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Introduction


Part III of the Constitution of India describes the Fundamental Rights offered to the
countrys 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 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.
3
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.

Page | 3

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. 14
6
. 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:
y 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 non-
citizens. No non-citizen can claim any right under Art. 15, though he can do so under
Art. 14.
y 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.
8
AIR 1971 SC 1439.
9
In re Shaik Hussain Shaik Mahomed, AIR 1951 Bom 285.
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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 to
12
. 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.

10 State of Rajasthan v. Pratap Singh, AIR I960 SC 1208 : (1961) 1 SCR 222.
11
A.M. Deane v. Commr, of Police, 64 CWN 348.
12
Liberty Cinema v. Corp. of Calcutta, AIR 1959 Cal. 45.
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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 socio-
economic 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 Indias Constitution, A Study, 1968 183.
Page | 7

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 Indan FenaI 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 ArtcIe 15.
The VSecaI Sro+Von 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;
ii. preference upto 30% for women for which they are equally suited with man;

14
AIR 1954 SC 226.
15
AIR 1995 SC 1648.
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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:
y 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).
y 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).
y Under Article 42, women workers can be given special maternity relief and a law to
this effect will not infringe Article 15(1),
y 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

y 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

y 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).
y 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
17
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.
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y 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; Anglo-
Indians 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.
20
AIR 1951 SC 226.
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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.
22
AIR 2010 (1) SCC 477.
23
Balaji v. State of Mysire, AIR 1973 SC 649.
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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 e yen 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.
25
AIR 1963 SC 649.
26
AIR 1964 SC 1823.
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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. Sagar
28
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.F. v. Fradeep Tandon
31
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.
28
AIR 1968 SC 1379.
29
AIR 1969 SC 1.
30
AIR 1971 SC 2303.
31
AIR 1975 SC 563.
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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 JayaVree v. StaIe of KeraIa
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.
Page | 14

certain extent by the economic conditions of the group. In State of KeraIa v. N.M. ThomaV
33
, 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.
34
1985 Supp SCC 714.
Page | 15

Once again the question was considered by a nine-Judge Bench of the Supreme Court in
Indra Sawhney v. Union of India
35
(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.
Page | 16

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. 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 accent is
on social backwardness while in the latter it has to be both social and educational. 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
invalidated
36
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

36
Ashok Kumar Thakur v. State of Bihar. (1995) 5 SCC 403.
37
Indra Sawhney v. Union of India, (2000) I SCC 168.
Page | 17

justified under the concept of equality enshrined in Article 14 itself and therefore these
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 case
40
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 scats 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 India
42
, 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

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.
Page | 18

ground that accumulation of 17.5 per cent in three years would come to approximately 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, 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 Devdasan
44
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.
44
Devdasan v. Union of India. AIR 1964 SC179.
Page | 19

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, 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
47
, a constitutional bench of the Supreme Court in Freet
Sr+aVWa+a (Dr) v. SWaWH of M.F
48
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.
46
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.
Page | 20

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 India
50
, a rule reserving 70 per cent of the seats in the post-
graduate 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 course 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 percentage 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.
50
AIR 1980 SC 820.
51
AIR 1963 SC 649.
52
AIR 1993 SC 477.
Page | 21

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
unequals 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 VaIVamma FauI +.Cochn Un+HrVLWy
54
.

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 Karnataka
56
and P.A. Inamdar v. State of Maharashtra
57
. In T.M. Pai Foundation and
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

53
A.P.B.C. Sangh v. J.S.V. Federation, AIR 2006 SC 2814.
54
AIR 1996 SC 1011.
55
AIR 2003 SC 355.
56
AIR 2003 SC 3724.
57
AIR 2005 SC 3226.
Page | 22

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 93
rd
Amendment was challenged in the case of Ashoka Kumar Thakur vs. Union of
India
58
. 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 (Ninety-
Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as
it relates to the state maintained institutions and aided educational institutions. 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
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

58
[2007] RD-SC 609 (17 May 2007)

Page | 23

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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