ARTICLE 15 PROHIBITION OF DISCRIMINATION ON GROUNDS. OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH ‘ATUL KUMAR TIWARI CLASS Q = JS GROUNDS OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH + (1) THESTATE SHALL NOT DISCRIMINATE AGAINST ANY CITZEN ON GROUNDS ONLY (OF RELIGION, RACE, CAST, SEK, PLACE OF BITH OR ANY OF THEM + (2) NO CITIZEN SHALL, ON GROUNDS ONLY OF RELIGION, RACE, CASTE, SE, PLACE OF + (9) NOTHING IN THIS ARTICLE SHALL PREVENT THE STATE FROM MAKING ANY SPECIAL PROVISION FOR WOMEN AND CHILDREN. [cna mannan A WaToNAL DW ONES? ATUL KUMAR TIWARI'S CLASS we? ARTICLE 15 - PROHIBITION OF DISCRIMINATION ON ~/ 08-09-20227 ] CLAUSE 4 AND 5 + {4) NOTHING IN THIS ARTICLE OR IN CLAUSE (2) OF ARTICLE 29 SHALL PREVENT ‘THE STATE FROM MAKING ANY SPECIAL PROVISION FOR THE ADVANCEMENT OF ANY SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES OF CITIZENS OR FOR THE SCHEDULED CASTES AND THE SCHEDULED TRIES. (ADDED BY THE ‘CONSTITUTION (FIRST AMENDMENT) ACT, 1951} + {5] NOTHING IN THIS ARTICLE O8 IN SUB-CLAUSE (6) 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 CCLASSES OF CITIZENS OR FOR THE SCHEDULED CASTES OR THE SCHEDULED TRIES IN SO FAR AS SUCH SPECIAL PROVISIONS RELATE TO THER 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 20. [INSERTED VIDE CONSTITUTION (NINETY-THIRD AMENDMENT) ACT, 2005, WEF. 20.1,2006,), ATUL KUMAR TIWARI'S CLASS we [cna mannan A WaToNAL DW ONES? CLAUSE 6 + [6] NOTAING IN TH ARTICLE OR SUB-CLAUSE (G) OF CLAUSE (1) OF ARTICLE 19 (OR CLAUSE (2} OF ARTICLE 29 SHALL PREVENT THE STATE FROM MAKING, WEAKER SECTIONS OF CITIZENS OTHER THAN THE CLASSES MENTIONED IN CLAUSES (4) WEAKER SECTIONS OF CITIZENS OTHER THAN THE CLASSES MENTIONED IN CLAUSES (4) ICATIONALINSTTUTIONS INCLUDING PRIVATE EDUCATIONAL NSTIUTIONS, [NSTITUTIONS REFERRED TO IN CLAUSE (1) OF ARTICLE 30, WHICH IN THE CASE OF SECONOMICAILY WEAKER SECTIONS" SHALL BE SUCH AS MAY BE NOTIFIED BY THE ‘THIRD AMENDMENT) ACT, 2019 WEF. 14.01.2019) - ATUL KUMAR TIWARI'S CLASS we? 08-09-2022CLAUSE (1) + SCOPE OF ARTICLE 15 1S VERY WIDE. + WHILE THE PROHIBITION IN CLAUSE (1) IS LEVELLED AGAINST STATE ACTION, + THE PROHIBITION IN CLAUSE (2) IS LEVELLED AGAINST INDIVIDUALS AS WELL. ATUL KUMAR TIWARI’S CLASS we [cna mannan A WaToNAL DW ONES? = JS THE SIGNIFICANCE OF THE WORD ‘ONLY’ + IF THERE IS ANY OTHER GROUND OR CONSIDERATION FOR THE DIFFERENTIAL TREATMENT BESIDES THOSE PROHIBITED BY THIS ARTICLE THE DISCRIMINATION MAY NOT BE UNCONSTITUTIONAL. + DISCRIMINATION IN FAVOUR OF A PARTICULAR SEX WILL BE PERMISSIBLE IF THE CLASSIFICATION IS THE RESULT OF OTHER CONSIDERATIONS E.G. PHYSICAL OR INTELLECTUAL FITNESS FOR SOME WORK. + SUCH DISCRIMINATION, BEING BASED ON A GROUND OTHER THAN ‘SEX WOULD NOT BE CONSIDERED TO BE UNCONSTITUTIONAL ATUL KUMAR TIWARI'S CLASS we? 08-09-2022CLAUSE (2) (a) + THERE CANNOT BE SHOPS OR PUBLIC RESTAURANTS OR OTHER PLACES OF PUBLIC ENTERTAINMENT LIKE CINEMA, THEATRE, COFFEE HOUSE, CIRCUS, FAIR, EXHIBITION, MUSIC HALL, RACE COURSE, ETC. EXCLUSIVELY RESERVED FOR MEMBERS OF A PARTICULAR CASTE, RELIGION, RACE, ETC. ATUL KUMAR TIWARI’S CLASS we [cna mannan A WaToNAL DW ONES? CLAUSE (2) (b) ‘+ APRIVATE WELL OR TANK DOES NOT COME WITHIN THE MEANING (OF THIS CLAUSE + BURIAL GROUND SHALL BE A PLACE OF PUBLIC RESORT IF IT IS MAINTAINED WHOLLY OR PARTLY BY THE STATE, AND SHALL BE OPEN. FOR ALL + WHERE A PLACE OF PUBLIC RESORT IS NOT MAINTAINED BY THE STATE IT MUST BE DEDICATED BY THE OWNER TO THE USE OF THE GENERAL PUBLIC ATUL KUMAR TIWARI'S CLASS we? 08-09-2022CLAUSE (3) + FROM READING CLAUSES 1, 2 AND 3 TOGETHER IT FOLLOWS THAT WHILE DISCRIMINATION ON THE GROUND OF SEX IS IMPERMISSIBLE, SPECIAL PROVISIONS FOR WOMEN AND CHILDREN ARE PERMISSIBLE + THUS, IIS NO VIOLATION OF ARTICLE 15. IF INSTITUTIONS ARE SET UP BY STATE EXCLUSIVELY FOR WOMEN OR + PLACES ARE RESERVED FOR WOMEN AT PUBLIC ENTERTAINMENTS OR IN| PUBLIC CONVEYANCES + SECTION 125 CRC. |S VALID ALTHOUGH IT OBLIGES THE HUSBAND TO MAINTAIN HIS WIFE BUT NOT VICE VERSA ATUL KUMAR TIWARI’S CLASS we CLAUSE (4) \WAS ADDED BY THE CONSTITUTION (1ST AMENDMENT) ACT, 1951 AS A RESULT OF THE DECISION OF THE SUPREME COURT IN + STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN, AR 1951 SC 226 THE COURT STRUCK SECTIONS OF THE PEOPLE AND PROTECT THEM FROM SOCIAL INJUSTICE + S€-HELD THAT THE “DIRECTIVE PRINCIPLES OF STATE POLICY HAVE To CONFIRM, TO AND RUN AS SUBSIDIARY TO THE CHAPTER OF FUNDAMENTAL RIGHTS". ATUL KUMAR TIWARI'S CLASS we? & | [roman anol ann WATONAL LAW UNTER 08-09-2022F S ENABLING PROVISION CLAUSE (4) ENABLES THE STATE TO MAKE SPECIAL PROVISIONS FOR THE ADVANCEMENT OF SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES (SEBCS) OF CITIZENS OR FOR THE SCHEDULED CASTES AND. ‘SCHEDULED TRIBES. ‘SUCH PROVISIONS INCLUDE RESERVATION FOR QUOTA AND CAN BE MADE IN THE EXERCISE OF EXECUTIVE POWERS WITHOUT ANY LEGISLATIVE SUPPORT. ATUL KUMAR TIWARI’S CLASS we = JS THE TWO MOST CONTENTIOUS ISSUES IN THE APPLICATION OF ARTICLE 15(4) DETERMINATION OF BACKWARD CLASSES, AND EXTENT O8 QUANTUM OF RESERVATION. (1) BACKWARD CLASSES: SO FAR AS THE SCHEDULED CASTE AND SCHEDULED TRIBES ARE CONCERN THEY ARE DEFINED IN THE DEFINITIONAL ARTICLE 266 UNDER CLAUSE (24) AND (25) RESPECTIVELY. + EARLIER THE CONSTITUTION HAD NO DEFINITION OF THE BACKWARD CLASSES. BUTNOW IT HAS + ARTICUE 242-4, INSERTED BY THE CONSTITUTION [ONE HUNDRED AND SECOND /AMENOMENT) ACT, 2018 WEF. 15.08.2018 VIDE NOTIFICATION NO. $03969(E) DATED 14.08.2018, ATUL KUMAR TIWARI'S CLASS we? = | [brcran anol ana WATONALLAW UNTER 08-09-2022DR. RAM MANOHAR LOHIVA NATIONAL LAW UNIVERSITY TF 4 ARTICLE 342A - SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES +1) THE PRESIDENT MAY WITH RESPECT TO ANY STATE OR UNION TERRITORY, AND [WHERE I 1S A STATE, AFTER CONSULTATION WITH THE GOVERNOR THEREOF, BY PUBLIC NOTIFICATION, SPECIFY THE SOCIALLY AND EDUCATIONALLY BACKWARD CCLASSES WHICH SHALL FOR THE PURPOSES OF THIS CONSTITUTION BE DEEMED TO BE SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES IN RELATION TO THAT STATE OR UNION TERRITORY, AS THE CASE MAY BE + [2] PARLIAMENT MAY BY LAW INCLUDE IN OR EXCLUDE FROM THE CENTRAL UST (OF SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES SPECIFIED IN A NOTIFICATION ISSUED UNDER CLAUSE (1] ANY SOCIALLY AND EDUCATIONALY BACKWARD CLASS, BUT SAVE AS AFORESAIO A NOTIFICATION ISSUED UNDER THE SAID CLAUSE SHAUL NOT BE VARIED BY ANY SUBSEQUENT NOTIFICATION] ATUL KUMAR TIWARI’S CLASS we 3 = JS —_ 105™ CONSTITUTIONAL AMENDMENT + THE 105 CONSTITUTIONAL AMENDMENT ACT RESTORED STATE GOVERNMENTS’ POWER TO PREPARE THE SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES (SEBC) LIST. AS PER THE SUPREME COURT, THE 102 CONSTITUTIONAL AMENOMENT ACT IMPLIED THAT THE STATE GOVERNMENTS DID NOT HAVE THE AUTHORITY TO IDENTIFY THE SEBC. + 105 CONSTITUTIONAL AMENDMENT ACT ALSO STATED THAT THE NATIONAL COMMISSION FOR BACKWARD CLASSES POWERS AND RESPONSIBILITIES (CONSULTED ON ALL POLICY ISSUES AND HONOR) DID NOT APPLY TO THE INDEPENDENT STATE LISTS. IT INDICATED THAT STATES DO NOT REQUIRE TO CONSULT THE NATIONAL COMMISSION. TO RESTORE THIS POWER, THE 105 ‘CONSTITUTIONAL AMENDMENT ACT WAS PASSED. 4 08-09-2022TF ] a © NEED FOR THE 105™ AMENDMENT + WHEN THE 102 CONSTITUTIONAL AMENOMENT ACT GIVING. CONSTITUTIONAL STATUS TO THE NATIONAL COMMISSION FOR THE BACKWARD CLASS (NCBC) WAS PASSED, IT WAS INTERPRETED BY THE SUPREME COURT THAT THE 102ND AMENDMENT HAD TAKEN AWAY THE STATES’ RIGHT TO IDENTIFY THE SEBCS. + THIS FACT CAME TO LIGHT WHEN A MONTH AFTER THE PASSING OF THE 102ND AMENDMENT, THE MAHARASHTRA GOVERNMENT'S LAW GRANTING THE MARATHAS A SOCIALLY AND ECONOMICALLY BACKWARD CLASSES STATUS WAS CHALLENGED IN THE SUPREME COURT, AND THE SUPREME COURT, FOR THE FIRST TIME, HELD THAT 102ND AMENDMENT HAD TAKEN AWAY STATES’ POWERS TO RECOGNIZE SEBCS 15 COMMISSIONS + ART 338, NATIONAL COMMISSION FOR SCHEDULED CASTES + 338A, NATIONAL COMMISSION FOR SCHEDULED TRIBES + 3388, NATIONAL COMMISSION FOR BACKWARD CLASSES, DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI'S CLASS we? 16 08-09-2022TF 4 ART 340. APPOINTMENT OF A COMMISSION TO. INVESTIGATE THE CONDITIONS OF BACKWARD CLASSES, + CONTEMPLATE APPOINTMENT OF A COMMISSION TO INVESTIGATE THE CONDITIONS OF SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES AND SUCH OTHER MATTERS AS MAY BE REFERRED TO THE COMMISSION BY THE PRESIDENT. + THE PRESIDENT HAS, IN FACT, EXERCISED HIS POWER UNDER THIS PROVISION TWICE ‘+ FIRST IN 1953 UNDER THE CHAIRMANSHIP OF KAKA KALELKAR AND ‘+ SECOND IN 1978 UNDER THE CHAIRMANSHIP OF BP MANDAL ATUL KUMAR TIWARI’S CLASS we = JS M. R. BALAJIV STATE OF MYSORE, AIR 1963 SC 649 + HELD THAT CASTE OF A GROUP OF PERSONS COULD NOT BE THE SOLE OR EVEN PREDOMINANT FACTOR + ONE'S OCCUPATION AND PLACE OF HABITATION COULD BE THE (OTHER RELEVANT FACTORS IN DETERMINING SOCIAL BACKWARDNESS. + COURT INVALIDATED THE TEST OF BACKWARDNESS WHICH WAS. BASED PREDOMINANTLY, IF NOT SOLELY ON CASTE. ATUL KUMAR TIWARI'S CLASS we? ® | [roman anova ania WATONAL LAW UNTER 08-09-2022TF 4 P RAJENDRAN V. STATE OF MADRAS, AIR 1968 SC 1012 + THE COURT UPHELD THE TEST OF BACKWARONESS WHICH WAS PREDOMINANTLY BASED ON CAST IT SAO." IF THE RESERVATION IN QUESTION HAD BEEN BASED ONLY ON CASTE AND THE CASTEIN QUESTION IT WOULD BE VIOLATIVE OF ARTICLE 15 + BUTIT MUST NOT BE FORGOTTEN THAT A CASTE IS ALSO A CLASS OF CITIZENS AND IF THE CASTE AS & WHOLEIS SOCIALLY AND EDUCATIONAILY BACKWARD RESERVATION, (CAN BE MADE IN FAVOUR OF SUCH A CASTE ON THE GROUND THAT TIS SOCIALLY [AND EDUCATIONALLY BACKWARD CLASS OF CITIZENS WITHIN THE MEANING OF ARTICLE 1514 ATUL KUMAR TIWARI’S CLASS we ZF a STATE OF UP V. PRADEEP TANDON, AIR 1975 SC 563 [ADMISSION TO MEDICAL COLLEGES IN UP IN FAVOUR OF CANDIDATES FROM RURAL AREAS, HILL AREAS AND_UTTARAKHAND AREA WAS CHALLENGED + COURT HELD: THE ACCENT UNDER ARTICLE 15 (4) WAS ON CLASSES OF CITIZENS. [AND THE CONSTITUTION DID NOT ENABLE THE STATE TO BRING SOCIALLY AND. EDUCATIONALLY BACKWARD AREAS W/ITHIN THE PROTECTION OF ARTICLE 15 a, THE PLACE OF HABITATION AND TS ENVIRONMENT COULD BE A DETERMINING. FACTOR IN JUDGING THE SOCIAL AND EDUCATIONAL BACKWARDNESS. THE COURT UPHELD RESERVATION FOR FERSONS FROM HILL AND UTTARAKHAND AREA IT WAS FOUND THAT THE ABSENCE OF MEANS OF (COMMUNICATION TECHNICAL PROCESSES AND EDUCATIONAL FACILITIES KEPT THE POOR AND ILUTERATE PEOPLE IN THE REMOTE AND SPARSELY POPULATED AREAS BACKWARD, ATUL KUMAR TIWARI'S CLASS we? ® | [brcran anol ann WATONALLAW UNREST 08-09-2022 10INDIRA. SAWHANI V. UNION OF INDIA, AIR 1993 SC 477 (MANDAL COMMISSION CASE) * The court was asked to pronounce on the constitutional validity of two office Memorandum of the central government. 1. Itreserved 27% vacancies in civil post and services under the Government of India to be filled by direct recruitment from the SEBC, 2. made additional reservation of 10% vacancies for other economic backward section of the people who were not covered by any existing schemes of reservation + By a 6:3 majority the court upheld the first memorandum but invalidated the addition of 10% by the second. ATUL KUMAR TIWARI’S CLASS we ++. INDIRA SAWHANI + the first memorandum was based on the Mandal Commi report which took caste as a dominant, rather sole er for determining the SEBC. * The commissio fact had made a nationwide survey of the entire population and on that basis had evolved 11 indicators divided into social educational and economic criteria, * the castes/classes which scored 50% or points under these indicators were listed as SEBCs. ATUL KUMAR TIWARI'S CLASS we? ® | [rca anova ann WATONALLAW UNTER 08-09-2022 cu08-09-2022 TF ST ... INDIRA SAWHANI *caste represented an existing, identifiable social group/class * Cast, however, was not essential factor for det the social and educational backwardness. + Within SEBCs, clas: more backward is permissible. cation between the backward and *To maintain the cohesiveness and character of a class, the creamy layer can and must be excluded from the SEBCs . ATUL KUMAR TIWARI’S CLASS we = JS ... INDIRA SAWHANI *the economic criteria alone cannot be the basis of backwardness although it may be considered along with or in addition to social backwardness. * The court also suggested creation of a permanent body at the Central and state levels to look into the complaints of over and under inclusion as well as to revise the list of SEBCs periodically. + Following the courts directions the centre and the states have ‘appointed backward class Commission for constant revision of such classes and for the exclusion of creamy layer from ‘among them. ATUL KUMAR TIWARI'S CLASS we? ® | [brcran nolan ann WATONALLAW UNTER 12TF 4 .». INDIRA SAWHANI + Since birth in a particular caste or community Is @ determining factor for ‘availing of special provisions under article 15(4) + a person who had the advantageous start in life being born in a forward caste but is transplanted in backward class by + edoption or + marriage oF + et alater stage, does nat become eligible to the benefit of reservation ATUL KUMAR TIWARI’S CLASS we = JS “2. QUANTUM OF RESERVATION MR Balaji v. State of Mysore, AIR 1963 SC 649 + The validity of Mysore government order reserving 68% of the seats in the engineering and medical colleges and other technical institutions, in favour of backward classes, including the Scheduled caste and Scheduled tribe was challenged, + the court held: ‘a special provision should be less than 50%; how much less than ‘50% would depend upon the present prevailing circumstances in each case.” + Reservation of 68% of seats in that case was found by the ‘Supreme Court plainly inconsistent with article 15(4), ATUL KUMAR TIWARI'S CLASS we? ® | [brcran anol ona WATONALLAW UNTER 08-09-2022 13ZF ZS 7-DEVADASAN V. UNION OF INDIA, AIR 1964 SC 179 + Rule of the central government which actually reserved only 17.5% posts in the central services for the scheduled caste and Scheduled Tribes but provided for carrying forward of their unfilled quota to the next to succeeding years, If suitable candidates were not available, was invalidated on the ground that accumulation of 17.5% in three years would come to approximately 54% and in the instant case it had come to 64% because out of 45 vacancies, 29 went to the reserved quota ATUL KUMAR TIWARI’S CLASS we = JS T DEVADASAN Article 15(4) and article 16(4): exceptions to the general rule under article 14, 15(1) and 16(1)? + The general rule required that in the interest of the community as whole, admissions to the Institutions of higher learning or employment with State must be made on merit in order to ensure an efficient society and administration, * An exception could not be so construed as to eat away or even substantially dilute the general rule. ATUL KUMAR TIWARI'S CLASS we? ® | [rama anol ann WATONALLAW UNTER 08-09-2022 14SF JS | STATE ‘OF KERALA V. N M THOMAS, AIR 1976 SC 490 + ina particular year out of 51 posts, 34 i.e. approximately 68% had gone to the candidates belonging to the SCs and STs, + the court upheld the rule providing for exemption, + Majority: Rejected the argument that article 16(4) was an exception to article 16(1) and emphasized that article 16(4) and 15(4) were emphatic. assertions and directions to the State to take effective affirmative steps to enforce the concept of equality as laid down in Article 14, 16 and 16. + To bring about that equality, the state could make reservations to any extent ATUL KUMAR TIWARI’S CLASS we = JS _AKHIL BHARTIYA SHOSHIT KARMCHARI SANGH (RAILWAY) V. UNION OF INDIA, AIR 1981 SC 298 + Circulars of the Rallway Board giving some favours to the ‘Scheduled Castes and Scheduled Tribes, + the provision for raising their quota from 17 to 22% and carry forward rule on the lines invalidated in Devadasan, were challenged, the Court by and large stuck to its position in Thomas and insisted that the quantum of reservation was to be seen in the context of overall representation of the scheduled caste and Scheduled Tribes and not in a particular year. ATUL KUMAR TIWARI'S CLASS we? ® | [brcran anol ania WATONALLAW UNREST 08-09-2022 15INDIRA’SAWHNEY V. UNION OF INDIA, AIR 1993 SC 477 + upholding the validity of a total 49.5% reservation (22.5% for SCs and STs and 27% for SEBCs, the court held that barring any extraordinary situations, reservation should not exceed 50% + For the application of 50% rule, a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be. So long as this limit is observed, carry forward rule is permissible. The court overruled Devadasan on this point. + Inarriving at the 50% limit, the court has rejected that article 16(4) is an exception to article 16(1) but has relied on the balancing of interest under these two provisions and on the reasonable exercise of power under article 16(4). ATUL KUMAR TIWARI’S CLASS we TF, JS /PREETI SRIVASTAVA V. STATE OF |ADHYA PRADESH, AIR 1999 SC 2894 + Reservation in education for Super Specialities And in certain services requiring special skills such as defence, technical and specific services, University professors, plots ete. are not advisable + Constitutional bench by a majority of 4 : 1 invalidated admission criteria for the SCs/STs and SEBCs, which provided lower percentage of marks for ‘admission to postgraduate medical courses for these classes then provided for the general category. = The difference was of more than 10% marks + Held- + Though the difference of 10% marks atthe level of admission to MBBS course could be justified, bigger difference at the level of postgraduate courses could not be uphels. ATUL KUMAR TIWARI'S CLASS we? ® | [brcran anol ana WATONAL LAW UNTER 08-09-2022 16