UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

CONSTITUTIONAL LAW PROJECT REPORT ON

“ARTICLE 15”

SUBMITTED TO: SUBMITTED BY:

Dr Shruti Bedi Tannishtha Garg
Assistant Professor Roll No.: 294/20
B.Com LL.B (Hons.) (Sec-E)
Semester- 3

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 ACKNOWLEDGMENT
The success and outcome of this project required a lot of guidance and assistance from many
people and I am extremely fortunate to have got this all along with the completion of my
project report. Whatever I have done is only due to such guidance and I would always be
grateful to them.
I take this opportunity to record a deep sense of gratitude to my teacher, Dr Shruti Bedi,
University Institute of Legal studies, Chandigarh for her incontestably perfect unmatched
guidance, encouragement, valuable suggestions, and efforts made during the preparation of
this project and during her lectures which enabled me to complete this project successfully on
the topic,
‘Article 15’
This has also allowed me to do some research and broadened my understanding of the
concepts.

Tannishtha Garg
Semester-3 (Sec- E)
294/20

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 Table of cases

1. A.I.I.M.S. Student Union v. A.I.I.M.S.......................................................................... 28

2. A.M. Deane v. Commissioner of Police ....................................................................... 15
3. A.P.B.C. Sangh v. J.S.V. Federation ............................................................................ 29
4. Ajay Hasia v. Khalid Mujib ............................................................................................ 7
5. Aman Piyush Khanna v. State of Gujarat ..................................................................... 30
6. Anjali Roy v. State of West Bengal .............................................................................. 18
7. Arumugha v. Narayana ................................................................................................. 15
8. Ashok Kumar Thakur v. Union of India ....................................................................... 33
9. B.D.D.S.W. Association v. State of West Bengal ........................................................ 19
10.Bhopal Singh v. State of Rajasthan .............................................................................. 12
11.Chikkadasappa v. Town Municipal Corporation .......................................................... 12
12.Chitra v. Union of India ................................................................................................ 13
13.Chitralekha v. State of Mysore ..................................................................................... 25
14.D.P. Joshi v. Madhya Bharat ........................................................................................ 13
15.Dr. Jagdish Saran v. Union of India.............................................................................. 29
16.Dr. Pradeep Jain v. Union of India ............................................................................... 29
17.Dr. Preeti Sagar Srivastava v. State of Madhya Pradesh .............................................. 30
18.Dr. Sadhna Devi v. State of Uttar Pradesh ................................................................... 29
19.Githa Hariharan v. Reserve Bank of India .................................................................... 16
20.Government of A.P. v. P.B. Vijay Kumar .............................................................. 18, 19
21.Gulshan Prakash v. State of Haryana............................................................................ 22
22.Indian Medical Association v. Union of India .............................................................. 33
23.Indira Nehru Gandhi v. Raj Narain ................................................................................. 9
24.Jagdish Negi v. State of U.P. .................................................................................. 26, 31
25.Jagwant Kaur v. State of Maharashtra .......................................................................... 22
26.Jai Lal v. Padam Singh .................................................................................................. 12
27.Joseph Shine v. Union of India ..................................................................................... 20
28.K.C. Vasanth Kumar v. State of Karnataka .................................................................. 26
29.Karma Dorjee v. Union of India ................................................................................... 12
30.Kesavananda Bharati v. the State of Kerala ................................................................... 9
31.Krishna Singh v. Mathura Ahir ..................................................................................... 16
32.Liberty Cinema v. Corp. of Calcutta............................................................................. 15
33.M.G. Badappanavar v. State of Kerala ........................................................................... 9
34.M.Nagraj v. Union of India........................................................................................... 23
35.M.R. Balaji v. State of Mysore .............................................................................. passim
36.Maneka Gandhi v. Union of India .................................................................................. 7
37.Mohan Bir Singh Chawla v. Panjab University, Chandigarh ....................................... 30
38.Mohd. Siddiq Ali v. High Court of A.P. ....................................................................... 19
39.N.T.R. University of Health Services, Vijaywada v. G. Babu Rajendra Prasad .......... 27
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40.Nain Sukh Das v. State of Uttar Pradesh ................................................................ 12, 21
41.National Legal Services Authority v. Union of India ................................................... 26
42.P.A. Inamdar & Others v. State Of Maharashtra & Others .......................................... 33
43.P.Rajendran v. State of Madras..................................................................................... 25
44.Paramjit Singh v. State of Punjab ................................................................................. 18
45.Peoples Union for Democratic Rights v. Union of India.............................................. 15
46.Pramati Educational and Cultural Trust v. Union of India ........................................... 34
47.Pratiksha Kuamri v. State of H.P. ................................................................................. 31
48.Raghvan Singh v. State of Punjab................................................................................. 19
49.Rajeshwari v. State of Uttar Pradesh ............................................................................ 12
50.Re Shaikh Hussain Shaik Mohammed.......................................................................... 12
51.S.V. Joshi v. State of Karnataka ................................................................................... 28
52.Savitaben Somabhai Bhatiya v. State of Gujarat .......................................................... 18
53.Shahbad v. Mohd. Abdullah ......................................................................................... 17
54.Sindhi Education Society v. Government (NCT of Delhi) ........................................... 33
55.Srinivasa Aiyar v. Saraswati ......................................................................................... 16
56.State of A.P. v. U.S.V. Balaram.................................................................................... 25
57.State of M.P. v. G.D. Tirthani ....................................................................................... 18
58.State of M.P. v. Mohan Singh ....................................................................................... 23
59.State of Rajasthan v. Thakur Pratap Singh ................................................................... 12
60.State of U.P. v Pradeep Tandon .................................................................................... 25
61.T.M.A. Pai Foundation v. State of Karnataka .............................................................. 33
62.Thota Sesharathamma v. Thota Manikyamma ....................................................... 18, 22
63.V. Revathi v. Union of India ......................................................................................... 18
64.Valsamma Paul v. Cochin University ........................................................................... 30
65.Vishaka Case ................................................................................................................. 20
66.Yusuf Abdul Aziz v. State of Bombay ................................................................... 19, 20

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 INDEX
• Table of Cases …………………………………………………….. 03-04
• Fundamental Rights …………………………………………...…... 06-08
• Right to Equality …………………………………………………... 09
• Article 15 ………………………………………………………….. 10-11
• Article 15(1) ………………………………………………………. 12-14
• Article 15(2) ………………………………………………………. 15-17
• Article 15(3) ………………………………………………………. 18-21
• Article 15(4) ………………………………………………………. 22-32
• Article 15(5) ………………………………………………………. 33-34
• Article 15(6) ………………………………………………………. 35
• Conclusion ………………………………………………………… 36
• Bibliography ………………………………………………………. 37

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 Fundamental rights
Since time immemorial, human thinking has been veering round to the theory that man has
certain essential, basic, natural, and inalienable rights or freedoms and it is the function of the
state, so that human liberty may be preserved, human personality developed, and an effective
social and democratic life promoted, to recognize these rights and freedoms and allow them a
free play. The concept of human rights protects individuals against the excesses of the state. It
represents an attempt to protect the individual from oppression and injustice. In modern times,
it is widely accepted that the right to liberty is the very essence of a free society and it must be
safeguarded at all times. The idea of guaranteeing certain rights is to ensure that a person may
have a minimum guaranteed freedom. These rights have come to be regarded as essential that
these rights be entrenched in such a way that they may not be violated, tampered or interfered
with by an oppressive government and are characterized as Fundamental Rights.
The entrenched Fundamental Rights have a dual aspect. On one hand, they confer justiciable
rights on the people enforceable through the courts against the government, and on the other,
the Fundamental Rights constitute restrictions and limitations on government action, be it the
Centre, or a State or a local government. The government cannot take any action,
administrative or legislative, by which a Fundamental Right is infringed. The modern trend of
guaranteeing Fundamental Rights to the people may be traced to the Constitution of the U.S.A.
It was the first modern Constitution to give concrete shape to the concept of Human Rights by
putting them into the Constitution and making them justiciable and enforceable.
In India, the framers of the Indian Constitution followed the American model in adopting and
incorporating the fundamental rights of the people of India. The constitution not only secures
the fundamental rights but also, provides a speedy and effective remedy for their enforcement.
The need to have the Fundamental Rights was so very well accepted in the Constituent
Assembly that the point of whether or not to incorporate such Rights in the Constitution also
was not even considered. The fight all along was against the restrictions being imposed on
them and the effort all along was to have the Fundamental Rights on as broad and pervasive a
basis as possible.
The Indian Constitution guarantees essential human rights in the form of Fundamental Rights
under Articles 12 to 35 of Part III titled Fundamental Rights. They guarantee certain basic civil
rights and freedoms to all, safeguard minorities, outlaw discrimination, and protect religious
freedom and cultural rights. Fundamental Rights are not be read in isolation but along with
Directive Principles of State Policy and Fundamental Duties enshrined in Article 51A.
The Fundamental Rights in the Indian Constitution have been grouped under six heads:
• Right to Equality (Articles 14-18)
• Right to Freedom (Articles 19-22)

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 • Right against Exploitation (Articles 23-24)
• Right to Freedom of Religion (Articles 25-28)
• Cultural and Educational Rights (Articles 29-30)
• Right to Constitutional Remedies (Article 32)
The fundamental rights are not available only to the citizens of India but some of them are
extended even to non-residents or non-citizens who visit India. These rights are part of the
basic structure of the Constitution. They are inherent and cannot be extinguished by any
constitutional or statutory provision. Any law that abrogates or abridges such rights would be
violative of the doctrine of basic structure. During an emergency, however, some Fundamental
Rights curtailments do occur, but all these curtailments of Fundamental Rights are temporary.
The aim behind having a declaration of fundamental rights is to make inviolable certain
elementary rights appertaining to the individual and to keep them unaffected by the shifting
majorities in the Legislatures. It is so to preserve certain basic human rights against
interference by the State.
Justice Bhagwati in Ajay Hasia v. Khalid Mujib1 observed, ‘‘It must be remembered that the
Fundamental Rights are constitutional guarantees given to the people of India and are not
merely paper hopes or fleeting promises and so long as they find a place in the Constitution,
they should not be allowed to be emasculated in their application by a narrow and constricted
judicial interpretation.’’
Justice Bhagwati in the landmark case of Maneka Gandhi v. Union of India2 stressing the
importance of fundamental rights observed: “These fundamental rights represent the basic
values cherished by the people of this country since the Vedic times and they are calculated to
protect the dignity of the individual and create conditions in which every human being can
develop his personality to the fullest extent. They weave ‘a pattern of guarantees on the basic
structure of human rights’ and impose negative obligations on the State not to encroach on
individual liberty in its various dimensions.
The Supreme Court plays a very significant role in Fundamental Rights. In the first place, the
Court acts as the protector and the guardian of these rights. In the second place, the Court acts
as the interpreter of the Fundamental Rights. The Court in the same case observed, ‘The
attempt of the Court should be to expand the reach and ambit of the Fundamental Rights rather
than to attenuate their meaning and content by a process of judicial construction.’
The fundamental rights guaranteed by Part III are specific and detailed. They have to be
exercised subject to the limitations embodied in that very part itself. Hence, the rights are not
absolute or unrestricted but are to be kept in conformity with the changing socio-economic
conditions. It has also been laid that the fundamental rights are available against the state.
1
AIR 1981 SC 487
2
AIR 1978 SC 597
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Private action of the individuals is protected under the ordinary law of the land. The state has
been defined in Article 12 for Part III.

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 Right to equality
The first Fundamental Right secured to the People of India is the Right to Equality. The
Constitution of India guarantees the Right to Equality through Articles 14 to 18. It has been
said that Articles 14 to 21 read with Preamble, which prohibits discrimination based on caste,
colour, creed, religion, or gender, form the heart and soul of the Constitution. These provisions
are discussed under the following heads:
1. Equality before Law or Equal Protection of Law (Article 14)
2. Prohibition of Discrimination Against Citizens (Article 15)
3. Equality of Opportunity in Public Employment (Article 16)
4. Abolition of Untouchability (Article 17)
5. Abolition of Titles (Article 18)
Article 14 secures to all persons, citizens or non-citizens, the equality of status and opportunity
referred to in the Preamble to our Constitution. It out-laws discrimination in a general way and
guarantees equality before the law to all persons. Article 15 prohibits discrimination against
citizens on such specific grounds as religion, race, caste, sex, or place of birth. Article 16
guarantees to the citizens of India equality of opportunity in matters of public employment.
Article 17 abolishes untouchability, and Article 18 abolishes titles, other than a military or
academic distinction.
Article 14 is the genus while Articles 15 and 16 are species. Articles 14, 15, and 16 are
constituents of a single code of constitutional guarantees supplementing each other. In Indira
Nehru Gandhi v. Raj Narain3, the majority of the Supreme Court has held that the right to
equality conferred by Article 14 is a Basic Structure of the Constitution and an essential feature
of democracy or rule of law. This means that even a constitutional amendment offending the
right to equality will be declared invalid. Neither Parliament nor any State Legislature can
transgress the principle of equality.4 This principle has been reiterated by the Supreme Court
in M.G. Badappanavar v. State of Kerala5 in the following words: ‘Equality is a basic feature
of the Constitution of India and any treatment of equals unequally or unequals as equals will
be a violation of the basic structure of the Constitution of India’. It has been held to be a right
which more than any other is a basic postulate of our constitution.

3
AIR 1975 SC 2299
4
Kesavananda Bharati v. the State of Kerala
5
AIR 2001 SC 260
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 Article 15
Article 15 titled as, ‘Prohibition of discrimination on grounds of religion, race, caste, sex
or place of birth’, contains provisions for a particular application of the general principle of
‘equality of treatment’ embodied in Article 14. It prohibits discrimination only based on
religion, race, caste, sex, and place of birth. Article 15 secures the right against discrimination,
only to the citizens and for that non -citizens cannot invoke the provisions of this article.
• Article 15(1) specifically bars the state from discriminating against any citizen of India
on grounds only of religion, race, caste, sex, place of birth, or any of them.
• Article 15(2) prohibits subjection of a citizen to any disability, liability, restriction or
condition on grounds only of religion, race, caste, sex or place of birth with regard to-
o access to shops, public restaurants, hotels and places of entertainment, or,
o 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.
• Article 15(3) enables the state to make special provisions for women and children since
women and children are a well-defined class.
• Article 15(4) or Article 29(2) do not prevent the state from making any special
provisions for the advancement of any socially and educationally backward classes of
citizens or the Scheduled Castes and the Scheduled Tribes.
• Article 15(5) provides that under Article 15 or Article 19(1)(g) 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 in so far as such special provisions relate to their admission to
educational institutions including private educational institutions other than the minority
educational institutions referred to in Article 30(1).
• Article 15(6) provides that nothing in this article or Article 19(1)(g) or Article 29(2)
shall prevent the State from making-
o any special provision for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5); and
o any special provision for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5) 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 Article 30(1), which in the case
of reservation would be in addition to the existing reservations and subject to a
maximum of 10 % of the total seats in each category.
Provisions contained in Article 15 are merely enabling provisions. No citizen of India can
claim reservation as a matter of right and accordingly no writ of mandamus can be issued.

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Article 15 is the weapon that breaks the wall of discrimination between the upper caste and
lower caste. Article 15 derives the entire power from Article 14. Article 15 is a facet of
Article14. These articles guarantee equality of opportunity and treatment to all the citizens in
different forms, specifically mandating that the State shall not discriminate against the citizens
only on the grounds of religion, race, sex, place of birth, caste etc. Article 15 covers the entire
range of state activities just like Article 14, but its scope is narrower than that of it in several
respects. One, while Article 14 is general in the sense that it applies both to citizens as well as
non-citizens, Article 15 covers only Indian citizens and does not apply to non-citizens. No non-
citizen can claim any right under Article 15, though he can do so under Article 14. Two, while
Article 14 permits any reasonable classification based on any rational criterion, under Article
15(1) certain grounds mentioned therein can never form the basis of classification.

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 ARTICLE 15(1)
Article 15(1) states that “The State shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any of them.”
The words ‘discriminate against’ mean ‘to make an adverse distinction concerning; to
distinguish unfavourably from others.’ It involves an element of unfavourable bias when one
is distinguished or treated less favourably than some other person under similar circumstances
or is disadvantaged by being placed on equal footing with another under different
circumstances. In this sense, the expression has been understood in the context of Article 15(1).
Discrimination against one person necessarily involves discrimination in the favour of the
other, thus including comparison. Where two citizens are placed more or less similar in all
material respects, any state action placing one of them alone under disadvantage would be
discrimination against him within the meaning of Article 15.
Discrimination, in the context of Article 15 also means classification among persons or things
and also reservations for some of the members of a group or a class. If any such classification
is based on any of the grounds mentioned in Article 15(1), i.e., religion, race, caste, sex and
place of birth, it would be violative of Article 15(1).
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 notice. The provision is bad as it amounts to discrimination
on the ground of sex.6
Similarly, under The Bombay Police Act, penalising old offenders born outside Greater
Bombay, but exempting those born inside Greater Bombay, was held to be discriminatory, on
the grounds of place of birth.7
A law providing for elections to municipalities based on separate electorates for members of
different religious communities8, or allotment of building sites by a municipality only to the
members of a particular religion would violate Article 15(1) on the grounds of religion9.
Delimitation of panchayat circles for purposes of election to a panchayat10 or favouring one
set of debtors over the other based on caste would offend Article 15(1) as well.11

6
Rajeshwari v. State of Uttar Pradesh, AIR 1954 All 608
7
Re Shaikh Hussain Shaik Mohammed AIR 1954 M.P., 23
8
Nain Sukh Das v. State of Uttar Pradesh
9
Chikkadasappa v. Town Municipal Corporation, AIR 1983 Kant 201
10
Bhopal Singh v. State of Rajasthan, AIR 1958 Raj 41
11
Jai Lal v. Padam Singh AIR 1954 M.P., 23
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State of Rajasthan v. Thakur Pratap Singh12
A notification issued under the Police Act, 1851 provided that in a disturbed area, the expenses
incurred by the State for stationing additional police were to be borne by the inhabitants, but
exempted the Harijan and Muslim inhabitants from the payment.
The prohibited grounds granted the exemption based on caste and religion were struck down
as violative of Article 15(1).
Karma Dorjee v. Union of India13
The Apex Court, in this case, took serious note of the menace of racial discrimination
committed against the people of North-Eastern states residing in other parts of the country and
stated that such discrimination was not only prohibited under Article 15 of the constitution but
also violated Article 51A(e).

➢ ONLY ON THE GROUND OF

Article 15(1) emphasises the word ‘only’ running simultaneously with the prohibited grounds
indicating that when the discrimination is based solely on the ground of religion, race, caste,
sex, place of birth, that Article 15 comes into play. The significance of the word ‘only’ in
Article 15 is that other qualifications being equal, ‘religion’, ‘race’, ‘caste’, ‘sex’, ‘place of
birth’ should not be a ground of preference or disability.
In D.P. Joshi v. Madhya Bharat14, popularly known as the first capitation fee case, a rule
framed for admission to State Medical Colleges, exempted the residents of Madhya Bharat
from payment of a capitation fee for admission to the State medical college, while the non-
residents were required to pay the same. The Supreme Court negatived the plea of
discrimination by the non-residents under Article 15(1) because the ground of exemption was
‘residence’ and not ‘place of birth’. Residence and place of birth are two distinct concepts.
Article 15(1) prohibits discrimination based on place of birth but not residence and hence,
classification based on ‘residence’ was held to be reasonable.
Further, if any of the prohibited grounds is merely one of the factors which the Legislature has
taken into consideration along with some other ground(s), then, it would not amount to
discrimination and Article 15(1) would not be attracted.

In Chitra v. Union of India15, refusal of admission to a girl student to a co-educational

institution not on the ground of sex but an account of a scheme for the better organisation of

12
AIR 1960 SC 1208
13
(2016) 12 SCALE 770
14
AIR 1955 SC 334
15
AIR 1970 SC 35
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education including the development of a women’s college there, as a step towards the
advancement of female education, and to relieve the pressure on the mixed college, was held
not be violative of Article 15(1).

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 Article 15(2)
Article 15(2) states “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.”
It is a particular application of the general principle against discrimination embodied in Clause
(1). While Clause (1) forbids discrimination against citizens in all matters, Clause (2) deals
only with cases of discrimination as regards the use or access to public places mentioned
therein. Clause (1) is levelled specifically against state action while Clause (2) is levelled
against discriminatory acts by individuals as well. The object behind this is to guard against
the menace of discrimination which can be possibly practised, in India, on a vast scale and
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.
The word “shop” has been used in a generic sense and would mean “any place where the
owner is prepared to offer his service to anybody prepared to go there seeking his service". It
would, therefore, include a laundry, a shaving saloon and an office of a doctor and a lawyer.
any premises where goods are sold either by retail or wholesale or both.
The phrase “place of a public resort” has a difference of opinion on its exact significance
attached to it. One view holds that a place is a ‘place of public resort’ only if the public has
access to it as a matter of legal right.16 A broader view, however, regards a ‘place of the public
resort’ as one to which members of the public are allowed access and where they habitually
resort to.17 The latter view is more in accord with the purpose of the constitutional provision
as it would bar discrimination on a wider front. These would include a public park, a public
road, a public bus, a ferry, railway platforms or hospitals. It would also include a burial ground
or cremation ground if it is maintained wholly or partly out of State funds. The word "tank"
would include ponds.
The prohibition contained in Clause (2) of Article 15 would be attracted only if the ‘places of
public resort’ are either maintained wholly or partly out of State funds or dedicated to the use
of the general public. Such dedications may be absolute or partial. Based on this provision, it
has been held that if a section of the public puts forward a claim for the exclusive use of a
public well, it must establish that the well was dedicated to the exclusive use of that particular

16
A.M. Deane v. Commissioner of Police, 64 CWN 348
17
Liberty Cinema v. Corp. of Calcutta, AIR 1959 Cal 45
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section of the public and not to the use of the general public18. A custom to that effect cannot
be held to be reasonable or per enlightened modern notions of the utility of public wells. It
follows that a private tank, well or bathing ghat, does not come within the purview of Article
15(2)(b).
Peoples Union for Democratic Rights v. Union of India19
The Supreme Court, in this case, 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, to interdict such violation and ensure
observance of the fundamental right by the private individual who was transgressing the same.

➢ PERSONAL LAWS
In family matters, India has a system of personal laws, i.e., Hindu law for the Hindus, Muslim
law for the Muslims and so on. Some of these laws have been amended by statutes; some like
Muslim law has been left unamended. Challenges to these laws based on religious
differentiation, or based on the differentiation between males and females have not been
accepted.
Legislation making provisions for Hindus specifically on matters falling within the ambit of
Hindu Law has been upheld even though similar provisions have not been made for other
groups. A law introducing monogamy among the Hindus, but leaving the Muslims free to take
any number of wives, was upheld against the charge of discrimination on the ground of
‘religion’ only. The court pointed out that the Hindus have been enjoying for long their
indigenous system based on Hindu scriptures in the same way as the Mohammedans were
subject to their law.20
The Supreme Court has taken the stand that personal laws are immune from being challenged
under Fundamental Rights which do not touch upon these laws. Personal laws fall outside the
scope of the Fundamental Rights.21 It seems like the courts do not
want to adjudicate upon aspects of these systems of laws that would not be able to stand the
test of Fundamental Rights and desires that Parliament ought to deal with these matters
rationally.

18
Arumugha v. Narayana, AIR 1958 Mad 282
19
AIR 1982 SC 1473
20
Srinivasa Aiyar v. Saraswati, AIR 1952 Mad. 193
21
Krishna Singh v. Mathura Ahir, AIR 1980 SC 707
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Githa Hariharan v. Reserve Bank of India22
Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the father of a Hindu
minor is the only guardian and the mother of the minor is in an inferior position. She could
become the guardian only after the father. The provision was challenged and the argument was
that the mother was relegated to an inferior position on the ground of ‘gender’ alone as her
right, as a natural guardian of the minor, is made cognisable only after the father.
The Supreme Court agreed with the premise that gender equality is one of the basic principles
of the Constitution. If the word ‘after’ in Section 6(a) meant that the mother could act as a
child’s guardian only after the father’s death, it violates the basic requirement of the
Constitutional mandate, differentiating between male and female. But the provision in
question could be so interpreted as to make it compatible with Article 14. Accordingly, the
Court interpreted Section 6 to mean that the mother could act as the natural guardian of the
minor during the father’s lifetime if the father was not in actual charge of the affairs of the
minor.

22
AIR 1999 SC 1149
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 article 15(3)
Article 15(3) states, “Nothing in this article shall prevent the State from making any special
provision for women and children.”
Article 15(3) empowers the state to make any "special provision" for women and children.
Articles 15(1) and 15(2) prevent the state from making any discriminatory law on the ground
of gender alone. The Constitution is thus characterised by gender equality. The Constitution
insists on the equality of status and it negates gender bias. Nevertheless, by Article 15(3), the
state is permitted, despite Article 15(1), to confer special rights on women,23 since women are
a well-defined class,24 thus carving out a permissible departure from the rigours of Article
15(1). It is to strengthen and improve the status of women.25

The word ‘for’ here, signifies special provisions can be made ‘in favour of women and not
against them.26 Therefore, State can discriminate in favour of women against men, but not
vice-versa.27 In this regard, for instance, a plea that a woman belonging to the S.C. category
cannot contest for the post of Sarpanch reserved for SC candidates and not reserved for women
belonging to that category would not be maintainable.28

Article 15(3) recognises 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 Article 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 Article 15(3) is to
strengthen and improve the status of women. Article 15(3) thus relieves the state from the
bondage of Article 15(1) and enables it to make special provisions to accord socio-economic
equality to women.
Some of the provisions on the lines of Article 15(3) made by Legislature:
• Article 42 of the Constitution enjoins the State to make provisions for securing just and
humane conditions of work and for maternity relief. A law made to implement this
Directive, securing maternity relief to women workers, would not be violative of Article
15(1) but within the purview of Clause (3) of this Article.
• 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

23
Shahbad v. Mohd. Abdullah AIR 1967 J&K 120
24
State of M.P. v. G.D. Tirthani AIR 2003 SC 2952
25
Government of A.P. v. P.B. Vijay Kumar AIR 1995 SC 1648
26
Anjali Roy v. State of West Bengal AIR 1952 Calcutta 825
27
V. Revathi v. Union of India AIR 1998 SC 835
28
Paramjit Singh v. State of Punjab AIR 2009 P.&H. 7
18 | P a g e
 provides benefits and protection to women and children in certain circumstances.29
• Order 5, Rule 15 of Civil Procedure Code, 1908, which makes service of summoning
on the male members of the family, has been held not discriminatory and it is a special
provision covered by Article 15(3).
• 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).30
• The Constitution (73rd Amendment) Act, 1992 and the Constitution (74th Amendment
Act) 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.
Special provisions being referred need not be restricted to measures that are beneficial in the
strict sense.31 The provision making women ineligible for the post of warden in a men’s jail
would be covered by Article 15(3) and would be valid, as the position of a woman would
become awkward and hazardous while dealing with habitual offenders. The ‘special provision’
which the State may make under Article 15(3) can be in the form of either affirmative action
or reservation.32
Therefore, making special provisions for women in respect of employment or posts under the
State is an integral part of Article 15(3) and the power conferred under this Clause, is not
whittled down in any manner by Article 16. Since Article 16 does not specifically permit
special provisions for women being made by the State, it has been held that Article 16 could
not, in any manner, derogate from the power conferred upon the State in this connection under
Article (15)(3). This power has been held to be wide enough to cover the entire range of State
activity including employment under the State.33
The operation of Article 15(3) can be illustrated by the following few cases:
Government of Andhra Pradesh v. P.B. Vijay Kumar34
The State Service Rules providing preference to women in direct recruitment has been held
valid. It has been ruled that Articles 15(3) and 15(1) are to be read harmoniously with Articles
16(2) and 16(4).
Likewise, the policy decision of the Government to appoint only Women Self-Help Groups

29
Savitaben Somabhai Bhatiya v. State of Gujarat 2005 (3) SCC 636
30
Thota Sesharathamma v. Thota Manikyamma (1991) 4 SCC 312
31
Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321
32
Raghvan Singh v. State of Punjab AIR 1972 P&H 117
33
Mohd. Siddiq Ali v. High Court of A.P. AIR 2005 SC 4380
34
AIR 1995 SC 1648
19 | P a g e
for supplying cooked diet to the indoor patients of Government Hospitals would not violate of
the rights of other agencies supplying food earlier.35
The Supreme Court has explained the relationship between Articles 15 and 16 as follows:
Article 15 deals with every kind of state action concerning Indian citizens. Every sphere of
state activity is controlled by Article 15(1) and, therefore, employment under the State cannot
be excluded from the ambit of Article 15(1). Article 15(3) permits special provisions for
women. Articles 15(1) and 15(3) go together. Article 16(1) places certain prohibitions (descent
and residence) in addition to the grounds of prohibition enumerated under Article 15(1)
concerning employment under the state and are also included under Article 16(2).
The Court observed, "Therefore, in dealing with employment under the state, it has to bear in
mind both Articles 15 and 16, the former being a more general provision and the latter, a more
specific one. Since Article 16 does not touch upon any special provision for women being
made by the state, it cannot in any manner derogate from the power conferred upon the state
in this connection under Article 15(3). The power conferred by Article 15(3) is wide enough
to cover the entire range of state activity including employment under the state."
In Yusuf Abdul Aziz v. State of Bombay36, the Bombay High Court upheld the validity of
Section 497 of Indian Penal Code, 1860, and said that the said Section was justified on the
ground that the discrimination was not based on the ground of sex alone. 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 Court thus held that discrimination
under Section 497, L.P.C. was not based on sex alone. The Supreme Court, on appeal, ruled
down that it was covered by the exception Clause (3) of Article 15. However, recently
in Joseph Shine v. Union of India37, adultery was decriminalized since it was violating
Articles 14, 15 and 21 of the Indian Constitution. Hence it is no longer treated as a crime,
rather it can only act as a reason for divorce.
It has been ruled that the ratio in M.R. Balaji v. State of Mysore38 was only confined to the
reservation under Articles 15(4) and 16(1) and that it would not be applicable in case of special
provisions made for women under Article 15(3). Where a female employee’s grievance was
the writing of a sensuous letter expressing love to her, admiring her qualities and beauty, and
extending unsolicited help, it was held that the female employee’s grievance ought to have
been looked into according to the directions given in Vishaka Case39.

35
B.D.D.S.W. Association v. State of West Bengal AIR 2010 (NOC) 498 (WB)
36
AIR 1954 SC 321
37
2018 SCC Online SC 1676
38
AIR 1963 SC 649
39
(1997) 6 SCC 241
20 | P a g e
 Article 15(4)
Article 15(4) states, “Nothing in this article or 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.”
This is another exception to Clause (1) and (2) and was added by the Constitution (First
Amendment) Act, 1951 as a sequel to the decision of the Supreme Court in State of Madras
V. Champakam Dorairajan.40 In this case, the Madras Government issued a communal
Government Order providing for reservation of seats in the State Medical and Engineering
Colleges for different communities in the proportion of students of each community. The
Order was challenged as violative of Article 15(1) since it discriminated on the grounds of
religion, race and caste. A seven Judge Bench of the Supreme Court struck down the
classification as being based on caste, race and religion for admission to educational
institutions on the ground that Article 15 did not contain a clause such as that of Article 16(4).
The Government contended that the Order was issued to promote the Directive Principle of
State Policy enshrined in Article 46. 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.
In another case, a government order requisitioning land for construction of a colony for
Harijans was held to be discriminatory under Article 15(1) because the facilities were being
provided to them as a community as such when other members of the public were equally in
need of similar facilities.41
The Court thus gave a literal interpretation of the constitutional provisions. To tide over the
difficulties created by such decisions in the way of helping backward classes by making
discriminatory provisions in their favour, Article 15(4) was added to the Constitution.
Thus, an order acquiring land for constructing a colony for Harijans is now valid under Article
15(4).42

➢ ARTICLE 15(4)- AN ENABLING PROVISION

Clause (4) of Article 15 is an enabling provision. It confers on State, a discretion to make
special provisions and does not create any constitutional duty or obligation on the State to take
any action under it.43 In Gulshan Prakash v. State of Haryana44, the applicants by a writ

40
AIR 1951 SC 835
41
Jagwant Kaur v. State of Maharashtra AIR 1952 Bombay 461
42
Moosa v. State of Kerala, AIR 1960 Kerala 355
43
N.T.R. University of Health Sciences v. G.B.R. Prasad AIR 2003 SC
44
AIR 2010 SC 288
21 | P a g e
petition sought the Court to direct the State Government to provide reservation of seats in
Postgraduate Courses PGIMS, following the guidelines issued by the Government of India in
respect of All India Entrance Examination for said courses. Dismissing the appeal, a 3-Judge
Bench of the Supreme Court observed: ‘Article 15(4) is an enabling provision. It is not an
exception but only makes a special application of the principle of reasonable classification and
does not make any mandatory provision for reservation. The power to make the reservation
under Article 15 (4) is discretionary and no it can be issued to effect the reservation.
Reiterating and relying on the law laid down by a nine-Judge Bench of the Supreme Court in
Indra Sawhney v. Union of India 45, the Court explained that the State Government was the
competent authority to decide the policy of reservation in P.G. Medical Courses in the State.
The state was not bound to follow the provision made by the Central Government. The
decision of the Government of India in this respect could not automatically be applied in
selections where the State Government had the power to regulate. Every State could take its
own decision concerning reservation depending on various factors.46
The expressions ‘Scheduled Castes’ and ‘Scheduled Tribes’ have been defined under Clauses
(24) and (25), respectively of Article 366. It is to be read with Articles 341 and 342, for this
purpose. The expression ‘backward classes’ is not defined in the Constitution. Article 340 of
the Constitution, however, empowers the President to appoint a Commission to investigate the
conditions of socially and educationally backward classes within the territory of India. On
receiving the report of the Commission, the President may specify the classes to be considered
backwards.

➢ SCOPE OF ARTICLE 15(4)

Article 15(4) enables the State to make special provisions. ‘Special provision for advancement’
is a wide expression and should not be construed in a restricted sense as meaning only social
and educational advancement. The expression may include many more things besides mere
reservation of seats in colleges. It may be by way of financial assistance, free medical,
educational and hostel facilities, scholarships, free transport, concessional or free housing,
exemption from requirements insisted upon in the case of other classes.
The scope of Article 15(4) is wider than Article 16(4) for Article 15(4) covers within it, several
kinds of positive action programmes in addition to the reservation.
Such "special provisions" as are permissible under Clause (4) of Article 15 must, however, be
for the advancement of persons belonging to those categories and therefore, special provision,
which is not for the advancement of those persons, would not be protected under Article 15(4).

45
AIR 1993 SC 477
46
M.Nagraj v. Union of India AIR 2007 SC 71
22 | P a g e
Peculiar principles evolved for implementing constitutional reservations under Articles 15(4)
and 16(4), cannot be applied to all reservations, unmindful of the purpose of reservation. The
Supreme Court in State of M.P. v. Mohan Singh47 has held that there was no justification, in
law, for giving remission to prisoners belonging to the Scheduled Castes/ Tribes. In so far as
these prisoners had broken the law, they stood on the same footing as all other prisoners. The
invocation of Article 15(4) was, thus, held wholly unjustified. The Court said that grant of
remission to convicted prisoners belonging to the SC/STs could hardly be said to be a measure
for the advancement of the SC/ST.
In the interpretation of the scope of Clause (4) of Article 15, the following two issues have
arisen before the Courts:
(i) what shall be the basis to determine a class to be socially and educationally backwards; and
(i) what can be the extent or quantum of the special provision authorised by this Clause.

➢ SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES

A major difficulty raised by Article 15(4) is regarding the determination of who are ‘socially
and educationally backward classes.’ This is not a simple matter as sociological and economic
considerations come into play in evolving proper criteria for its determination. Article 15(4)
lays down no criteria to designate ‘backward classes’ and leaves the matter to the state to
specify backward classes. However, the courts can go into the question of whether the criteria
used by the state for the purpose are relevant or not which has happened in quite a lot of cases.
The Supreme Court’s approach to this has been that state resources are limited; protection to
one group affects the constitutional rights of other citizens to demand equal opportunity, and
efficiency and public interest have to be maintained in public services because it is implicit in
the very idea of reservation, that a less meritorious person is being preferred to a more
meritorious person. The Court also seeks to guard against the perpetuation of the caste system
in India and the inclusion of advanced classes within the term backward classes.
In M.R. Balaji v. State of Mysore48, an order of the Mysore Government, issued under Article
15(4) reserved seats for admission to the State medical and engineering colleges for Backward
classes and ‘more’ Backward classes was challenged. This was in addition to the reservation
of seats for the Scheduled Castes (15%) and the Scheduled Tribes (3%). Backward and more
Backward classes were designated based on ‘castes’ and ‘communities.’
The Court declared the order bad on several grounds. The first defect was that it was based
solely on caste without regard to other relevant factors and this was not permissible under

47
AIR 1996 SC 2106
48
AIR 1963 SC 649
23 | P a g e
Article 15(4). Though caste about Hindus could be a relevant factor to consider in determining
the social backwardness of a class of citizens, it must not be made the sole and dominant test
on that behalf. Christians, Jains and Muslims do not believe in the caste system and, therefore,
the test of caste could not be applied to them. In as much as identification of all backward
classes under the impugned order had been made solely based on caste, the order was bad.
Next, the Court declared that Article 15(4) does not envisage classification between
‘backward’ and ‘more backward classes’ as was made by the Mysore order. Article 15(4)
authorises special provisions being made for really backward classes and not for such classes
as were less advanced than the most advanced classes in the State. By adopting the technique
of classifying communities into backward and more backward classes, 90 % of the total State
population had been treated as backward.
The Supreme Court here could sense the danger in treating ‘caste’ as the sole criterion for
determining social and educational backwardness. The importance of the judgment lies in
realistically appraising the situation when the Court said that economic backwardness would
provide a much more reliable yardstick for determining social backwardness because more
often educational backwardness is the outcome of social backwardness. An attempt at finding
a new basis for ascertaining social and educational backwardness in place of caste is reflected
in the Balaji decision.
Hence, it was held that backwardness under clause (4) of Article 15, must be both, social and
educational and not either of them. The caste of a group of persons could not be the sole or
even predominant basis to ascertain whether the class could be taken to be backward for Article
15(4). The court held that as regards social backwardness, the main factor would be the result
of poverty. One’s occupation and place of habitation could be the other relevant factors in
determining social backwardness for a class of persons. The court thus invalidated the test of
social backwardness which was based, predominantly, if not solely based on caste.49
The Supreme Court took note that there are numerous castes in the country that are backward
socially and educationally and the state has to protect their interests. A caste is also a ‘class’
of citizens and, therefore, if an entire caste is found to be socially and educationally backwards,
then the inclusion of the caste as such would not violate Article 15(1). When backwardness is
defined concerning castes, the Court wants to be satisfied that not ‘caste’ alone, but other
factors have also been considered for the purpose.
However, in P.Rajendran v. State of Madras50, the Supreme Court upheld the test of
backwardness which was mainly based on caste. The Supreme Court observed: ‘It must not be
forgotten that a caste is also a class of citizens and if the caste as a whole is socially and can

49
Chitralekha v. State of Mysore AIR 1964 SC 1379
50
AIR 1968 SC 1012
24 | P a g e
educationally backward reservation 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. U.S.V. Balaram51, the Supreme Court again reiterated the same view and
observed: ‘If after collecting the necessary data, it is found that a caste as a whole is socially
and educationally backward, the reservation made for such persons will have to be upheld even
though a few individuals in that group may be both socially and educationally above the
general average’.
As regards reservation for candidates from hill and Uttarakhand area, the Supreme Court in
State of U.P. v Pradeep Tandon52, said that the fact that these areas in the State of Uttar
Pradesh suffered from backwardness, both social and educational, the reservation for
candidates from these areas would be constitutionally valid.53
The question was considered by a five-Judge Bench of the Supreme Court in K.C. Vasanth
Kumar v. State of Karnataka54, the five-Judges expressed five separate opinions on the vexed
question. The conclusion was that both, caste and poverty, would be relevant factors in
determining the backwardness of citizens. Occupations and places of habitation may also be
counted in determining backwardness.
In Indra Sawhney v. Union of India55, commonly known as the Mandal Commission case,
the matter was settled by the majority of the Supreme Court, holding that caste can be an
important or even sole factor in determining the social backwardness and that poverty alone
cannot be such a criterion.
The Supreme Court, while quashing the Central Government's 2014 Notification that put Jats
of Haryana, Himachal Pradesh, Uttarakhand and six other States, on the list of Other Backward
Classes (OBCs), for reservation in jobs and educational institutions ruled that backwardness
could not be caste-centric forever. The Division Bench of the Court strongly advised the
government to gradually discard ‘the cast-centric definition of backward’ and evolve new
practices, methods and yardsticks to discover and address emerging forms of backwardness.
It has recently been ruled that Hijras/Transgenders are entitled to benefits, as socially and
educationally backward class of citizens. They are also held entitled to reservation in public
employment.56 Granting the OBC status to the third gender, the Hijras/Transgenders, this
judgment has been held to be the pathfinder and thus, explaining the emerging forms of
backwardness.

51
AIR 1972 SC 1375
52
AIR 1975 SC 563
53
Jagdish Negi v. State of U.P. AIR 1997 SC 3505
54
AIR 1985 SC 1495
55
AIR 1993 SC 477
56
National Legal Services Authority v. Union of India AIR 2014 SC 1863
25 | P a g e
 ➢ QUANTUM OF SPECIAL PROVISION
What is the extent of reservation that can be made under Article 15(4)?
The Supreme Court has set its face, generally speaking, against excessive reservation, for it is
bound to affect efficiency and quality by eliminating general competition.
The question relating to the extent of special provisions which the States can make under
Article 15(4) was raised before the Supreme Court for the first time in Balaji57. In this case, a
reservation of up to 68% was made by the State of Mysore for backward classes for admission
to the State medical and engineering colleges. The break-up of the reservation was as follows:
50% seats for backward and ‘more’ backward classes; 15% seats for Scheduled Castes; 3%
seats for the Scheduled Tribes. In effect, 68% of seats were reserved in medical, engineering
and other technical colleges for the weaker sections of the society, leaving only 32% seats for
the merit pool.
The State argued that since Article 15(4) does not contain any limitation on the State’s power
to make a reservation, cent per cent reservation could be made in favour of backward classes
in the higher educational institution if the problem of backwardness in a State so demanded.
The Supreme Court rejected the argument and the rule of 68% reservation.
The Court agreed, on the one hand, that Article 15(4) must be read with Article 46, a directive
principle and steps ought to be taken to redress backwardness and inequality from which the
backward classes, Scheduled Castes and Scheduled Tribes suffer otherwise for them political
freedom and Fundamental Rights would have little meaning. On the other hand, the Court
insisted that Article 15(4) being a special provision cannot denude Article 15(1) of all its
significance. Article 15(4) “is not a provision which is exclusive in character, so that in looking
after the advancement of those classes, the State would be justified in ignoring altogether the
advancement of the rest of the society.”
The Court emphasized that the order amounted to be a fraud upon the Constitution, plainly
inconsistent with Article 15(4). The Court said that the State would not be justified in ignoring
the altogether advancement of the rest of the society in its zeal to promote the welfare of the
backward classes. The national interest would suffer if qualified and competent students were
excluded from admission into an institution of higher education. Speaking generally and
broadly, the Court said that a special provision, should be within reasonable limits, i.e., less
than 50%, how much less than 50%, would depend upon the relevant prevailing circumstances
in each case. The Supreme Court thus laid down the special provisions or reservations for
weaker sections of the society that must not exceed the 50 % limit.58 It has been held that the

57
M.R. Balaji v. State of Mysore AIR 1963 SC 649
58
M.R. Balaji was reiterated with approval and followed in Devadasan v. Union of India, AIR 1964 SC 179,
in the context of Article 16(4).
26 | P a g e
principle of fixing the percentage of reservation emanates from the doctrine of
reasonableness.59
The Supreme Court thus clearly indicated that in giving effect to reservations for SC’s, ST’s
and OBC’s, a balance ought to be struck so that the interests of the backward classes, ST’s and
SC’s are properly balanced with the interests of the other segments of the society. To safeguard
the interests of the reserved classes, the interests of the community as a whole cannot be
ignored. It has to be remembered that Article 15(4) is an enabling provision and its objective
is to advance the interests of the weaker elements in society. Reservations under Article 15(4)
must be within a reasonable limit. If a provision under Article 15(4) ignores the interests of
society as a whole, it would be clearly outside the purview of Article 15(4).
The question of quantum of reservation again came to be considered by a nine-Judge Bench
of the Supreme Court in Indra Sawhney v. Union of India60. The Supreme Court in this case
finally held that barring any extraordinary situations, reservation should not exceed 50 %. The
Court has thus affirmed M.R. Balaji61 in this respect. 27% reservation for the ‘Other Backward
Classes’ was introduced. The Court, however, ruled that reserved category candidates getting
selected in open competition based on their merit, should not be counted against the quota
reserved for them. They would be deemed to be general quota candidates.
Stating the purpose of reservation in the context of admission to medical colleges, a three-
Judge Bench of the Supreme Court in A.I.I.M.S. Student Union v. A.I.I.M.S.62 observed:
Reservation as an exception may be 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 the removal of regional or class inadequacy
like a disadvantage. Even there the quantum of reservation should not be excess or socially
injurious. The higher the level of the speciality, the lesser the rule of reservation.
Recently, however, a three-Judge Bench allowed the States of Tamil Nadu and Karnataka, to
offer reservations in education and jobs beyond the 50% cap, provided they had quantifiable
data on the BC/OBC population warrants this. The Court has asked the two States to collect
the data and submit it to their respective Commission for Backward Classes to ‘revisit’ the
reservation issue. It was ruled that reservations beyond 50% need to be justified with reasons.63
The State of Tamil Nadu had raised the quota from 68% in 1981 to 69% in 1990 through
legislature changes and insulating it from judicial review by bringing it under the Ninth
Schedule. The State of Karnataka has offered 70% reservations. The Court, however, stayed

59
N.T.R. University of Health Services, Vijaywada v. G. Babu Rajendra Prasad AIR 2003 SC 1947
60
AIR 1993 SC 477
61
M.R. Balaji v. State of Mysore AIR 1963 SC 649
62
AIR 2001 SC 3262
63
Voice Consumer Care Council v. State of Tamil Nadu 14-07-2010
27 | P a g e
the Governments decision pending completion of the exercise for deciding the quota and
enacting a law for the purpose.64

➢ BACKWARD AND MORE BACKWARD CLASSES

In M.R. Balaji v. State of Mysore65, the Supreme Court invalidated the Mysore Government
Order so far as it distinguished between Backward Classes and more Backward Classes, for
Article 15(4).
But, in Indra Sawhney v. Union of India66, the Supreme Court 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 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, the Balaji decision67 stands
overruled.
Later on, the Apex Court in A.P.B.C. Sangh v. J.S.V. Federation68 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.

➢ MINIMUM QUALIFYING MARKS- NO DISPENSATION

A division bench of the Supreme Court in Dr Sadhna Devi v. State of Uttar Pradesh69 quashed
an order by the Uttar Pradesh government dispensing with the requirement by the candidates
belonging to special categories, of obtaining minimum qualifying marks in the written
examination held for admission to Post-Graduate and Diploma courses in Medicine and
Surgery. The Court remarked that if this was done, merit would be sacrificed altogether and
thought that even for the reserved category candidates, there should be some minimum
qualifying marks if not the same as prescribed as benchmarks for general category students.
Thus, there cannot be zero qualifying marks for reserved category candidates in the entrance
test for admission to the Postgraduate courses. The government having installed the system of
holding an admission test, would not be entitled to do away with the requirement of obtaining
minimum qualifying marks for the special category candidates. It cannot be said that even if
these candidates have not obtained even the minimum qualifying marks they must still be
selected for post-graduate courses. This amounts to rendering the admission test an idle

64
S.V. Joshi v. State of Karnataka AIR 2012
65
AIR 1963 SC 649
66
AIR 1993 SC 477
67
M.R. Balaji v. State of Mysore AIR 1963 SC 649
68
AIR 2006 SC 2814
69
AIR 1997 SC 1120
28 | P a g e
formality because these candidates would qualify for admission even though they did not
secure any marks. Therefore, if these students fail to secure the minimum qualifying marks,
then the seats reserved for them should not go to waste but should be released for the
candidates of the general category. Otherwise, there would be a national loss.
In sum, the Supreme Court insisted that for admission to Post-Graduate Medical courses, there
ought to be prescribed a minimum cut off percentage of marks at the entrance examination for
Scheduled Castes, Scheduled Tribes and other Backward Classes. It would be unconstitutional
as being violative of the right to equality to keep this cut off point at zero per cent.
The Court referred, with approval, to the decisions in Dr Jagdish Saran v. Union of India70,
and Dr Pradeep Jain v. Union of India71 wherein the importance of merit was being
emphasised for admission to Post-Graduate Medical Courses. The Court also referred to the
judgment in Mohan Bir Singh Chawla v. Panjab University, Chandigarh72 in which the
Supreme Court observed: ‘The higher you go, in any discipline, lesser should be the
reservation of whatever kind.’
As a sequel to the judgement, the State of Uttar Pradesh prescribed a Post-Graduate Medical
Entrance Examination for admission to Post-Graduate Degree/Diploma Course in medicine
and fixed a cut-off percentage of 45 at the entrance examination for the general category
candidates for admission to the Post-Graduate Medical course. But for admission of reserved
category candidates, the cut-off percentage was fixed at 20%. In addition, 50% of the seats in
the post-graduate course were reserved for Scheduled Castes, Scheduled Tribes and Backward
classes candidates. A similar scheme was laid down in Madhya Pradesh. The Supreme Court
was called upon to adjudge the validity of these schemes vis-a-vis Article 15(4). However, in
Dr Preeti Sagar Srivastava v. State of Madhya Pradesh73, the Supreme Court did not express
any opinion on the question of whether the reservation of seats is permissible at the post-
graduate level in medicine as this question was not debated before it. The Court only examined
the question of whether lower qualifying marks could be prescribed for admission of reserved
category candidates.
A five-Judge Constitution Beach of the Apex Court clarified that the maximum relaxation in
the marks for the OBC quota students would be 10 per cent. It has also been ruled that lowering
marks for candidates belonging to reserved categories is not as per constitutional mandate. No
citizen can claim reservation as a matter of right.74

70
AIR 1980 SC 820
71
AIR 1984 SC 1420
72
AIR 1997 SC 788
73
AIR 1999 SC 2894
74
Aman Piyush Khanna v. State of Gujarat AIR 2009 (NOC) 2849 (Guj.)
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 ➢ TRANSPLANT IN BACKWARD CASTE BY ADOPTION OR MARRIAGE OR
CONVERSION/MIGRATION
In Valsamma Paul v. Cochin University75, a Syrian Catholic (a forward caste) lady married
to a Latin Catholic was appointed as a lecturer as a reserved candidate. This was challenged
and the Supreme Court ultimately quashed her appointment on the ground that she was not
entitled to the benefit of reservation under Article 16(4) as a lecturer as the post in question
was reserved for the backward class Latin Catholic Community. The Supreme Court explained
that the Dalits (SC) and Tribes (ST) had suffered social d economic disabilities recognised by
Articles 17 and 15(2) and as a consequence, they had become socially, culturally and
educationally backwards. The object of reservation permissible under Article 15(4) and Article
16(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
sought to bring them in the mainstream of the Nation's life, by providing them opportunities
and facilities.
The Court, however, cautioned that acquisition of the status of Scheduled Caste, etc. by
voluntary mobility into theme categories, would play fraud on the Constitution and would
frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.
The Court, thus, ruled that a candidate who had the advantageous start in life being born in a
forward caste and had a march of advantageous life but was transplanted in backward caste by
adoption, marriage, conversion or any other voluntary act would not become eligible to the
benefit of reservation, either under Article 15(4) or 16(4), as the case might be. The recognition
of the candidate by the members of backward class, the Court ruled, would not be relevant for
his entitlement to the reservation benefits.
Likewise, a person belonging to OBC, transplanted into a family of the general class by way
of a voluntary act of marriage, would be a member of OBC and would not be held to have
undergone any change in his original caste. Until death, he will be a member of OBC. And,
therefore, such a person cannot claim advantage or disadvantage, as the case may be, of
transplanted caste.76
The Supreme Court has clarified in Jagdish Negi v. State of Uttar Pradesh77, that no class of
citizens can be perpetually treated as socially and educationally backwards. Backwardness
cannot continue indefinitely. Every citizen has a right to develop socially and educationally.
The State is entitled to review the situation from time to time. There is no rule that once a
‘backward class of citizens, always such a backward class’. Once a class of citizens has been
held to be socially and educationally backward class of citizens, it cannot be predicted that in

75
AIR 1996 SC 1011
76
Pratiksha Kumari v. State of H.P. AIR 2012 H.P. 92
77
AIR 1997 SC 3505
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future it may not cease to be so. The State may review the situation from time to time and
decide whether a given class of citizens that have been characterised as ‘socially and
educationally backwards’ has continued to form part of that category or has ceased to fall in
that category.

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 ARTICLE 15(5)
Article 15(5) states, ‘Nothing in this article or 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 the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the State,
other than the minority educational institutions referred to in clause (1) of Article 30.’
This is another exception to Clause (1) and (2) and was added by the Constitution (Ninety-
Third Amendment) Act, 2005. Under this article, the state is empowered to make, by law,
special provisions which help in the upliftment of socially and educationally backward classes
of citizens or Scheduled castes and Scheduled tribes, in so far, such provisions relating to
admission to educational institutes whether aided or not aided by the State, irrespective of the
minority educational institutes which are referred in Article 30(1).
This clause was added in response to the Supreme Court’s explanation in P.A. Inamdar &
Others v. State Of Maharashtra & Others78 of the ratio in T.M.A. Pai Foundation v. State of
Karnataka79 that imposition of reservations on the non-minority aided educational institutions,
covered by Article 19(1)(g), to be unreasonable restrictions and not covered by Article 19(6).
The purpose of the amendment was to clarify or amend the Constitution in a manner that what
was held to be unreasonable would now be reasonable by the Constitutional status given to
such measures.80
A Constitution Bench of the Supreme Court in Ashok Kumar Thakur v. Union of India81 held
that the provision under Article 15(5) of the Constitution is to be taken as an enabling provision
to carry out the certain constitutional mandate and thus it is constitutionally valid as far as it is
related to State maintained or State-aided educational institutions and it does not exclude
Article 15(4) of the Constitution. The Court also suggested that the total number of seats in
different educational institutions be increased so that no harm is caused to the general category
while the reservation is being provided to SC’s, ST’s and other backward classes. As far as
private unaided educational institutions are concerned, the question was not addressed by the
Court.
The Constitution (Ninety-third) Amendment Act, 2005 does not violate the ‘basic structure’
of the Constitution so far as it relates to aided educational institutions subject to the exclusion
of ‘creamy layer’.

78
AIR 2005 SC 3226
79
AIR 2003 SC 355
80
Indian Medical Association v. Union of India, AIR 2011 SC 2365
81
(2008) 6 SCC 1
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Article 15(5) of the Constitution excludes the minority educational institutions from the power
of the State to make any provision by law for the advancement of any socially or educationally
backward classes of the citizens or Scheduled Castes and Scheduled Tribes concerning their
admission to educational institutions including private educational institutions whether aided
or unaided. This article is capable of very wide interpretation and vests the State with the
power of wide magnitude to achieve the purpose stated in the article. But, the framers of the
Constitution have specifically excluded minority educational institutions from the operation
of this clause.82 Exclusion of minority educational institutions from Article 15(5) is not
violative of Article 14 of the Constitution as the minority educational institutions by
themselves, are a separate class and their rights are protected by other Constitutional
provisions.83
The main concept of this article was invoked in the case of Pramati Educational and Cultural
Trust v. Union of India84. The main issue, in this case, was whether the insertion of Article
15(5) by the constitution under the 93rd amendment has altered the basic framework of the
Constitution. In this case, the contention made by the petitioner states that Article 15(5) failed
to make the distinction between aided and unaided educational institutions. Also, the petitioner
held that private institutions can’t be forced by the state to provide admissions based on the
system of reservations. A Constitution Bench of the Supreme Court, in this case, upheld the
constitutional validity of Clause (5) of Article 15 and explained:
• It is an enabling provision to make equality of opportunity promised in the Preamble a
reality.
• Clause (5) amplifies the provision of Article 15 despite which some classes have
remained backwards and also not been able to access educational institutions for
advancement.
• Law made for Clause (5) will have to conform with the equality clause.
• The exclusion of minority institutions that are a separate class by themselves does not
destroy the concept of Secularism.
• Special provisions under Clause (5) would not affect achieving excellence as established
by experience.

82
Sindhi Education Society v. Government (NCT of Delhi), (2010) 8 SCC 49
83
Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1
84
AIR 2014 SC 2114
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 ARTICLE 15(6)
Article 15(6) states that ‘Nothing in this article or Article 19(1)(g) or Article 29(2) shall prevent
the State from making:
• any special provision for the advancement of any economically weaker sections of
citizens other than the classes mentioned in clauses (4) and (5);
• any special provision for the advancement of any economically weaker sections of
citizens other than the classes mentioned in clauses (4) and (5) 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 Article 30(1), 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.’
This is one of the exceptions to Clause (1) and (2) and was added by the Constitution (One
Hundred Third Amendment) Act, 2019. This article empowers the state to make special
provisions for the advancement of ‘economically weaker sections’ of the society, which would
even include 10% reservations to be provided for EWS in educational institutes. This 10% of
reservations are independent of ceilings upon the already existing reservations.
More than 20 petitions have been received by the Supreme Court challenging this amendment.
It was argued that this clause violates Article 14 of the Indian Constitution. The main argument
which was put forth was that the amendment which was introduced exceeds the 50% ceiling
limit which was laid down in Indra Sawhney v. Union of India85. The court after looking into
all the contentions made stated that the state has the authority to make laws that promote ‘social
equality’ and protect the welfare of weaker sections of society under Article 46 of the Indian
constitution. Also, the court took into note that ‘economic criteria’ is one of the relevant factors
which identifies social and educational backwardness. It was also put forth by the court that
50% of the ceiling limit drafted from Indra Sawhney v. Union of India86 would not apply for
Article 15(6).

85
AIR 1993 SC 477
86
AIR 1993 SC 477
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 Conclusion
Article15 is concerned about non-discrimination on certain grounds. To achieve certain kinds
of equality within the society and the exceptions mentioned in Article15 which the state has
the power to amend or bring special provisions in a way to uplift women and children and
those belonging to OBC, SC, and ST. So Article15 acts as an extension of Article14 of the
constitution. Article14 says every citizen shall be treated equally before the law and the state
cannot deny equality or equal protection to individuals.

The Constitution of India guarantees fundamental rights to all citizens of the country without
any discrimination. These fundamental rights make an individual live with dignity and
promote the idea of democracy. Article14 and Article15 help bring equality and eradicate
discrimination. Article15 is the weapon that breaks the wall of discrimination between the
upper caste and lower caste and it truly derives the entire power from Article14.
Article 15 has always hurdled its way out to reach the one really in need. The condition of the
downtrodden has highly improved since its inception in 1949. It provides a base to each and
everything that legislature needs to formulate provisions to promote harmony in the society.
There is an extreme decline in the number of cases of atrocities against the underprivileged
classes.

Though the general rule laid down in our constitution provides that all the citizens of India are
equal and they cannot be discriminated against based on race, caste, sex or place of birth, some
of the exceptions to that general rule are also provided which speak of protective
discrimination. The weaker section of society has been lagging in the race of life, so for their
upliftment and protection and to bring them to equal status with other sections of society
protective discrimination is a basic requirement of our democracy. Since Independence, there
has been a great change in the condition of the weaker sections in India but still, the ultimate
destination is miles away.
India can stand tall and proud to have a constitution so beautifully drafted for the welfare of
the people as it is an all-around development of individuals.

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 Bibliography
BOOKS REFERRED:
• Narendra Kumar, Constitutional Law of India (Allahabad Law Agency, Faridabad, 10 th
edition, 2021)
• M.P. Jain, Indian Constitutional Law (Lexis Nexis, 8th edition, 2018)
• Durga Das Basu, Introduction to The Constitution of India (Lexis Nexis, 23rd edition,
2018)
WEBSITES REFERRED:
• Article 15 of the Constitution: Prohibition of Discrimination & Unreasonable
Differentiation, available at: https://blog.ipleaders.in/article-15/ (Last visited on
November 28, 2021)
• Protective Discrimination, available at:
http://www.legalservicesindia.com/article/1532/Protective-Discrimination.html
(Visited on November 12, 2021)
• Reservation to the Economically Backward Class- Indian Constitutional Perspective,
available at: https://www.scconline.com/blog/post/tag/articles-156-and-166-in-
constitution-of-india/ (Visited on November 28, 2021)
• Summary of Article 15 and Article 16 of Indian Constitution, available at:
https://lawtimesjournal.in/summary-of-article-15-and-article-16-of-indian-
constitution/ (Last visited on November 28, 2021)
• Article 15 of The Indian Constitution: An Insight, available at:
https://www.legalserviceindia.com/legal/article-3493-article-15-of-the-indian-
constitution-an-insight.html (Last visited on November 28, 2021)

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