Art.

15
Art. 15 of the Constitution of India deals with ‘prohibition of discrimination’ on grounds of religion, race,
caste, sex or place of birth. It deals as follows:

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them
2. No citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to-
a) Access to shops, public restaurants, hotels and places of public entertainment, or
b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly
or partly out of state funds or dedicated to the use of the general public
3. Nothing in this Article shall prevent the State from making any special provision for women and
children
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 SCs and STs

Art. 14 deals with equality before law and equal protection of laws. Art. 15 is an extension of Art. 14.

The first clause of Article 15 directs the state not to discriminate against a citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. The second clause prohibits citizens as well as
States from making such discrimination with regard to access to shops, hotels etc. and all places of
public entertainment, or public resorts, wells, ranks, roads etc. The first clause of Article 15 mentions the
prohibited grounds in any matter which is exclusively within the control of the State. The second clause
prohibits both the State and the private individual, whosoever is in control of the above-mentioned
places. The third clause empowers State to make special provisions for the protection of women and
children. The fourth clause which was added by the Constitution (1 st Amendment) Act, 1951 enables the
State to make special provisions for the protection of interests of the Backward classes of citizens and is,
therefore, an exception to Articles 15 and 29(2) of the constitution.

15 (1)
By clause (1) of Article 15 the State is prohibited to discriminate between citizens on grounds only of
religion, race, caste, sex, place of birth or any of them. The word ‘discrimination’ means to make an
adverse distinction or to distinguish unfavorable from others. If a law makes discrimination on any of the
above grounds, it can be declared invalid. In Nainshupdas v. State of UP, a law which provided for
elections on the basis of separate electorates for members of different religious communities was held
to be unconstitutional. Similarly, in State of Rajasthan v. Pratap Singh, the SC invalidated a notification
under the Police Act of 1851 which declared certain areas as disturbed and made the inhabitants of
those areas bear the cost of additional police stationed there but exempted all harijans and muslims.
The exemption was given only on the basis of caste or religion and hence was contrary to Article 15 (1).
The word ‘only’ used in Article 15 (1) indicates that discrimination cannot be made merely on the
ground that one belongs to a particular caste, sex etc. In other words, if other qualifications are equal,
caste, religion, sex etc. should not be a ground for preference or disability. It follows from this that
discrimination on grounds other than religion, race, caste, sex or place of birth is not prohibited.

15 (2)
Article 15 (2) is a specific application of the general prohibition contained in Article 15 (1). Article 15 (2)
declares that no citizen shall be subjected to any disability, restriction or condition on grounds of only
religion, race, caste, place of birth or any of them with regard to:

(a) Access to shops, public restaurants, hotels and places of public entertainment, or
(b) The use of wells, tanks, 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

A ‘place of public resort’ means places which are frequented by the public like a public park, public road,
public bus, ferry, public urinals or railway, hospital etc.

15 (3)
Clause 3 of Article 15 enables the State to make special provision for women and children.

The word ‘for’ signifies that special provisions can be made ‘in favor of’ and not against them. Therefore,
clauses (1) to (3) of Article 15, read together would imply that State can discriminate in favor of women
against men, but not in favor of men against women.

The ‘special provisions’ which the State may make to improve women’s participation in all activities
under the supervision and control of the State can be in the form of either affirmative action or
reservation.

In the light of the above observations, the SC in Govt. of AP v. P B Vijaykumar has held valid the State
Service Rules providing preference to women in direct recruitment.

In Yusuf Abdul Aziz v. State of Bombay, the validity of S. 497 of IPC was challenged as violative of Article
15 (1). S. 497 defines the offence of adultery. The offence is committed when a man has sexual
intercourse with the lawfully wedded wife of another man without his consent or connivance, but with
the consent of the woman. This section punishes the adulterer and not the adulteress. She is not held
liable even as the abettor.

15 (4)
Clause (4) of Article 15 contains another exception to clauses (1) and (2). It provides: 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 SCs and STs.

This clause was added by the Constitution (1 st Amendment) Act, 1951 as a consequence of the decision
of the SC in State of Madras v. Champakam Dorairajan.
Clause (4) 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.

Art. 16
Article 16 of the Indian Constitution deals with equality of opportunity in matters of public employment.

It is similar to Article 15 in one respect i.e. both these provisions prohibit discrimination against citizens
on specified grounds. However, Article 15 is wider in operation that 16. While Article 16 prohibits
discrimination only in respect to one particular matter i.e. relating to employment or appointment to
posts under the State, Article 15 lays down a general rule and prohibits discrimination in respect to all or
any matters. In one respect, Article 16 is wider than 15 i.e. on the grounds on the basis of which
discrimination is prohibited. While Article 15 prohibits discrimination on any of the five grounds
(religion, race, caste, sex or place of birth), Article 16 contains seven prohibited grounds (religion, race,
caste, sex, descent, place of birth or residence). Both these Articles can be invoked by citizens only.

Clauses (3), (4), (4A) and (5) of Article 16 empower the Parliament to make a law prescribing the
residence within the State, qualification for appointment under the state. Reservation in favor of any
backward citizens can be made under Clause (4). Clause (4A) was inserted by the Constitution (77 th
Amendment) Act, 1995. It provides for reservation in matter of promotions for SCs and STs.

The purpose/reason behind making provision for reservations is, treating equally all classes of people at
all times would result in inequality. Therefore, the framers of our Constitution made provisions for
reservations in order to uplift the socially, educationally backward classes of citizens. Dr. B R Ambedkar
called reservations compensatory benefits to socially and educationally backward people.

Scope of 16 (4)
Article 16 (4) expressly permits the State to make provisions for the reservation of appointments of
posts in favor of any backward class of citizens, which in the opinion of the State, is not adequately
represented in the services under the State.

The term ‘reservations’ in Article 16 (4) implies a separate quota which is reserved for a special category
of persons. The very purpose of reservation, it has been held, is to protect the weaker category against
competition from the open category candidates. It has often been implied that reservation means
selection of less meritorious person. This cost has to be paid if the constitutional premise of social justice
is to be redeemed.

Article 16 (4) is not an exception to 16 (1)

Article 16 (4) is an enabling provision. It confers discretionary power on the State to make reservations
of appointments in favor of backward classes of citizens. Further, Article 16 (4) is not mandatory and it
confers no right on the citizens to claim reservations.

The SC in Indira Sawhney v. Union of India, ruled that clause (4) of Article 16 is not an exception to
clause (1)
Reservations (protective discrimination)
Protective discrimination means discriminating the persons for the purpose of protecting certain classes
of people. Article 14 of the Constitution also envisages that treating all equally results in inequality.
Articles 15 (4) and 16 (4) make certain special provisions for the advancement of backward classes.

Article 15 (4) empowers the State to make special laws for the advancement of any socially or
educationally backward classes of citizens or for the SCs and STs. Article 16 (4) expressly permits the
State to make provisions for the reservation of appointments or posts in favor of any backward class of
citizens, which in the opinion of the State, is not adequately represented in the services under the State.

The expression backward class has not been defined under the Constitution. The President under Article
340 (1) is empowered to appoint a commission to investigate the conditions of socially and
educationally backward classes. The Constitution does not define SCs and STs. Articles 341 and 342
empower the President to draw up the list of these castes, by public notification in consultation with the
Governor of the State concerned.

In successful implementation of these reservations, the questions and problems that usually arise are:

- What are backward classes and who belongs to them?

- What are the limitations of reservations with regard to-
i) Percentage
ii) Duration/term of reservations?

The SC interpreted the provisions relating to reservations differently in several cases. Further, the Union
permitted the States to appoint commissions to identify the socially and educationally backward classes.

The first leading case on reservations is Champakam Dorai Rajan v. State of Madras in which the SC
necessitated the inclusion of a new clause (4) into Article 15 which empowers the State to make special
provisions for the advancement of socially and educationally backward classes.

In Balaji v. State of Mysore, the Mysore Government issued an order under Article 15 (4) reserving the
seats in medical and engineering colleges in the State as follows:

- Backward classes: 28%

- More backward classes: 20%
- SCs and STs: 18%

Thus, the total reservation was 68%. The validity of the order was challenged. SC held that there should
be no reservations beyond 50% and laid down the following guidelines:

1. The term backward is to be used in the sense of both social and educational backwardness, not
either
2. Articles 15(4) and 16 (4) refer to classes, not castes
3. The classification as to backward and more backward is violative of 15 (4) and 16 (4)
There are 3 views for identification of backward classes. According to the first view, caste must be the
sole criterion. The second view agrees that caste should not be considered, but means should be
regarded as the sole criterion. According to the third view, both caste and means must be regarded as
factors for identifying the backward classes. The SC endorsed the community cum means test in various
cases such as: State of Kerala v. Thomas, A B S Karmachari Singh v. Union of India, Vasant Kumar v. State
of Karnataka.

Devadasan v. Union of India, known as the ‘carry forward rule’ case. It means in case the vacancies
reserved remain unfilled for non-availability of candidates, they may be filled by reserved candidates in
the subsequent years.

In this case, govt. reserved 17% vacancies for the SC/ST candidates. As the candidates were not
available, the vacancies were carried forward to the subsequent years. As a result of the impugned rule,
in the year 1961, out of the 45 vacancies filled, 29 were filled by SC/ST candidates, which amounted to
64% reservation. The SC struck down the carry forward rule as invalid and unconstitutional, based on
the Balaji v. State of Mysore case.

The decisions of Balaji v. State of Mysore and Devadasan v. Union of India were overruled and the carry
forward rule upheld in:

- A B S Karmachari Sangh v. Union of India

SC upheld validity of 10 circulars issued by the Railway Board, providing reservations of 17.5%
posts to SC/ST candidates. The circulars contained the rule to carry forward unfilled posts for
three years. Consequently the reservation rose to 64%. The Court upheld the quantum of
reservation.
- Indira Sawhney v. Union of India
In this case, the SC overruled the Devadasan case and upheld the carry forward rule, subject to
the condition that it does not result in breach of the 50% rule except in extraordinary
circumstances.