UNIVERSITY INSTITUTE OF LEGAL STUDIES

PROJECT REPORT
ON

ARTICLE 15 OF
INDIAN
CONSTITUTION
SUBMITTED TO:
Dr. SHRUTI BEDI
SUBMITTED BY:
HARGUN SANDHU
ROLL NO. 195/15
FORTH SEMESTER
2016-17
SECTION D
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ACKNOWLEDGEMENT

I wish to express my sincere gratitude to

Dr. Shruti Bedi for providing me an opportunity to do a
project on ‘Article 15 of The Indian Constitution’. The
project would not have reached its current shape
without her guidance.

This project has given me a clear insight on the

fundamental right that every citizen of India has against
discrimination.

Thank you
 3

TABLE OF CONTENTS
TOPIC PAGE NO.
1. INTRODUCTION 5
2. ARTICLE 15 6
3. EXPLAINATION 6
 CLAUSE 1 6
 CLAUSE 2 9
 CLAUSE 3 11
 CLAUSE 4 14
 CLAUSE 5 24
4. BIBLIOGRAPHY 27
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TABLE OF CASES
 D.P. Joshi v. State of Madhya Bharat AIR 1955 SC 334
 Chitra v. Union of India 1970 AIR 35, 1970 SCR(1) 413
 People’s Union For Democratic Rights v. Union Of India, 1982 AIR
1473, 1983 SCR(1) 456
 Govt of A.P. v. P.B. Vijayakumar AIR 1955 SC 1648
 State of Madras v. Chamapakam Dorairajan AIR 1951 SC 226
 Gulshan Prakash v. State of Haryana
 Indra Sawhney v. Union of India, AIR 1993 SC 477
 M.R.Balaji v. State of Mysore AIR 1963 SC 649

 State of U.P. v. Pradeep Tandon,AIR 1975 SC 563

 K.C. Vasanth Kumar v. State of Karnataka,AIR 1985 SC 1495

 A.P.B.B Sangh v. J.S.V. Federation,AIR 2006 SC 2814
 R. Chitralekha v. State of Mysore AIR 1964 SC 1823.
 P. Rajendran v. State of Madras AIR 1968 SC 1012.
 A.I.I.M.S. Student Union Vs. A.I.I.M.S AIR 2001 SC 3262
 Sadhna Devi v. Sate of U.P. AIR 1997 SC 1120
 P.V. Indiresan v Union of India AIR 2011
 Valsamma Paul v. Cochin University AIR 1996 SC 1011
 T.M. Pai Foundation v. State of Karnataka AIR 2003 SC 355.
 Islamic Academy v. State of Karnataka AIR 2003 SC 3724.
 P.A. Inamdar v. State of Maharashtra AIR 2005 SC 3226
 Ashoka Kumar Thakur vs. Union of India [2007] RD-SC 609 (17 May
2007)
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INTRODUCTION
Part III of the Constitution of India describes the Fundamental Rights offered to
the country’s citizens. Fundamental Rights are essential human rights that are
offered to every citizen irrespective of caste, creed, race, religion, place of birth
or gender. The Constitution of India guarantees six Fundamental Rights to the
citizens. Right to Equality is the foremost right guaranteed to the citizens of
India. The goal before the framers of the constitution was to provide equality in
all respects to the citizens. To that end, they kept the "Right to Equality" as the
first among all fundamental rights.
Article 15 of the Constitution of India gives a concrete shape to the abstract
concept of equality. In the background of Indian social structure, where people
were discriminated on the basis of religion, caste, and sex quite openly, this
article prohibits such discrimination altogether. It ends such discrimination by
state.
Article 14 embodies the general principle of equality before the law. A specific
application of the same principle is provided in Article 15. Article 15
concretizes 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.
 6

ARTICLE 15

Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth1

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

15(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 palaces of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public.

15(3) Nothing in this article shall prevent the State from making any special
provision for women and children.

15(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.2

1
Bare Act, The Constitution Of India, Page 11
2
Added by the first amendment by the constitution act 1951
 7

15(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 schedule tribes in so far as such special
provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the state, other than the
minority educational institutions referred to in clause (1) of article 30.3

Explanation
CLAUSE (1)
Firstly this fundamental right is available to the citizens of India only, and not
to other people who are not Indian citizens. The fundamental right is available
against the state.

The word ‘discriminate against’ means to take an adverse distinction with

regard to, or distinguish unfavourably from others. Discrimination against one
person involves discrimination in favour of the other.

Expression ‘on the ground ONLY of’ indicates that article 15 will come into
play only when the discrimination is on the basis of religion, race, caste, sex, or
place of birth. Discrimination on the basis of any other ground doesn’t fall
under this article and the article cannot be used. It also means that if one or
more of the specified grounds mentioned in article 15(1) is combined with a
ground not mentioned In Article 15 (1), the case will fall outside the
jurisdiction of article 15(1).

3
Added by the 93 amendment by the constitution act 1951
 8

D. P. Joshi vs. The State Of Madhya Bharat4

Popularly known as ‘first capitation fee case’
Facts of the case are:
A rule of medical colleges provided that all students who are bona fide
residents of Madhya Bharat, no capitation fee should be charged but for non-
resident students, capitation fee should be retained.
The validity of this rule was challenged on the ground that it contravened
Articles 14 and 15 (1) of the Constitution. It was held that the rule was not open
to attack as infringing Article 15 (1). The ground for exemption from payment
of capitation fee is bona fide residence in the State.
Residence and place of birth are two distinct conceptions with different
connotations both in law and fact. Article 15 (1) prohibits discrimination on the
ground of place of birth but not on the ground of residence.

4 1955 AIR 334,

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NO DISCRIMINATION AS TO USE OR ACCESS TO PUBLIC

PLACES [ARTICLE 15(2)]

The article provides that there shall be no restriction on any person on the basis
of caste, sex, race, place of birth, or religion to access and use the public places
such as shops, restaurants, hotels, places of public entertainment etc. or 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’ means any place where the owner is prepared to offer his
service to anybody who is prepared to go there seeking his service. It therefore
includes a laundry, saloon, a clinic or an office of a lawyer.

The phrase ‘public resort’ means a place to which members of public are
allowed access and where the habitually resort to. It includes a public park,
hospital, public road, etc. All the public places if they are maintained wholly or
partially out of state funds.5

Article 15(2) applies not only to the state but also to private individuals.

Peoples Union for Democratic Rights vs. Union Of India6

The Supreme Court ruled that whenever any fundamental right, which was
enforceable against private individuals was being violated, it would be the
constitutional obligation of the state, to take necessary steps, for the purpose of
interdicting such violation and ensuring observance of the fundamental right by
the private individual who was transgressing the same.

5 Dr. Narender Kumar, Constitutional law of India, page 157

6
AIR 1982 SC 1473
 10

The main objective behind Article 15(2) is to guard against the menace of
discrimination which can possibly be practiced 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.7

7
Dr. Narender Kumar, Constitutional law of India, page 156
 11

SPECIAL PROVISION FOR WOMEN AND CHILDREN

[ARTICLE 15(3)]
Article 15(3) is an exception to article 15(1) and (2), while both the clauses
prohibit discrimination on the ground of sex, clause (3) empowers the state to
make special provisions for women and children. Special provisions can be
made in favour of children and women and not against them.
The special provision, which the state may make, can be in the form of either
affirmative action or reservations.

Government of A.P. Vs. P.B. Vijayakumar8

The Court gave a new dimension to Article 15(3) by holding that reservation
for 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;
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 Supreme Court observed that the insertion of clause (3) of article 15 in
relation to women is a recognition of the fact that for centuries, women of this
country have been socially and economically handicapped. As a result they are
unable to participate in the socio economic activities of the country. In order to
eliminate this socio economic backwardness of women and to empower them
in a manner that would bring about effective equality between men and women

8 AIR 1995 SC 1648

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that this clause is placed in the constitution. Its main objective is to strengthen
and improve the status of women.9

The operation of Art.15 (3) can be illustrated by the following few cases:
 Under Sec. 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.
This provision makes a special provision for women.
 S. 497, Cr.P.C., 1898, prohibited release of a person accused of a capital
offence on bail except a woman or a child under 16 or a sick man. The
provision has been held valid as it metes out a special treatment to
women, which is consistent with Art. 15(3).

 Under Article 42, women workers can be given special maternity relief
and a law to this effect will not infringe Article 15(1),

 Section 125 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.

 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 this Article.
 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).

9 Dr. Narender Kumar, Constitutional law of India, page 158

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 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.

 The proposed constitution (84 amendment) bill, 1998 contains provisions

for the reservation of 33% of seats for women in the composition of the
Lok Sabha and the Legislative Assemblies of the state. 10

10 https://www.scribd.com/document/62597933/Article-15
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SPECIAL PPROVISION FOR BACKWARD CLASSES

[ARTICLE 15(4)]

This article empowers the state to make special provisions for advancement of
socially and educationally backwards or Scheduled castes and the scheduled
tribes. Such provisions include reservations or quotas and can be made in the
exercise of executive without any legislative support.11

This clause was added by the Constitution (First amendment) Act, as a sequal
to the decision of the Supreme Court in, State of Madras Vs. Champakam
Dorairajan12
In this case the Madras Government issued an order [popularly known as the
Communal G.O] allotting seats in the State medical and engineering colleges
community-wise as follows: Non- Brahmin (Hindus) 6; Backward Hindus, 2;
Brahmins, 2; Harijans, 2; Anglo- Indians and Indian Christians, 1; Muslims, 1.
Thus, the seats were reserved on the ground of religion, race, and caste. The
order was challenged as violative of article 15(1) since it discriminated on the
grounds of religion, race and caste. The government contended that the order
was issued in order to promote directive principle of state policy enshrined in
article 46. The Supreme Court however held the order void as violative of
article 15(1). The court explained that while fundamental rights were
justiciable, the directive principles had been expressly declared non-justiciable
and that it was their duty to enforce only the justiciable provisions.

Clause (4) of article 15 is an enabling provision. It merely confers discretion on

the state to make special provisions. It does not impose any obligation on the
state to take any action under it.
11 Indra Sawhney Vs. Union of India 1992
12
AIR 1951 SC 226
 15

In Gulshan Prakash v. State of Haryana13

The SC says that Article 15(4) is an enabling provision and the State
Government is the best judge to grant reservation for SC/ST/Backward Class
categories at Post-Graduate level in admission and the decision of the State of
Haryana not to make any provision for reservation at the Post-Graduate level
suffers no infirmity. Every State can take its own decision with regard to
reservation depending on various factors. The power given by Art. 15(4) is
discretionary in nature not mandatory.
Under clause 4 of article 15 there are two things that have to be determined:
1. What is the criteria to determine who are the 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. 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.

The judiciary in various judgments has tried to define backwardness.

In M.R. Balaji v. State of Mysore14 it was held that the caste of a group
of persons cannot be "the sole or even predominant factor though it may be a
relevant test for ascertaining whether a particular class is a backward class or
not. Backwardness under Article 15(4) must be social and educational, and that
social backwardness is, in the ultimate analysis, the result of poverty. One's

13 AIR 2010 (1) SCC 477

14
AIR 1963 SC 649.
 16

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 Mysore15, the Government of Mysore laid

down that classification 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
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 16 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

15
AIR 1964 SC 1823.
16
AIR 1968 SC 1012.
 17

such a caste on the ground that it is socially and educationally backward

class of citizens within the meaning of Article 15(4)."

In the State of U.P. v. Pradeep Tandon17 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 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 of 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.

17 AIR 1975 SC 563.

 18

In K.C. Vasanth Kumar v. State of Karnataka18. The State of Karnataka

asked the Supreme Court to give clear guidelines, 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.

Indra Sawhney v. Union of India19 (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).

18 1985 Supp SCC 714.

19 1992 Supp (3) SCC 217: AIR 1993 SC 477.
 19

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 available groups,
 20

sections and classes in the society. Since caste represented an existing,

identifiable social group/class encompassing an overwhelming majority of the
country's population, one could, according to the Court, well begin with it and
then go to other groups, sections and classes. Caste, however, was not an
essential factor for determining the social and educational backwardness. It is
also not necessary that SEBCs should be similarly situated as SCs and STs.
Within SEBCs classification between the backward and more backward is
permissible. To maintain the cohesiveness and character of a class the 'creamy
layer' can and must be excluded from SEBCs. It also held that the economic
criterion alone cannot be the basis of backwardness although it may be a
consideration along with or in addition to social backwardness. The Court also
suggested creation of a permanent body at the central and state levels to look
into the complaints of over and under-inclusion as well as to revise the lists of
SEBCs periodically.
Following the Court's directions the Centre and the States have
appointed backward class commissions for constant revision of such classes
and for the exclusion of creamy layer from amongst them.

THE LIMIT ON RESERVATIONS

In M.R. Balaji v. State of Mysore 20 , where the validity of a Mysore
Government Order reserving 68 per cent of the seats in the engineering and
medical colleges and other technical institutions in favour of backward classes
including the Scheduled Castes and Scheduled Tribes was challenged, the
Court held:

20 AIR 1963 SC 649.

 21

"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).”

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 case21,
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 22 on this
point. In arriving at the 50 per cent limit the Court has rejected that Article
21
India Sanhney v. Union of India. 1992 Supp (3) SCC 217: AIR 1993 SC 477.
22
Devdasan v. Union of India. AIR 1964 SC179.
 22

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 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. 23
In A.I.I.M.S. Student Union Vs. A.I.I.M.S24

The Supreme Court observed reservations as an exception maybe justified

subject to discharging the burden of proving justification in favour of the class
which must be educationally handicapped. The rationale of reservation in the
case of medical students must be removal of regional or class inadequacy or
like disadvantage. Even there the quantum of reservation should not be
excessive or societally injurious. The higher the level of the specialty the lesser
the rule of reservations.

MINIMUM QUALIFYING MARKS

In Sadhna Devi v. Sate of U.P.25 the Supreme Court ruled that the government
having laid down a system for holding admission tests, was not entitled to do
way with the requirement of obtaining the minimum qualifying marks for the
special category, the SC/ST/OBC candidates. The court observed that it was
open to the government to admit candidates belonging to special categories

23
Superintending Engineer, Public Health, Chandigarh v. Kuldeep Singh, AIR 1997 SC
2133.
24 AIR 2001 SC 3262
25 AIR 1997 SC 1120
 23

even in a case when they have obtained lesser marks than the general
candidates, provided they had got the minimum qualifying marks to fill up the
reserved quota of seats for them.

In P.V. Indiresan v Union of India26

The court interpreted that where the minimum eligibility marks in the
qualifying examinations are prescribed for admission, say as 50% for general
category candidates, the minimum eligibility marks for OBCs should not be
less than 45% (that is 50 less 10% of 50). The minimum eligibility marks can
be fixed anywhere between 45 and 50 at the desecration of the institution.

TRANSPLANT IN BACKWARD CLASS

In Valsamma Paul v. Cochin University27 the Supreme Court explained that

the dalits and tribes had suffered social and economic disabilities recognized by
Article 17 and 15(2) and as a consequence, they had become socially, culturally
and educationally backward. The object of reservation permissible under article
15(4), the court said, was to remove these handicaps, disadvantages, sufferings
and restrictions, to which the members of the dalits or tribes or OBCs were
subjected to and was sought to bring them in the mainstream of the nations life,
by providing them opportunities and facilities. The court, however, cautioned
that acquisition of the status of scheduled caste, etc by voluntary mobility into
these categories, would play fraud on the constitution. Thus the court ruled that
a candidate who had the advantageous start in life being born in forward caste
and had much of advantageous life but was transplanted in backward caste by
adoption or marriage or conversion, would not become eligible to the benefit of
reservation.

26 AIR 2011
27 AIR 1996 SC 1011
 24

SPECIAL PROVISION RELATING TO ADMISSION TO

EDUCATIONAL INSTITUTIONS [ARTICLE 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 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
Karnataka28, Islamic Academy v. State of Karnataka29 and P.A. Inamdar
v. State of Maharashtra30. 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
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

28 AIR 2003 SC 355.

29 AIR 2003 SC 3724.
30 AIR 2005 SC 3226.
 25

learning in India. This would have reduced the seats for a general, unreserved
candidate to about 50% (after taking into account other reserved seats).

The 93rd Amendment was challenged in the case of Ashoka Kumar

Thakur vs. Union of India 31 . 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 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

31 [2007] RD-SC 609 (17 May 2007)

 26

features in different States and Union Territories. There has to be proper

identification of Other Backward Classes (OBCs.).

In Pramati Educational & Cultural Trust v. Union of India32

The Supreme Court finally said that the 93rd amendment is valid when it comes
to reservations in private educational institutions.

32 AIR 2014 8 SCC 1

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BIBLIOGRAPHY
Books

1. Prof. Narender Kumar, Constitutional Law Of India

2. Bare Act, The Constitution Of India

Websites

1. http://www.shareyouressays.com/115330/summary-of-article-
15-of-the-constitution-of-india
2. https://www.scribd.com/document/62597933/Article-15
3. https://indiankanoon.org
4. https://www.slideshare.net/saketgarg4/article-15-of-indian-
constitution