Prohibition of Discrimination on the Grounds of Religion

1 | P a g e A r t i c l e 1 5 o f t h e C o n s t i t u t i o n o f I n d i a

ARTICLE 15 of THE CONSTITUTION of INDIA

Prohibition of discrimination on the grounds of religion, race, caste, sex

or place of birth

A project report on constitutional law

Submitted To :

Dr. Shruti Bedi

Assistant Professor, UILS

Panjab University, Chandigarh

Submitted By:

Sanjana

Roll No. 81/13


IVth Semester B.A.LL.B.

TABLE OF CONTENTS

I. ACKNOWLEDGEMENT…………………………………………………………………….. 3

II. LIST OF ABBREVIATIONS……………………………………………………………….....4

III. TABLE OF CASES…………………………………………………………………………….5-6

IV. INTRODUCTION……………………………………………………………………………... 7

V. NO DISCRIMINATION AGAINST THE CITIZEN 15(1)………………………………….8 -9

VI. NO DISCRIMINATION AS TO USE OR ACCESS TO PUBLIC PLACES ART.15(2)….9-10

VII. SPECIAL PROVISION FOR WOMEN AND CHILDREN ART. 15(3)…………………11-13

VIII. SPECIAL PROVISIONS FOR BACKWARD CLASSES ART. 15(4)……………………13-19

IX. SPECIAL PROVISIONS RELATING TO ADMISSION TO EDUCATIONAL INSTITUTIONS

ART. 15(5)………………………………………………………………………………... 19-20

X. BIBLIOGRAPHY…………………………………………………………………………..21

XI.


ACKNOWLEDGEMENT

The Success & outcome of this project required a lot of guidance & assistance from

many people & I am extremely fortunate to have got this all along the completion

of my project work. Whatever I have done is only due to such guidance & I would

not forget to thank them.

I am thankful to & fortunate enough to constant encouragement, support &

guidance.

I am very much thankful to Dr.Shruti Bedi for her support & guidance without

which I would not have been able to accomplish this project work. I am thankful to

my friends who helped me in the collection of material & parents for their moral

support.

Sanjana

Roll No. - 81/13

LIST OF ABBREVIATIONS


AIR: All India Reporter Art.: Article CJI: Chief Justice of India E.g.: For Example Edi.: Edition HC: High Court SCC: Supreme Court Cases SC: Supreme Court v. Versus


TABLE OF CASES

Name of the Cases Pg. no.

1. Ashok Kumar Thakur v. Union of India, 2008) 6 SCC …............................................19

2. Chitralekha v. State of Mysore AIR 1964 SC 1823……………………………………16

3. D.P. Joshi v. State of Madhya Bharat AIR 1955 SC 334……………………………….8

4. Dennision Paulraj v. Union of India, AIR 2009(NOC) 2540 (MAD.)…………………10

5. G. Parimelazhagan v. State of Tamil Nadu AIR 2009 Mad. 54. ……………………….8

6. Government of Andhra Pradesh V. Vijay Kumar. AIR 1995 SC 1648,………………. 11

7. Gulshan Parkash v. State of Haryana AIR 2010 SC 288. ………………………………12

8. Indira Sawhney v. Union of India, AIR 1993 SC 477………………………………13,17,18

9. Jai Lal v. Padam Singh, AIR 1954 M.P., 23……………………………………………..7

10. Janki Parsad Parimoo v. State of Jammu and Kashmir AIR 1973 SC 930. …………….15

11. M.R. Balaji v. State of Mysore AIR 1963 SC 649…………………………………….15,18

12. N.T.R University of Health Sciences v. G.B.R. Parsad, AIR 2003 SC 1947………….…12

13. P. Rajendran v. State of Madras AIR 1968 SC 1012……………………………………16

14. Paramjit Singh v. State of Punjab, AIR 2009 P. & H. 7………………………………..10

15. People Union for Democratic Rights v. Union of India AIR 1982 SC 1473…………….9

16. Preeti Srivastva v. State of M.P. AIR 1999 SC 2894. …………………………………..18

17. Rajeswari v. State of U.P. AIR 1954 All, 608……………………………………..……..7

18. Sanghar Umar Ravmal v. State of Saurashtra, AIR 1952 Sau.124……………………….7

19. State of M.P. v. Mohan Singh, AIR 1996 SC 2106………………………………………14

20. State of Madrass v. Champakam Dorairajan AIR 1955 SC 226……………………...….. 12


21. State of U.P. v. Pradeep Tondon AIR 1975 SC 563……………………………………....17

22. Thota Sesharathamma v. Thota Anikyamma, (1991) 4 SCC 312………………………..10

23. Valsamma Paul v. Cochin University, AIR 1996 SC 1022……………………………….17

24. Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321. ……………………………….11


INTRODUCTION

Article 15 provides that there should be no discrimination on the basis of race, sex, caste, religion, place

of birth etc. article 15 provides (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 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.

1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special

provision for the advancement of any socially and educationally backward classes of citizens or for the

Scheduled Castes and the Scheduled Tribes.]

2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from

making any special provision, by law, for the advancement of any socially and educationally backward

classes of citizens or for the Scheduled Castes or the 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.]

Article 15 contains provisions for a particular application of the general principle of “equality of

treatment” embodied in Article 14. It prohibits discrimination against citizens on the grounds only of

religion, race, caste, sex, and place of birth or any of them. It may be noted that Article 15 secures the

right against discrimination, only to citizens and for that non-citizen cannot invoke the provisions of this

Article.


NO DISCRIMINATION AGAINST THE CITIZEN 15(1)

Clause (1) of article 15 provides: “the state shall not discriminate against any citizen on ground only of

religion, race, caste, sex, and place of birth or any of them.”

The words discriminate “against” mean “to make an adverse distinction with regard to; distinguish

unfavorably from others.”1 It involves an element of unfavorable bias and it is in this sense that the

expression has to be understood in the context of article 15(1).

Discrimination against one person necessarily involves discrimination in favor of the other. The term

thus includes comparison where two citizens placed, more or less similarly in all material respect any

state action placing one of them alone under a disadvantage there 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 or reservation is

based on any of the grounds maintained in article 15(1) i.e. religion, race, caste, sex or place of birth, it

would violative of article 15(1). For example, the U.P Court of Wards Act, 1912, which deprived a

female proprietress to hold and enjoy her property on the ground of her sex was held violative of article

15(1)2 .The Bombay Police Act, penalizing old offenders born outside Greater Bombay, but exempting

those born inside Greater Bombay, was held discriminatory on the grounds of place of birth. A Saurastra

law, which restricted the movement of certain communities, by insisting on their reporting to the Police

every day, was held to be ultra-vires, as it amounted to a discrimination based on race.3 Likewise, an Act

which discriminated in favor of one set of debtors as against others on the ground of caste was struck

down as violative of article 15(1).4

1 Oxford Dictionary, 1977295, cited in Kathi Raining Rawat v. State of Saurashtra (AIR 1952 SC 123)2 Rajeswari v. State of U.P. AIR 1954 All, 6083 Sanghar Umar Ravmal v. State of Saurashtra, AIR 1952 Sau.1244 Jai Lal v. Padam Singh, AIR 1954 M.P., 23.


On the ground ONLY of

In Article 15(1), the emphasis seems to be, on the word “only” running with the prohibited grounds. It

indicates that it is only where the discrimination rests solely on the ground of religion, race, sex, or 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”, or “place of birth”, should not be a ground of

preference or disability.

In D.P. Joshi v. State of Madhya Bharat,5 popularly known as first capitation fee case, a rule framed

for admission to State Medical Colleges, required the payment of capitation fee from non- Madhya

Bharat students. The Madhya Bharat students were exempted from the payment. The Supreme Court

negatived the plea of discrimination by the non-residents under Article 15(1) because the ground for

exemption was “residence” and not “place of birth”. Residence and place of birth are two distinct

concepts with different connotations. Article 15(1) prohibits discrimination on the basis of place of birth

not residence.

In G. Parimelazhagan v. State of Tamil Nadu,6 the Madras High Court upheld reservation up to 90%

on favor of women for admission to Degree Course in Nursing as not violative of Article 14 and 15. The

court took into consideration the facts that “females alone were seeking admission for nursing course”

that “it was a female dominated field”, that the service or male nurses are confined to Orthopedic wards,

psychiatry wards and medico legal cases and in all other branches, service of female nurses are utilized .

NO DISCRIMINATION AS TO USE OR ACCESS TO PUBLIC

PLACES ART.15 (2)

Clause (2) of Article 15 provides: “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—5 AIR 1955 SC 334.6 AIR 2009 Mad. 54.


(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.

Clause (2) of Article 15 is a particular application of 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 regard to the use or access to public places mentioned therein.

The object behind Clause(2) of Article 15 is to guard against the menace of discrimination which can

possibly plasticized, in a country like India, on a vast scale and in a relentless manner. The purpose is to

eradicate Hindu Caste System, under which a section of Hindus, the depressed class were considered

untouchables and 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 who is prepared to go there seeking his service”. it would

therefore include a laundry shaving saloon and an office of a doctor and of a lawyer, besides any

premises where goods are sold either by retail or by wholesale or both.

The phrase “place of public resort” would means the place to which members of public are allowed

access and where they habitually resort to. These would include a public park, a public road, a public

bus, ferry, railway platforms and hospitals. It would also include a burial ground or cremation ground if

it is maintained wholly or partly out of state funds.

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 general public.

Dedication may be absolute or partial it flows that a private tank, a well, or a bathing ghat does not come

within the preview of article 15(2) (b).

It may be noted that clause (2) is wider operation and more general in nature than clause (1) of article

15. For, while the prohibition under clause (1) is against state only, clause (2) prohibits not only the state

but also private individual from violating the direction contained therein.

In People Union for Democratic Rights v. Union of India7 The Supreme Court ruled that whenever

any fundamental Rights which was enforceable against private individual was being violative, it would

be constitutional obligation of the state to take steps, for the purpose of interdicting such violation and

ensuring observance of the fundamental right by the private individual who was transgressing.

7 AIR 1982 SC 1473


SPECIAL PROVISION FOR WOMEN AND CHILDREN ART. 15(3)

Art. 15(3) and 15(4) constitute exceptions of Arts. 15(1) and 15(2). According to Art. 15(3), the state is

not prevented from making any “special provision” for women and children.

Art. 15(3) recognizes 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 the footing of equality. The purpose of Art. 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. Art.15 (3) thus relieves the state from the bondage of Art. 15(1) and enables it

to make special provisions to accord socio- economic equality to women.

The word “for” in Clause (3) signifies that special provisions can be made “in favour off” women 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 cannot discriminate in favor of men against women.8

For instance, the plea that a women belonging to S.C. category, cannot contest for the post of Sarpanch,

reserved for candidates belonging to S.C. category and not reserved for women belonging to that

category, would not be tenable.9

Section 14 of 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).10

The Constitution (73rd Amendment) Act, 1992 and the Constitution (74th Amendment) Act, 1992

added article 243-D and 243-T to the constitution making provisions for reservation of not less than one

third of the total seats for women in the constitution of the Panchayats and the Municipalities,

respectively. The proposed Constitution (84th Amendment) Bill, 1998 contains provision for reservation

of 33 per cent of seats for women in the composition of Lok Sabha and the legislative Assemblies of the

States. The object of these provisions is to raise the political status of our womenfolk and the removal of

8 Dennision Paulraj v. Union of India, AIR 2009(NOC) 2540 (MAD.)9 Paramjit Singh v. State of Punjab, AIR 2009 P. & H. 7.10 Thota Sesharathamma v. Thota anikyamma, (1991) 4 SCC 312.


imbalances in the participation of men and women in political life. These provisions would be protected

under Article 15(3).

The most significancant pronouncement on Art .15(3) is the recent Supreme Court case Government of

Andhra Pradesh V. Vijay Kumar.11

The Supreme Court has ruled in the instant case that under Art.15 (3), the State may fix a quota for

appointment of women in government services. Also, a rule saying that all other things being equal,

preference would be given to women to the extent of 30% of the post was held valid with reference to

Art.15(3).

The Court has emphasized that an important limb of the concept of gender equality is creating job

opportunities for women. Making special provisions for women in respect of employment or post under

the state is an integral part of Art. 15(3).

The”Special Provision”

The “Special Provision” 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. Thus, Article 15(3) includes the power to make reservations for women. Talking about the

provision giving preference to women, the Court had said that this provision does not make any

reservation for women. It amounts to affirmative action. It operates at the initial stage of appointment

and when men and women candidates are equally meritorious. Under Article 15(3), both reservation and

affirmative action are permissible in connection with employment or posts under the state. Article 15 is

designed to create an egalitarian society.

In Yusuf Abdul Aziz v. State of Bombay,12 the Bombay High Court upheld the validity of Section 497

of I.P.C., 1860 and said that the impugnent section was justified on the round that the discrimination

were not based on the ground s on Sex alone, but for other reasons also. The Court explained that the

Women in this century were married at a very young age and that their husband could have plurality of

wives. The Legislature therefore, took a lenient a charitable view of the weakness of the women in that

particular situation. The Court thus held that discrimination under section 497, I.P.C. was not based on

11 AIR 1995 SC 1648.12 AIR 1954 SC 321.


sex alone. The Supreme Court, on appeal, ruled down that it was covered by the exception of clause (3)

of Article 15.

SPECIAL PROVISIONS FOR BACKWARD CLASSES ART. 15(4)

Article 15(1) would have come in the way of making favorable provisions for backward sections of

society. This can be illustrated by referring to the case State of Madrass v. Champakam Dorairajan13

In this particular case the Madras Government issued an order (popularly known as the Communal G.

O.) allotting the seats in the medical colleges community wise as follows : Non-Brahmin(Hindus) 6;

Backward Hindus, 2; Brahmins, 2; Harizans, 2; Anglo-Indians and Indian Christians, 1; Muslims, 1.

This G.O. was declared invalid because it classified student merely on the basis of ‘caste’ and ‘religion’

irrespective of their merit. A Seven Judge bench of the Supreme Court struck down the classification as

being based on race and religion for the purpose of admission to education institutions on the ground

that Art. 15 did not contain Clause such as art. 16(4).

The Court thus gave a literal interpretation to the constitutional provisions which led to the insertion of

Clause (4) in Article 15. This Clause was added by the Constitution (First Amendment) Act, 1951 as a

sequel to the decision of the Supreme Court in above mention case.

Article 15(4) --- Enabling Provision

Clause (4) of Article 15 is an enabling provision. It merely confers discretion on the state to make

special provision. It merely confers discretion on the state to make special provisions. It does not impose

any obligation on state to take any action under action under it.14

In Gulshan Parkash v. State of Haryana,15 the appellants by a writ petition had sought the Court to

direct the State Government to provide reservation of seats in Post Graduate Courses

(MD/MS/MDS/Diploma) PGIMS, in accordance with the Guidelines issued by the Government of India

in respect of All India Entrance Examination for said courses.

13 AIR 1955 SC 22614 N.T.R University of Health Sciences v. G.B.R. Parsad, AIR 2003 SC 1947.15 AIR 2010 SC 288.


Dismissing the appeal, a three-Judge Bench of the Supreme Court observed:

Article 15(4) is only an enabling provision. Article 15 is not an exception but only makes a special

application of the principle of reasonable classification. Article 15(4) does not make any mandatory

provision for reservation and the power to make reservation under Article 15(4) is discretionary and no

writ can be issued to effect reservation.

Reiterating and relying on the law laid down by a Nine- Judge Bench of the Court in Indira Sawhney v.

Union of India,16 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. Merely because the Government of India

had made a provision for reservation for SC/ST candidates, it could not be said that the State was bound

to follow the same. The decision of the Government of India in this respect the Court ruled, could not be

automatically be applied in selections where the State Government had power to regulate. Every State,

the Court opined, could take its own decision with regard to reservation depending on various factors.

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 backward.

The expressions “Scheduled Castes” and “Scheduled Tribes” have been defined under Clauses (24) and

(25), respectively of Article 366. Article 366 is to read with Article 341 and 342, for this purpose.

Scope of Article 15(4)

Clause (4) of article 15 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 facility,

scholarship, free transport, concessional or free housing, exemption from requirements insisted upon in

the case of other cases.

16 AIR 1993 SC 477.


Such “special provision” as all permissible under clause (4) of article 15 must, however, be for the

advancement of persons belonging to those categories and therefore, special provisions, which is not for

the advancement of those persons, would not be protected under Article 15(4). Peculiar principle

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 Singh,17 has held that there was no justification, in law,

for giving remission to prisoners belonging to the Scheduled Caste/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 TE SCs/STs, could hardly be said to be a measure for the advancement of the SCs/ STs.

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 determinate a class to be socially and educationally backward; and

(ii) What can be the extent or quantum of the special provision authorised by this Clause.

a) 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 consideration

come into play in evolving proper criteria for its determination. Article 15(4) lays down no criteria to

designate ‘backward classes’; it leaves the matter to the state to specify backward classes, but the courts

can go into the question whether the criteria used by the state for the purpose are relevant or not.

The question of defining backward classes has been considered by the Supreme Court in several cases.

From the several judicial prouncement concerning the definition of backward classes, several

propositions emerge. First, the backwardness envisaged by Article 15(40 is bot social and educational

and not either social and educational. This means that a class to be identified as backwards should be

17 AIR 1996 SC 2106.


both socially and educationally backward.18In Balaji the Court equated the “social and educational

backwardness” to that of the “scheduled castes and scheduled tribes”. The court observed: “it was

realized that in the Indian Society there were other classes of citizens who were equally, or may be

somewhat less backward then the scheduled caste and scheduled tribes and it was thought that some

special provision ought to be made even for them.”

Secondly, poverty alone cannot be test of backwardness in India because by enlarge people are poor and,

therefore, large sections of populations would fall under the backward category and thus the whole

object of reservation would be frustrated.19

Thirdly, backwardness should be comparable, though not exactly similar, to the scheduled caste and

scheduled tribes.

Fourthly, ‘Caste’ may be a relevant factor to define backwardness, but it cannot be the sole or even the

dominant criterion. If classification for social backwardness were to be based solely on caste, then the

caste system would be perpetuated in the Indian Society. Also this test would break down in relation to

those sections of society which do not recognize caste in conventional sense as known to the Hindu

society.

Fifthly, poverty, occupations, place of habitation, all contribute to backwardness and such factors cannot

be ignored.

Sixthly, backwardness may be defined without any reference to caste. As a Supreme Court has

emphasized, Article 15(4) “does not speak of castes, but only speak of classes”, and that ‘caste’ and

‘class’ are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not vitiate

classification if it satisfies other tests.

b) BalaJi

After the enactment of above mentioned first Constitutional Amendment in 1951, Balaji was the first

case, which came up before the Supreme Court.

18 M.R. Balaji v. State of Mysore AIR 1963 SC 649.19 Janki Parsad Parimoo v. State of Jammu and Kashmir AIR 1973 SC 930.


An order of the Mysore government issued under Article 15(4) reserved seats for the admission to the

state Medical and engineering colleges for backward classes and ‘more’ backward classes. This was in

addition to the reservation of seats for the SC’s (15%) and ST’s (3%). Backward and more backward

classes were designated on the basis of “caste and communities”.

The court declares the order bad on several grounds in above mention case. The first defect of the

above mention case is that it was based solely on caste without regard to other relevant factors and this

was not permissible under article 15(4). Secondly, the Court declared that Article 15(4) does not

envisage classification between ‘backward’ and ‘more backward classes’ as was made by the Mysore

order.

In this case, Supreme Court could sense the danger in treating ‘caste’ as the sole criterion for

determining social and educational backwardness. An attempt at finding a new basis for ascertaining

social and educational backwardness in place of caste s reflected in this decision.

The Court also ruled that reservation under Article 15(4) should be reasonable. It should not be such as

to defeat or nullify the main rule of equality enshrined in Article 15(1). While it would not be possible

to predicate the exact permissible percentage of reservation it can be stated in a general and a broad

way that it out to be less than 50%.

c) After Balaji

An order saying that a family whose income was less than Rs. 1,200 per year, and which followed such

occupations as agriculture, petty business, inferior services, crafts etc. would be treated as ‘backward’

was declared to be valid in case of Chitralekha v. State of Mysore20. Here two factors—Economic

Condition and Occupation--- were taken into account to define backwardness, but caste was ignored for

the purpose. The Supreme Court upheld the criteria adopted by the Mysore Government for

ascertaining the backwardness of a class.

However, in P. Rajendran v. State of Madras21, the Supreme Court upheld the test of backwardness

which was solely based on caste. Wanchoo C.J., speaking for the constitutional bench pointed out that

‘if the reservation in question had been based only on caste and had not taken into account the social

20 AIR 1964 SC 1823.21 AIR 1968 SC 1012


and educational backwardness of the caste in question, it would be violative of Article 15(1). But it

must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and

educationally backward, reservation can be made in favor of such caste on the ground that o=it is a

socially and educationally backward class of citizens within the meaning of Article 15(4).

As regard to the reservation for candidates of Hill and Uttrakhand areas, the Supreme Court in State of

U.P. v. Pradeep Tondon,22 said that the fact that these areas in the State of U.P. suffered from

backwardness, both social and educational, the reservation for candidates from these areas would be

constitutionally valid.

In Indira Swahney v. Union of India,23 commonly known as Mandal Commission case, the matter

seems to have been 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. Further, it was also held that the policy of reservation has to be operated year-wise and there

cannot be any such policy in perpetuity. It has been held that Article 15(4) does not mean that the

percentage of reservation should in proportion to the percentage of the population of backward classes to

the total population. it is the discretion of the State to keep reservations at reasonable level by taking into

consideration all legitimate claims and the relevant factors.

In number of cases, it has been held that a woman marrying a SC/ST/OBC, or one transplanted by

adoption or any other voluntary act, does not ipso facto become entitled to claim reservation under either

Article 15(4) or article 16(4). In Valsamma Paul v. Cochin University,24 the Supreme Court explained

the rationale behind this ruling as follows: in this case Court said that Dalits and Tribes suffered social

and economic recognized by Article 17 and 15(2). Consequently, they become socially, culturally and

educationally backward; the OBC suffered social and educational backwardness. The object of

reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the

members of Dalits or tribes or OBC’s were subjected to and was sought to bring them in mainstream of

nation’s life by providing them opportunities and facilities. The Supreme Court went on to say that a

person who has had an advantageous start in life having been born in forward caste is transplanted into a

22 AIR 1975 SC 563.23 AIR 1993 SC 477.24 AIR 1996 SC 1022.


backward caste by adoption/marriage/conversion does not become eligible to the benefit of reservation

either under Art. 15(4) or 16(4).

Quantum of Reservation

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 general principle laid down by

Supreme Court is that the maximum limit of reservation should not be more than 50% of all classes

under Article 15(4). Thus, reservation of 68% was declared void.25

In previous mention case,26 the Supreme Court held that reservation should not exceed 50% unless there

is urgent reason.

Minimum Qualifying Marks

The Supreme Court by majority of 4:1 in Preeti Srivastva v. State of M.P.27 ruled that the disparity

between qualifying marks fixed for reserved and general candidates should not be big. A large

differentiation in the qualifying marks between the groups of students, the Court held, would make it

very difficult to maintain the requisite standard of teaching and training at the post-graduate level and

would be contrary to the mandate of Article 15(4).

A Five-judge Bench of Supreme Court, headed by Hon’ble Chief Justice K.G.Balakrishnan, on October

14, 2009, clarified that the maximum relaxation in the marks for the O.B.C. quota students would be 10

to reserved category is not, as per, constitutional mandate. No citizen, thus, cannot claim reservation as a

matter of right.

SPECIAL PROVISIONS RELATING TO ADMISSION TO EDUCATIONAL INSTITUTIONS

ART. 15(5)

25 See Supra 20 pg. 12.26 See Supra 25 pg. 2527 AIR 1999 SC 2894.


The Constitution (93rd Amendment) Act, 2005 has inserted a new Clause (5) after Clause (4) in Article

15. The new clause enables the State, to make, by law, special provisions, for the advancement of any

socially and educationally backward classes of citizen or for the SC’s/ ST’s, 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 institutions, referred to Clause (1) of Art.

30.

The Apex Court in Ashok Kumar Thakur v. Union of India,28 has upheld the validity of the 93rd

Amendment Act, 2005 so far as it relate to State maintained and State-aided educational Institutions. As

regard the private unaided educational institutions, the question is left upon.

28 (2008) 6 SCC 1.


BIBLIOGRAPHY

Bakshi P.M. “Constitutional Law of India”, Universal Law Publishing Co. 2012.

Basu D.D. “Shorter Constitution of India” Lexis Nexis Butterworths Publications, 14 th Edi. Reprint

2010.

Datar Arvind P. “Commentary on the Constitution of India” Wadhwa and Company, 2nd Edi. 2007.

Jain M.P. “Indian Constitutional law of India” Wadhwa and Company Nagpur, 5th Edi. Reprint 2005.

Prof. Kumar Narendra, “Constitutional Law of India” Allhabad Law Agency, 8th Edi. Reprint 2012.

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