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Art. 15Art. 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, besubject to any disability, liability, restriction or condition with regard to-a) Access to shops, public restaurants, hotels and places of public entertainment, orb) 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 public3. 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 anyspecial provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and S Ts

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 asStates 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 mentionsthe 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, 1951enables 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 anadverse 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 forelections on the basis of separate electorates for members of different religious communities was heldto be unconstitutional. Similarly, in State of Rajasthan v. Pratap Singh , the SC invalidated a notificationunder 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).

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The word only used in Article 15 (1) indicates that discrimination cannot be made merely on theground 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 thatdiscrimination 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 onlyreligion, 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 womenagainst men, but not in favor of men against women.

The special provisions which the State may make to improve women s participation in all activitiesunder the supervision and control of the State can be in the form of either affirmative action orreservation.

In the light of the above observations, the SC in G ovt. of AP v. P B Vijaykumar has held valid the StateService 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 Article15 (1). S. 497 defines the offence of adultery. The offence is committed when a man has sexualintercourse with the lawfully wedded wife of another man without his consent or connivance, but withthe consent of the woman. This section punishes the adulterer and not the adulteress. She is not heldliable even as the abettor.

15 (4)Clause (4) of Article 15 contains another exception to clauses (1) and (2). It provides: nothing in thisArticle or in Clause (2) of Article 29 shall prevent the state from making any special provision for theadvancement of any socially and educationally backward classes of citizens or for the SCs and S Ts.

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

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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. 16Article 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 citizenson specified grounds. However, Article 15 is wider in operation that 16. While Article 16 prohibitsdiscrimination only in respect to one particular matter i.e. relating to employment or appointment toposts under the State, Article 15 lays down a general rule and prohibits discrimination in respect to all orany matters. In one respect, Article 16 is wider than 15 i.e. on the grounds on the basis of whichdiscrimination 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 theresidence within the State, qualification for appointment under the state. Reservation in favor of anybackward 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 S Ts.

The purpose/reason behind making provision for reservations is, treating equally all classes of people atall times would result in inequality. Therefore, the framers of our Constitution made provisions forreservations in order to uplift the socially, educationally backward classes of citizens. Dr. B R Ambedkarcalled 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 adequatelyrepresented in the services under the State.

The term reservations in Article 16 (4) implies a separate quota which is reserved for a special categoryof persons. The very purpose of reservation, it has been held, is to protect the weaker category againstcompetition from the open category candidates. It has often been implied that reservation meansselection 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 reservationsof appointments in favor of backward classes of citizens. Further, Article 16 (4) is not mandatory and itconfers 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 toclause (1)

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R eservations (protective discrimination)Protective discrimination means discriminating the persons for the purpose of protecting certain classesof 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 oreducationally backward classes of citizens or for the SCs and S Ts. Article 16 (4) expressly permits theState 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 Article340 (1) is empowered to appoint a commission to investigate the conditions of socially andeducationally backward classes. The Constitution does not define SCs and S Ts. Articles 341 and 342empower the President to draw up the list of these castes, by public notification in consultation with theGovernor 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) Percentageii) Duration/term of reservations?

The SC interpreted the provisions relating to reservations differently in several cases. Further, the Unionpermitted 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 SCnecessitated the inclusion of a new clause (4) into Article 15 which empowers the State to make specialprovisions 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 theseats in medical and engineering colleges in the State as follows:

- Backward classes: 28%- More backward classes: 20%- SCs and S Ts: 18%

Thus, the total reservation was 68%. The validity of the order was challenged. SC held that there shouldbe 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, noteither

2. Articles 15(4) and 16 (4) refer to classes, not castes3. The classification as to backward and more backward is violative of 15 (4) and 16 (4)

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There are 3 views for identification of backward classes. According to the first view, caste must be thesole criterion. The second view agrees that caste should not be considered, but means should beregarded as the sole criterion. According to the third view, both caste and means must be regarded asfactors for identifying the backward classes. The SC endorsed the community cum means test in variouscases 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 vacanciesreserved remain unfilled for non-availability of candidates, they may be filled by reserved candidates inthe subsequent years.

In this case, govt. reserved 17% vacancies for the SC/S T candidates. As the candidates were notavailable, 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/S T candidates, which amounted to64% reservation. The SC struck down the carry forward rule as invalid and unconstitutional, based onthe Balaji v. State of Mysore case.

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

- A B S Karmachari Sangh v. Union of IndiaSC upheld validity of 10 circulars issued by the Railway Board, providing reservations of 17.5%posts to SC/S T candidates. The circulars contained the rule to carry forward unfilled posts forthree 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 tothe condition that it does not result in breach of the 50% rule except in extraordinarycircumstances.