ANSHUL RAMESH

ARTICLE 14, 15 & 16- EQUALITY & RESERVATIONS

ARTICLE 14:

Article 14 states that “Equality before law - The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth”. Article 14-18 embodies the ideas of both
negative and positive equality (formal and substantive equality). The framers of the Constitution
were aware of the existing social inequalities in India due to discriminatory social structure and
they wanted the Indian State to take positive measures to promote equality in positive sense.
Two concepts are involved in Article 14, viz. ‘equality before the law’ and ‘equal protection of the
law. The first is a negative concept which ensures that there is no special privilege in favour of
anyone, that all are equal subject to the ordinary law of the land and that no person, whatever be
his rank or condition, is above the law. There are certain exceptions to it, such as – foreign
diplomats enjoy immunity from the country’s judicial process, Art. 361 extends immunity to the
President of India. The second concept, ‘equal protection of the law’, is positive in content. It does
not mean that identically the same law should apply to all persons, or that every law must have a
universal application within the country irrespective of different circumstances. Equal protection
of the laws does not postulate equal treatment of all person without distinctions. What it postulates
is the application of the same laws alike and without discrimination to all persons similarly
situated. It denotes equality of treatment in equal circumstances.

DOCTRINE OF REASONABLE CLASSIFICATION:

Article 14 forbids class legislation but does not prohibit legislative classification (special
legislations for doctors, lawyers etc.). The principle of equality does not mean that every law must
have universal application to all persons who are not by nature, attainment or circumstances in the
same position. Article 14 allows for reasonable classification of persons, objects and transactions
by the Legislature for the purpose of achieving specific ends. Classification to be reasonable should
fulfil following two test –
1. It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia,
some real and substantial distinction, which distinguishes persons or things grouped together in
the class from others left out of it.
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2. The differentia adopted as the basis of classification must have a rational or reasonable nexus
with the object sought to be achieved by the statute in question. A classification need not be
scientifically perfect or logically complete. The person who pleads that article 14 has been violated,
must not only prove that he has been treated differently from others, but he has also been treated
differently from persons similarly circumstanced.

FORMAL EQUALITY AND SUBSTANTIVE EQUALITY OR NEGATIVE AND POSITIVE EQUALITY

Articles 14-18 embody the ideas of both negative and positive equality (formal equality and
substantive equality). The framers of the Constitution were aware of the existing social inequalities
in India due discriminatory social structure and they wanted the Indian State to take positive
measures to promote equality in positive sense. (Articles15, 16, 17 and 18).

Formal equality simply requires the absence of any discrimination in the words of law and requires
that similar cases must be treated similarly according to one and the same rule. The notion of
formal equality reflects nothing more than a demand for rationality—a demand that statements
about all similar persons be generalized into statements about similar persons in similar
circumstances. If all men were equal -similar in every respect, formal equality would have been
sufficient. Formal equality does not concern itself with the elimination of group inequalities in
society caused by discriminatory social structure. The traditional view that the state is concerned
only with ‘formal equality’ has undergone radical changes in recent years. According to the new
approach justice demands ‘equality of results’ or substantive equality which can be achieved only
by mitigating inequalities of men by positive sate action. It has now been realized that the “claim
of equality is in fact a protest against unjust, undeserved and unjustified inequalities. It is a symbol
of man’s revolt against chance, fortuitous disparity, unjust power and crystallized privileges”.

If as a result of unequal treatment, the members of a group are poorly trained, housed or educated
it is not sufficient merely to remove the existing discriminatory barriers and to proclaim that
henceforth opportunities will be available to all on the basis of open competition. Equality of
opportunity will not then have been achieved because although no one will be excluded merely for
being belonging to a historically disadvantaged group, a causal connection will remain between
those belonging to that group and being governed by unfavorable circumstances. The members of
these disadvantaged groups will still lack in economic, psychological and educational resources
 ANSHUL RAMESH

needed to participate on equal term in the competition for the opportunities in question. In such
circumstances there a necessary pressure to achieve substantive equality and to equal up the
conditions by giving unequal benefits to those governed by unfavorable conditions and thus
lacking in resources, incentives and background to succeed in open merit competition.

The framers of the Indian Constitution were aware that in a caste-ridden society like ours where
due to historical reasons certain castes were for centuries socially oppressed, economically
condemned to live the life of penury and coerced to take up lowly occupation a doctrinaire
insistence on formal equality would in fact aggravate and perpetuate inequalities. In accordance
with its resolve in the Preamble to secure to all citizens “Justice, Social and Economic and Political,
equality of status and opportunity, the Constitution guarantees to everyone right to “equality before
law and equal protection of laws”. In order to give effect to general right to equality under article
14, the constitution secures to all citizens freedom from discrimination on grounds of religion,
race, and caste etc. The state is forbidden to discriminate against any citizen on grounds of place
of birth, residence, descent, class, language and sex. Untouchability has been abolished and the
citizens are protected against discrimination even by private persons and institutions. Political
equality has been secured by providing reservation of seats in legislatures to the scheduled castes
and scheduled tribes. Social and economic equality is intended to be achieved in pursuance of the
directive principles of state policy which command the state to remove existing socio-economic
inequalities by special measures.

EQUALITY BEFORE THE LAW AND EQUAL PROTECTION OF THE LAWS

Article 14 is couched in negative language. The expression ‘equality before the law’ is based upon
Dicean concept of Rule of Law which means absence of any privilege in any individual. Every
person, whatever is his rank or position, is subject to the jurisdiction of ordinary courts. The second
expression ‘equal protection of laws is based on Fourteenth amendment of the American
Constitution.

Equal Protection of laws means guarantee of equal laws. Article 14 uses two expressions to make
the concept of equal protection a binding principle of State action. The underlying principle is that
persons equally circumstanced should be treated equally while unequals must be treated
differently. Like should be treated alike. Equality is a dynamic concept which goes on changing
with changing times. Rights to quality has been recognized as a basic structure of the constitution.
 ANSHUL RAMESH

Equality before the law does not mean the same treatment to differently situated persons. Equals
must be treated equally while unequal’s must be treated differently. Equal treatment is binding
principle of State action.

PURPOSE OF RESERVATIONS IN INDIA

The basic purpose of reservations in India is “Compensatory Discrimination”, i.e. programs

designed for countering or compensating for historical wrongs meted out to certain communities
or classes and now undertaking to uplift such classes to realize the goal of equality.

The following is important to note with respect to the purpose of reservations and “Compensatory
Discrimination” in India:

• The basic policy of reservation is to off-set the inequality and remove the manifest
imbalance, the victims of which for bygone generations lag far behind and demand equality
by special preferences and their strategies. Therefore, a comprehensive methodological
approach encompassing jurisprudential, comparative, historical and anthropological
conditions is necessary.

• It is wrong and unwise to see affirmative action merely as a penance or an atonement for
the sins of past discrimination. It is not retributive justice on wrong doers. It is corrective
and remedial justice to compensate the victims of prior injustice. It is not merely focused
on reparation for past inequities. It is a forward-looking balancing act of reformative social
engineering; an architecture of a better future of harmonious relationship amongst all
classes of citizens; an equitable redistribution of community resources with a view to the
greatest happiness of the greatest number of people.

• It is true that an important aspect of State interest in initiating affirmative action is to correct
or remedy the evil effect of inequities stemming from prior discrimination, but the focus in
any such action must be on the victims and not on the wrongdoers. The constitutional
mandate is to rescue the victims of prior discrimination and not to punish the wrongdoers.
The sins of the past shall not visit upon the present either by allowing its ill effects to
continue or by taking retributive action as retaliation upon the wrongdoers. The task of
nation building is not to open up the wounds of the past, but to allow them to heal by
negating its ill effects and wiping off injustice stemming from it. Any present or continuing
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discrimination is, of course, remediable or punishable under the law. Removal of inequities
is the raison d'etre of any affirmative action.

• Affirmative action is not merely compensatory justice, which it is, but it is also distributive
justice seeking to ensure that community resources are more equitably and justly shared
among all classes of citizens. Furthermore, from the point of view of social utility,
affirmative action promotes maximum well-being for the society as a whole and
strengthens forces of national integration and general economic prosperity.

• Any attempt to view affirmative action as merely retributive or to unduly over-emphasize

its compensatory aspect and widen the scope of reservation beyond minority of posts or
seats is to practice excessive and invidious reverse discrimination. To project particular
castes as legitimate claimants for such compensatory discrimination, without due regard to
the nature and degree of their backwardness, is to invite the public wrath of stigmatizing
prejudice against them, thereby promoting caste hatred and separatism.

• Any benign affirmative action with a view to equality amongst classes of citizens is a
constitutionally permitted programme, but the weapon of reservation must be carefully and
sparingly used in order that, while the victims of past discrimination are appropriately
compensated, the generality of persons striving to progress on their own merits do not
become victims of excessive, unfair and invidious reverse discrimination. Affirmative
action must find justification in the removal of disadvantages and not in their imposition.

• Ethical justification for reverse discrimination or protective benefits or ameliorative

measures emanates from the moral of compensating such class or group for the past
injustices inflicted on it and for promoting social values. Both these aspects are fully borne
out from the Constitutional Assembly Debates.

• The compensatory principle implies that like an individual a group or class that has
remained backward, for whatever reason, should be provided every help to overcome the
shortcomings but once disadvantage disappears the basis itself must go. For instance there
may be four groups of different nature deserving such protection. Some of it may improve
and come up in the social stream within short time. Can it be said that since they were kept
excluded for hundred years the compensation by way of protective benefits should continue
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for hundred years. That would be a mockery of protective discrimination. The

compensation principle “makes little sense unless it is involved in connection with
assertion that the malignant effects of prior deprivation are still continuing”.

ARTICLE 16:

Clause 1 Interpretation: What is the principle of equality of opportunity and to what does it apply?

In clause (1) the general rule laid down is that there shall be equal opportunity for citizens in
matters relating to ‘employment’ or ‘appointment to any office’ under the State. The rule applies
only in respect of employment s for officers which are held under the state that in respect of persons
holding office as subordinate to the state. Clause 1 does not preclude an administrative authority
from making a selection from numerous candidates offering themselves for employment but the
selection of test must not be arbitrary. If the selection is not based upon reasonable principle which
has a nexus with efficient performance of the duties and obligations, the rule of equal opportunity
for employment under state would be violated.

‘Employment’: All matters in relation to employment both prior and subsequent to the
employments which are incidental to the employment and form part of the terms and conditions
of such employment.

‘Appointment’: Includes termination or removal from service person seeking the employment or
have obtained the same employment

There is no rule of equality between members of separate and independent classes of service. 16(1)
has also no application to persons occupying different grades in the same sense. Irregular, adhoc
or temporary appointees cannot claim equality with regular and permanent appointees. The
principle of equal pay for equal work is covered under Article 16(1).

Clause 2: Interpretation: what are the invalid grounds and how is clause (2) to be interpreted in
the light of clause (1)?

Clause 2 lays down specific grounds of religion, race, caste, sex decent, and place of birth,
residence or any of them. These grounds are on the basis of which citizens are not discriminated
against each other in respect of any appointment or office under the state.
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The scope of clause 1 is wider than clause 2 because discrimination on grounds other than those
mentioned in clause 2 has to be weighed and judged in the light of general principles laid down in
clause 1. The words ‘any employment or office under the state’ make it clear that Article 16(2)
also applies only to public employment i.e. there is no constitutional prohibition against private
persons or bodies employing people on grounds prohibited in 16(2).

Clause 4; 4A;4B: Interpretation -main issues

I. What is a “backward class”

The power conferred under state as under Article 16(4) can only be exercise in favour of the
backward class and therefore, whether a particular class of citizens is backward or not, is an
objective factor to be determined by the state. While the state has necessarily to ascertain
backwardness, having regard to acceptable criteria, it does not have a final say in the matter. States
determination is justifiable and may be challenged if it is based on irrelevant consideration.

II. Judicial approach regarding the “carry forward rule”

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State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75]

• West Bengal Special Courts Act, 1950 Impugned.

• Object: To provide for speedier trial of certain offences
• Section 5(1) : A Special Court shall try such offences or classes of cases as the State
Government may, by general or special order in writing specify.
• Special Procedure deviating from Code of Criminal Procedure prescribed for trials
• Dum Dum factory raid – 50 people accused
• State government passed a notification u/s 5(1) directing the individual case to be
transferred to Special Court. Anwar Ali won in HC and appeal filed by WB government.
• Act challenged on two grounds:
1. Classification
2. Unfettered Discretion
• Das J best expounded the test as follows:
• Classification must not be arbitrary but rational.
• Two conditions must be fulfilled: (1) The classification must be founded on intelligible
differentia which distinguishes those that are grouped together from others, and (2) The
differentia must have a rational relation to the object sought to be achieved by the act.
• In the present case, “Speedy trial” was the object of the law and the object by itself could
not be the basis for classification. Impugned Act prescribed a procedure deviating from
CrPC and no basis provided for such deviation.
• Unrestricted discretion in Government – no guiding principle.
• The object of the classification can be seen from various factors which include object of
the statute, preamble, surrounding circumstances, the rules, regulations or policies if any.

Kathi Raning Rawat v State of Saurashtra [AIR 1952 SC 123]

• The impugned ordinance amends the Saurashtra State Public Safety Measures Ordinance
(No. IX of 1948) which was aimed at maintenance of public order and preservation of
peace and tranquility in the State of Saurashtra by constituting special Courts of criminal
jurisdiction.
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• The Courts’ procedure was different from normal criminal courts as the special Courts
consists of abolition of jury or with the aid of assessors, the elimination of inquiry before
session cases, no commitment proceeding is needed and special judge can take cognizance
of case, no court has jurisdiction to transfer the case from Special Judge. Moreover, neither
the distinct procedures are also not mandatory under the normal criminal procedures nor
such deviation will imperil the chances of a fair and impartial trial.
• With the power conferred to government, notification was issued dated 9/11 February 1950
directing that Special Courts can deal with S. 302, 307 and 392 read with S.34 of Indian
Penal Code, 1860.
• The state government has not referred to certain individual cases but to offences of certain
kinds committed in certain areas and hence it is not discrimination.
• All legislative differentiation is not discriminatory. Discrimination is not explained in
Article 14 but in Article 15 and 16 and if classification is discriminatory with unfavorable
bias within the context of Articles 15 and 16. The position of Article 14 is different.
• The Acts are supported by presumption of constitutionality of the acts of the State. The
power of the State to constitute different courts with different procedures in different areas
is a part of police power.
• The deviance in procedure is strong enough to repudiate the presumption of
constitutionality but it must deny fair and impartial trial, a part of equal protection clause
of Article 14 which remains as the important bulwark against discriminatory procedural
laws.
• The impugned ordinance lacks the disputable features as that of the West Bengal Act and
also does not take away the revision powers of the High Court of Saurashtra.
• Since the rate of crimes is increasing in the specified area, it becomes necessary on the part
of the government to adopt special procedure to eradicate the crimes which is a genuine
object.
• The appellant is a person punished with murder under §302 of Indian Penal Code, 1860
which is the most heinous crime and it cannot be given equal footing even to culpable
homicide not amounting to murder. The plea of differential treatment may succeed for a
person who has committed less severe offence where the convict will be getting the
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advantages of using special treatment but here there is no differential disadvantageous

treatment in case of murder.
• The classification made has not singled out a particular person or a particular class and thus
this classification cannot be held to be discriminatory.
• This special treatment results in speedier trial which is in consonance with the constitution.

Kedarnath Bajoria v State of West Bengal [AIR 1953 SC 404]

• Section 4 of the West Bengal Criminal Law (amendment) special courts act, 1949 was
challenged in this case because it enabled the government to single out a particular case for
reference to the special courts for trial by procedure for special procedure which denied to
an accused tried under it the advantages enjoyed by those tried by ordinary procedure. The
Act was contended to have an object of speedier trial and punishment of the offences set
out in the preamble.
• Patanjali Shastri, C.J., delivered majority judgement, “Viewed against this background,
it will be seen that by and large the types of offences mentioned in the schedule to the Act
are those that were common and widely prevalent, during this period, and it was evidently
to prevent or to place an effective check upon the commission of such offences that the
impugned legislation was considered necessary. Hence, the system of special courts deal
with the special type of offences under a shortened and simplified procedure was devised,
and it seems to us that the legislation in question is based on a perfectly intelligible
principle of classification having a clear and reasonable relation to the object sought to
be attained.”
• Rejecting the contention by the petitioner the court noticed that the legislature here is not
discriminating but it fails to make a proper scientific classification. It, from the statute texts,
leaves on the administrative bodies to make a selective application of the law to persons or
things within the defined group. “The equal protection of the laws guaranteed by Article 1
of the constitution does not mean that all laws must be general in character and universal
in application and that the State is no longer to have the power of distinguishing and
classifying persons or things for the purposes of legislation.” This interpretation left to the
administration is not an absolute discretionary power as the law allows the body to allot
and classify from a selective application of the law.
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Maganlal Chhaganlal Ltd. v Municipal Corporation of Greater Bombay [1974 2 SCC 402]
• Bombay Municipal Corporation Act, 1888 and Government Premise Eviction Act 1955
conferred power on authorities to hold and conduct a trial under the supervision of an
Officer (legally trained and well-skilled) for speedy eviction proceedings against
unauthorized occupants of government and corporation premises.
• These laws were challenged on the ground of availability of two procedures for eviction of
unauthorized premises, one under the ordinary Civil Procedure Code and another under the
Special Procedure of the said acts.
• The law was upheld as it made valid classifications and provided sufficient guidelines to
the executive for exercising discretion.
• The court said that where a statute providing for a more drastic procedure different from
the ordinary procedure covers the whole field covered by the ordinary procedure, without
any guidelines as to the class of cases in which either procedure is to be restored to the
statute will be hit by Article 14.
• The Kathi Raning case would seem to lay down the principle that if the legislation indicated
the policy which inspired it and the object which it seeks to attain, the mere fact that there
is no precise classification but has the selective application to be made by executive is not
a sufficient ground to condemn the provision as arbitrary.
• How to check the validity of the legislation – ascertain the policy and object of the statute.
Then apply dual test – classification must be based on intelligible differentia and the basis
of classification has nexus with the policy or object.
• A legislation may either itself make a classification for its application or non-application
or may leave the classification to be made by the executive. It is determining the validity,
the court will examine and ascertain if the statute has laid down any principle or policy for
the guidance of exercise of the discretion by the executive, or for the administration in the
matter of selection or classification. The legislation would be struck down if no principles
or policy has been laid down. The reason is that the legislation gives arbitrary and
uncontrolled power to the authority which would enable it to discriminate between person
or things similarly situated.
 ANSHUL RAMESH

Art. 14- The principle of reasonableness and anti-arbitrariness principle:

Maneka Gandhi v. Union of India [AIR 1978 SC 597]

• Maneka Gandhi’s passport was taken for public good reasons as under the Passport Act
which authorizes the passport authority to impound a passport for general interest of the
property. The section 10 (c) of the Act impaired the victim to be heard.
• After the allegations, Bhagwati J., commented that the principle of arbitrariness is against
equality and cannot give the government discretion. The judge restated his stand as in EC
Royappa case saying, "equality is antithetic to arbitrariness, in fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarchy. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and constitutional law and
id therefore, violative of article 14."
• It was observed that it was necessary to consult whether the procedure by State was more
onerous than the ordinary procedure with reference to other article of the constitution,
especially Article 21. By that article the procedure must be right, just and fair and not
arbitrary, fanciful or oppressive. It expanded article 21 in a way to engulf both article 14
and 19 of the constitution.

State of Madras v Champakam Doraijan [1951 AIR 226]

• In this case the court struck down communal G.O of the Madras government which, the
object of helping the backward classes, had fixed the proportion of students of each
community that could be admitted in the state medical and engineering colleges.
• Although the directive principles of the state policy in Article 46 of the First Constitution
lays down that the state should promote people and protect them from social injustice, the
court held that “ the directive principles of state policy” have to conform to and run as
subsidiary to the chapter of fundamental rights.
• The above interpretation was overruled in Indra Sawhney v UOI: Clause 4 enables the state
to meet special provisions for the advancement of socially and educationally backward
classes of citizens or for the schedule caste and schedule tribes. Such provisions include
 ANSHUL RAMESH

reservations or quotas and can be made in the exercise of executive powers without any
legislative support.
• Schedule caste and Schedule tribes are defined in definitional Article 366(24) (25)
respectively. The 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 and such other matters may be referred to the commission
by the president.

M.R. Balaji v State of Mysore [AIR 1963 SC 643]

Facts:

• The State of Mysore issued an order that all the communities excepting the Brahmin
community, fell within the definition of educationally and socially backward classes and
Scheduled Castes and Scheduled Tribes and 75% of seats in educational institutions were
reserved for them. Similar orders reserving seats were issued.
• Different percentage of seats were reserved in different which were all set aside when
challenged. Order reserved 68% of the seats in the engineering and medical college and
other technical institutions for the educationally and socially backward classes and
Scheduled Castes and Scheduled Tribes and left only 32 per cent seats for the merit pool.
• The order was challenged under Article 32.

Analysis:

• The impugned order was a fraud on the constitutional power conferred on the State by
Article 15 (4) and the same be quashed. The impugned order categorises the
backward classes on the sole basis of caste which is not permitted by Article 15 (4). The
reservation of 68% seats is inconsistent with the concept of the special provision
authorised by Article 15(4). However, this Court would not attempt to lay down
definitely and in an inflexible manner as to what should be the proper percentage for
reservation
• In this case it was held that the caste of group of persons could not be the sole or even
predominant factor though it could be a relevant test for ascertaining whether a particular
class was a backward class or not .
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• Backwardness under Article 15 (4) must be social and educational, and that social
backwardness, in the ultimate analysis, the result of poverty. 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 predominantly based on caste.

E.P, Royappa v State of Tamil Nadu [1974 4 SCC 3]

• Article 16 is only an instance of the application of the concept of equality enshrined in

Article 14. In other words, Article 14 is the genus and Article 16 is the species.
• Article 16 gives effect to the doctrine of equality in all matters relating to public
employment. The basic principle which, therefore, informs both Articles 14 & 16 is
equality and inhibition against discrimination. These articles strike at arbitrariness in State
action and ensure fairness and equality of treatment. They require that state action must be
based on valid relevant principles applicable alike to all similarly situated and it must not
be guided by an extraneous or irrelevant considerations because that would be denial of
equality.
• Where the operative reason for State action, as distinguished from motive inducing from
the antechamber of the mind, is not legitimate and relevant but is extraneous and outside
the area of permissible considerations, it would amount to mala fide exercise of power and
that is hit by Articles 14 & 16.
• Mala fide exercise of power and arbitrariness are different lethal radiations emanating from
the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14
& 16.
• These Articles are not limited to cases where a servant has a right to the post. Even if a
public servant is an officiating position, he can complain of violation of Articles 14 & 16
if he has been arbitrarily or unfairly treated or subjected to mala fie exercise of power by
the State machine.

State of Kerala V. N.M. Thomas [1976 AIR 490]

• The supreme court held that it was permissible to give preferential treatment to scheduled
castes/tribes under art. 16(1) outside art. 16(4).
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• 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 favored
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.
 ANSHUL RAMESH

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 SC 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
 ANSHUL RAMESH

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

INDRA SAWHNEY V. UNION OF INDIA [AIR 1993 SC 477]

The case is considered to be one of the most extensive judgments on Article 16 (1) and 16 (4) and
the idea of reservations embodied in it. In landmark judgments delivered by Jeevan Reddy and
Ratnavel Pandian JJ., they sought to go about the issue in answering various questions that were
framed by themselves.

Question 1 (a) : Whether the 'provision' in Article 16(4) must necessarily be made by the
Parliament/Legislature?

- It must be noticed that the very use of the word "provision" in Article 16(4) is significant.
Whereas Clauses (3) and (5) of Article 16 - and Clauses (2) to (6) of Article 19 - use the word
"Law", Article 16(4) uses the word "provision". Together reading Article 13 (3) with Article 12 of
the Constitution, it was held that an order under Article 16(4) need not necessarily be made only
by the parliament/ State but also by the Executive.

Question 1(b): Whether an executive order making a 'provision' under Article 16(4) is enforceable
forthwith?
A question is raised whether an executive order made in terms of Article 16(4) is effective and
enforceable by itself or whether it is necessary that the said "provision" is enacted into a law made
by the appropriate Legislature under Article 309 or is incorporated into and issued as a Rule by
the President/Governor under the proviso to Article 309 for it to become enforceable? However
still, Once we hold that a provision under Article 16(4) can be made by the executive, it must
necessarily follow that such a provision is effective the moment it is made.

Also, the proviso to Article 309 allows for the executive to make rules or orders when there is no
law in place. It would, therefore, follow that until a law is made or rules are issued under Article
309 with respect to reservation in favour of backward classes, it would always be open to the
 ANSHUL RAMESH

Executive (Government) to provide for reservation of appointments/posts in favour of Backward

Classes by an executive order.

Question 2(a). Whether Clause (4) of Article 16 is an exception to Clause (1)?

Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable
classification just as Article 14 does. The Court believed that the view taken by the majority in
State of Kerala v. NM Thomas is correct in nature. Article 16(1) does permit reasonable
classification for ensuring attainment of the equality of opportunity assured by it. For assuring
equality of opportunity, it may well be necessary in certain situations to treat unequally situated
persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an
instance of such classification, put in to place the matter beyond controversy. The "backward class
of citizens" are classified as a separate category deserving a special treatment in the nature of
reservation of appointments/posts in the services of the State. Accordingly, we hold that Clause
(4) of Article 16 is not exception to Clause (1) of Article 16. It is an instance of classification
implicit in and permitted by Clause (1). Article 16 (4) is a provision which must be read along with
and in harmony with Clause (1).

Indeed, even without Clause (4), it would have been permissible for the State to have evolved such
a classification and made a provision for reservation of appointments/posts in their favour. Clause
(4) merely puts the matter beyond any doubt in specific terms.

Question 2(b): Whether Article 16(4) is exhaustive of the concept of reservations in favour of
backward classes?

While answering this question, the Court deliberated into the meaning to the term ‘reservations’
used in Article 16 (4). It must be noticed that reservations is used only in Article 16 and not article
15 of the Indian Constitution.

Reservation does not include only one form of reservation, that is reservation simplicitor, but also
other aspects such as preferences, concessions and exemptions that are inherently related to it. The
Constitutional scheme and context of Article 16(4) induces us to take the view that larger concept
of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types
of special provisions like exemptions, concessions and relaxations, consistent no doubt with the
requirement of maintenance of efficiency of administration - the admonition of Article 335.
 ANSHUL RAMESH

Article 16 (4) contains the words "any provision for the reservation of appointments and posts"
and due importance must be given to the word any that is construed to include all forms of
reservations.

All supplemental and ancillary provisions to ensure full availment of provisions for reservation
can be provided as part of concept of reservation itself. Similarly, in a given situation, the State
may think that in the case of a particular backward class it is not necessary to provide reservation
of appointments/posts and that it would be sufficient if a certain preference or a concession is
provided in their favour. This can be done under Clause (4) itself. In this sense, Clause (4) of
Article 16 is exhaustive of the special provisions that can be made in favour of "the backward class
of citizens". Backward Classes having been classified by the Constitution itself as a class deserving
special treatment and the Constitution having itself specified the nature of special treatment, it
should be presumed that no further classification or special treatment is permissible in their favour
apart from or outside of Clause (4) of Article 16.

Question 3(a): Meaning of the expression "Backward Class of citizens" in Article 16(4)

It must surely have been envisaged that in future many classes may spring-up answering the test
of backwardness, requiring the protection of Article 16(4). It follows that from the use of the word
"class" in Article 16(4), it cannot be concluded either that "class" is antithetical to "caste" or that
a caste cannot be a class or that a caste as such can never be taken as a backward class of citizens.
The word "class" in Article 16(4), in our opinion, is used in the sense of social class - and not in
the sense it is understood in Marxist jargon.

Referring to the judgments in Vasanth Kumar the Court made it clear that a caste is nothing but a
social class - a socially homogeneous class. It is also an occupational grouping, with this difference
that its membership is hereditary.

As regards the identification of such backward classes, to rely only on caste would be
unconstitutional. However, since caste represents an existing, identifiable, social group spread over
an overwhelming majority of the country's population, we say one may well begin with castes, if
one so chooses, and then go to other groups, sections and classes.

Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would,
thus, be not correct to say that backward class of citizens' in Article 16(4) are the same as the
 ANSHUL RAMESH

socially and educationally backward classes in Article 15(4). Saying so would mean and imply
reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of
reservation in appointments/posts in the State services - which may mean, at any level whatsoever
- insisting upon educational backwardness may not be quite appropriate.

(d) 'Means' test and 'creamy layer':

'Means test' signifies imposition of an income limit, for the purpose of excluding persons (from
the backward class) whose income is above the said limit. This submission is very often referred
to as "the creamy layer" argument. The Petitioners submitted that some members of the designated
backward classes are highly advanced socially as well as economically and educationally. It is
submitted that they constitute the forward section of that particular backward class - as forward as
any other forward class member - and that they are lapping up all the benefits of reservations meant
for that class, without allowing the benefits to reach the truly backward members of that class.
These persons are by no means backward and with them a class cannot be treated as backward.

In a backward class under Clause (4) of Article 16, if the connecting link is the social
backwardness, it should broadly be the same in a given class. If some of the members are far too
advanced socially (which in the context, necessarily means economically and, may also mean
educationally) the connecting thread between them and the remaining class snaps. They would be
misfits in the class. After excluding them alone, would the class be a compact class. In fact, such
exclusion benefits the truly backward. It is pointed out that Clause (4) or Article 16 aims at group
backwardness and not individual backwardness. While we agree that Clause (4) aims at group
backwardness, we feel that exclusion of such socially advanced members will make the 'class' a
truly backward class and would more appropriately serve the purpose and object of Clause (4).

* Not only should a class be a backward class for meriting reservations, it should also be
inadequately represented in the services under the State. The language of Clause (4) makes it clear
that the question whether a backward class of citizens is not adequately represented in the services
under the State is a matter within the subjective satisfaction of the State.

Question 5: Whether Backward Classes can be further divided into backward and more backward
categories?
 ANSHUL RAMESH

There is no constitutional or legal bar to a State categorizing the backward classes as backward
and more backward. Article 16(4) recognizes only one class viz., "backward class of citizens". It
does speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so,
it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the
expression "backward class of citizens" and that separate reservations can be provided in their
favour. The fact then that one class of citizens is more backward than the other is not an issue
under Article 16 (4).

Question 6: To what extent can the reservation be made?

It must be noted that Clause (4) speaks of adequate representation and not proportionate
representation. Adequate representation cannot be read as proportionate representation. Principle
of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and
that too for a limited period.

Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of
Article 16 should also be exercised in a fair manner and within reasonably limits - and what is
more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the
appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this
point of view, the 27% reservation provided by the impugned Memorandums in favour of
backward classes is well within the reasonable limits. Together with reservation in favour of
Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. The principle aim of Article
14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means
of achieving the very same objective. Clause (4) is a special provision - though not an exception
to Clause (1). Both the provisions have to be harmonized keeping in mind the fact that both are
but the restatements of the principle of equality enshrined in Article 14. The provision under
Article 16(4) - conceived in the interest of certain sections of society - should be balanced against
the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to
every citizen and to the entire society.

The reservations contemplated in Clause (4) of Article 16 thus should not exceed 50%. While
50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the people. It might happen that in far-flung and
remote areas the population inhabiting those areas might, on account of their being out of the main
 ANSHUL RAMESH

stream of national life and in view of conditions peculiar to and characteristical to them, need to
be treated in a different way, some relaxation in this strict rule may become imperative. In doing
so, extreme caution is to be exercised and a special case made out.

Question 7: Whether Clause (4) of Article 16 provides reservation only in the matter of initial
appointments/direct recruitment or does it contemplate and provide for reservations being made
in the matter of promotion as well?

Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall,
however, have only prospective operation and shall not affect the promotions already made,
whether made on regular basis or on any other basis. However, wherever reservations are already
provided in the matter of promotion - be it Central Services or State Services, or for that matter
services under any Corporation, authority or body falling under the definition of 'State' in Article
12 - such reservations may continue in operation for a period of five years from this day. Within
this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant
rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for
ensuring adequate representation of backward class of citizens in any service, class or category, it
is necessary to provide for direct recruitment therein, it shall be open to it do so. It would not be
impermissible for the State to extent concessions and relaxations to members of reserved
categories in the matter of promotion without compromising the efficiency of the administration.

Other notable points:

• There is no particular or special standard of judicial scrutiny applicable to matters arising
under Article 16(4).
• The Government of India and the State Governments have the power to, and ought to,
create a permanent mechanism - in the nature of a Commission - for examining requests of
inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to
advise the Government, which advice shall ordinarily be binding upon the Government.
Where, however, the Government does not accept the advice, it must record its reasons
thereof.
• Even under Article 16(1), reservations cannot be made on the basis of economic criteria
alone.
 ANSHUL RAMESH

• The case of Devadasan is over-ruled.

Justice Ratnavel Pandian:

(1) Article 16(4) of the Constitution is neither an exception nor a proviso to Article 16(1). It is
exhaustive of all the reservations that can be made in favour of backward class of citizens. It has
an over-riding effect on Article 16(1) and (2).

(2) No Reservation can be made under Article 16(4) for classes other than backward classes. But
under Article 16(1), reservation can be made for classes, not covered by Article 16(4).

(3) The expression, 'backward class of citizens' occurring in Article 16(4) is neither defined nor
explained in the Constitution. However, the backward class or classes can certainly be identified
in Hindu society with reference to castes along with other criteria such as traditional occupation,
poverty, place of residence, lack of education etc. and in communities where caste is not recognised
by the above recognised and accepted criteria except caste criterion.

(4) In the process of identification of backward class of citizens and under Article 16(4) among
Hindus, caste is a primary criterion or a dominant factor though it is not the sole criterion.

(5) Any provision under Article 16(4) is not necessarily to be made by the Parliament or
Legislature. Such a provision could also be made by an Executive order.

(6) The power conferred on the State under Article 16(4) is one coupled with a duty and, therefore,
the State has to exercise that power for the benefit of all those, namely, backward class for whom
it is intended.

(7) The provision for reservation of appointments or posts in favour of any backward class of
citizens is a matter of policy of the Government, of course subject to the constitutional parameters
and well settled principle of judicial review.
 ANSHUL RAMESH

(8) The expression 'poorer sections' mentioned in para 2 (i) of the amended Office Memorandum
of 1991 denotes a division among SEBCs on economic criterion. Therefore, no division or sub-
classification as 'poorer sections' and other backward class (non-poorer sections) out of the
identified SEBCs can be made by application of 'means test' based on economic criterion. Such a
division in the same identified and ascertained unit consisting of SEBCs having common
characteristics and attributes, the primary characteristic or attribute being the social backwardness
is violative of Clause (4) of Article 16 of the Constitution. Hence, the division of the SEBCs as
'poorer sections' and others, brought out in para 2(i) of the impugned amended Office
Memorandum dated 25th September 1991 is constitutionally invalid and impermissible.

(9) No maximum ceiling of reservation can be fixed under Article 16(4) of the Constitution for
reservation of appointments or posts in favour of any backward class of citizens "in the Services
under the State". The decisions fixing the percentage of reservation only up to the maximum of
50% are unsustainable.

(10) As regards the reservation in the matter of promotion under Article 16(4), he agreed with the
decision in Justice Jeevan Reddy’s judgment.

(11) No section of the SEBCs can be excluded on the ground of creamy layer till the Government
- Central and State - takes a decision in this regard on a review on the recommendations of a
Commission or a Committee to be appointed by the Government.

(12) The Government of India and the State Governments have to create a permanent machinery
either by way of a Commission or a Committee within a reasonable time for examining the requests
of inclusion or exclusion of any caste, community or group of persons on the advice of such
Commission or Committee, as the case may be, and also for examining the exclusion of any pseudo
community if smuggled into the list of OBCs.
 ANSHUL RAMESH

M. Nagraj v Union of India [2006 8 SCC 212]

• 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 – color 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
 ANSHUL RAMESH

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.”

Ashok Kumar Thakur v. Union of India [2008 6 SCC 1]

Constitution of India – Insertion of Article 15(5) by 93rd Amendment – TMA Pai case - Central
Educational Institutions (Reservation in Admission) Act, 2006 providing for reservations upto
49% for SC/ST and OBC’s – Constitutionality challenged

1. Whether Ninety-Third Amendment of the Constitution is against the "basic structure" of the
Constitution?

The Ninety-Third Amendment to the Constitution does not violate the "basic structure" of the
Constitution so far as it relates to aided educational institutions.

2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held
ultra vires?

• Both Article 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced when
the "Communal G.O." in the State of Madras was struck down by this Court in Champakam
Dorairajan's case (supra). In Unni Krishnan (supra), this Court held that Article 19(1)(g) is
not attracted for establishing and running educational institutions. However, in T.M.A. Pai
Foundation case, (supra), it was held that the right to establish and running educational
institutions is an occupation within the meaning of Article 19(1)(g). The scope of the
decision in T.M.A. Pai Foundation's case was later explained in P.A. Inamdar's case,
(supra). It was held that as regards unaided institutions, the State has no control and such
institutions are free to admit students of their own choice.
• The said decision necessitated the enactment of the Constitution Ninety-Third Amendment
Act, 2005. Thus, both Article 15(4) and 15(5)operate in different areas. The "nothing in
this Article" [mentioned at the beginning of Article 15(5)] would only mean that the
 ANSHUL RAMESH

nothing in this Article which prohibit the State on grounds which are mentioned in Article
15(1) alone be given importance. Article 15(5) does not exclude 15(4) of the Constitution.
It is a well settled principle of constitutional interpretation that while interpreting the
provisions of Constitution, effect shall be given to all the provisions of the Constitution
and no provision shall be interpreted in a manner as to make any other provision in the
Constitution inoperative or otiose. If the intention of the Parliament was to exclude Article
15(4), they could have very well deleted Article 15(4) of the Constitution.
• …. Both, being enabling provisions, would operate in their own field and the validity of
any legislation made on the basis of Article 15(4) and 15(5)have to be examined on the
basis of provisions contained in such legislation or the special provision that may be made
under Article15(4) and 15(5). It may also be noticed that no educational institutions or any
aggrieved party have come before us challenging the constitutional amendment on these
grounds. The challenge is made by petitioners objecting to the reservations made under
Act 5 of 2007. Therefore, the plea that Article 15(4) and 15(5) are mutually contradictory
and, therefore, Article 15(5) is not constitutionally valid cannot be accepted. As has been
held in N.M. Thomas case (supra) and Indra Sawhney's case (supra), Article 15(4) and16(4)
are not exceptions to Article 15(1) and Article 16(1) but independent enabling provision.
Article 15(5) also to be taken as an enabling provision to carry out certain constitutional
mandate and thus it is constitutionally valid and the contentions raised on these grounds
are rejected.
3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article
14 of Constitution?

• Another contention raised by the petitioner's Counsel is that the exclusion of minority
institutions under Article 15(5) itself is violative of Article 14 of the Constitution. It was
contended that the exclusion by itself is not severable from the rest of the provision.
• This plea also is not tenable because the minority institutions have been given a separate
treatment in view of Article 30 of Constitution. Such classification has been held to be in
accordance with the provisions of the Constitution. The exemption of minority educational
institutions has been allowed to conform Article 15(5) with the mandate of Article 30 of
the Constitution. Moreover, both Article 15(4) and 15(5) are operative and the plea of non-
severability is not applicable.
 ANSHUL RAMESH

4. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of "Backward Class"
and whether the identification of such "Backward Class" based on "caste" is constitutionally
valid?

• The main attack against the Act was that the socially and educationally backward classes
of citizens were not properly identified and the delegation of power to identify the socially
and educationally backward classes of citizens to the Central Government itself is illegal
and the delegation of such powers by itself without laying down any guidelines is
arbitrarily illegal. Elaborate arguments were made by the petitioner's Counsel and the first
and foremost contention was that "caste" is the sole basis on which the socially and
educationally backward classes of citizens were determined. And this, according to the
petitioner's Counsel, is illegal.
• The Bench quoted and approved of Indra Sawhney’s ratio to hold that determination of
SEBC’s is not done solely on the basis of caste and factors of backwardness are also
involved. Hence nothing wrong.
5. Whether Creamy Layer is to be excluded from SEBCs?

• When socially and educationally backward classes are determined by giving importance to
caste, it shall not be forgotten that a segment of that caste is economically advanced and
they do not require the protection of reservation. It was argued on behalf of the petitioners
that the principle of 'Creamy Layer' should be strictly applied to SEBCs while giving
affirmative action and the principles of exclusion of 'Creamy Layer' applied in Indra
Sawhney's case should be equally applied to any of the legislations that may be passed as
per Article 15(5) of the Constitution.
• Poverty, social backwardness, economic backwardness, all are criteria for determination
of backwardness. It has been noticed in Indra Sawhney's case that among the backward
class, a section of the backward class is a member of the affluent section of society. They
do not deserve any sort of reservation for further progress in life. They are socially and
educationally advanced enough to compete for the general seats along with other
candidates.
• Hence, if the creamy layer is not excluded, the identification of SEBC will not be complete
and any SEBC without the exclusion of 'creamy layer' may not be in accordance with
 ANSHUL RAMESH

Article 15(1) of the Constitution. As regards identification of the creamy lawyer, the Court
said it is for the Government to decide.

Air India v Nargesh Meerza [1981 SC 1829]

Facts:

The issue that came up for consideration before the Honorable 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.

Analysis:

The Honorable 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
 ANSHUL RAMESH

negated the grievance that service conditions providing lower age of retirement to air hostesses is
unfavorable or discriminatory.

Anuj Garg v Hotel Association of India [AIR 2008 SC 663]

• 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 antistereotyping 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
 ANSHUL RAMESH

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.”
• 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.

Ram Singh v Union of India [2015 4 SCC 697]

• The National Commission for Backward Classes, after receiving several requests for
inclusion of Jat community of the states of Rajasthan, Bihar, Gujarat, Haryana, Madhya
Pradesh and Uttar Pradesh in the Central list of Backward Classes prepared a report,
wherein it recommended inclusion of only the Jat community of Rajasthan, except the
Bharatpur and Dhaulpur districts.
• Whether the notification issued by the Union Government on March 4th, 2014, that set
out for an inclusion of Jat community in the Central list of backward classes was
constitutional?
• The Court did not agree with the view of the Central Government and held that the Jat
is not a backward community so as to be included in the Central list of backward
classes. Hence, the notification by the Central Government is not justified.