Article 15

The right guaranteed in clause (1) is conferred on a citizen as an individual and is

available against his being subjected to discrimination in matter of rights and
privileges pertaining to him as a citizen generally.

In DP Joshi vs. State of Madhya Bharat, SC held that a law, which discriminates on
the ground of residence, did not infringe article 15. Place of birth in article 15(1) was
different from residence.

The word “only” has two interpretations – one is that the prohibited ground should
not be the only or sole consideration for discriminatory treatment i.e., the courts must
consider the scope and object of the impugned law so as to determine the grounds on
which such law is based. The other interpretation is that it is the effect or operation of
the statute which is the determining factor and not its purpose or motive. The court
should hold a law objectionable to the guarantee given by article 15 (1), if a person is
denied any right or privilege solely because of his religion, caste, race or sex.

In the Bombay Education Society case, it was contended that they did not deny
admission into such schools only on the ground of language but on the ground that
such denial would promote the advancement of the national language. The court
invalidated the order and held that the effect of the order was the denial of admission
to all pupils was not English, i.e., they were discriminated on the grounds of language
only.

In case of Yusuf Abdul Aziz, the HC refused to interfere because the exemption was
not only based on Sec 497 rather also on reason such as early marriage and existence
of polygamy. The court also refused to intervene with tribal customary law, which
gave preference to man over woman in case of intestate succession.

In the case of Daniel Latifi, SC held that provisions of MWA, 1986 did not offend
article 15 because article 15(1) grants a right to an individual and not to a class of
citizens. The reasoning is however not convincing because every individual is
member of a group in some capacity and it is only because of his religion that he is
placed in a particular group, which results in disadvantage to him as individual in
comparison to another individual placed in another group. The existence of personal
laws is justifiable under article 15(1) because it is not the only basis and such
difference does not result in discrimination prohibited by the article.

Clause 3
Special provision for women and children are permissible.

In Yusuf Abdul case, court upheld the special position assigned to women in regard
to offence of adultery. Sec 354 of IPC and Section 488 of Cr.PC are valid because
they protect the modesty of women and obliges the husband to maintain wife. SC held
that special provisions need not be restricted to measures, which are beneficial in the
strict sense. However, special provisions for women means that no less favorable
treatment is to be given to women on gender based criterion and women will not be
deliberately selected for less favorable treatment.
In Indira Sawhney case, women are weaker section of our society for whose
upliftment article 15(3) has been made, which should be given widest possible
interpretation and subject to the condition that reservation must not exceed 50%.

Clause (4)
Enables the state to make special provisions for the advancement of socially and
educationally backward classes – includes reservations or quotas and can be made in
the exercise of executive powers without any legislative support. Two most
contentious issues in application of article 15(4) –
1) Determination of backward classes
2) Extent or quantum of reservation
1) Determination of backward classes – Constitution gives no definition of backward
classes, however, article 340 contemplates appointment of a commission to
investigate the conditions of ‘socially and educationally backward classes’. The
commissions have always taken caste as the dominant factor in determining
backwardness and no formula has been devised.

In MR Balaji’s case, it was held that the caste of a group of person could not be the
sole or predominant factor, it could be relevant test for ascertaining whether a
particular class was backward or not. Under article 15(4), backwardness must be
social and educational and that social backwardness was the result of property. One’s
occupation and place of habitation could be other relevant factors in determining
social backwardness. The court invalidated the test of backwardness, which was based
predominantly on caste.

In Indira Sawhney’s case –

• One of the contention was that the memorandum was based on Mandal
Commission Report that took caste as a dominant criterion for determining
SEBCs.
• The court rejecting the contention held that ‘class’ in article 15(4) and 16(4)
are not to be construed in Marxist sense and these classes are neither defined
nor do they have any methodology for determination.
• Caste was not an essential factor for determining the social and educational
backwardness.
• “backward class of citizens” in article 16(4) is a wider category than article
15(4) – in article 16 (4) it is only social backwardness whereas in article 15(4)
it has to be social and educational.
• It is only when distributive justice or utilitarian principle and not
compensatory justice becomes the basis of protective discrimination, that
poverty and alienation may become important factors in determining
backwardness.

2) Quantum of Reservation – In State of Kerala vs, NM Thomas, majority of court

rejected the argument that article 16(4) was an exception to article 16(1) and
emphasized that art 16(4) were emphatic and directions to state to take effective
affirmative steps to enforce the concept of equality. To bring about equality, State
could make reservations to any extent and certainly it could do that in order to provide
adequate representation.
Article 16 -
Article 14 guarantees the right to equality; Articles 15 and 16 are instances of the
same right but in certain special circumstances. Article 16 basically talks about the
matters relating to employment or appointment to any office under the State.

Equality of opportunity in matters of public employment

CLAUSE 1 - It lays down a general rule for equal opportunity for all citizens in
matters relating to employment or appointment to any office under the State. It does
not give any right to be employed but only the right to be considered for employment
or appointment. The law however does not prevent the State from laying down any
requisite qualifications that might be necessary for government service. The State can
also lay down conditions that might be necessary for proper maintenance among
government servants. As long as there has been a fair selection process for choosing
candidates and equal chance has been given to all, it cannot be said that this right has
been violated.

The only objective of this sub clause is to ensure that the selection process is not
arbitrary. The state can prescribe technical qualifications and standards wherever
necessary. The term “matters relating to employment or appointment” includes
matters both prior and subsequent to the employment (basically anything which may
be incidental to employment and form part of the terms and conditions of such
employment, e.g- initial appointments, promotions, termination of employment,
matters relating to salary, periodical increments, leave, gratuity, pension).

Principle of equal pay for equal work is also covered under this sub clause. This holds
true even in terms of promotion. Two unequal posts cannot be equated. For example a
guard and stationmaster can be promoted at different paces or given different salaries.
Right to be considered for promotion is a fundamental right under this clause. No
discrimination between person who has acquired job by direct recruitment or by
promotion. Article 16(4) guarantees provisions to be made for unrepresented or
underrepresented backward community of our society. This is not seen in
contravention to Article 14 but more like an exception to Article 16(1). In
continuation to this thought process now it is argued that more than an exception to
Article 16(1) it is construed as an aspect of Article 16(1). This is because it further
fosters the idea of equality of opportunity with special reference to underprivileged
and deprived classes of the community. The same was confirmed in the Mandal
Commission case.

CLAUSE 2- it lays down specific grounds on the basis of which citizens are not to be
discriminated against each other in respect of any appointment or office under the
State. Discrimination on grounds other than those mentioned in clause (2) of Article
16(1) has to be weighed and judged in the light of the general principles laid down in
clause (1).
The prohibited grounds for discrimination are religion, race, caste, sex, descent, place
of birth, residence, gender(also includes sexual harassment). The words “any
employment or office under the State” make it clear that Article 16(2) also applies
only to public employment. No prohibition against private persons or bodies
employing people on grounds prohibited by Article 16(2).

Certain exceptions- a. provisions for appointment of sons, daughters or widow of a

deceased employee on compassionate grounds is not violative but increasing this
provision for other relatives is violative
b. reservations for women in employment

CLAUSE 3- Parliament is competent to regulate the extent to which it would be

permissible for a State to depart from the law laid down in clause (2), it is the
Parliament alone which can prescribe such conditions, and that too in regard to State
and not the Union appointments.

CLAUSE 4- The clause expressly provides for reservation of appointments or posts

in favour of any backward class of citizens which, in the opinion of the State is not
adequately represented in the Services under the State. The power conferred on the
State can only be exercised in favour of a backward class and, therefore, whether a
particular class of citizens is backward, is an objective factor to be determined by the
State. But the state’s determination may be challenged if it is based on irrelevant
considerations. If there is only post in the cadre then there can be no reservation with
reference to the post either for recruitment at the initial stage or for filling up a future
vacancy in respect of that post. This is an enabling provision, therefore, no writ can be
issued ordinarily compelling the government to make reservation under it (SC/Tribe
Employees’ Welfare Association v. UOI). The Mandal Comm case held that
Clause(4) is inclusive of all benefits and concessions that could be given to backward
classes in matters of employments such as age, relaxation, fee concession, etc.

CLAUSE 4A (77th amendment)- Court held that clause (4) and 4A do not grant
Fundamental rights. They are enabling provisions which must be balanced with right
to equality guaranteed in Article 14 and 16(1). The State is not bound to make
reservations for SC/ST in matters for promotions. However if they wish to exercise
their discretion and make such a decision, the State must collect quantifiable data to
prove their point. the concept of creamy layer does not apply to SC/ST.

CLAUSE 4B- The Mandal Commission laid down 50% as the upper limit for
reservations in a year under Clause(4) and upheld 49.5% reservations, no scope was
left to hold special recruitment drives or fill in backlog vacancies.
CLAUSE 5- Appointments to religious institution or institutions regulating religious
institutions may be restricted to persons of that religion.

Air India Vs. Nergesh Meerza and Others (AIR 1981 SC 1829)

Facts

The issue that came up for consideration before the Honourable Supreme Court of
India was whether Regulation 46(i)(c) and Regulation 47 of the Air India Employees
Service Regulations were discriminatory in nature and were unconstitutional.
Regulation 46(i)(c) fixed the age of retirement for air hostesses working for Air at 35
years. It also provided that the air hostesses would retire upon first pregnancy or on
marriage within first four years of service, whichever is earlier.
Regulation 47 provided that on being found medically fit, the retirement age of air
hostesses could be extended by 10 more years at the option of the Managing Director.
The retirement age of male cabin crew on the other hand was 58 years.

Decision

The Honourable Supreme Court of India struck down two service conditions
applicable to Air employees. First, the Court struck down the service condition which
provided for termination of service of air hostesses on first pregnancy, holding it to be
in violation of Article 14 (Right to equality) of the Constitution of India. Second, the
Court struck down the provision which provided that the extension of service of an air
hostess beyond 35, if found medically fit, would be at the discretion of the Managing
Director. While striking the latter condition, the Court held that the real intention of
the makers of this regulation has not been carried out because the Managing Director
has been given uncontrolled, unguided and absolute discretion to extend or not to
extend the period of retirement after an air hostess attained the age of 35 years. The
Court held that the said regulation gave wide powers to the Managing Director which
might result in discrimination.

However, with respect to the claim regarding the disparity in retirement age of the air
hostesses and the male crew members, the Court rejected the claim as not being
discriminatory. The court observed that male and female members of the crew are
distinct cadres with different conditions of service. Appreciating the fact that Air
India had fixed the retirement age of air hostesses different from the male crew
members taking into account the nature of work, prevailing conditions of service, the
need to safeguard health of females, and other relevant factors, the Court negated the
grievance that service conditions providing lower age of retirement to air hostesses is
unfavourable or discriminatory.
Air India Cabin Crew Association v Yeshawinee Merchant and others

Facts The case involved an appeal to the Supreme Court of India following a
successful petition filed at the High Court by the Air India Cabin Crew Association
(the Association). The petitions argued that the required retirement ‘from flights’ at an
age of 50 years for an Air India Air Hostess was discrimination based on sex and
violated Articles 14, 15 and 16 of the Constitution of India. It was argued that this
policy further contradicted the directions issued under the Central Government under
section 34 of the Air Corporations Act 1953. The policy, which specifically related to
female workers, was deemed discriminatory when compared to their male
counterparts who worked on Air India airlines. The Bombay High Court held that the
age of retirement for air hostesses constituted sex discrimination. It directed Air India
implement the directive dated 16 October 1989 issued by the Union of India by
permitting the petitioners to perform flying duties until they attain the retirement age
of 58 years subject to medical fitness, weight check and further checks subject to the
measures suggested by Air India. Air India were ordered to pay to the petitioners the
differential amount of salary from the date of grounding of hostesses until the date of
resumption of flight duties and 50% of the compensatory allowances in arrear
payments. However, the Bombay High Court imposed further seniority rules
applicable to all Air India flying staff including: A. The seniority of male and female
cabin crew will be in accordance with their date of joining; B. If a male cabin crew is
in a lower grade than a female cabin crew despite the male cabin crew having joined
Air India at an earlier date, the grade and basic salary of the female cabin crew will be
frozen till such time as the male cabin crew is promoted and becomes senior to the
female cabin crew as per his date of joining; C. If a male cabin crew is in a lower
grade than a female cabin crew despite the male cabin crew having joined Air India at
an earlier date, the grade and basic salary of the female cabin crew will be frozen till
such time as the male cabin crew is promoted and becomes senior to the female cabin
crew as per his date of joining; D. The hierarchy on board the air craft will be based
on seniority irrespective of sex; E. Special benefits which are being given to air
hostesses at present, like early retirement and all benefits arising out of early
retirement, shall no longer be continued; F. All cabin crew (both workmen and
executive) shall have to undergo annual medical examination after the age of 35 years
and shall also be subject to weight checks at all times irrespective of sex. 2 3) Law •
Section 34 of the Air Corporations Act 1953 • Articles 14, 15 and 16 of the
Constitution of India

The Supreme Court in Air India Cabin Crew Association v. Yeshawinee Merchant
reversed a Bombay High Court decision mandating nondiscrimination between the
male and female cadres, upholding in full its 1989 Nergesh Meerza decision. In
delivering its opinion, the Court noted that some of the airhostesses were members of
the union that had negotiated these disparate terms. It reflected, with regard to the
earlier retirement age mandated for airhostesses, that “[t]here is nothing objectionable
for airhostesses to wish for a peaceful and tension-free life at home with their families
in the middle age and avoid remaining away for long durations on international
flights,” apparently overlooking the fact that the airhostesses challenging the policy
were not so inclined. Perhaps most surprisingly, the Court, viewing the union’s
negotiation of the conditions of retirement as evidence that the airhostesses
considered this a provision “favourable to them,” categorized this provision as the
type of “special treatment” authorized by the Equal Remuneration Act to be
performed in favor of women. In other words, the Court interpreted the substantive
equality exception to the Equal Remuneration Act, which permits the government to
take special action for the benefit of women, to allow Air India to mandate that its
female employees retire at an earlier age than similarly situated males

The Supreme Court determined that the judgment of the High Court was
“unsustainable” in respect of the direction it provided for seniority rules. However, it
stated that this part of the High Court decision was severable from the ruling
regarding the retirement age of air hostesses. Therefore, the decision to permit the
retirement age of flight duty air hostesses to be 58 was upheld

In the case of Rajendra Grover v. Air India Ltd & Ors, 33 adjudicated in the Delhi
High Court, members of the male cabin crew moved the Court to challenge a directive
issued by Air India Ltd. dated 27.12.2005 which allowed both male and female crew
to perform the job of In-flight Supervisors. This effectively meant that male cabin
crew could be expected to serve on a flight under the supervision of a woman IFS
which was challenged by the pre- 1997 male cabin crew as unconstitutional. The
Court held that there was nothing unreasonable about this directive and that „in effect
it removes the men-only tag on the function of the IFS‟ and found that it enabled the
female cabin crew to break the „glass ceiling‟. The provisions of the ERA itself were
not the subject of interpretation in this case, but the facts in the judgement reflects the
level of discrimination between men and women even in terms of access to the same
kinds of work. Fortunately the Court was able to uphold the principles of non-
discrimination in this judgement.3

Keeping this framework in mind, let us now turn to Anuj Garg vs. Hotel Association
of India. Anuj Garg concerned a challenge to Section 30 of the Punjab Excise Act,
which prohibited the employment of any man under the age of 25, and any woman, in
any part of an establishment in which liquor or another intoxicating drug was being
consumed. The Court started by taking note of the fact that the Act was a pre-
constitutional legislation, passed before the guarantees of sex equality under Articles
14 and 15 became the law of the land. It made some remarks about the changing
nature of the hotel industry. And then came the crucial point: it was argued that the
legislation was essential to ensure the “security” of women. The Court observed:
“The present law ends up victimizing its subject in the name of protection. In that
regard the interference prescribed by state for pursuing the ends of protection should
be proportionate to the legitimate aims.” (Paragraph 36)

Immediately after this, it cited the ECHR’s provisions on sex equality, thus implying
that it was in light of norms such as these that this issue would have to be understood
– thus implying that the “romantic paternalism” that Justice Brennan excoriated
in Frontiero, that is, the belief that women needed special protection from immoral or
corrupting influences, protection that could only be achieved by confining them to
close spaces under surveillance and supervision, was no longer a valid constitutional
argument.
The Court then further strengthened this idea by expressly endorsing the anti-
stereotyping principle. It started by citing Wendy Williams’ famous piece on sex-
discrimination in the United States, whose central premise involves interrogating the
stated “natural” differences between men and women, and demonstrating how they
are often culture-bound (Para 39). In strikingly progressive language, then, the Court
observed:
“Therefore, one issue of immediate relevance in such cases is the effect of the
traditional cultural norms as also the state of general ambience in the society which
women have to face while opting for an employment which is otherwise completely
innocuous for the male counterpart...” (Para 40)
Consequently:

“It is state’s duty to ensure circumstances of safety which inspire confidence in

women to discharge the duty freely in accordance to the requirements of the
profession they choose to follow. Any other policy inference (such as the one
embodied under section 30) from societal conditions would be oppressive on the
women and against the privacy rights.” (Para 41)

The impugned legislation suffers from incurable fixations of stereotype morality and
conception of sexual role. The perspective thus arrived at is outmoded in content and
stifling in means.” (Para 44)
And:

“The Court’s task is to determine whether the measures furthered by the State in form
of legislative mandate, to augment the legitimate aim of protecting the interests of
women are proportionate to the other bulk of well-settled gender norms such as
autonomy, equality of opportunity, right to privacy et al. The bottom-line in this
behalf would a functioning modern democratic society which ensures freedom to
pursue varied opportunities and options without discriminating on the basis of sex,
race, caste or any other like basis.” (Paragraph 49)
Consequently, the Court found that the legislation amounted to “invidious
discrimination perpetrating sexual differences” (Para 52), and struck it down.
Anuj Garg is perhaps one of the most progressive judgments to have come out of a
Court whose record on sex equality has been patchy, to say the least. It provides a
crucial template upon which to build a progressive jurisprudence of sex equality.
Under the anti-stereotyping principle, a sex-based classification can no longer be
justified on the basis of a blanket assertion of natural differences between men and
women. The so-called difference itself will have to be interrogated, to understand
whether its roots lie in historically perpetuated stereotypes of gender roles and
differences that have become so entrenched, that they now appear natural. And
perhaps more importantly, culture and tradition – that, historically, have been invoked
to endorse great suppression – cannot constitutionally dictate how freedom of choice,
privacy and autonomy are to be understood.
On an Anuj Garg conception, provisions like the marital rape exception, the
restitution of conjugal rights, and many others, that lock into place a culturally-
determined definition of what it means to be a man and to be a woman, must be tested
on the touchstone of constitutional values, and will not be allowed to perpetuate
norms that come into conflict with those values. In other words, the “separate sphere”
which, historically, has been the justification for great suppression, no longer survives
as a valid argument. This is the essence of transformative constitutionalism, which we
have discussed before on this blog: through its guarantees of liberal-democratic values
of choice, freedom, non-discrimination, autonomy and the rest, the Constitution
sought to replace old practices and norms of hierarchy, dominance and suppression
that were based on socially or otherwise constructed identities, such as caste, religion,
gender etc.
It is to be hoped, therefore, that future Courts understand the deep foundations
of Anuj Garg, and take it forward.

Facts of the Case- naz v. uoi

The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been
working on HIV/AIDS and sexual health from 1994 onwards. They filed a writ
petition in the Delhi High Court challenging the constitutional validity of Section 377
of the Indian Penal Code. This section penalizes unlawful sexual acts ‘against the
order of nature’ which has the effect of criminalizing even consensual sexual
intercourse between two adults of the same sex or even of the opposite sex indulging
in penile non-vaginal sexual activities. The petitioner contended that Section 377
encroached upon Articles 14, 15, 19 and 21 of the Constitution of India and also that
the section ought not to criminalise consensual penile non vaginal sex between two
consenting adults of the same sex. In a milestone judgment conveyed on July 2,
2009, the Delhi High Court decided that Section 377 of the Indian Penal Code, 1860
disregarded various fundamental rights, including the right to privacy and right to
dignity under the fundamental right to life and liberty (Article 21), the right to
equality (Article 14), and forbiddance of separation on grounds of sex (Article 15).
The said decision was appealed against in the Supreme Court of India in the Suresh
Kumar Koushal and another v NAZ Foundation and Others case and it was held that
the Delhi High Court was wrong in its findings and was also wrong in reading down
the section to allow consensual homosexual activities between two adults of the same
sex. [ix]

Issues

The major issues that emerged before the Court for its attention and consideration
involved the violation of Fundamental Rights under Article 14, 15 and 21 of the
Constitution of India. In this paper, the author will be dealing with two of the major
issues.

1. Whether Section 377 violates any of the provisions of the Part III of the
Constitution of India and therefore whether it is constitutionally valid or not?

2. Whether Section 377, in so far it criminalizes consensual sexual activity of two

adults of the same sex in private, is violating Article 21(Right to life and personal
liberty) guaranteed by the Constitution of India?

Arguments and Analysis

NAZ Foundation case is an earnest emphasis of the vision of India’s founding fathers
to build an ‘inclusive’ and ‘tolerant’ republic. The decision is a reminder that the
Indian Constitution is a vibrant, living document and its wide insurances must be
alterably translated to include new circumstances and tests. [x] It was argued by the
Respondents that Section 377 is based on traditional Judeo-Christian moral and
ethical standards and is being used to legitimise discrimination against sexual
minorities, i.e. LGBTs. They also contended that the section is detrimental to people’s
lives and public health because of its direct impact on the lives of the homosexuals
and serves as a weapon for police abuse. [xi]

It was further argued by the Respondents that Section 377, in so far as it criminalizes
consensual sexual activities between two adults of the same sex and heterosexual
penile non vaginal sexual intercourse between consenting adults is violative of
Articles 14, 15 and 21 of the Indian Constitution. With regard to the first issue, the
petitioners argued that Section 377, on the face of it, does not mention or classify any
particular group or gender and hence is not violative of Article 14 and 15 and 21
respectively.

The Court accepted their arguments and held that Section 377 is not violative of
Articles 14, 15 and 21 and that carnal intercourse, as intended and defined by the
petitioners to mean unnatural lust ought to be punished. Justice Singhvi also said that
Section 377 is a pre-constitutional legislation and if it were violative of any of the
rights guaranteed under Part III, then the Parliament would have noticed the same and
repealed the section long ago. Based on this reasoning, he declared the section to be
constitutionally valid. He also said that doctrine of severability and the practice of
reading down a particular section flows from the presumption of constitutionality and
that in the said case, the Delhi High Court’s decision to read down the section was
wrong because there is no part of the section that can be severed without affecting the
section as a whole which also happens to be the only law which governs cases of
paedophilia and tyke sexual abuses and assaults. So, the Supreme Court held that
Section 377 of the Indian Penal Code does not suffer from any constitutional infirmity
and left the matter to the competent legislature to consider the desirability and
legitimacy of deleting the Section from the statute book or altering the same to allow
consensual sexual activity between two adults of the same sex in private.

Article 21 guarantees us the right to life and protection of personal liberty. The
private, consensual sexual relations are protected under the right to personal liberty
under Article 21 under the privacy and dignity claim. While considering the issue of
Article 21, The High Court sketched out the broadened extent of the right to life and
liberty which also incorporates right to protection of one’s dignity, autonomy and
privacy, the Division Bench referred to Indian and foreign judgments, the Yogyakarta
Principles[xii] identifying with sexuality as a structure of personality and the
worldwide patterns in the assurance of security and nobility privileges of gay
people and held: “The sphere of privacy allows person to develop human relations
without interference from the outside community or from the State. The exercise of
autonomy enables an individual to attain fulfillment, grow in self-esteem, build
relationships of his or her own choice, and fulfill all legitimate goals that he/she may
set. In the Indian Constitution, the right to live with dignity and the right of
privacy[xiii] are recognised as dimensions of Article 21. Section 377 of IPC denies a
person’s dignity and criminalizes his or her core identity solely on account of his or
her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377
denies a gay person the right to full personhood which is implicit in notion of life
under Article 21 of the Constitution.“[xiv] In Maneka Gandhi v Union of India[xv],
the Court reiterated that the term ‘personal liberty’ is of “the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of a man.” Sexual
orientation and sexual activity is a matter of one’s privacy.

In the same case, the court went on to explain the intention of the founding fathers
regarding regulation of Article 21 and said “Thus expanded and read for
interpretative purposes, Article 21 clearly brings out the implication, that the
Founding Fathers recognized the right of the State to deprive a person of his life or
personal liberty in accordance with fair, just and reasonable procedure established
by law.” But, in the above case, Section 377 is used arbitrarily and it classifies
between procreative sexual activities and non procreative sexual activities which
show no compelling State interest to make such a law to regulate and deny such an
important fundamental right.

Conclusion
Thus, consensual sexual activities between two adults of the same sex should not be
regulated by a law as it violates their Fundamental Rights and a person’s choice of
sexual accomplice is no business of the State to regulate on. Section 377 is abused to
brutalize the persons belonging to the gay community. Popular morality, as distinct
from constitutional morality as derived from constitutional values, is based on shifting
notions of right and wrong and as of today, a large chunk of elite population is in
favor of the LGBT rights and hence, this shows that the State is not even going by the
popular morality but by its own morality and if there is any type of morality that can
pass the test of compelling state interest, it should be constitutional morality.

In M.R. Balaji v. State of Mysore, AIR 1963 S.C. 643, the Supreme Court has held
that the caste of a person cannot be the sole criteria for ascertaining whether a
particular class Is backward or not. Poverty, occupation, place of habitation may all
be relevant factors to be taken into consideration.

In this case, the Mysore Government had issued an order under Article 15 (4)
reserving seats in Medical & Engineering Colleges in the State up to 68% to the
members of backward castes, more backward castes and scheduled castes and tribes.
Only 32% seats were to be filled on merit basis. The court held that Article 15 (4)
enables the State to make special provisions but not exclusive provisions for the
members of the backward classes. The State would not be justified in ignoring
altogether advancement of the rest of the society in its zeal to promote the welfare of
backward classes.

National interest would suffer if qualified and competent students were excluded from
admission in institutions of higher education. The Court said that the special
provisions should be less than 50%. But how much less than 50% would depend upon
the relevant prevailing circumstances in each case.

In M.R. Balaji’s case the Supreme Court had held that Article 15(4) does not speak of
“castes” but only speaks of “classes”, and “castes” and “classes” are not synonymous.
Clause (4) of Article 15 only enables the State to make special provision and not
exclusive provision for the backward classes. The court held the special provision
should be less than 50%. But how much less than 50% would depend upon the
relevant prevailing circumstances of the case.

The scope of Article 16 (4) was considered by the Supreme Court in Devadasan v.
Union of India, AIR 1964 S.C. 179. In this case the constitutional validity of the
“carry forward rule” framed by the Government to regulate appointment of persons of
backward classes in Government services was involved. This rule provided that if
sufficient number of candidates belonging to Scheduled Castes and Scheduled Tribes,
were not available for appointment to the reserved quota, the vacancies which
remained unfulfilled, would be carried forward for the second and third year for
appointment of those candidates.
In actual effect 68% of the vacancies were reserved for Scheduled Castes and
Scheduled Tribes candidates. The Supreme Court struck down “The carry forward
rule” by a majority of 4 to 1 as unconstitutional as the power vested in the
Government under Article 16 (4) could not be exercised so as to deny reasonable
opportunity of public employment to members of other classes than backward classes.
Accordingly, the Court held that the reservation should be less than 50% but how
much less than 50% would depend upon the prevailing circumstances in each case.

Facts:
The Chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any
legislative or executive act or order, except to the extent provided in the appropriate
Art. in Part III. The directive principles of State policy cannot override the provisions
found in Part III but have to conform to and run as subsidiary to the Chapter of
Fundamental Rights. Hence, the argument that having regard to the provisions of Art.
46, the State is entitled to maintain the Communal G. O. fixing proportionate seats in
State Colleges for different communities and if as a result certain individual citizens
are unable to get admissions into the educational institutions, there is no infringement
of their fundamental rights cannot be sustained. The classification in the said
Communal G. O. proceeds on the basis of religion, race and caste and is opposed to
the Constitution and constitutes a clear violation of the fundamental rights guaranteed
to the citizen under Art. 29 (2).

However, so long as there is no infringement of fundamental rights as conferred by

Part III of the Constitution there can be no objection to the State acting according to
the directive principles set out in Part IV subject to the legislative and executive
powers and limitations conferred on the State under different provisions of the
Constitution.

With regard to admission of students to the Engineering and Medical Colleges of the
State, the Province of Madras had issued an order (known as the Communal G. O.)
that seats should be filled in by the selection committee strictly on the following basis,
i.e., out of every 14 seats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to
Backward Hindus, 2 to Brahmins, 2 to Harijans. 1 to Anglo-Indians and Indian
Christians and 1 to Muslims.

On 7-6-1950, Smt. Champakam Dorairajan made an appln. to the H. C. of Judicature

at Madras under Art. 226 of the Constitution for protection of her fundamental rights
under Art.15 (1) and Art.29 (2) of the Constitution and prayed for the issue of a writ
of mandamus or other suitable prerogative writ restraining the State of Madras and all
officers and subordinates thereof from enforcing, observing, maintaining or following
or requiring the enforcement, observance, maintenance or following by the authorities
concerned of the notfn. or order generally, refd. to as the Communal G. O. in and by
which admissions into the Madras Medical Colleges were sought or purported to be
regulated in such manner as to infringe and involve the violation of her fundamental
rights. From the affidavit filed in support of her petn. it does not appear that the petnr.
had actually applied for admission in the Medical College. She states that on inquiry
she came to know that she would not be admitted to the College as she belonged to
the Brahmin community. No objection, however, was taken to the maintainability of
her petn. on the ground of absence of any actual appln. for admission made by her. On
the contrary, we have been told that the State had agreed to reserve a seat for her
should her appln. before the H. C. succeed. In the peculiar circumstances, we do not
consider it necessary to pursue this matter any further. But we desire to guard
ourselves against being understood as holding that we approve of a person who has
not actually applied for admission into an educational Institution coming to Ct.
complaining of infringement of any fundamental right under Art. 29 (2). The H. C. by
its judgment delivered on 27-7-1950 allowed this appln. of Sm. Champakam
Dorairajan.
Judgment:
Separate apples. under Art. 226 of the Constitution complaining of breach of the
petnrs.' fundamental right to get admission into educational institutions maintained by
the State.
The State of Madras maintains four Medical Colleges and only 330 seats are available
for students in those four Colleges. Out of these 330 seats, 17 seats are reserved for
students coming from outside the State and 12 seats are reserved for discretionary
allotment by the State and the balance of the seats available are apportioned between
four distinct groups of districts in the State.
Likewise, the State of Madras maintains four Engineering Colleges and the total
number of seats available for students in those Colleges are only 395. Out of these, 21
seats are reserved for students coming from outside the State, 12 seats are reserved for
discretionary allotment by the State and the balance of the seats available are
apportioned between the same four distinct groups of districts.
For many years before the commencement of the Constitution, the seats in both the
Medical Colleges and the Engineering Colleges so apportioned between the four
distinct groups of districts used to be filled up according to certain proportions set
forth in what used to be called the Communal G. O. Thus, for every 14 seats to be
filled by the selection committee, candidates used to be selected strictly on the
following basis: Non-Brahmins (Hindus) ... 6, Backward Hindus ... 2, Brahmins ... 2,
Harijans ... 2, Anglo-Indians and Indian Christians ... 1 & Muslims ... 1

Subject to the aforesaid regional and what have been claimed to be protective
provisions selection from among the applicants from a particular community from one
of the groups of districts used to be made on certain principles based on academic
qualifications and marks obtained by the candidates

In the case of the Medical Colleges, not less than 20 per cent. of the total number of
seats available for students of the State were filled by women candidates separately
for each region, it being open to the selection committee to admit a larger number of
woman candidates in any region if qualified candidates were available in that region
and if they were eligible for selection on merits vis-a-vis the men candidates in
accordance with the general principles governing such admissions as laid down in
those rules. It appears that the proportion fixed in the old Communal G. O. has been
adhered to even after the commencement of the Constitution on 26-1-1950. Indeed, G.
O. No. 2208, dated l6-6-1950, laying down rules for the selection of candidates for
admission into the Medical Colleges substantially reproduces the communal
proportion fixed in the old Communal G. O.

Sri Srinivasan who had actually applied for admission into the Govt. Engineering
College at Guindy, filed a pettn. praying for a writ of mandamus or any other writ
restraining the State of Madras all officers thereof from enforcing, observing,
maintaining or following the Communal G. O. in and by which admission into the
Engineering College was sought to be regulated in such manner as to infringe and
involve the violation of the fundamental right of the petnr. under Art. 15 (1) and Art.
29 (2) of the Constitution, in the affidavit filed in support of his petn. the petnr. has
stated that he had passed the Intermediate Examination held in March 1950 in Group
1, passing the said examination in first class and obtaining marks set out in para. 1 of
his affidavit. It will appear that in the optional which are taken into consideration in
determining the academic test for admission in the Engineering College the petnr.
Srinivasan secured 369 marks out of a maximum of 450 marks. The H. C. has by the
same judgment allowed this appln. also and the State has filed an appeal which has
been numbered 271 of 1951. The learned counsel appearing for the State of Madras
conceded that these two applicants would have been admitted to the educational
institutions they intended to join and they would not have been denied admission if
selections had been made on merits alone.

Art.29 which occurs in part III of the Constitution under the head 'Cultural and
Educational Rights' runs as follows :

"(1) Any section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to conserve
the same.
(2) No citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds on grounds only of religion, race,
caste, language or any of them."

It will be noticed that while Cl. (1) protects the language, script or culture of a section
of the citizens, cl. (2) guarantees the fundamental right of an individual citizen. The
right to get admission into any educational institution of the kind mentioned in Cl. (2)
is a right that an individual citizen has as a citizen and not as a member of any
community or class of citizens. This right is not to be denied to the citizen on grounds
only of religion, race, caste, language or any of them. If a citizen who seeks admission
into any such educational institution has not the requisite academic qualifications and
is denied admission on that ground, he certainly cannot be heard to complain of an
infraction of his fundamental right under this Article. But, on the other hand, if he has
the academic qualifications but is refused admission only on grounds of religion, race,
caste, language or any of them, then there is a clear breach of his fundamental right.

The learned Advocate- General appearing for the State contends that the provisions of
this Article have to be read along with other Articles in the Constitution. He urges that
Art. 46 charges the State with promoting with special care the educational and
economic interests of the weaken sections of the people, and in particular, of the
Scheduled Castes and the Scheduled Tribes, and with protecting them from social
injustice and all forms of exploitation. It is pointed out that although this Article finds
a place in Part IV of the Constitution which lays down certain directive principles of
State policy and though the provisions contained in that Part are not enforceable by
any Ct. the principles therein laid down are nevertheless fundamental for the
governance of the country and Art. 37 makes it obligatory on the part of the State to
apply those principles in making laws. The argument is that having regard to the
provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing
proportionate seats for different communities and if because of that Order, which is
thus contended to be valid in law and not in violation of the Constitution, the petnrs.
are unable to get admissions into the educational institutions, there is no infringement
of their fundamental rights. Indeed, the learned Advocate-General of Madras even
contends that the provisions of Art. 46 override the provisions of Art. 29 (2). We
reject the above noted contentions completely. The directive principles of the State
policy, which by Art. 37 are expressly made unenforceable by a Ct. cannot override
the provisions found in Part III which, notwithstanding other provisions, are expressly
made enforceable by appropriate Writs, Orders or directions under Art. 32. The
chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any
Legislative or Executive act or order, except to the extent provided in the appropriate
Art. in Part III. The directive principles of State policy have to conform to and run as
subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct
way in which the provisions found in Parts III and IV have to be understood.
However, so long as there is no infringement of any Fundamental Right, to the extent
conferred by the provisions in Part III, there can be no objection to the State acting in
accordance with the directive principles set out in Part IV, but subject again to the
Legislative and Executive powers and limitations conferred on the State under
different provisions of the Constitution.

In the next place it will be noticed that Art. 16 which guarantees the fundamental right
of equality of opportunity in matters of public employment and provides that no
citizen shall, on grounds only of religion, race, caste , sex , descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of any
employment or office under the State also includes a specific clauses in the following
terms:
Nothing in this article shall prevent the State from making any provision for the
reservation of appointments of posts in favour of any backward class of citizens
which, in the opinion of the State , is not adequately represented in the services under
the State."

If the argument founded on Art. 46 were sound then cl. (4) of Art. 16 would have
been wholly unnecessary and redundant. Seeing, however, that cl. (4) was inserted in
Art. 16, the omission of such an express provision from Art. 29 cannot but be
regarded as significant. It may well be that the intention of the Constitution was not to
introduce at all communal considerations in matters of admission into any educational
institution maintained by the State or receiving aid out of State funds. The protection
of backward classes of citizens may require appointment of members of backward
classes in State services and the reason why power has been given to the State to
provide for reservation of such appointments for backward classes may under those
circumstances be understood. That consideration, however, was not obviously
considered necessary in the case of admission into an educational institution and that
may well be the reason for the omission from Art. 29 of a clause similar to cl. (4) of
Art, 16.

Take the case of the petnr. Srinivasan. It is not disputed that he secured a much larger
number of marks than the marks secured by many of the Non-Brahmin candidates and
yet the Non. Brahmin candidates who secured less number of marks will be admitted
into six out of every 14 seats but the petnr. Srinivasan will not be admitted into any of
them. What is the reason for this denial of admission except that he is a Brahmin and
not a Non-Brahmin. He may have secured higher marks than the Anglo Indian and
Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the
seats reserved for the last mentioned communities for no fault of his except that he is
a Brahmin and not a member of the aforesaid communities. Such denial of admission
cannot but be regarded as made on ground only of his caste.

It is argued that the petnrs. are not denied admission only because they are Brahmins
but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brihmins have an
allotment of only two seats out of 14 and (c) the two seats have already been filled up
by more meritorious Brahmin candidates. This may be true so far as these two seats
reserved for the Brahmins are concerned but this line of argument can have no force
when we come to consider the seats reserved for candidates of other communities, for
so far as those seats are concerned, the petnrs. are denied admission into any of them
not on any ground other than the sole ground of their being Brahmins and not being
members of the community for whom those reservations have been made. The
classification in the Communal G. O. proceeds on the basis of religion, race and caste.
In our view, the classification made in the Communal G. O. is opposed to the
Constitution and constitutes a clear violation of the fundamental rights guaranteed to
the citizen under Art. 29 (2) In this view of the matter, we do not find it necessary to
consider the effect of Art. 14 or 15 on the specific Articles discussed above.
For the reasons stated above, we are of opinion that the Communal G. O. being
inconsistent with the provisions of Art. 29 (2) in Part III of the Constitution is void
under Art 13. The result, therefore, is that these appeals stand dismissed with costs.

STATE OF KERALA V. NM THOMAS

In State of Kerala V. N.M. Thomas, the Supreme Court held that it was permissible to
give preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art.
16(4).

In this case in a dissenting opinion, Subba Rao, J., had express the opinion that Art.
16(4) was not an exception to Art. 16(1), but was a legislative device by which the
framers of the Constitution had sought to preserve a power untrammeled by the other
provisions of the Article. It was a facet of Art. 16(1) as “it fosters and furthers the idea
of equality of opportunity with special reference to under privileged and deprived
classes of citizens.”

The majority accepted this view of Subba Rao, J. Accordingly, the Court observed:
Art. 16(4) is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1)
which fosters and furthers the idea of equality of opportunity with special reference to
an under privileged and deprived class of citizens. Thus, Art. 16(1) being a facet of
the doctrine of equality enshrined in Art. 14 permits reasonable classification just as
Art. 14 does. The majority ruled that Art. 16(4) are not an exception to Art. 16(1).
Art. 16(1) itself permits reasonable classification for attaining equality of opportunity
assured by it.

Thomas marks the beginning of a new judicial thinking on Art. 16 and leads to greater
concessions to SC, ST and other backward persons. If the Supreme Court had stuck to
the view propagated in earlier cases that Art. 16(4) was an exception to Art. 16(1),
then no reservation for any other class, such as army personnel, freedom fighters,
physically handicapped, could have been made in services.
The fact situated in Thomas was that the Kerala Government made rules to say that
promotion from the cadre of lower division clerks to the higher cadre of upper
division clerks depended on passing a test within two years. For SCs and STs,
exemption could be granted for a longer period. These classes were given two extras
years to pass the test. This exemption was challenged as discriminatory under Art.
16(1) on the ground that Art. 16 permitted only reservation in favour of backward
classes but it was not a case of reservation of posts for SCs and STs under Article
16(4) and that these persons were not entitled to any favoured treatment in
promotion outside Art. 16(4).
By majority, the Supreme Court rejected the argument. It ruled that Art. 16(1) being a
facet of Art. 14, would permit reasonable classification and, thus, envisaged equality
between the members of the same class of employees but not equality between
members of a separate, independent class. Classification on the basis of backwardness
did not fall within Art. 16(2) and was legitimate for the purposes of Art. 16(1). Giving
preference to an under-represented backward community was valid and would not
contravene Arts. 14, 16(1) and 16(2). Art. 16(4) removes any doubt in this respect.
The classification of employees belonging to SC and ST for allowing them an
extended period of two years for passing the special tests for promotion is a just and
reasonable classification having rational nexus to the object of providing equal
opportunity for all citizens in matters relating to employment or appointment to
public office.

The majority adopted a very liberal attitude in Thomas as regards SCs and STs and
backward classes. The result of the pronouncement is to enable the state to give the
backward classes a preferential treatment in many different ways other than
reservation of posts as envisaged in Art. 16(4). Preferential treatment for one is
discriminatory treatment for another and, therefore, it is necessary to draw a balance
between the interests of the backward classes and the other classes. The Supreme
court has shown consciousness of this danger and, therefore, has laid down a few
criteria which a classification must fulfil, viz.:

(i) the basis of the classification has to be backwardness;

(ii) the preferential treatment accorded to backward classes has to be

reasonable and must have a rational nexus to the object in view, namely, adequate
representation of the under-represented backward classes;

(iii) the overall consideration of administrative efficiency should be kept in

view in giving preferential treatment to the backward classes.

It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1)
than had been taken by it is earlier cases. It is now clearly established that Art. 16(4)
does not cover the entire field covered by Arts. 16(1) and (2) and some of the matters
relating to employment in respect of which equality of opportunity is guaranteed by
Arts. 16(1) and (2) do not fall within Art. 16(4).

The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may
classify, “based upon substantial differentia, groups or classes” for recruitment to
public services and “this process does not necessarily spell violation of Article 14 to
16”. Art. 16(2) expressly forbids discrimination on the basis of ‘caste’. SC and ST are
not castes within the ordinary meaning of caste. These are backward human groups.
There is a great divide between these persons and the rest of the community.

Thus, reservation in selection posts in railways for SC and St was held valid. The
quantum of reservation (17½%) in railway services for SC and ST was held not
excessive and the field of eligibility was not too unreasonable. The carry forward rule
for three years was held not bad. Under the Carry forward rule, the quota for SC and
ST could go up to a maximum of 66% of posts. This was upheld with the remark that
figures on paper were not so important as the facts and circumstances in real life
which showed that the quota was never fully filled. But this fixation was subject to
the rider that, as a fact, in any particular year, there would not be a substantial
increase over 50% in induction of reserved candidates. Here the Court took the actual
facts, rather than the paper rules, into consideration.

State of Kerela vs N M Thomas AIR 1976

State of Kerala had given 2 yrs relaxation to SC/STs in passing certain test for
promotion. SC held that such a relaxation is valid. It held that the relaxation does not
cause reduction in the efficiency because such people will have to pass the test
anyway. It further held that special provisions for SC/STs could be made even under
16(1) and not only under 16 (4). This is because the classification has a reasonable
nexus with objective, which is the upliftment of backward classes.

In Indra Sawhney vs. Union of India, the Supreme Court has taken cognizance of
many complex but very momentous questions having a bearing on the future welfare
and stability of the Indian Society. The Supreme Court has delivered a very
thoughtful, creative and exhaustive opinion dealing with various aspects of the
reservation problem. Basically reservation in government services, is anti-
meritocracy, because when a candidate is appointed to a reserved post it inevitably
excludes a more meritorious candidate. But reservation is now a fact of life and it will
be the ruling norm for years to come. The society may find it very difficulty to shed
the reservation rule in the near future. But the Court’s opinion has checked the system
of reservation from running riot and has also mitigated some of its evils.
Three positive aspects of the Supreme Court’s opinion may be highlighted.
One, the over-all reservation in a year is now limited to a maximum of 50%.
Two, amongst the classes granted reservation, those who have been benefited from
reservation and have thus improved their social status (called the ‘creamy layer’ by
the Court), should not be allowed to benefit from reservation over and over again.
This means that the benefit of reservation should not be misappropriated by the upper
crust but that the benefit of reservation should be allowed to filter down to the
lowliest so that they may benefit from reservation to improve the position.
Three, an element of merit has now been introduced into the scheme of reservation.

This has been done in several ways, e.g.:

(a) promotions are to be merit-based and are to be excluded from the

reservation rule;
 (b) certain posts are to be excluded from the reservation rule and recruitment
to such posts is to be merit based;

(c) minimum standards have to be laid down for recruitment to the reserved
posts. IN facts, the Courts has insisted that some minimum standards must be laid
down even though the same may be lower than the standards laid down for the non-
reserved posts.

In his opinion in Indra Sawhney, Jeevan Reddy,J., has emphasized upon the member
of a backward class reaching an “advanced social level or status”, he would no longer
belong to the backward class and would have to be weeded out. The Court has opined
that exclusion of creamy layer, i.e., socially advanced members, will make the class a
truly backward class and would more appropriately serve the purpose and object of
Art. 16(4). Jeevan Reddy, J., has stated that there are sections among the backward
classes who are highly advanced socially and educationally, and they constitute the
forward section of the community. These advanced sections do not belong to the true
backward class. “After excluding them alone, would be the class be a compact class.
In fact, such exclusion benefits the truly backward.”

Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the
basis of social advancement and not on the basis of economic interest alone. It is
difficult to draw a line where a person belonging to the backward class ceases to be so
and becomes part of the ‘creamy layer’.

In Ashoka Kumar Thakur V. State of Bihar, the Supreme Court has assessed the
validity of unrealistically high levels of income or holdings of other conditions
prescribed by the Legislatures of UP and Bihar as criteria to identify the creamy layer.
For example, while the Supreme Court in the Mandal case has categorically said that
the Chiildren of IAS or IPS, etc. without anything more could not avail the benefit of
reservation, in the scheme drawn in UP and Bihar, a few more conditions were added
for falling in the creamy layer, such as, he/she should be getting a salary or Rs.
10,000/- p.m. or more; the wife or husband to be a graduate and owing a house in an
urban area. OR, if a professional doctor, surgeon, lawyer, architect, etc., he should be
having an income not less than Rs. 10 lakh, his/ her spouse is a graduate and having
family property worth Rs. 20 Lakhs. Similar conditions were added in case of others,
such as, traders, artisans, etc.

The Supreme Court has quashed these conditions as discriminatory. The Court has
ruled that these conditions laid down by the two States have no ‘nexus’ with the
object sought to be achieved. The criterion laid down by the two States to identify the
creamylayer are violative of Art. 16(4), wholly arbitrary, violative or Art. 14, and
against the law laid down by the Supreme Court in the Mandal case, where the Court
has expressed the view that a member of the All India Service without anything more
ought to be regarded as belonging to the “creamy laye

Indra Sawhney vs Union of India AIR 1993

The following points were held in this case:

• classification of backward and more backward is valid.
 • reservation cannot exceed 50%.
• only economic criteria is not valid.
• creamy layer must be excluded.
• reservation if promotion is invalid. - This was nullified by 77th amendment
which added clause 15 (4). This clause permits reservation in promotions with
consequential seniority.
• 16(4) is not an exception but only an instance of classification. Reservation
can done without 16(4) as well, under the doctrine of reasonable classification.
• Any new parameters on reservation can be added only after consulting the
supreme court.

Ashoka Kumar Thakur v. Union of India and Others

Summary
In April 2006, the Indian parliament passed a bill to bring out an amendment in the
constitution to provide for nearly 27% reservation of seats for students from the
‘Other Backward Classes (OBC) segment in institutes of higher learning in India.
This would have reduced the seats for a general, unreserved candidate to about 50%
(after taking into account other reserved seats). The validity of the amendment was
challenged on the grounds that the Union of India failed to perform the constitutional
and legal duties toward the citizenry, and that the Act would have the effect of
dividing the country on caste basis. It was alleged that the act would lead to chaos,
confusion, and anarchy, which would have destructive impact on the peaceful
atmosphere in the educational and other institutions and would seriously affect social
and communal harmony. The constitutional guarantee of equality and equal
opportunity shall be seriously prejudiced.

India's Supreme Court ruled against the reservations on the Act on two grounds. First,
it held that the exact proportion of OBCs in India's population was not accurately
identified, but was based on projections made in 1978 by a specially appointed
official commission (Mandal Commission). The Commission projected that 52% of
the population belonged in the OBC category, but the Court found that the
methodology used to reach this figure was flawed. Second, the Court held that setting
quotas or reservations might not be an appropriate means of promoting diversity or
affirmation action because it discriminates against "meritorious" candidates who do
not suffer social disadvantage on account of caste, race or ethnicity.

1. The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic
structure" of the Constitution so far as it relates to the state maintained institutions and
aided educational institutions. Question whether the Constitution (Ninety-Third
Amendment) Act, 2005 would be constitutionally valid or not so far as "private
unaided" educational institutions are concerned, is left open to be decided in an
appropriate case.
2. "Creamy layer" principle is one of the parameters to identify backward classes.
Therefore, principally, the "Creamy layer" principle cannot be applied to STs and
SCs, as SCs and STs are separate classes by themselves.
3. Preferably there should be a review after ten years to take note of the change of
circumstances.
4. A mere graduation (not technical graduation) or professional deemed to be
educationally forward.
5. Principle of exclusion of Creamy layer applicable to OBC's.
6. The Central Government shall examine as to the desirability of fixing a cut off
marks in respect of the candidates belonging to the Other Backward Classes (OBCs)to
balance reservation with other societal interests and to maintain standards of
excellence. This would ensure quality and merit would not suffer. If any seats remain
vacant after adopting such norms they shall be filled up by candidates from general
categories.
7. So far as determination of backward classes is concerned, a Notification should be
issued by the Union of India. This can be done only after exclusion of the Creamy
layer for which necessary data must be obtained by the Central Government from the
State Governments and Union Territories. Such Notification is open to challenge on
the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view
the peculiar features in different States and Union Territories. There has to be proper
identification of Other Backward Classes (OBCs.). For identifying backward classes,
the Commission set up pursuant to the directions of this Court in Indra Sawhney, has
to work more effectively and not merely decide applications for inclusion or
exclusion of castes.
8. The Parliament should fix a deadline by which time free and compulsory education
will have reached every child. This must be done within six months, as the right to
free and compulsory education is perhaps the most important of all the fundamental
rights (Art.21 A). For without education, it becomes extremely difficult to exercise
other fundamental rights.
9. If material is shown to the Central Government that the Institution deserves to be
included in the Schedule (institutes which are excluded from reservations) of The
Central Educational Institutions (Reservation in Admission) Act, 2006 (No. 5 of
2007), the Central Government must take an appropriate decision on the basis of
materials placed and on examining the concerned issues as to whether Institution
deserves to be included in the Schedule of the said act as provided in Sec 4 of the said
act.
10. Held that the determination of SEBCs is done not solely based on caste and hence,
the identification of SEBCs is not violative of Article 15(1) of the Constitution.

On August 18th 2011, the Supreme Court(SC) delivered its judgment in P.V.
Indiresan v Union of India & Ors, a matter that considered the issue related to the
27% reservations for OBCs in the central educational institutions. The SC mainly
dealt with the clarification regarding the meaning of cut-off marks for OBC
admissions used in its order dated 14.10.2008 in the case in concern and examined
whether it should be based on the minimum eligibility mark of the general category or
on the marks obtained by the last general category candidate.

The Supreme Court in this case upheld the Delhi High Court judgement which held
that the cut-off marks for OBC candidates should be 10% less than the minimum
eligible marks of general category candidates.

The bench headed by Justice R.V. Raveendran also concluded that the cut-off marks
of the OBCs will be decided on the basis of the minimum eligibility mark of the
general category and not on the marks of the last selected student of the general
category.
The issue came up after Jawaharlal Nehru University started to apply the
methodology of fixing the cut-off for OBCs on the basis of the marks obtained by the
last general category candidate. This methodology ultimately lead to filling up of the
OBC seats by the general category students which is arbitrary and violative of the
27% reservation policy as held in Ashok Kumar Thakur v Union of
India(A.K.Thakur).

The court clearly clarified what they meant by cut-off marks for OBCs in their order
dated 14.10.2008 when they held that the minimum marks for admission of OBC
candidates should be a prescribed percentage below the minimum
eligibility/qualifying marks prescribed for general candidates and not that below the
marks secured by the last candidate admitted under general category as asserted by
the appellant. The judges relied on A.K.Thakur where Justice Arijit Pasayat meant the
word cut-offs to be minimum eligibility marks and by allowing 10% relaxation it
meant if the minimum eligibility marks for general category students is 50, the
minimum eligibility marks for OBC candidates should be 45 and not less than that.

M. Nagraj v. Union of India

Articles 16(4A) and 16(4B) were challenged before a Constitution Bench in 2007,
in M. Nagaraj v. Union of India. Since these were constitutional amendments at
issue, this was a basic structure challenge. Along with 16(4A) and (4B), the
petitioners also challenged the 82nd Amendment, which had (essentially)
eviscerated Article 335. Article 335 originally required the claims of SCs and STs to
be balanced with “efficiency in administration”, and had been invoked repeatedly by
Courts (especially Indra Sawhney) to put limits on the extent and nature of
government quotas. The 82nd Amendment added a further clause to Article 335:

“…nothing in this article shall prevent in making of any provision in favour of the
members of the Scheduled Castes and the Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the standards of evaluation, for
reservation in matters of promotion to any class or classes of services or posts.”

The case of the petitioners was that, cumulatively, these amendments entirely
destroyed the conception of equality running through Article 14, 15 and 16, which
was part of the basic structure of the Constitution.

The Court recognised (as it had to) that equality was part of the basic structure (para
27). Of course, the question then becomes: at what level of abstraction do we
understand “equality” in the sense that is part of the basic structure? As we have been
discussing throughout the posts on reservations, the Courts have repeatedly struggled
with the conception of equality that the Constitution commits us to – colour blindness,
group subordination, and so on. While these conceptions are different ways of
understanding what equality might require in particular situations, or particular
instantiations of equality, they are nonetheless different understandings of the same
abstract concept – that of equality. Before deciding, therefore, whether 16(4A) and
(4B) violate the basic structure, it becomes important to decide what level of equality
is involved when considering the basic structure.
This idea was implicit in the Court’s conclusion, after it exhaustively analysed
precedent on the nature of the catch-up rule. It held: “the concept of ‘catch-up’ rule
and ‘consequential seniority’ are judicially evolved concepts to control the extent of
reservation. The source of these concepts is in service jurisprudence. These concepts
cannot be elevated to the status of an axiom like secularism, constitutional
sovereignty etc. It cannot be said that by insertion of the concept of ‘consequential
seniority’ the structure of Article 16(1) stands destroyed or abrogated. It cannot be
said that ‘equality code’ under Article 14, 15 and 16 is violated by deletion of the
‘catch-up’ rule.”
The Court went on to observe:
“Clause (1) of Article 16 cannot prevent the State from taking cognizance of the
compelling interests of backward classes in the society. Clauses (1) and (4) of
Article 16 are restatements of the principle of equality under Article 14.” (Para 67)

UP POWER CORPORATION V. RAJESH KUMAR

Controversy pertaining to reservation in promotion for Scheduled Castes and

Scheduled Tribes with consequential seniority as engrafted under Articles 16(4A) and
16(4B) of Constitution and facet of relaxation grafted by way of a proviso to Article
335 of Constitution of India, being incorporated by Constitution (Seventy-seventh
Amendment) Act, 1995, the Constitution (Eight-first Amendment) Act, 2000,
Constitution (Eighty-second Amendment) Act, 2000 and Constitution (Eighty-fifth
Amendment) Act, 2001 at various stages having withstood judicial scrutiny by dictum
in M. Nagaraj v. Union of India - Whether Section 3(7) of 1994 Act and Rule 8A of
2007 Rules were ultra vires and liable to be held invalid.

Held, vesting of power by an enabling provision might be constitutionally valid and

yet 'exercise of power' by State in a given case might be arbitrary, particularly, if State
failed to identify and measure backwardness and inadequacy keeping in mind
efficiency of service as required under Article 335 of Constitution.

Article 16(4) of Constitution, which protected interests of certain sections of society

had to be balanced against Article 16(1) of Constitution, which protected interests of
every citizen of entire society - They should be harmonized because, they were
restatements of principle of equality under Article 14 of Constitution - Each post get
marked for particular category of candidates to be appointed against it and any
subsequent vacancy had to be filled by that category candidate - Appropriate
Government had to apply cadre strength as a unit in operation of roster in order to
ascertain whether a given class/group was adequately represented in service - Cadre
strength as a unit also ensured that, upper ceiling-limit of 50% was not violated –
Further roster had to be post-specific and not vacancy based - State had to form its
opinion on quantifiable data regarding adequacy of representation.

Clause (4A) of Article 16 of Constitution, was an enabling provision. It gave freedom

to State to provide for reservation in matters of promotion - Clause (4A) of Article 16
of Constitution, applied only to SCs and STs - Said clause was carved out of Article
16(4A) of Constitution - Therefore, Clause (4A) would be governed by two
compelling reasons - "backwardness" and "inadequacy of representation", as
mentioned in Article 16(4) of Constitution - If said two reasons did not exist, then
enabling provision could not be enforced - If ceiling-limit on carry-over of unfilled
vacancies was removed, other alternative time-factor came in and in that event, time-
scale had to be imposed in interest of efficiency in administration as mandated by
Article 335 of Constitution - If time-scale was not kept, then posts would continue to
remain vacant for years which would be detrimental to administration - Therefore, in
each case, appropriate Government would now have to introduce duration depending
upon fact-situation - If appropriate Government enacted a law providing for
reservation without keeping in mind parameters in Article 16(4) of Constitution and
Article 335 of Constitution, then this Court would certainly set aside and strike down
such legislation - Constitutional limitation under Article 335 of Constitution, was
relaxed and not obliterated - Concepts of efficiency, backwardness and inadequacy of
representation were required to be identified and measured - That exercise depended
on availability of data - That exercise depended on numerous factors - It was for this
reason that, enabling provisions were required to be made because each competing
claim sought to achieve certain goals - How best one should optimize these
conflicting claims could only be done by administration in context of local prevailing
conditions in public employment - Article 16(4) of Constitution, therefore, created a
field which enabled a State to provide for reservation provided there exists
backwardness of a class and inadequacy of representation in employment - These
were compelling reasons - They did not exist in Article 16(1) of Constitution - It was
only, when these reasons were satisfied that a State get the power to provide for
reservation in matter of employment - Articles 16(4A) and 16(4B) of Constitution,
were enabling provisions and State could make provisions for same on certain basis or
foundation - Conditions precedent had not been satisfied - No exercise had been
undertaken - When provisions of Constitution were treated valid with certain
conditions or riders, it became incumbent on part of State to appreciate and apply test
so that, its amendments could be tested and withstand scrutiny on parameters laid
down therein - Section 3(7) of 1994 Act and Rule 8A of 2007 Rules were ultra vires,
as they ran counter to dictum in M. Nagaraj - Any promotion that had been given on
dictum of Indra Sawhney and without aid or assistance of Section 3(7) and Rule 8A
should remain undisturbed - Appeals arising out of final judgment of Division Bench
at Allahabad were allowed and impugned order was set aside - Appeals arising out of
judgment from Division Bench at Lucknow was affirmed subject to modification.

Deaf Employees Welfare Association vs UOI

There cannot be further discrimination between a person with disability of 'blindness'

and a person with disability of 'hearing impairment'. Such discrimination has not been
envisaged under the Disabilities Act. All the categories of persons mentioned in
Section 2(i) have their own disadvantages, peculiar to themselves. The nature of
disability of those categories of persons may not be same, but the disabilities they
suffer are to be addressed with care and compassion.

Ministry of Finance, Government of India, took the view that a visually impaired
person cannot be equated with hearing impaired person since persons who are deaf
and dumb are not physically dependent on others for commuting from one place to
another, hence they are not entitled to double rate of transport allowance. We are of
the view that the travel undertaken by the deaf and hearing impaired employees is
equally arduous and burdensome as compared to persons having other disabilities
referred to in Section 2(i) of the Act. Hearing impaired persons cannot communicate
with the bus conductors, auto and taxi drivers as a normal person can do. Invariably,
they have to seek the assistance of a stranger. Time and effort required to reach a
destination is considerably more as compared to normal persons. A hearing impaired
person sometimes may end up spending more money in travelling as compared to
normal persons. At times, he is required to seek assistance of strangers or other
travelers.

Further discrimination amongst themselves is clearly violative of Article 14 of the

Constitution of India. In our view, the differentia sought to be canvassed by the
Ministry of Finance has no rational relation to the object sought to be achieved by the
Disabilities Act, which envisages to give equal opportunities, protection and rights to
the "persons with disabilities". Transport allowance is given to Government
employees since many of the Government employees may not be residing in and
around their places of work. Sometimes, they have to commute long distances to and
fro. There has been an unprecedented increase in the commutation time between the
residence and place of work which effects the work environment in offices adversely
as the employee spend much of their energy in commuting and, in the case of persons
with disabilities, the situation is more grave.

The deaf and dumb persons have an inherent dignity and the right to have their
dignity respected and protected is the obligation on the State. Human dignity of a deaf
and dumb person is harmed when he is being marginalized, ignored or devalued on
the ground that the disability that he suffers is less than a visually impaired person
which, in our view, clearly violates Article 21 of the Constitution of India.
Comparison of disabilities among "persons of disabilities", without any rational basis,
is clearly violative of Articles 14 of the Constitution of India.

Under such circumstances, we are inclined to allow this writ petition and direct the
Respondents to grant transport allowance to deaf and dumb persons also on par with
blinds and orthopaedically handicapped employees of Central and the State
Governments and other establishments wherever such benefits have been extended to
the blinds and orthopaedically handicapped employees. Ordered accordingly.