were educated in the same institution or in institutions within the same State. The court has reiterated this position in Saurabh Chaudri v. Union of India", Magan Mehrotra v. Union of India and Nikhil Himthani v. State of Uttarakhand
The Evacuee Property Ordinance, 1949 did not infringe Article 15(1), although most of the persons to whom the provisions of the ordinance could apply were likely to be Muslims. The operation of the ordinance was not restricted to Muslims alone on the ground of religion; if a non-Muslim fell within the definition of "evacuee", the ordi-nance could equally apply to him as well. 44
CLAUSE (2)
Clause (2) is an example of horizontal application of the rights of citizens vis-Ã -vis other citizens insofar as the rights enumerated in it are available not only against the State but also against the co-citizens. It provides that no citizen shall, on 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; or 2) 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 word "shop" in this article is used in a generic sense and would include any premises where goods are sold either in retail or wholesale or both and would include a laundry, hairdressing saloon, or such other places where ser-vices are rendered to customers. A doctor's clinic or a lawyer's office could well be included within the expression "shop". Hence, there cannot be shops or public restau-rants or other places of public entertainment like cinema house, theatre, coffee house, circus, fair, exhibition, music hall, race course, etc. exclusively reserved for members of a particular caste, religion, race, etc. Without reference to this clause, Katju J con-demned the practice in Tamil Nadu tea shops of having different kinds of tumblers for serving tea to Scheduled Castes and others. He directed the police and administration to take action against it. 45
Sub-clause (b) of clause (2) is with regard to the use of wells, 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 prohibition will apply only if these places are either maintained wholly or partly out of State funds or are dedicated to the use of the general public. The expression "maintained wholly or partly out of State funds or dedicated to the use of the general public" qualifies each of the places mentioned in sub-clause (b). Accordingly, a private well or tank does not come within the meaning of this clause. A burial ground shall be a place of public resort if it is maintained wholly or partly by the State, and shall be open for all. Where a place of public resort is not maintained by the State, it must be dedicated by the owner to the use of the general public. Places of pub-lic resort are places which are frequented by the public like public parks, public roads, public transport, ferry, public toilets, hospitals, etc. Even before the commencement of the Constitution in Lakshmidhar Misra v. Rangalal46, the Privy Council had 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 custom.
On grounds "only". - Attention should be drawn to the word "only" in clauses (1) and (2) of Article 15, viz. the State shall not discriminate against any person on grounds only of religion, race, caste, sex, place of birth or any of them. Two interpretations are possible of the word "only". One is that the prohibited ground should not be the only or sole consideration for discriminatory treatment. If sex, religion, etc. is not the only ground for the differentiation, the law will be valid, irrespective of its operation. On this view the courts must consider the scope and object of the impugned law so as to determine the grounds on which such law is based. If the only basis of the law is dis-crimination on one or more grounds specified in Article 15, then the law is bad; but if the true basis of the law is something different, the law is not invalid because one of its effects could be such discrimination.
The other interpretation is that it is the effect or operation of the statute which is the determining factor and not its purpose or motive. Accordingly, the court should hold a law repugnant to the guarantee given by Article 15(1) if, as a result of the law, a person is denied any right or privilege solely because of his religion, caste, race, sex or place of birth.
The Supreme Court affirmed the above interpretation in State of Bombay v. Bombay Education Society", which involved the interpretation of the word "only" occurring in Article 29(2). In that case the validity of the Bombay Government Order direct-ing English medium schools to admit only Anglo-Indians and citizens of Asiatic descent was impugned on the ground that it was repugnant to the right secured under Article 29(2). In justification of the order it was contended that it did not deny admission into such schools to any citizen on the ground only of language, but on the ground that such denial would promote the advancement of the national language. Invalidating the order, the court held that the effect of the order, whatever be the motive, was the denial of admission to all pupils whose mother tongue was not English, i.e. they were discrim-inated on the ground of language only.
In Yusuf Abdul Aziz v. State of Bombay (Yusuf Abdul), the Bombay High Court was asked to invalidate Section 497 IPC on the ground that it punished only man for adultery while left the woman unpunished who could be equally guilty as willing participant in the crime of adultery. The High Court declined to interfere because Section 497 did not discriminate on the ground of sex alone. The exemption in favour of women was based on other reasons also, such as, early marriage and existence of polygamy. On appeal, the Supreme Court sustained the provision not on the ground that the discrimination fell outside the prohibition of clause (1), but on the ground that it was covered by clause (3) of Article 15. The court held: "The provision complained of is a special provision and it is made for women. Therefore, it is saved by clause (3)." This justification has been doubted in the Joseph Shine case49
The court also refused to interfere with the tribal customary law which gave pref-erence to man over woman in case of intestate succession.50 Similarly, in R.C. Poudyal v. Union of India, the court upheld reservation of one seat in the State Legislative Assembly in favour of Sangha on the ground that Sangha was not merely a religious institution but historically a political and social institution. Therefore, such reservation was not based on religion alone and, therefore, did not violate Article 15(1). After refer-ring to the counsel's argument that "personal law is a legitimate basis for discrimina-tion", the court in Danial Latifi v. Union of India held that the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 did not offend Article 15. Judging the validity of Section 118, Succession Act, 1925, which applies only to Christians and not to others, the court held that it did not violate Article 15(1) because Article 15(1) grants a right to an individual citizen and not to a class of citizens. "A statute", it observed, "which restricts a right of a class of citizens in the matter of testamentary disposition who may belong to a particular religion, would therefore, not attract the wrath of clause (1) of Article 15 of the Constitution of India"53. The court's reasoning is unconvincing because every individual is a member of a group in some capacity and his argument in this case would be that it is only because of his religion that he is placed in a particular group which results in disadvantage to him as an individual in comparison to other individuals placed in another group. The existence of different personal laws is justifiable under Article 15(1) because religion is not the "only" basis and such differ-ence does not result in discrimination prohibited by that article. 54
CLAUSE (3)
Clause (3) enables the State to make any special provision for women and children. From the reading of clauses (1), (2) and (3) together follows that while discrimination on the ground of sex is impermissible, special provisions for women and children are permissible. 55 Thus, it is no violation of Article 15 if institutions are set up by the State exclusively for women or places are reserved for women at public entertainments or in public conveyances. In the Yusuf Abdul case, referred to above, the special position assigned to women in regard to the offence of adultery was upheld under this clause. Section 354 IPC is not invalid because it protects the modesty only of women, and Section 125 of CrPC is valid although it obliges the husband to maintain his wife but not vice versa 51 Similarly, Section 14. Hindu Succession Act, 1956 converting the wom-en's limited ownership of property into full ownership has been found in pursuance of Article 15(3).58 A Government Order making women ineligible for the post of a warden in men's jail was upheld as the position of a woman would become awkward and haz ardous while ensuring and maintaining discipline over habitual offenders. 59 This deci-sion does not fit well with the language and intent of Article 15(3).
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 for women or children or both. 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. 60 However, special provision for women means "that no less favourable treatment is to be given to women on gender-based criterion which would favour the opposite sex and women will not be deliberately selected for less favourable treatment because of their sex". A decision of excise authorities to prefer men over women in granting licences for opening liquor shops was struck down as falling within the prohibition of Article 15(1) and not saved by Article 15(3).62
In Govt. of A.P. v. P.B. Vijayakumar 63, the court gave a new dimension to Article 15(3) by holding that reservation for women in State employment was also permissible under that provision notwithstanding separate provision in this regard under Article 16. In this case an Andhra Pradesh Government rule which provided for 1) preference for women in jobs better suited for them; 2) preference up to 30 per cent for women in jobs for which they are equally suited with men; and 3) direct recruitment to posts reserved exclusively for women was upheld. The court held that Article 15(3) was broad enough to cover any special provision for women including reservation in jobs. Article 16 did not come in the way of such reservation. The two articles must be harmoniously con-strued. Both of them aim at egalitarian society and authorise special provisions for the upliftment of its weaker sections. Women are historically and otherwise a weaker sec-tion of our society for whose upliftment Article 15(3) is made, which should be given widest possible interpretation and application subject to the condition that reservation should not exceed 50 per cent limit as laid down in Indra Sawhney v. Union of India (Mandal Commission case). The court also upheld an order of Orissa Government reserving 30 per cent quota for women in the allotment of 24 hours medical stores as part of self-employment scheme.65 Similarly reservation of 50 per cent seats for women teachers in the selection of primary school teachers in U.P. was upheld. An agreement reached between the employees and management of airlines that while all male and female employees may serve up to the age of 58 years, the female will be relieved of fly-ing duties after the age of 50 and will be assigned ground duties, while male employees could continue in flying duties until their retirement at the age of 58, was upheld by the court on the ground that the difference was made on the basis of an agreement to which female were party and that it was a special provision for women favouring them.67 But, as noted above, the court has invalidated a law that prohibited employment of women in any part of premises where liquor was served, because it discriminated against them on the basis of sex as well as a law that prohibited employment of dancing girls in below three-star hotels and restaurants though it allowed such employment in three-star and above hotels and restaurants. Further in Joseph Shine v. Union of India", Section 497 IPC, which did not allow the woman whose husband was living in adultery to take any action either against the adulterous woman or against her husband, has also been invalidated.71
CLAUSE (4)
Clause (4) was added by the Constitution (1st Amendment) Act, 1951, as a result of the Supreme Court decision in State of Madras v. Champakam Dorairajan. In that case the court struck down a Madras Government Order which, with the object of helping the backward classes, had fixed the proportion of students of each community that could be admitted into the State medical and engineering colleges. Although the directive prin-ciple of State policy in Article 46 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", 73 Overruling that interpretation, clause (4) enables the State to make special provisions for the advancement of socially and educationally backward classes (SEBCs) of citizens or for the Scheduled Castes (SCs) and Scheduled Tribes (STs). Such provisions include reservations or quotas that could be made in the exercise of executive powers without
any legislative support.74 Article 15(4) is read as an enabling provision under which the State may make spe-cial provisions, but it is not obliged to do so.
The two most contentious issues in the application of Article 15(4), which is now also the case with Article 15(5), as well as Article 16(4) have been 1) determination of back-ward classes, and 2) the extent or quantum of reservation which we will examine below.
(i) Backward classes
Article 15(4) qualifies "backward class of citizens" by the words "socially and edu-cationally". No such qualifying words are used in Article 16(4), but the problem of determining such classes is similar in both the provisions. So far as the SCs and STs are concerned, they are defined in the definitional Article 366 under clauses (24) and (25) respectively. The Constitution gives no definition of the backward classes. Article 340, however, contemplates appointment of a commission to investigate the conditions of "socially and educationally backward classes" and such other matters as may be referred to the commission by the President. The President has, in fact, exer-cised his power under this provision twice.77 While both these commissions have taken caste as the dominant, if not the sole, factor in determining the backwardness, no uni-versally agreed formula has yet been found. As a matter of fact each State has been experimenting with different tests in view of 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, it was held that the caste of a group of persons could not be the sole or even predominant factor, though it could be a relevant test for ascer-taining whether a particular class was a backward class or not. Backwardness under Article 15(4) must be social and educational, and that social backwardness was, 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 R. Chitralekha v. State of Mysore, the Government of Mysore laid down that classifica-tion of the SEBCs should be made on the basis of 1) economic conditions, and 2) occu-pations. But the order of the government did not take into consideration the caste of the applicant as one of the criterion for backwardness. The Supreme Court held that though the caste of a group of citizens might be a relevant factor for ascertaining their social backwardness, it could not be the sole or dominant or 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. State of Madras, 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 citi-zens 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 a socially and educationally backward class of citizens within the meaning of Article 15(4).
In State of A.P. v. P. Sagar, the court invalidated an Andhra Pradesh notification, apparently based on exclusive caste criterion, with the 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 Tiku v. State of J&K³³, 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 a synonym of backward caste or backward community. In A. Peeriakaruppan v. State of T.N.84, the court upheld a caste-based test of backward-ness with the observation that it was permissible so long as such castes were socially and educationally backward, though it warned against vested interests being created in favour of castes and asked for constant revision of the test. Similarly in State of A.P. v. U.S.V. Balrams, the court held:
a caste is also a class of citizens and that a caste as such may be socially and education-ally backward. If after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward... reservation made for such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average.
In State of U.P. v. Pradip Tandon, admission to medical colleges in U.P. in favour of candidates from 1) rural areas, 2) hill areas, and 3) Uttarakhand areas was challenged. The classification was based on geographical or territorial considerations because in the government's view the candidates from these areas constituted SEBCs 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 contem-plated under Article 15(4) was both social and educational, and the SEBCs of citizens were groups other than the groups based on castes. The traditional unchanging con-dition 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 for 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. In D.N. Chanchala v. State of Mysores, the court also invalidated universi-ty-wise allocation of seats.
The question was again considered in Kumari K.S. Jayasree v. State of Kerala where the Supreme Court was called upon to determine whether the constitutional pro-tection 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 could 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 backward-ness. It was recognised that only those among the members of the mentioned castes, whose economic means were below the prescribed limit were socially and educationally backward, and the educational backwardness was reflected to a certain extent by the economic conditions of the group. In State of Kerala v. N.M. Thomas, in a different context, Krishna lyer 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 back-wardness for purposes of Articles 15(4) and 16(4) emerges. Tired of this judicial vacilla-tion, 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. But ironically five Judges of the Supreme Court expressed five separate opinions on the question. Chandrachud CJ said that the backward classes "should be comparable to the SCs and STs 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 con-ditions". Desai J said, "The only criterion which can be realistically devised is the one of economic backwardness. Chinnappa 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, residence, occupation or some other dominant feature." In the opinion of Sen J, "The predomi-nant and the only factor for making special provisions under Article 15(4) or for reser-vation 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 com-parable to Scheduled Castes or Scheduled Tribes.94 Finally, Venkataramiah J seems to be favouring a test in which the lowest among the castes similar to the SCs and STs, 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 considered caste also a relevant consideration at least at that stage of the Indian society.
Once again the question was considered by a nine-Judge Bench of the Supreme Court in Indra Sawhney v. Union of India" (Mandal Commission case). It may be remembered that this was a case on Article 16(4) and not on Article 15(4). The court has, however, decided that the backwardness is the same under Articles 15(4) and 16(4).9% 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 13 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 SEBCs. Before the court could decide the validity of this memorandum, the other memorandum was issued on 25 September 1991. It provided for preference to the poorer sections of the SEBCs in respect of 27 per cent reservation made by the first memorandum and also made additional reserva-tion 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 6:3 majority (in which the four majority Judges gave a com-mon 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 memoran-dum 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 criteria. Every indicator was assigned a weightage which together made 22 points. These indicators were applied to "castes/classes". The castes/classes which scored 50 per cent or more points under these indica-tors 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 petition-ers, 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 their determination. The central idea and overall objective, the court said, should be to consider all available groups, sections and classes in soci-ety. 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 the SEBCs. The court also clarified that "backward class of citizens" in Article 16(4) is a wider category than SEBCs in Articles 15(4) and 340. In the former, the accent is on social backwardness while in the latter it has to be both social and edu-cational. Later in Ashoka Kumar Thakur v. Union of India', the court upheld the adop-tion and application of "other backward classes" to SEBCs in Article 15(5) which must naturally apply to Article 15(4) too. In the Mandal Commission case³, the court 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 invalidated and wherever any government has failed to imple-ment the requirement of appointing a commission and exclusion of creamy layer, it has issued necessary directions compelling them to do so. The commission's decisions are ordinarily binding on the government and in case the government ignores them for
insufficient reasons, the decision of the government may be turned down by the court.? With this larger Bench decision, the matter seems to have settled that caste could be an important or even sole factor in determining the social backwardness and that poverty alone could not 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 could not be ignored as an important factor in determining backwardness. It is only when distributive justice or utilitarian principle and not compensatory justice becomes 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 provisions should be utilised only for ameliorating caste disabilities. Since birth in a particular caste or community is a determining factor for availing of special provi-sions under Article 15(4) or 16(4), a person who had the advantageous start in life being born in a 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. 10
While the division between "backward" and "more backward" of the SEBCs was upheld in the Mandal Commission case", division of SCs into four classes by the State of Andhra Pradesh has been invalidated by the court primarily because the States are incompetent to tinker with the list of SCs prepared by the President, but also because such classification could not be justified under Article 14.12 As regards the "creamy layer" amongst the SCs and STs, the court has so far declined to apply, but there appears no constitutional obstruction in applying it in future when their condition improves, provided the Presidential Order specifying them remains undisturbed. The Central Government has appointed a commission to suggest appropriate measures for the purpose of equitable distribution of the benefits of reservation among different classes of SCs.14 Subsequently, a Constitution Bench of the Supreme Court, giving jus-tifications for making similar classification even among the SCs and STs, has asked the Chief Justice to place this matter before a Bench comprising seven Judges or more as considered appropriate. 15
Beneficiaries of reservation such as SCs, STs or Other Backward Classes (OBCs) are determined for a State or Union territory. On movement from one State or Union territory to another, they may lose the benefit of reservation if not so recognised in that State or Union territory. 16 16
(ii) Quantum of reservation
On the question of quantum of reservation also the Mandal Commission caselt seems to be settling the issue. In M.R. Balaji v. State of Mysores (Balaji), 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 includ-ing the SC and ST was challenged, the court held:
A special provision contemplated by Article 15(4) like reservation of posts and appoint-ments 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%; how much less than 50% would depend upon the present prevailing circumstances in each case.
Reservation of 68 per cent of seats in that case was found by the court plainly inconsist-ent with Article 15(4).
Following Balaji, in T. Devadasan v. Union of India (Devadasan), a rule of the Central Government which actually reserved only 17.5 per cent posts in the Central Services for the SCs and STs but provided for carrying forward of their unfilled quota to the next two succeeding years, if suitable candidates were not available, was invalidated on the ground that accumulation of 17.5 per cent in three years would come to approx-imately 54 per 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, Balaji and Devadasan were decided on the plea 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 a whole admissions to the institutions of higher learning or employment with the State must be made on merit in order to ensure an efficient society and administration. An exception could not be so construed as to eat away or even substantially dilute the gen-eral rule. In State of Kerala v. N.M. Thomas (Thomas) where, because of an exemption given to the SCs and ST's from passing a departmental test for a number of years for the purpose of promotion from lower division clerks (LDCs) to upper division clerks (UDCs), in a particular year out of 51 posts, 34 (nearly 68 per cent) had gone to the can-for exemption. The majority of the court rejected the argument that Article 16(4) was an exception to Article 16(1) [or for that matter Art. 15(4) to 15(1)] and emphasised that Articles 16(4) and 15(4) were emphatic assertions and directions to the State to take effective affirmative steps to enforce the concept of equality as laid down in Articles 14, 15, and 16.2 To bring about that equality, the State could make reservations to any extent and certainly it could do that in order to provide adequate representation to the SCs and STs in higher education as well as State employment. Since the overall representation of the SCs and STs in the State services in Kerala was much below their proportion of State population, the Kerala exemption rule could not be questioned.
In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (ABSK Sangh), where circulars of the Railway Board giving some favours to the SCs and STs. particularly the provision for raising their quota from 17 to 22 per cent and carry for-ward rule on the lines invalidated in Devadasan, were challenged, the court by and large stuck to its position in Thomas24 and insisted that the quantum of reservation was to be seen in the context of overall representation of the SCs and STs and not in a par-ticular year. No further light was thrown on the issue in K.C. Vasanth Kumar v. State of Karnataka except that some of the Judges doubted and others supported the 50 per cent limit. In Chakradhar Paswan v. State of Bihar, the court, however, held that a single post in any cadre could not be reserved either at the initial stage or in filling up a future vacancy.
Upholding the validity of a total of 49.5 per cent reservation (22.5 per cent for the SCs and STs and 27 per cent for SEBCs) in the Mandal Commission case, the court held that barring any extraordinary situations, reservation should not exceed 50 per cent. It illustrated its point with reference to a far-flung remote area whose population needed 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 the 50 per cent limit. But this limit applies only to reservations and not to exemptions, concessions and relaxations. Therefore, the 50 per cent limit may not apply to many situations under Articles 15(4) and 16(4). For the application of the 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 Devadasan 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 Art. 15(4) is an exception to Art. 15(1)] but has relied on the bal-ancing of interests under these two provisions and on the reasonable exercise of power under Article 16(4).
Between the SCs and STs, 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 categories.
The court has held that this must be done as a matter of duty and, therefore, if a seat is reserved for the STs and the candidate from that category is not available it must go to a suitable candidate among the SCs and not to a candidate from the general category.2
On the lines of Thomas and ABSK Sangh, the court in the Mandal Commission case 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. No more favours or benefits can be given to them, for example, under Article 16(1) as was held in Thomas³³. The court also held that reservations in education for super-specialities and in certain services requiring special skills such as defence, technical and scientific services, university pro-fessors, 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.34
New controversies have been arising ever since relating to the kinds of facilities pro-vided under these provisions, particularly with respect to admissions to higher pro-fessional courses. They relate, among 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 Benches, a Constitutional Bench of the Supreme Court in Preeti Srivastava v. State of M.P.3% (Preeti Srivastava) by a majority of 4:1 invalidated admission criteria for the SCs, STs and SEBCs which provided lower percentage of marks for admission to postgraduate medical courses for these classes than provided for the general category. The difference was more than 10 per cent marks. The court held that though the differ-ence of 10 per cent marks at the level of admission to MBBS course could be justified, a bigger difference at the level of postgraduate courses could not be upheld. Without laying down finally the difference that could be upheld, the court left it to the Medical Council 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 a difference of 50 per cent minimum 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 postgraduate courses. 37 Later the court has clarified that special provisions under Article 15(4) have to be made by the State or the university and not by the Medical Council. 38
The reasoning by which the majority and minority arrived at their conclusions show the difficulty in the operation of Articles 15(4) and 16(4). Whether these matters can be left to the wisdom of the legislature and the executive or the courts should also intervene in them and, if so, to what extent, are seriously debatable issues. However, the court's justification for regulating the State action on the ground of public interest is of doubtful nature. Determination of public interest is primarily the job of the legislature and the executive. They defend their action on grounds of public interest when challenged by the individual on the ground of violation of his fundamental right. The courts have to examine whether the public interest as determined by the legislature and the executive conflicts with the rights of the individual. If instead of deciding that question the courts simply take up the responsibility of determining public interest vis-Ã -vis its determina-tion by the legislature and the executive, they stand on weak ground. Therefore, in all cases of challenge to a State action under Article 15(4) and for that matter also under 16(4), the courts must examine if the special provision violates any of the fundamental rights or any other provision of the Constitution. Without following this well-settled norm of judicial review, so far the court has been competing with the legislature and the executive for participation in policy-making. So long as the court continues to do so, the controversy will not only subsist but may also escalate.
In Preeti Srivastava, the court also relied upon the relationship between Articles 15(4) and 335 relating to super speciality jobs and efficiency of administration. The dissenting Judge did not agree with the majority on this issue. Even if majority is right, the Constitution (82nd Amendment) Act, 2000 erodes the basis of the court deci-sion in so far as it adds a proviso to Article 335 providing for relaxation in qualifying marks or standards of evaluation to the SCs and STs.
Following State of U.P. v. Pradip Tandon and Anil Kumar Gupta v. State of U.P.4, the State of Uttar Pradesh treated the entire population of hill districts as SEBCs for the purpose of admission to the educational institutions as well as for reservation in jobs on a year to year basis. Rejecting the claim of the petitioners that reservation must be made on a long term basis, the court held that no area or class could be declared backward perpetually. Therefore, year to year review for the purpose of reservation was justified. However, the court accepted the claim of the petitioners that they were entitled to res-ervation in agricultural institutions as much as in medical institutions and directed the State to act accordingly. Some of the prominent cases which could have been well discussed under Article 14 may also be treated here because they overlap with some of the aspects of Article 15(4) particularly those relating to admissions to educational institutions. From among such cases we have already discussed, Pradeep Jain v. Union of India (Pradeep Jain), under clause (1) above. Among others in State of A.P. v. U.S.V. Balram44, the Supreme Court reiterated that while it was open to the State to prescribe the source from which the can-didates might be selected for admission to the medical college, once a common entrance test was prescribed there could not be any valid classification between candidates who took that examination after the higher secondary course and those who took it after pre-university course. When the scheme of the rules framed for selecting candidates for admission to the integrated MBBS course in medical colleges shows that the basis of selection will be in order of merit of marks obtained in the entrance test, reservation of 40 per cent of the seats for higher secondary course candidates is discriminatory. Such a classification has no reasonable relation to the object sought to be achieved, namely, selecting best candidates for admission to the medical colleges.
In Jagadish Saran v. Union of India, 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 lyer J, explained that 1) where the aspiring candidates are not an educationally backward class, institution-wise segregation or reservation has no place in Article 15; 2) 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; 3) exceptional circumstances cannot justify making of reservations as a matter of course in every university and in every course; 4) the quantum of reservation should not be excessive or societally injurious, measured by the overall competency of the end product, viz., degree holders; 5) 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; and 6) 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 percentage of reservation of seats.
In Nishi Maghu v. State of J&K (Nishi Maghu), it was held that the classification for rectification of regional imbalance made without identifying the areas and with-out laying any objective standard to guide the Selection Committee in determining the areas of imbalance was invalid. However, the classification of "social castes" made with reference to the nature of occupations and the classification based on areas adjoin-ing the actual line of control and "bad pockets" in Jammu and Kashmir, being really backward areas, and residents of these areas being socially and educationally backward was upheld.
In Nishi Maghu, the validity of the interview as a test for selection was also ques-tioned, not only in principle but also in regard to the manner it was conducted. It was held that though the interview system is not a reliable test to judge the suitability of a candidate as many uncertain factors were likely to affect the result of the interview, it is a point of view only and cannot be taken as the last word on the subject. As regards, the allotment of high marks for interview, it was observed that this does seem excessive when the time spent was not more than four minutes on each candidate and the system leaves room for determination and manipulation, but there is no reliable material to prove that it has been so. The fact that a system is capable of abuse is not a ground for quashing it, though its abuse in any specific case may be quashed. 48
In Ajay Hasia v. Khalid Mujib Sehravardi", the system of selection by oral interview, in addition to the written test, was upheld as valid, but allocation of above 15 per cent of the total marks for interview was regarded as arbitrary and unreasonable and liable to be struck down as constitutionally invalid. In Nishi Maghus, the court had already observed that reserving 50 marks for an interview out of a total of 150 marks was exces-sive, especially when the time spent in the interview was not more than four minutes per candidate. Reiterating this approach in Arti Sapru v. State of J&K³¹, the court impressed upon the State Government that there is a need to revise the allocation to the viva voce test of 30 per cent marks and to ensure that the Selection Committee takes care to devote sufficient time to the viva voce test of the individual candidates.
In Narayan Sharma v. Pankaj Kr. Lehkar, the court upheld the quota of four seats for the candidates recommended by the North Eastern Council (NEC) and for teachers in Medical Colleges with three years' standing in the Medical Colleges of Assam but invalidated such quota for the doctors in State health services. It, however, invalidated the exemption to the NEC candidates from taking the entrance test.
Discussing the existing precedents the court in Sourabh Chaudri v. Union of India has reiterated Pradeep Jain position that institutional quota upto 50 per cent in post-graduate and 70 per cent in undergraduate courses in medical institutions on institu-tional basis is valid under Article 14.55
Much of what has been discussed above is also applicable for the determination of backward classes of citizens in Article 16(4) even though the scope of Article 16(4) is confined to services under the State. In the background of the above discussion and particularly following Indra Sawhney56, the court in Jaishri Laxmanrao Patil v. State of Maharashtra has invalidated the law that exceeded the 50 per cent limit.
CLAUSE (5)
The Constitution (93rd Amendment) Act, 2006 added clause (5) in Article 15. Its addition became imminent because in P.A. Inamdar v. State of Maharashtra58 (P.A. Inamdar), the Supreme 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". 59 Reiterating its stand in T.M.A. Pai Foundation v. State of Karnataka (Pai Foundation) that "The right to establish an educational institution, for charity or for profit, being an occupa-tion, is protected by Article 19(1)(g)",¹ it went further and held:
imposition of quota of State seats in unaided professional institutions are acts consti-tuting serious encroachment on the right and autonomy of private professional educa-tional institutions... [which] can... not be held to be... a reasonable restriction within the meaning of Article 19(6) of the Constitution. 62
The amendment neutralises the decision on these points and restores the pre-amend-ment position subject to the conditions that the special provision can now be made only by law while before the amendment it could be made even by an executive action.
In pursuance of this provision Parliament enacted the Central Educational Institutions (Reservation in Admission) Act, 2006 providing for 15, 7½ and 27 per cent reservation in Central institutions of higher education and research for members of the SCs, STs and SEBCs respectively. In a petition challenging the validity of the Act as well as of the Amendment introducing clause (5) in Article 15, the court initially stayed the oper-ation of the Act. But finally it upheld the Amendment as well as the Act.64 It rejected the contention that Article 15(5) was contradictory to Article 15(4) and upheld the exclusion of minority educational institutions from the purview of Article 15(5). It also upheld adoption of "other backward classes" determined by the National Commission for Backward Classes for the purposes of Article 16(4) as equally applicable to SEBCS in Article 15(5). The court also insisted for the exclusion of creamy layer from SEBCS as determined by the Commission for purposes of Article 16(4). It declined to apply the creamy layer principle to the SCs and STs. The court did not find the absence of a time-limit for reservation fatal to legislation but suggested periodic review after every 10 years.
Later giving a clarification the court held that "the maximum cut-off marks for OBCs be 10 per cent below the cut-off marks of general category candidates". As the clarification was read to mean 10 per cent less marks than the marks of the last candidate admitted in the general category, it led to conversion of a large number of seats reserved for OBCs to general seats. It led to further litigation in which the court clarified that the abovequoted clarification means that "if the minimum eligibility/qual-ifying marks prescribed for general category candidates was 50 per cent, the minimum eligibility/qualifying marks for OBCs should be 45 per cent".66 Thus the minimum dif-ference of 10 per cent marks is in the eligibility criterion and not in the marks of the last admitted candidate in the general category. This further clarification should bring a lot of relief to OBC candidates and should serve the ends of law too.
Initially, by a majority of 4: 1 the court left the validity of the amendment undecided insofar as it applies to private unaided educational institutions because no such institu-tion came to the court to challenge its validity.67 The author of this book had, however, argued that the amendment did not suffer from any infirmity and if it is ever chal-lenged in appropriate proceedings it will be upheld. 68 A unanimous Constitution Bench of the court finally upheld the amendment. In line with the foregoing arguments, the court later held, "Clause (5) of Article 15 does not violate the basic structure of the Constitution."70 In the same case, the court also invalidated provision for admission in a medical college exclusively to the wards of army personnel because such reservation was not covered either in clause (4) or clause (5) of Article 15. The court decided the case primarily with reference to Articles 15 and 19(1)(g) and did not consider the possibility of such reservation with reference to Article 29(2) which prohibits denial of admission in educational institutions on grounds which do not include wards of army persons and, therefore, special arrangements for wards of army personnel in State-funded educa-tional institutions could be justified just as they could be justified on the basis of sex.
Impact of reservation. -No authentic data is yet available on the exact impact of
reservation in educational institutions and other facilities for SCs, STs and SEBCs expe-rience of the educational institutions proves that most of the places for SCs and STs which used to remain vacant in the universities until late 1970s are not only filled but also many of those category applicants fail to get a place because all the places reserved for them are filled by better qualified applicants in those categories. Quite a few of these category students also get places in the general category on the basis of fulfilling the criteria required for these places. Available data on reservation in State jobs under Article 16(4) mentioned below also shows that reservation has helped in bringing ade-quate numbers of these classes into the State jobs. Thus the constitutional provisions on reservation have not been a complete failure as is often said and may ultimately become a matter of history after having achieved their goal.
CLAUSE (6)
Clause (6), which was added by 103rd Constitutional Amendment in 2019, provides for any special provision (i) "for the advancement of any economically weaker sections of citizens" other than those covered in clauses (4) and (5) and (ii) "insofar as such provi-sion relates to their admission to educational institutions including private educational institutions whether aided or unaided by the State". In this connection it is noteworthy that at the time of the First Amendment to the Constitution which introduced clause (4) in this article, the initial agreement was on protecting the educational and economic interests of the weaker sections of the society. Parliament's Select Committee, however, suggested to drop "economically". The Cabinet accepted the suggestion of the Select Committee and agreed to limit the clause to "socially and educationally backward" classes. 72 Clause (5), however, brings back the economic criterion which was rejected at the time of the First Amendment. Challenge to this amendment is now pending in the Supreme Court. It is also notable that in the Indra Sawhney case, the Supreme Court also invalidated 10 per cent reservation on the ground of poverty.
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