Com Conti

Right to Equality and the Indian Supreme Court
Author(s): J. K. Mittal
Source: The American Journal of Comparative Law, Vol. 14, No. 3 (Summer, 1965), pp. 422-
458
Published by: Oxford University Press
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J. K. MITTAL
Right to Equality and the

Indian Supreme Court
Equality provisions
Right to equality, guaranteed in the Indian Constitution, is covered
by its articles 14 to 18. Article 14 commands the State not to deny to
any person equality before the law or the equal protection of the laws.
Article 15 prohibits the State from discriminating against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of
them.l On these grounds only, no citizen is subject to any disability,
liability, restriction or condition with regard to access to certain places 2
or the use of places of public resort 3 maintained wholly or partly out
of State funds or dedicated to the use of the general public.4 But these
provisions do not prevent the State from making special provisions for
women and children as well as for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.6 Article 16 guarantees to citizens
equality of opportunity in matters relating to employment or appoint-
ment to any office under the State.7 On grounds only of religion,
race, caste, sex, descent, place of birth, residence, or any of these, a
citizen is not ineligible for, or cannot be discriminated against in re-
spect of, any employment or office under the State.8 The operation
of this provision is restricted by certain other provisions. First, Parlia-
ment is competent to prescribe, by law, that as regards any particular
class or classes of employment or appointment to an office under a
State or Union territory, residence within that State or Union territory
would be a necessary requirement.9 Second, the State is free to make
any provision for the reservation of appointments or posts in favor
of any backward class of citizens which in its opinion is not adequately
represented in its services." Third, the State can provide, by law, that
the incumbent of an office relating to a religious or denominational
J. K. MITTAL is Lecturer, Law Department, Allahabad University, Allahabad (India).
Cl. (1).
2 Viz., shops, public restaurants, hotels, and places of public entertainment.
3 E.g., wells, tanks, bathing ghats, roads.
4 C1. (2).
5 C1. (3).
6C1. (4).
7 Cl. (1).
8 C1. (2).
9 C1. (3).
10 C1. (4).
422
1965] MITTAL: EQUALITY AND THE INDIAN SUPREME COURT 423
institution would be a person professing a particular religion o

longing to a particular denomination.1'
Article 17 abolishes "untouchability" and forbids its practice in
form. The enforcement of any disability arising out of "unt
ability" is a punishable offense. Article 18 abolishes titles. No
not being a military or academic distinction, can be conferred by
State.12 An Indian citizen is debarred from accepting a title from
foreign State.l3 A non-citizen, holding an office of profit or trust
the State, cannot accept a title from any foreign State withou
consent of the President of India.'4 A person, holding an off
profit or trust under the State, is prohibited from accepting any
ent, emolument, or office of any kind from any foreign State w
out the consent of the President of India.15
Apart from these articles, article 29(2), under the caption "Cult
and Educational Rights," is also considered here. It provides th
grounds only of religion, race, caste, language, or any of these, n
zen can be denied admission into any educational institution
tained by the State or receiving aid out of State funds.
This paper is devoted to the formation of principles by the Sup
Court of India under these equality provisions.
Comparison of equality provisions
Article 14 is directly related to the preamble of the Constitu

which declares as one of the objects of the Constitution the se
to all citizens equality of status and of opportunity. This art
first of the series, above mentioned, which embodies the ide
equality expressed in the preamble; the succeeding articles 15
and 29(2) enact particular applications of the general rule cont
in article 14.16 It follows that in cases not covered by articles 15
11Cl. (5).
2 Cl. (1).
13 Cl. (2).
14 C. (3).
5 Cl. (4).
16 See In re B. N. Ramakrishna Naidu, A.I.R. 1955 Mad. 100, 164 (S.B.); Yusuf
Abdul Aziz v. State of Bombay, A.I.R. 1954 S.C. 321, p. 322: "Art. 14 is general and must
be read with the other provisions which set out the ambit of fundamental rights";
Banarsidas v. State of Uttar Pradesh, A.I.R. 1956 S.C. 520, p. 522: "Art. 16 . . . is an
instance of the application of the general rule of equality laid down in Art. 14 with
special reference to the opportunity for appointment and employment under the Gov-
ernment"; Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, A.I.R. 1961 S.C.
565 p. 570: "Art. 14 guarantees the general right of equality; Arts. 15 and 16 are instances
of the same right in favor of citizens in special circumstances"; General Manager,
Southern Railway v. V. K. Rangachari, A.I.R. 1962 S.C. 36, p. 41: "Art. 16(1) and (2)
really give effect to the equality before law guaranteed by Art. 14 and to the prohibition
of discrimination guaranteed by Art. 15(1)." See also the dissenting opinion of Subba
Rao J. in T. Devadasan v. Union of India, A.I.R. 1964 S.C. 179, p. 189.
424 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 14
and 29(2), the general equality principle of article 14 may be invoked.17

The protection of article 14 is extended to all persons- citizens and
non-citizens. Articles 15 and 16 first state the principle of nondiscrim-
ination against citizens only, article 15 prohibiting discrimination on
grounds of religion, race, caste, sex, and place of birth, and article 16
on additional grounds of descent and residence also, and then they
create exceptions to the principle by favoring some sections and classes
who need special protection. A law falling under the prohibitory line
of article 15(1) cannot be validated by applying the principle of rea-
sonable classification laid down under article 14.18 Article 16 is con-
cerned with employment or appointment by the State. Article 15 is
more general in its application covering all classes of discrimination
which do not fall expressly under article 16.19 Article 29(2) whose
protection extends to citizens only is a counterpart of article 15, and
while the latter is a protection against discrimination generally, the
former is a protection against a particular species of wrong, namely,
denial of admission into educational institutions of the specified kind.20
Articles 16 and 29(2) exclude article 15 from their own field. It can
be reasonably inferred from this that the maxim generalia specialibus
non derogant should be applicable here.21 It means that in the matter
of employment under the State and admission into educational insti-
tutions, articles 16 and 29(2) are the exclusive provisions respectively.
Articles 17 and 18 aim at abolishing "untouchability" and "titles."
While the rules of Article 17 govern equally citizens and non-
citizens, clause (1) of Article 18 applies to the State, clause (2) to citi-
zens, clause (3) to non-citizens, and clause (4) to both citizens and
non-citizens. While the rights mentioned in articles 14 to 18 and 29(2)
are secured against the State, articles 15(2), 17, 18(2), 18(3), 18(4), and
29(2) are also directed against individuals.22
It is noteworthy that while articles 15 to 18 and 29(2) cover a wide
field of action, a far wider field, untouched by these articles, is left to
article 14. This is evident from the fact that until 1965, the Supreme
Court has decided under article 14 about eight times the number of
17 See Dr. Alladi Krishnaswami Aiyar, The Constitution and Fundamental Rights
(1955) 29.
18 See infra pp. 9, 10.
19 Dattatraya Motiram More v. State of Bombay, A.I.R. 1953 Bom. 311, p. 315 (D.B.);
Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, A.I.R. 1961 S.C. 564, p. 570:
"Article 15 is more general than Art. 16, the latter being confined to matters relating
to employment or appointment to any office under the State." See also quotation from
Rangachari's case, supra, note 16.
20 State of Bombay v. Bombay Education Society, A.I.R. 1954 S.C. 561, p. 566.
21University of Madras v. Shantha Bai, A.I.R. 1954 Mad. 67, p. 70 (D.B.); Joseph
Thomas v. State of Kerala, A.I.R. 1958 Ker. 33, pp. 34-35 (D.B.).
22 See, e.g., State of Bombay v. Bombay Education Society, A.I.R. 1954 S.C. 561, p. 566
in which it has been observed that ". . . the protection of Art. 29(2) extends against
the State or anybody who denies the right conferred by it."
cases decided under other articles. Thus, article 14 has proved to be on

of the most prolific sources of constitutional litigation and requires a
detailed and careful study.
Equal protection of the laws

Article 14 is, in form, an admonition addressed to the State and the
doctrine of waiver does not apply to it.23
The doctrine of equality, as embodied in article 14, is not of indepen
dent origin. The first expression, "equality before the law" represents
the English rule of law and the second, "equal protection of the laws"
has its origin in the Fourteenth Amendment of the United States Con
stitution which provides, inter alia, that no State shall deny to an
person within its jurisdiction the equal protection of the laws.24 T
transplantation of these expressions from two constitutional systems,
viz., English and American, into the Indian Constitution is a matt
of great significance. The former expression covers a large field o
executive action in England and the latter a still larger field of bot
legislative and executive action in the United States. They seem t
have been embodied in the Constitution from this point of view, so as
to cover every conceivable field of action. Thus, article 14 "is founded
on a sound public policy recognized and valued in all civilized States."2
Though both expressions appear to be somewhat identical and ai
at establishing "equality of status," as envisaged in the preamble, an
have one common idea, viz., equal justice, it is said that while th
former expression is somewhat a negative concept implying the absen
of any special privilege in favor of an individual, the latter is a more
positive concept implying equality of treatment in equal circum
stances.26 Probably the use of both expressions "discloses the an
iety of the makers of the Constitution that no aspect of inequalit
whether positive or negative, or in any form or shape, should esca
the prohibition, and that in no sphere of law should one be eith
favoured or placed under any disadvantage by the State in circumstance
which do not admit of a reasonable justification for a differe
treatment."27
It may be inferred that the second expression is a corollary of th

23 Basheshar Nath v. Commissioner of Income-tax, A.I.R. 1959 S.C. 149, pp. 158, 15
See also id., pp. 163, 172, 185.
24 Id., p. 158.
25 Ibid.
26 State of Uttar Pradesh v. Deoman Upadhyaya, A.I.R. 1960 S.C. 1125, p. 1134; Sheo
Shankar v. Madhya Pradesh State Government, A.I.R. 1951 Nag. 58, p. 86 (F.B.);
Suryapal Singh v. Uttar Pradesh Government, A.I.R. 1951 All. 674 (F.B.). See the
opinion of the Court at p. 690.
27 S. S. Nigam, "Equality and the Representation of the Scheduled Classes in Parlia-
ment," 2 Journal of the Indian Law Institute (1959-60) 297, p. 298.
first28 and overlaps it in its meaning. This might be the reason that
the Supreme Court, while interpreting article 14, took into considera-
tion the second expression only. But Mr. D. D. Basu observes that on
the face it may be that the former part of article 14 is redundant but
no word of a constitution is to be taken as superfluous and, therefore,
he holds the view:
"When the principle of equality before the law is incorporated

in a written Constitution, there is no reason why the principle
should not operate as a limitation against the Legislature itself,
viz., that the Legislature should not arbitrarily place persons or
bodies above its general laws, and that if it does, the Courts would
pronounce such laws to be unconstitutional-as they are bound to
do, under art. 13(1)-(2)." 29
It has, however, been said that despite the effort of Basu, it does not
appear that "there is any distinction between the two expressions. Both
constitute restrictions on the legislature, and both seem to be aimed
against arbitrary discrimination. [Article 14] does not proclaim that
all persons must be treated alike, but that persons in like circum-
stances must be treated alike. What constitutes a circumstance entitl-
ing the legislature to discriminate and what constitutes discrimination
are questions of political values, to be decided by the court. That these
values may change from time to time is well illustrated by [American
decisions]."30
The Supreme Court itself maintained no distinction between the two
expressions. It did not consider the first expression for its substantive
application as distinct from the second. It is evident from the decided
cases that sometimes the Supreme Court referred to both the expres-
sions,31 sometimes to the first 32 or the second 33 only, and sometimes to
the article itself,84 always meaning the same thing, i.e., equal protection
28 State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75, p. 79.
29 Commentary on the Constitution of India, Vol. I (4th ed. 1961) footnote (16), p.
260. See also V. G. Row v. State of Madras, A.I.R. 1951 Mad. 147, p. 176 (F.B.).
30L. A. Sheridan, Federation of Malaya Constitution (1961) 14. American decisions
mentioned are: Plessy v. Ferguson, 163 U.S. 537 (1896); Brown v. Board of Education,
347 U.S. 483 (1954); Aaron v. Cooper, 357 U.S. 566 (1958); Phillips Chemical Com-
pany v. Dumas Independent School District, 80 S.Ct. 474 (1960). See also T. L. Ven-
katarama Aiyar, "Equality before the Law," The Year Book of Legal Studies (1960) 51.
31 See, e.g., Bidi Supply Co. v. Union of India, A.I.R. 1956 S.C. 479, p. 484.
32See, e.g., Basheshar Nath v. Commissioner of Income-tax A.I.R. 1959 S.C. 149,
p. 158.
33 See, e.g., Lachmandas Kewalram Ahuja v. State of Bombay, A.I.R. 1952 S.C. 235,
p. 243.
34 See, e.g., Jyoti Pershad v. Administrator for the Union Territory of Delhi, A.I.R.
1961 S.C. 1602, p. 1612.
of the laws. This position was made clear by the Court in State o
Uttar Pradesh v. Deoman Upadhyaya 35 in which it observed:
"Article 14 . . . is adopted from the last clause of S. 1 of th
14th Amendment of the Constitution of the United States of
America, and it may reasonably be assumed that our Constituen
Assembly when it enshrined the guarantee of equal protection of
the laws in our Constitution, was aware of its content delimite
by judicial interpretation in the United States of America. . ."
It is, therefore, submitted that the first expression, viz., "equali
before the law" has had no significance of its incorporation in the bod
of the Constitution. The framers of the Constitution probably us
both expressions ex abundanti cautela so as to cover every possible cas
and eventuality.
The career of the interpretation of article 14 is nothing but the care
of the interpretation of its "equal protection" clause, whose meani
and scope were ascertained by the Supreme Court for the first time i
Chiranjit Lal Chowdhury v. Union of India 3 in late 1950. In this
case the Court proceeded exclusively on the basis of American concept
in determining the meaning of the said clause.38 In the United States
there has been, in the real sense, an evolution of the principles under
the "equal protection" clause of the Fourteenth Amendment of th
United States Constitution; this evolution consumed more than ni
decades. In India the reverse is the case. The Indian Supreme Cou
has imported wholesale the principles evolved by the Supreme Cou
of the United States under the "equal protection" clause. The con
stitutional development in India did not experience the kind of evolu-
tion of principles that has taken place in the United States. T
Chiranjit Lal's case was decided in 1950, and in this case, as has be
said above, American authorities were quoted in plenty for the pu
pose of ascertaining the meaning and scope of article 14. A prec
statement of the principles, hitherto laid down under this article
35 A.I.R. 1960 S.C. 1125.
361d., p. 1131. This view has a support in B. N. Rau, India's Constitution in the
Making: edited by B. Shiva Rao (1960) pp. 234-245. Besides there is an observation
about the first expression made by Sastri C.J. in State of West Bengal v. Anwar Ali
Sarkar A.I.R. 1952 S.C. 75, p. 79, that the first part of Art. 14 is a declaration of equality
of the civil rights of all persons within the territory of India and thus enshrines what
the American judges regard as the basic principle of republicanism. But then he adds
that the second part is a corollary of the first.
37 A.I.R. 1951 S.C. 41. For details of this case see infra pp. 433.
38 The American authorities referred by the Supreme Court of India were: Willis'
Constitutional Law, pp. 579, 580 (1st ed.), id., pp. 44, 47; Southern Railway Company v.
Greene 216 U.S. 400, p. 417 (1909), id., p. 66; Radice v. New York 264 U.S. 292, p. 297
(1923), id., p. 59; Middleton v. Texas Power and Light Company 249 U.S. 152, p. 157
1918), id., p. 45; Gulf Colorado and Santa Fe Railway Company v. Ellis 165 U.S.
150, p. 154 (1896), id., p. 66.
the basis of American authorities, was made in Ram Krishna Dalmia

v. Justice Tendolkar in 1958.40 During this period, however, the
doctrine can be said to have evolved because of the application of
article 14 to a large variety of situations of a local character.
The interpretation of article 14 is based on the theory of classifica-
tion. There is no absolute equality among human beings. Inequality
is a fundamental fact in actual life. To reconcile the constitutional
equality with the facts of life, some distinction, classification, gradation,
or differentiation is inevitable.4 Government is not a simple thing. It
has to encounter and deal with the complex problems which arise out
of an infinite variety of human relations. Classification is the recog-
nition of those relations. A legislature is allowed a wide latitude of
discretion and judgment in making it.42 Law-makers have to graduate
taxes according to income, regulate business according to size, protect
people according to age, require special health regulations for partic-
ular communities, reserve certain lands for specified purposes, restrict
land holdings to maximum acreages, require some equipment for
safety devices, bar trucks of specified weights from the highways, and
so on.43
Evidently, therefore, "[l]egislation is essentially empiric. It addresses

itself to the more or less crude outside world and not to the neat,
logical models of the mind. Classification is inherent in legislation;
the Equal Protection Clause has not forbidden it. To recognize marked
differences that exist in fact is living law; to disregard practical dif-
ferences and concentrate on some abstract identities is lifeless logic."44
Obviously, law is based on some classification and need not be all em-
bracing.4 Any inequality, in order to be unconstitutional, must be
actually and palpably unreasonable and arbitrary.4
39 A.I.R. 1958 S.C. 538. For details of this case see infra pp. 432 et seq.
40 Earlier the Supreme Court had summarized the principles, discussed in Chiranjit
Lal' case on the basis of American authorities, in State of Bombay v. F. N. Balsara
A.I.R. 1951 S.C. 318, p. 326. In view of the statement of principles, laid down in
Dalmia's case, on infra p. 432, it is not necessary to give the summary of the principles
as made by the Court in Balsara's case here. However, for details of this case see infra
p. 433.
41 Champakam Dorairajan v. State of Madras, A.I.R. 1951 Mad. 120, p. 131 (F.B.).
See also T. L. Venkatarama Aiyar, supra note 30, p. 53; T. Devadasan v. Union of
India A.I.R. 1964 S.C. 179, p. 185.
42 Connolly v. Union Sewer Pipe Company 184 U.S. 540, p. 566 (1901); Kathi Raning
Rawat v. State of Saurashtra A.I.R. 1952 S.C. 123, p. 131.
43 W. O. Douglas, From Marshall to Mukherjea (1956) 309.
44 Morey v. Doud 354 U.S. 457, p. 472 (1956).
45 Sakhawant Ali v. State of Orissa A.I.R. 1955 S.C. 166, p. 170; M.Ct. Muthia v.
Commissioner of Income-tax A.I.R. 1956 S.C. 269, p. 281.
46 Chiranjit Law Chowdhury v. Union of India A.I.R. 1951 S.C. 41, p. 66.
At this stage the principles laid down by the Supreme Court in

Dalmia's case " may be summarized:
"(a) that a law may be constitutional even though it relates to
a single individual if, on account of some special circumstances or
reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself;
(b) that there is always a presumption in favor of the con-
stitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the Legislature understands
and correctly appreciates the need of its own people, that its laws
are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the Legislature is free to recognise degrees of harm
and may confine its restrictions to those cases where the need is
deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality
the Court may take into consideration matters of common knowl-
edge, matters of common report, the history of the times, and
may assume every state of facts which can be conceived existing
at the time of legislation; and
(f) that while good faith and knowledge of the existing condi-
tions on the part of a Legislature are to be presumed, if there is
nothing on the face of the law or the surrounding circumstances
brought to the notice of the Court on which the classification may
reasonably be regarded as based, the presumption of constitution-
ality cannot be carried to the extent of always holding that there
must be some undisclosed and unknown reasons for subjecting
certain individuals or corporations to hostile or discriminating
legislation."4
In addition to these principles, the Supreme Court has further laid
down in the same case:
"In order . .. to pass the test of permissible classification two

conditions must be fulfilled, namely, (i) that the classification
47 Ram Krishna Dalmia v. Justice Tendolkar A.I.R. 1958 S.C. 538, p. 547:
"It is now well established that while Art. 14 forbids class legislation, it does not
forbid reasonable classification for the purposes of legislation. . . . The classification
may be founded on different bases, namely, geographical, or according to objects or
occupations or the like. What is necessary is that there must be a nexus between the
basis of classification and the object of the Act under consideration. It is also well
established . . . that Art. 14 condemns discrimination not only by a substantive law
but also by a law of procedure."
48 Id., pp. 547-548.
must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left out
of the group and (ii) that that differentia must have a rational
relation to the object sought to be achieved by the statute in
question." 49
The origin of the test of permissible classification, as stated above,
may be traced to the principles discussed in Chiranjit Lal's case,50
but its precise statement in the above form was made by the Supreme
Court for the first time in State of West Bengal v. Anwar Ali Sarkar 51
in early 1952. Later on it was followed unchanged in every subsequent
case.52 Since then it has become the constitutional law on the subject
of classification.
Some doubt has, however, been expressed by Bose J. of the Supreme
Court about the infallibility of the test in Anwar Ali Sarkar's case. He
states that the provisions of a Constitution "are not mathematical for-
mulae having their essence in mere form. They constitute a frame-
work of government written for men of fundamentally differing
opinions and written as much for the future as the present. They are
not just pages from a text book but form the means of ordering the
life of a progressive people. There is consequently grave danger in
endeavouring to confine them in watertight compartments made up
of ready-made generalisations like classification .... [T]hose tests
serve as a rough and ready guide in some cases but they are not the
only tests, nor are they the true tests on a final analysis." 3 Sastri C. J.
also seems to have subscribed to the view of Bose J. in the same case by
observing that certain reported decisions "underline the futility of
wordy formulation of so called 'tests' in solving problems presented by
concrete cases." 54
The view of Bose J. has found no support in the Supreme Court,
possibly because of its being impracticable. An Indian professor has
also doubted its soundness.55 A caution has, however, been issued by
the Third All India Law Conference that the "classification formula
devised by the Supreme Court for making Art. 14 workable in a
practical sense should not be allowed to permit discrimination in fact
by mere formal compliance with the formula. The facts of a given
49 Id., p. 547.
50 Chiranjit Lal Chowdhury v. Union of India A.I.R. 1951 S.C. 41, p. 66.
51 A.I.R. 1952 S.C. 75, p. 93. For details of this case see infra p. 14.
52 See Ram Krishna Dalmia v. Justice Tendolkar A.I.R. 1958 S.C. 538, p. 547.
53 State of West Bengal v. Anwar Ali Sarkar A.I.R. 1952 S.C. 75, p. 102. In this case
Bose J. agreed with the conclusion reached by the majority of the judges of the Supreme
Court, but on the basis of entirely different principles. See also id., p. 103, and dissenting
opinion of Bose J. in Bidi Supply Co. v. Union of India A.I.R. 1956 S.C. 479, p. 485.
4 State of West Bengal v. Anwar Ali Sarkar A.I.R. 1952 S.C. 75, p. 80 (Dissenting
opinion).
55 Sri Ram Sharma, The Suoreme Court in the Indian Constitution (1959) 131.
case should be closely examined to find real difference and mere h

torical and geographical accidents or the claims of administrative con-
venience or expediency must not be too readily acceded to for assumin
the need for justification for differential treatment." 5 Subba Rao J.
has also said in Lachman Dass v. State of Punjab " in his dissentin
opinion:
"A citizen is entitled to a fundamental right of equality before
the law and the doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said doctrine.
Over-emphasis on the doctrine of classification or an anxious and
sustained attempt to discover some basis for classification may
gradually and imperceptibly deprive the article of its glorious con-
tent. That process would inevitably end in substituting the doc-
trine of classification for the doctrine of equality: the fundamental
right to equality before the law and equal protection of the laws
may be replaced by the doctrine of classification." 58
It is submitted that the test of permissible classification devised by
the Supreme Court is an established fact. No other concrete alterna-
tive has been suggested so far. Looking at the present trend, there is
no likelihood in the future that the Court would depart from the estab-
lished practice.
The doctrine of equality, as embodied in article 14 and expounded
by the Supreme Court, may now be precisely stated:
(1) The doctrine of equality does not guarantee absolute equality and
does not mean universal application of the same law to all persons in
all circumstances.
(2) Therefore, some kind of classification or selection is permissible.
(3) This classification must be founded on an intelligible differentia
which distinguishes certain persons or things that are grouped together
from others, and that differentia must have a rational relation to the
object sought to be achieved by the Act.
(4) Mere inequality, in order to be unconstitutional, must be actually
and palpably unreasonable and arbitrary.
(5) There is a rebuttable presumption in favor of the constitution-
ality of an enactment.
The doctrine, thus expounded, allows a considerable latitude to the
courts in the matter of the application of article 14, and consequently
has the merit of flexibility.59 It is in this possibility of the application
56 Resolution recorded at the plenary session of the Third All India Law Conference
in August 1962, 4 Journal of the Indian Law Institute (1962) 635.
57 A.I.R. 1963 S.C. 222. Details of this case are not relevant here.
58 Id., p. 240.
59 State of West Bengal v. Anwar Ali Sarkar A.I.R. 1952 S.C. 75, p. 93.
of inhibition contained in the article to the facts of each case that its
efficacy remains unassailed. There has been practically no disagreement
among the Judges of the Supreme Court on the principles under-
lying article 14 as it has been on the effect of their application to the
facts of each case.60 It is noteworthy that several times the Supreme
Court has issued caution against adopting a doctrinaire approach in
applying the wide and vague language of this article to the concrete
facts of life.6l
Here it is relevant to discuss Ram Krishna Dalmia v. Justice Ten-
dolkar 62 which is the most important case on article 14 so far as the
principles thereunder are concerned. In this case section 3 of the
Commissions of Inquiry Act, 1952, and a Central Government notifi-
cation issued thereunder were challenged as infringements of article 14.
Section 3 provided that the appropriate Government may, by notifi-
cation, appoint a Commission of Inquiry to enquire into a definite
matter of public importance and perform specified functions. In the
exercise of this power the Central Government issued a notification
appointing a Commission of Inquiry with Justice S. R. Tendolkar of
the Bombay High Court as its Chairman on December 11th, 1956. The
Commission was to enquire into the affairs of certain specified com-
panies and the extent and nature of control over them by certain speci-
fied individuals, and the like. It had to submit a report to the Govern-
ment. In order to pronounce upon the constitutionality of the impugned
section and notification in view of article 14 of the Constitution, the
Supreme Court first stated the principles,63 hitherto laid down under
60 Kedar Nath Bajoria v. State of West Bengal A.I.R. 1953 S.C. 404, p. 408: "Apart
from dicta here and there in the course of judgments delivered in these cases and the
decisions based on them, there is no real conflict of principle involved in them.";
Dhirendra Kumar v. Superintendent and Remembrancer of Legal Affairs to the Gov-
ernment of West Bengal A.I.R. 1954 S.C. 424, p. 428: "Different views have been
expressed on the question of application of Art. 14 to the facts and circumstances of
each case but there is no difference on any principle as to the construction or scope of
Art. 14 of the Constitution"; T. K. Musaliar v. M. Venkatachalam Potti A.I.R. 1956
S.C. 246, p. 262: "The principles underlying Art. 14 of the Constitution are well-settled.
The only difficulty which arises is in regard to the application of those principles to the
facts of a particular case...."; Gopichand v. Delhi Administration A.I.R. 1959 S.C.
609, p. 614: "It is true that, in the application of those tests uniform approach might
not always have been adopted, or, in dealing with the relevant considerations emphasis
might have shifted; but the validity of the two tests that have to be applied in de-
termining the vires of the impugned statute under Art. 14 cannot be doubted"; Kang-
shari Haldar v. State of West Bengal A.I.R. 1960 S.C. 457, p. 459: ". .. [I]t is, how-
ever, in the application of the said principles that difficulties often arise. In applying the
said principles to the different sets of facts presented by different cases emphasis may
shift and approach may not always be identical."
61 Chiranjit Lal Chowdhury v. Union of India A.I.R. 1951 S.C. 41, p. 47; Lachmandas
Kewalram Ahuja v. State of Bombay A.I.R. 1952 S.C. 235, p. 239; State of Uttar
Pradesh v. Deoman Upadhyaya A.I.R. 1960 S.C. 1125 at 1131.
62 A.I.R. 1958 S.C. 538.
63 See supra pp. 423 et seq.
this article in earlier cases, and then, after making a close peru
those cases in which the principles were enunciated and applied
that a statute, whose validity is challenged under article 14, m
placed in any one of the following five classes:64
(1) A statute may itself indicate the persons or things to whom
provisions shall apply, and the basis of the classification of such pe
or things may appear on its face or may be ascertained from the
rounding circumstances known to the Court or brought to its not
In deciding the validity of such a statute, the Court has to ex
whether such classification can be reasonably regarded as based
some differentia which distinguishes such persons or things gr
together from those left out of the group and whether such diffe
have a reasonable relation to the object sought to be achieved b
statute, no matter whether its provisions apply to a particular pers
thing or to a class of persons or things. The Court will uphol
validity of the statute if the classification satisfies the above test.
To take a few examples, in Chiranjit Lal Chowdhury v. Uni
India65 the Supreme Court, by a majority vote, upheld the Sho
Spinning and Weaving Company (Emergency Provisions) Act,
as constitutional. On account of mismanagement and neglect, a
tion had arisen in the affairs of the Sholapur Company which pre
cially affected the production of an essential commodity and c
serious unemployment amongst a section of the community. T
was, therefore, passed to empower the Government to take ov
Company for its better administration. The Court found that the
pany, being one of the biggest companies, had a social character o
own and it was about to collapse not due to any economic reaso
through sheer perversity of the management. The Company exhib
certain exceptional features and could be singled out as a class by
Thus a nexus was found to have been established between the diffe
on the basis of which the classification was made and the obje
the Act.66 In State of Bombay v. F. N. Balsara,7 section 39 of
Bombay Prohibition Act, 1949, was declared constitutional. Th
tion provided that the Provincial Government may, on specified c
ditions, permit the use or consumption of foreign liquor on, inte
warships, troop ships, and military and naval messes and cant
The challenge that the section selected only certain groups of
for favored treatment and, therefore, violated article 14 did not
favor with the Supreme Court. The Court held that the armed for
formed a class by themselves in many respects, and are therefore
titled to a different treatment. They have their own tradition
64 A.I.R. 1958 S.C. 538 at 548-549.
65 A.I.R. 1951 S.C. 41.
66Id., pp. 44, 46, 47, 58, 59.
67 A.I.R. 1951 S.C. 318.
mode of life, conditioned and regulated in a particular way. They

have to face dangers and perform unusual tasks of endurance and
hardship when called upon to do so. They have their own rules and
regulations and have been treated as a class by themselves in various
enactments and statutory provisions. In this context, the Bombay legis-
lature did not act arbitrarily and capriciously.68 In Kedar Nath Bajoria
v. State of West Bengal,9 section 4 of the West Bengal Criminal Law
Amendment (Special Courts) Act, 1949, was challenged as uncon-
stitutional. The Act was passed to provide for a speedier trial and a
more effective punishment of certain offenses.70 Section 4 empowered
the Government to allot cases in respect of the offenses specified in
the schedule for trial to the Special Judge according to the special
procedure substantially different from the ordinary procedure. The
Supreme Court, in a four to one decision, upheld the constitutionality
of the impugned section. The Court justified the legislative classifica-
tion of offenses. It found that during the postwar period, unscrupulous
persons in public services enriched themselves by corrupt practices and
antisocial acts causing considerable loss to the Government. It had,
therefore, become necessary to put an effective check on the commission
of certain widely prevalent offenses, as specified in the schedule, and
further to impose deterrent punishment on the offenders so as to make
them disgorge the ill-gotten gains. This legislative purpose was indi-
cated clearly not only in the preamble of the Act but also in its section 9,
which provided for special compensatory fines equal in value to
the amount procured by an offender by committing the offense. In
the context of the abnormal postwar economic and social conditions,
the classification of the offenses for the trial of which the provision for
creating the special courts was made, was intelligible and it was cal-
culated to serve the obvious legislative purpose.7
(2) A statute may direct its provisions against one individual per-
son or thing or to several individual persons or things but no reasonable
basis of classification may appear on its face or be deducible from the
surrounding circumstances or matters of common knowledge. In such
a case the Court will set aside the law as an instance of naked dis-
crimination.
To take an example, in Ameerunnissa Begum v. Mahboob Begum,72
the Hyderabad Waliuddowla Succession Act, 1950, was challenged as
ultra vires the Constitution. It was exposed to severe criticism as singl-
ing out a prolonged succession dispute between two parties regarding
a certain estate. The Act gave legislative sanction to a nonjudicial
68 Id., pp. 326-327.
69 A.I.R. 1953 S.C. 404.
70 Preamble of the Act.
71 A.I.R. 1953 S.C. 404, p. 407.
72 A..R. 1953 S.C. 91.
decree and, accordingly, dismissed the claim of one party,8 and furth
provided that this legislative determination was not questionable in
court of law.74 The Supreme Court unanimously set aside the Act and
observed that no public purpose was shown to have been served
advantage to the community of the parties secured by the Act; only a
private dispute was put to an end. The circumstance that the dispu
was of a long duration would not make it unusual or exceptional s
as to be treated as a class by itself. An adverse report against a partic-
ular party, made in a nonjudicial inquiry, was no ground for spec
treatment; even if it be a ground, it was itself arbitrary and unre
sonable. The Court further observed that the dispute was a legal di
pute and should have been decided by a court of law. The Act deprived
specific individuals of their right to enforce their claim according to
the law applicable to those similarly situated. Thus the Court dis
cerned no classification on its face and held the Act discriminatory in
character.75
(3) A statute may not make any classification of the persons o
things for applying its provisions but may leave it to the discretion o
the Government to select and classify persons or things which sha
be governed by its provisions. In deciding the validity of such a statute
the Court will not condemn the law as unconstitutional only becau
no classification appears on its face or because the Government is give
some discretion of classification but it will proceed to examine an
ascertain if the statute has laid down any principle or policy to guide
the exercise of discretion by the Government in the matter of selectio
or classification. After such scrutiny the Court will set aside the law
it does not lay down any such principle or policy on the ground th
it provides for the delegation of arbitrary and uncontrolled power to
the Government to discriminate between persons or things similar
situate and that, therefore, the discrimination is inherent in the statut
itself. In such a case the Court will strike down the law as well as
the executive action taken thereunder.
To take two examples, in State of West Bengal v. Anwar Ali Sarkar,7
section 5(1) of the West Bengal Special Criminal Courts Act, 1950, was
challenged as unconstitutional in view of article 14. It provided that a
special court shall try such offenses or classes of offenses, or cases or
classes of cases as the State Government might direct by general
special order in writing. The object of the Act was to secure the
speedier trial of certain offenses.77 The special procedure prescribed b
the Act differed substantially from the ordinary procedure. A Gover
73 C1.1 of S.2.
74 S. 3.
75 A.I.R. 1953 S.C. 91, p. 94.
76 A.I.R. 1952 S.C. 75.
77 Preamble of the Act.
ment notification, issued under section 5(1), referred the case of cer-
tain specific persons to the Special Court for trial according to t
special procedure. These persons were charged with making an arm
raid on certain premises and committing brutal crimes on a large sca
The Supreme Court, by a majority vote, declared the whole secti
invalid. It failed to find any justification for applying a discrimin
tory procedure to the trial of the specified persons. The judges sa
that the section vested an unguided and unfettered discretion in t
executive to direct any cases or classes of cases, or offenses or classes
of offenses to the special court. It made no classification itself but le
it to the executive without prescribing any standard or rule of guidan
Further, the necessity of speedier trial was too vague, uncertain, and
elusive a criterion to form a rational basis of classification.78 In
Dhirendra Kumar v. Superintendent and Remembrancer of Legal
Affairs,79 a Government notification revoked jury trial, as provided by
earlier notifications, in respect of the trial of certain persons only and
was, therefore, challenged as discriminatory and unconstitutional. The
notification was issued under section 269 of the Code of Criminal Pro-
cedure, which provides that the State Government may, by order,
direct that the trial of all offenses or a particular class of offenses before
any court of session shall be by jury in any district and may revoke or
alter such order. The accused persons were charged with committing
certain offenses in a set of cases known as the "Burdwan Test Relief
Fraud Cases," which were treated as one class of cases having the
common feature that a mass of evidence regarding the genuineness of
thumb impressions and the existence of persons required consideration,
and that this was bound to take such a long time that it would be very
difficult for a juror to keep proper measure of the evidence. This com-
mon feature was said to have distinguished this class of cases from
other cases involving offenses under the same sections of the Indian
Penal Code. The Supreme Court striking down the notification held
that the factors of the quantum of evidence in a particular set of cases
and the memory of jurors afforded no reasonable basis for classifica-
tion as they had no justifiable relation to the object in view, that is,
the withdrawal of jury trial in the cases under consideration.80
(4) A statute may not make any classification of the persons or
things for applying its provisions and may leave it to the discretion
of the Government to select and classify the persons or things to whom
its provisions shall apply, but at the same time it may lay down a
policy or principle to guide the exercise of discretion by the Govern-
78 A.I.R. 1952 S.C. 75, pp. 84, 86, 91, 100.
79 A.I.R. 1954 S.C. 424.
80 Id., pp. 427-428.
ment in the matter of such selection or classification. In such a ca

the Court will uphold the law as constitutional.
To take an example, in Kathi Raning Rawat v. State of Saurashtr
section 11 of the Saurashtra State Public Safety Measures (Th
Amendment) Ordinance, 1949, was challenged as unconstitutiona
The section provided that a special judge shall try such offenses
classes of offenses, or cases of classes of cases as the State governmen
might direct by general or special order in writing. A special p
cedure was prescribed which differed from the ordinary proced
in certain material respects. The Ordinance was promulgated to p
vide for public safety, maintenance of public order, and preservation
of peace and tranquility in the State.82 The State's affidavit show
that a tense situation was created by an increasing number of inciden
of looting, robbery, dacoity, nose-cutting, and murder by marauding
gangs of dacoits in certain areas of the State. The promulgation
the Ordinance was to combat this increasing tempo of regional cri
jeopardizing the security of the State and public peace. The notifi
tion issued by the Government under section 11 of the Ordinan
directed offenses of certain types committed in certain areas of
State to the special judge. A majority of the Judges of the Suprem
Court held that section 11, at least in so far as it empowered the exe
tive to direct offenses or classes of offenses, or classes of cases for trial by
the special judge, was constitutional.83 They said that the preamble t
the Ordinance taken along with the surrounding circumstances d
closed a definite and clear legislative policy and objective, and, there-
fore, vested a controlled and guided discretion in the executive to ma
a proper classification in view of the preamble; 84 and that the twof
classification on the types of offenses and territory was reasonable a
valid.85
(5) A statute may not make any classification of the persons or

things to whom its provisions shall apply and leave it to the discre-
tion of the government to select or classify the persons or things for
applying those provisions according to the policy or principle laid
down by the statute. If the government, in making the selection or
classification, does not follow the policy or principle as laid down by
the law, the executive action, but not the law itself, should be declared
unconstitutional.
After making the above statement, the Supreme Court proceeded
to judge the validity of section 3 of the Commissions of Inquiry Act
and the government notification issued under it. The Court, while
81 A.I.R. 1952 S.C. 123.
82 Preamble of the Ordinance.
83 A.I.R. 1952 S.C. 123, pp. 126, 129, 133, 137.
84 Id., pp. 128, 133.
85 Id., p. 126.
holding the impugned section constitutional, observed that in the

tempo of the prevailing conditions it is not possible for Parliament or
any legislature to anticipate all events or to provide for all eventualities.
It must, therefore, leave the duty of taking the necessary action to
the appropriate government. The delegation of authority, however,
should not be unguided or uncontrolled. In the present case this was
so because the discretion given to the appropriate government to set
up a Commission of Inquiry was to be guided by the prescribed policy,
namely, that the executive action of setting up such a Commission had
to conform to the condition stipulated in section 3, namely, that there
must exist a definite matter of public importance into which an
inquiry was necessary. As such the section did not confer an arbitrary
and uncontrolled power on the government and, therefore, the Act
was not to be condemned. It could be safely placed in category (4)
as discussed above.88
As regards the validity of the notification, the Court, while holding
it valid, observed that the act or conduct of an individual person or
company, or a group of individual persons or companies might assume
such dangerous proportions or might so prejudicially affect or threaten
to affect the public welfare as to make such act or conduct a definite
matter of public importance urgently calling for a full inquiry. In
such matters the government would act upon the available information.
It should be the best judge of the reliability of its source of information.
If it acted in good faith, as the Central Government did in the present
case, on the material brought to its notice and if it came to the con-
clusion that the act and conduct of certain specified individuals and the
affairs of their companies constituted a definite matter of public im-
portance which needed an immediate inquiry with a view to devising
measures for preventing recurrence, the Court, not in possession of all
the facts, would refrain from adjudging the executive action as bad
and illegal. The discretionary power was certainly very wide but it
could not be considered as necessarily discriminatory, and abuse of
power was not to be easily assumed where the discretion was vested
in the government and not in a minor official.87 The Court further
observed that the facts disclosed on the face of the notification and
those brought to its notice by the affidavits of the Principal Secretary
to the Ministry of Finance of the Government of India were quite
peculiar. In brief, the gross irregularities and even illegalities com-
mitted by certain individuals in the management of certain companies
including manipulation of accounts, unjustified transfers, and use of
funds and assets contrary to the interests of the companies and the
investing public afforded a good and valid basis on which the speci-
86 A.I.R. 1958 S.C. 538, pp. 549-550.
87 Id., pp. 544, 550-551.
fled individuals and their companies could be regarded as a class b

themselves. They gave enough support to the presumption of co
stitutionality of the notification. Those who challenged the Act a
notification failed to prove that other persons or companies similarly
situate were left out and only their companies were singled out f
discriminatory and hostile treatment.88
There is no adverse comment on the unanimous opinion of th
Supreme Court in the Dalmia's case. A classic formulation of the
principles 89 under article 14 of the Constitution and a five-fold clas
sification of the statutes 90 which may come up for consideration bef
the courts on the question of their validity under this article ha
suffered no setback at the hands of the later Benches of the Suprem
Court. It is submitted, however, that the five-fold classification is n
exhaustive,9' which only indicates the trends of development of t
constitutional guarantee contained in article 14. As the process
classifying various sections and interests of the community is still in
an experimental stage, there are immense possibilities for furth
development.92
Provisions prohibiting discrimination on certain grounds and in cert

fields
In the Constituent Assembly of India, article 15, 16, and 29(2)

attracted prolonged discussions and much controversy. The framers
of the Constitution were particular at making their terms as clear as
possible to avoid any unwarranted judicial interpretation.98 That is
why the language of these articles, as compared to that of article 14,
is more specific and categorical.94
Unlike the cases decided under article 14, in cases decided under
articles 15, 16, and 29(2) the courts of India refused to be guided by
American precedents.95 They also pointed out that there is no pre-
88 Id., pp. 542, 551-553.
89 See supra pp. 7-8.
90 See supra pp. 11-16.
91 Apart from this classification, the Supreme Court, though not embarking on any
fresh investigation of the topic, made another classification of the statutes on slightly
different lines in Jyoti Pershad v. Administrator for the Union Territory of Delhi A.I.R.
1961 S.C. 1602, pp. 1608-1610. It did not, however, affect the substance of the classifica-
tion made in the Dalmia's case, and, therefore, it is not given in the text of the paper.
92 See also Subrata Roy Chowdhury, "Equality before the Law in India," Cambridge
Law Journal (1961) 223 at 238.
93 See J. K. Mittal, "Concept of Equality in Constituent Assembly (Incorporation of
Right to Equality in Indian Constitution)," Supreme Court Journal (1965) 65.
94 There was no discussion in the Constituent Assembly in connection with the lan-
guage of article 14. Id., pp. 71-72.
95 See Champakam Dorairajan v. State of Madras A.I.R. 1951 Mad. 120, p. 124
(F.B.): "The American decisions are not directly applicable in construing Arts. 15(1)
and 29(2)"; Mahabed v. B. B. Sen A.I.R. 1951 Cal. 563, p. 569 (S.B.). See generally
A. K. Gopalan v. State of Madras A.I.R 1950 S.C. 27, p. 38, in which Kania C.J. sounded
sumption of constitutionality in favor of an enactment which prima

facie violates these articles.9 Though articles 14 to 18 and 29(2) do
not tolerate any kind of discrimination, the expression "discriminate
against" is used in articles 15 and 16 only. This expression means "to
make an adverse distinction with regard to" or "to distinguish unfavor-
ably from others." The Supreme Court has, therefore, observed:
"Discrimination . . . involves an element of unfavourable bias
. . . [I]f such bias is disclosed and is based on any of the grounds
mentioned in Arts. 15 and 16, it may well be that the statute will,
without more, incur condemnation as violating a specific constitu-
tional prohibition unless it is saved by one or other of the provisos
to those articles. But the position under Art. 14 is different. Equal
protection claims under that article are examined with the pre-
sumption that the State action is reasonable and justified." 97
The word "only" in articles 15, 16, and 29(2) is important. Other
qualifications being equal, the race, religion, caste, or some other stated
ground should not be a basis of preference or disability. The use of
the words "or any of them" in these articles shows emphatically that
none of the enumerated grounds is a valid ground for any preference
or disability.98
Prohibition of discrimination generally. Clause (1) of article 15
prohibits discrimination only on grounds of religion, race, caste, sex,
or place of birth. Descent and residence, mentioned in article 16, are
not included as grounds in article 15. Therefore, discrimination, ex-
cepting employment with the State, based on the ground of descent
or residence is not prohibited here.99 Discrimination based on valid
grounds but in which one or more of the grounds mentioned in clause
(1) may be present is not necessarily hit by this clause.100
a note of caution against placing implicit reliance on American precedents without due
regard to the fact that the Indian Constitution, unlike that of the United States, runs
into details and considerably narrows the scope for judicial interpretation, and without
paying due attention to the difference in language between the articles of the two
Constitutions; State of Travancore-Cochin v. Bombay Co. Ltd. A.I.R. 1952 S.C. 366, p.
368; State of Bombay v. R.M.D. Chamarbaugwala A.I.R. 1957 S.C. 699, p. 717;
Basheshar Nath v. Commissioner of Income-tax A.I.R. 1959 S.C. 149, p. 160; Joseph
Kuruvilla Vellukunnel v. Reserve Bank of India A.I.R. 1962 S.C. 1371, p. 1397.
96Kathi Raning Rawat v. State of Saurashtra A.I.R. 1952 S.C. 123, pp. 125-126.
97 Ibid. It may be submitted that discrimination here means discrimination without
reason, not discrimination with reason. Id., p. 127.
98 Champakam Dorairajan v. State of Madras A.I.R. 1951 Mad. 120, p. 133 (F.B.). See
also id., p. 125.
99 See D. P. Joshi v. State of Madhya Bharat A.I.R. 1955 S.C. 334, pp. 336, 339. In
this case the Supreme Court held that it was constitutionally permissible for a certain
State to prescribe that bona fide residents of that State should be entitled to some con-
cession in fees in the State Medical College.
100 Anjali Roy v. State of West Bengal A.I.R. 1952 Cal. 825, p. 829 (D.B.); Vithal
Maruti v. State A.I.R. 1952 Bom 451, p. 452 (D.B.); Dattatraya Motiram More v.
State of Bombay A.I.R. 1953 Bom. 311, p. 313 (D.B.).
Clause (1) has been given an important interpretation by t

Supreme Court in Nain Sukh Das v. State of Uttar Pradesh,l' thou
the relief prayed for could not be granted to petitioners on account
the peculiar circumstances of the case. The Court said that this clause
is levelled against any state action in relation to the citizens' righ
political as well as other rights. It conferred these fundamental right
on a citizen as an individual, which is a guarantee against his bein
subjected to discrimination in the matter of the rights, privileges an
immunities pertaining to him as a citizen generally.102 In this co
text the Court emphatically declared that a law, subject to clause
of article 15, providing for elections on the basis of separate electora
for members of different religious communities offended against it
clause (1).103
Clause (2) of article 15, in comparison to its clause (1), is wider
scope, being available also against private persons. It rules out a
disability, liability, restriction, or condition with regard to access to
and use of, certain specified places. It may be read along with art
17.
Clause (3) provides for special provisions to be made for women and
children. This forms an exception to the rule against discrimination
laid down in the first two clauses. On account of the peculiar social
position of women in India, special treatment for them is justified.10
Provisions for maternity relief for women workers,05 free education
to children,'06 prevention of the exploitation of children,'07 separate
accommodation and entrances for women and children at places of
public resort and the like, are justified under clause (3). Women's
physique and the performance of maternal functions place them at a
disadvantage in the struggle for subsistence, and their physical well-
being becomes an object of public interest and care in order to pre-
serve the strength and vigor of the human race.108 Therefore, because
of women having generally a special status in society, they need spe-
cial provisions. Such provisions should, however, be related to those
disabilities which are peculiar to women or children. Not every special
101 A.I.R. 1953 S.C. 384.
102 Id., p. 385.
103 Ibid.
104Yusuf Abdul Aziz v. State of Bombay A.I.R. 1951 Bom. 470, p. 472 (D.B.),
affirmed by the Supreme Court in Yusuf Abdul Aziz v. State of Bombay A.I.R. 1954
S.C. 321, p. 322. In this case S. 497 of the Indian Penal Code was held constitutional in
view of the combined effect of clauses (1) and (3) of Art. 15. Under this section while
man is punishable for the offence of adultery, woman as an abettor goes unpunished.
105 See Art. 42.
106 See Art. 45.
107 See Art. 39(f).
108 Muller v. Oregon 208 U.S. 412, p. 421 (1907).
law governing them can be upheld and the courts will go into the
question of deciding its reasonableness.
Clause (4) empowers the State to make special provisions for the
advancement of any socially and educationally backward class of
citizens or for the Scheduled Castes and the Scheduled Tribes.109
Equal opportunity of employment. Clause (1) of article 16 guaran-
tees equality of opportunity to all citizens in matters relating to public
employment or appointment to any office under the State. The ex-
pression "matters relating to employment" must include all matters
both prior, and subsequent, to the employment, which are incidental
to the employment and form part of the terms and conditions of such
employment.10 The provision regarding salary and periodical incre-
ments, terms relating to leave, gratuity, pension, and the age of retire-
ment are matters relating to employment."' Like other terms and con-
ditions associated with and incidental to it, the promotion to a selection
post is also included in the matters relating to employment.12 In re-
spect of such a promotion, clause (1) guarantees equality of opportunity
to all citizens who enter service.13 Similarly, appointment to an office
means not only the initial appointment to such an office but all the
terms and conditions of service pertaining to the office.14
Clause (2) of article 16 prohibits discrimination in respect of employ-
ment or office under the State only on grounds of religion, race, caste,
sex, descent, place of birth, or residence. This clause emphatically
brings out in a negative form what is guaranteed affirmatively by clause
(1). Discrimination is a double-edged weapon; it operates in favor of
some and against others; clause (2) prohibits discrimination and thus
assures an effective enforcement of the right guaranteed by clause
(1).11 The words "in respect of any employment" used in clause (2)
include, therefore, all matters relating to employment as specified in
clause (1). Obviously, promotion to selection posts is included both
under clauses (1) and (2).116
The scope and effect of clauses (1) and (2) of article 16 cannot be
curtailed by the provisions of Part XIV of the Constitution dealing
109 For comments see infra pp. 448 et seq.
110 General Manager, Southern Railway v. V. K. Rangachari A.I.R. 1962 S.C. 36,
p. 41. For details of this case see infra p. 449.
111 Id., p. 40.
112 Id., p. 41. In an earlier case, viz., All India Station Masters' and Assistant Station
Masters' Association v. General Manager, Central Railway A.I.R. 1960 S.C. 384, p. 386,
the Supreme Court had left the question, whether promotion to a post is included in the
expressions "matters relating to employment," open. It had decided the case on the
assumption that matters of promotion were covered by matters relating to employment.
For details of this case see infra pp. 446 et seq.
113 Id., p. 41.
114 Id., p. 40.
115 Id., p. 41.
116 Ibid.
with Services under the Union and the States exclusively. Service pro
visions do not enshrine any fundamental rights of citizens. The
scope and ambit are different from those of the fundamental rig
guaranteeing to all citizens equality of opportunity in matters of em
ployment. In Part III of the Constitution dealing with fundamen
rights, the word "State" has a very wide meaning. It includes, in
alia, all local authorities. This is not the position in Part XIV of t
Constitution. These observations were made by the Supreme Co
in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh,l7 in r
jecting the State's argument that the expression "office under the Stat
in the above clauses referred to a post in a civil service and an ex-cad
post under a contract of service, mentioned in Part XIV of the Const
tution."8 In this case the Supreme Court had declared section 6(
of the Madras Hereditary Village-Offices Act, 1895, as ultra vires
clause (2) of article 16 of the Constitution. The section had provid
that in choosing persons to fill new offices, the Collector should sele
the persons whom he might consider to be the best qualified fro
among the families of the last holders of the abolished offices. Th
in the opinion of the Court, was discriminatory because the selection
was to be made on the prohibited ground of descent."9
The fundamental right guaranteed by article 16 should not only app
for a post under the government but to the further right for the p
on merits. Of course the right does not extend to being actually
appointed to the post.20 Employment cannot be given to all citiz
who desire it. The government can select from among a large numbe
of candidates offering themselves for employment.12' What is guara
teed is the equality of opportunity and nothing more. Clauses (1) a
(2) do not prohibit the prescription of reasonable rules for select
to any employment or appointment to any office. Any provision
garding the qualifications for the employment or the appointment t
an office, reasonably fixed and made applicable to all citizens, is c
sistent with the doctrine of equality of opportunity.'22 Apart from
minimum academic qualifications required in a particular servic
the government can prescribe suitable criteria for selection. Fo
example, physical fitness, mental excellence, innate ability, quickn
of action, moral integrity, experience, sense of discipline, and the lik
may be set as relevant requirements. The government cannot, ho
117 A.I.R. 1961 S.C. 564, pp. 569-570.
118 See, e.g., Art. 310 in Chapter I of Part XIV of the Constitution.
119 A.I.R. 1961 S.C. 564, p. 569.
120 Krishan Chander Nayar v. Chairman, Central Tractor Organisation A.I.R. 196
S.C. 602, p. 604.
121 Banarsidas v. State of Uttar Pradesh A.I.R. 1956 S.C. 520, p. 522. See als
High Court, Calcutta v. Amal Kumar A.I.R. 1962 S.C. 1704, p. 1711.
122 General Manager, Southern Railway v. V. K. Rangachari A.I.R. 1962 S.C. 3
pp. 40-41.
ever, arbitrarily impose a ban against the employment of a person

who has once been employed under the government and whose service
has been terminated by reason of his prior record. In case the ban
is imposed, it should have some reasonable relation to the question of
his suitability for employment or appointment to an office.123
To illustrate some of the above points, two Supreme Court decisions
may be referred here. Certain persons held part-time jobs as patwaris
under the government. Some departmental instructions were issued
not to recruit them to the new permanent cadre of Lekhpals on the
ground that these persons did not have a fair record of service in the
past and that they were disloyal to the government. On challenging
the government action they did not get a favorable response from the
Supreme Court in Banarsidas v. State of Uttar Pradesh.24 The Court
held that the exclusion of these persons from the new service of
Lekhpals did not deny them equal opportunity vis-a-vis those who had
an excellent record of service and displayed a greater sense of responsi-
bility to their employers. The government is competent to lay down
qualifications for the new recruits and such prerequisite conditions of
appointment as are conducive to the maintenance of discipline among
the employees. The candidates who tried to paralyze the administra-
tion had no claim to be re-employed on the reorganization of the same
service on a permanent and full-time basis with better prospects.125 It
was evident in this case that the rejected candidates had a poor record
of past service; therefore, their exclusion from re-appointment was
justified by the Supreme Court. But in Krishan Chander Nayar v.
Chairman, Central Tractor Organization,'2 the Court resented the
exclusion of the petitioner from government service as there was
nothing on the record to support government action. The service of
the petitioner was terminated in pursuance of Rule 5 of the Central
Civil Services (Temporary Service) Rules, 1949, by reason of his prior
record. Thereafter, a ban was imposed on his being further taken
into government service. The Court found that the nature of the
ban was not explained; the petitioner had no opportunity to show
cause against its imposition; and it was not shown that the ban had
a just relation to the question of his suitability for employment. It
held, therefore, that the government action was arbitrary and
amounted to a denial of equality of opportunity. The ban on the
petitioner's future employment was against his right to being con-
sidered on his merits.'27
123 Krishan Chander Nayar v. Chairman, Central Tractor Organization A.I.R. 1962
S.C. 602, p. 604.
124 A.I.R. 1956 S.C. 520.
125 Id., pp. 521, 522.
126 A.I.R. 1962 S.C. 602.
127 Id., p. 604.
Mere entry into government service does not give the right
employee to claim promotion. The government is competent t
down reasonable criteria for promotion to higher positions in the
vice. For example, past record of service and relative fitness of the
dates may be taken into consideration by the promoting authority
The criterion of the past record of service has already been dealt
in Banarsidas' case.129 As regards the criterion of relative fitness,
Court, Calcutta v. Amal Kumar 30 may be cited. The respondent, b
the senior-most Munsif was not considered fit for promotion
post of Subordinate Judge, while those who were his juniors were
ferred. The Supreme Court approved the relative fitness as a
test to promote the candidates to higher positions. It held that so
as the respondent was considered along with others by the promo
authority, he could not complain of any violation of clause (
article 16. Seniority of a candidate would not help his promot
he was not otherwise fit in comparison to other, though youn
candidates.131
There can be no grievance against an offer of temporary employm
on special terms as opposed to permanent employment, and on
expiry of such employment there is no denial of equal opportu
This was observed by the Supreme Court in Satish Chandra An
Union of India'32 in which the petitioner challenged the govern
action terminating his service after due notice was served on h
pursuance of Rule 5 of the Central Civil Services (Temporary Serv
Rules, 1949. He was temporarily engaged on special contractual ter
The Court rejected the contention that clause (1) of article 16 was
lated. It held that the whole matter was related to contract. The
petitioner was treated just like any other person to whom an offer
of temporary employment under certain conditions was made. His
grievance, when analyzed, was not that of personal differentiation but
was against an offer of temporary employment on special terms as
opposed to permanent employment. Like any other employer, the
government can make special contracts of service with temporary
employees. The government, as well as those who accept special
contractual terms, are bound by these.'33
Clause (1) of article 16 is confined to employment by the State and
has reference to employment in service rather than as contractors.
There may be cases in which the contract may include within itself an
128 Banarsidas v. State of Uttar Pradesh A.I.R. 1956 S.C. 520, p. 522; High Court,
Calcutta v. Amal Kumar A.I.R. 1962 S.C. 1704, p. 1711.
129 See supra p. 444.
130 A.I.R. 1962 S.C. 1704.
131 Id., p. 1711.
132 A.I.R. 1953 S.C. 250, p. 252.
133 Ibid.
element of service, but every person whose offer to perform a contract

of supply is refused, or whose contract for such supply is breached,
cannot be said to have been denied the guarantee of clause (1). This
is what the Supreme Court said in C. K. Achutan v. State of Kerala 34
in which it rejected the contention of the petitioner, whose contract
to supply milk to a government hospital was cancelled, that the said
clause was infringed. The Court observed that he was not employed
as a servant to collect milk on behalf of the institution; he was supply-
ing goods as a contractor on payment of price. A breach of the con-
tract to supply goods to the government involves no violation of the
fundamental right. The word "employment" connotes employment
in service under the State to the exclusion of contractors.135
The principle of classification, as laid down under article 14, has been
kept in view in the interpretation of clause (1) of article 16. The
Supreme Court applied it in All India Station Masters' and Assistant
Station Masters' Association v. General Manager, Central Railway 136
in which the roadside station masters of the Central Railway chal-
lenged the channel of promotion for guards to higher grade station
master's posts. Guards could be promoted faster than the roadside
station masters. This was said to have amounted to a denial of equal
opportunity to the latter. The Supreme Court, negativing the con-
tention, observed that equal opportunity in matters of employment
including promotion could be predicated only as between persons who
are in the same employment or seeking the same employment. The
roadside station masters and guards did not obtain the same employ-
ment. They were recruited and trained separately and had separate
avenues of promotion. They formed, therefore, two separate and dis-
tinct classes as between whom there was no scope for predicating
equality or inequality of opportunity. The fact that the qualifications
134 A.I.R. 1959 S.C. 490, p. 492.
135 Ibid.
136A.I.R. 1960 S.C. 384, p. 386: "So multifarious are the activities of the State that
employment of men for the purpose of these activities has by the very nature of things
to be in different departments of the State and inside each department, in many different
classes. For each such class there are separate rules fixing the number of personnel of
each class, posts to which the men in that class will be appointed, questions of seniority,
pay of different posts, the manner in which promotion will be effected from the lower
grades of pay to the higher grades, e.g., whether on the result of periodical examination
or by seniority, or by selection or on some other basis and other cognate matters. Each
such class can be reasonably considered to be a separate and in many matters independent
entity with its own rules of recruitment, pay and prospects and other conditions of
service which may vary considerably between one class and another. .. . [Therefore]
[t]he concept of equality can have no existence except with reference to matters which
are common as between individuals, between whom equality is predicated. Equality of
opportunity in matters of employment can be predicated only as between persons, who
are either seeking the same employment or have obtained the same employment. ...
[E] quality of opportunity in matters of promotion must mean equality as between
members of the same class of employees, and not equality between members of separate,
independent classes."
necessary for recruitment as guards or roadside station masters were

approximately or even wholly the same could in no way affect t
position that they belonged to different classes.37
Clauses (3) to (5) of article 16 form exceptions to its clauses (1
and (2). Under clause (3) residence may be laid down as a conditi
for particular classes of employment. Clause (4) provides for reser
tion of appointments or posts in favor of any backward class of citi-
zens.138 Clause (5) provides that the offices connected with religi
or denominational institutions may be reserved for members prof
sing any particular religion or belonging to a particular denomination
Any discrimination violating clause (2) is unconstitutional unles
covered by exception clauses. Discrimination not made on the ground
mentioned in this clause may still violate clause (1) unless saved b
exception clauses.
Educational equality
Clause (2) of article 29 mentions religion, race, caste, and langua

as grounds on which admission into state-aided or maintained edu
tional institutions cannot be denied. It confers a special right whi
an individual citizen has as a citizen and not as a member of any
community or class of citizens. This right cannot be denied to
citizen on any one of the above mentioned grounds.'39 The langu
of clause (2) is wide and unqualified and may well cover all citizen
whether they belong to the majority or minority group. This has bee
further observed by the Supreme Court in answer to a State's argum
in State of Bombay v. Bombay Education Society 140 where the Court
struck down a government circular which provided that no primary
secondary school would admit to a class where English was used a
medium of instruction any pupil other than a pupil belonging to
section of citizens the language of which was English, namely, Anglo
Indians and citizens of non-Asiatic descent. In the opinion of th
Court, the bases of classification were community and language, p
hibited in clause (2) of article 29.14'
The omission of the words "place of birth" and "sex" from clau
(2) shows that it is constitutionally permissible for the State to reser
37 Ibid.
138 See infra pp. 448 et seq.
39 State of Madras v. Champakam Dorairajan A.I.R. 1951 S.C. 226, p. 227.
140A.I.R. 1954 S.C. 561, p. 566. "To limit this right only to citizens belonging
minority groups will be to provide a double protection for such citizens and to ho
that the citizens of the majority group have no special educational rights in the nat
of a right to be admitted into an educational institution for the maintenance of wh
they make contributions by way of taxes. We see no cogent reason for such discr
ination."
141 Id., p. 565.
educational institutions for persons of either sex or of a particular

locality.'42
Special provisions for backward classes
Clause (4) of article 15 empowers the State to make special provi-

sion for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Clause (4) of article 16 empowers the State to make provision for the
reservation of appointments or posts in favor of any backward class of
citizens which, in the opinion of the State, is not adequately represented
in the services under the State. Both clauses are enabling provisions
and do not impose an obligation, but merely leave it to the discretion
of the government to take suitable action, if necessary.'43 Their sweep-
ing language "indicates that the Constitution-makers relied primarily
on the discretion of the politicians and administrators of the future
rather than on the courts to keep the principle of preference within
boundaries consistent with the Constitution's overall scheme of elimin-
ating caste, religious and other discrimination. These provisions are
an expedient-hopefully a temporary one-giving the executive and
legislatures broad discretion in their application. However, this dis-
cretion is not so broad as to exclude entirely judicial review of deter-
minations of backwardness." 144
There is a difference in the terminology of the two clauses. In
clause (4) of article 15, the word "backward" has been qualified by
the words "socially and educationally." This is not the case with clause
(4) of article 16. In the former there is a mention of "the Scheduled
Castes and the Scheduled Tribes," which is missing in the latter. In
the former, the words "in the opinion of the State," though used in
the latter, are absent. This difference, in fact, did not, and is not likely
to cause any difficulty or controversy in the interpretation of these two
clauses which are mutually helpful. Though article 16(4) deals with a
limited subject, viz., reservation of appointments or posts, article 15(4)
is wider in scope, being of more general application. However, the
words "backward class of citizens" in the former, being unqualified,
are of wider scope than the words "socially and educationally back-
ward classes of citizens" in the latter. In article 16(4) the State, apart
from declaring "socially and educationally backward classes" to be
backward, may declare other classes, including also the Scheduled
Castes and the Scheduled Tribes, to be backward. Though the words
142 University of Madras v. Shantha Bai A.I.R. 1954 Mad. 67, p. 70.
43 M. R. Balaji v. State of Mysore A.I.R. 1963 S.C. 649, p. 664.
144Marc Galanter, "'Protective Discrimination' for Backward Classes in India," 3
Journal of the Indian Law Institute (1961) 39 at 66. See also, Ramakrishna Singh v.
State of Mysore A.I.R. 1960 Mys. 338, pp. 346, 347 (D.B.).
"in the opinion of the State" are not included in article 15(
State is competent to decide which are socially and educationally
ward classes of citizens. The backwardness under this articl
be social and educational. It is not either social or educational
is both social and educational.'45
The problem of classifying socially backward classes is ver
plex. "Sociological, social and economic considerations come in
in solving the problem, and evolving proper criteria for determ
which classes are socially backward is obviously a very difficult
it will need an elaborate investigation and collection of data
amining the said data in a rational and scientific way." 14 In
the problem of social backwardness is the problem of rural I
the ultimate analysis social backwardness is the result of pov
a very large extent. Deplorably poor classes, like many of th
are living in villages, automatically become socially backward
are other factors like certain occupations, treated inferior accor
conventional beliefs, and places of habitation which contrib
social backwardness. Caste of a particular class of citizens may b
of the factors to determine social backwardness, but it should n
the sole or the dominant test in that behalf.'47 The backward
can, in the matter of their backwardness, be compared wit
Scheduled Castes and the Scheduled Tribes.148
The concept of backwardness is not relative in the sense that c
which are backward in relation to the most advanced classes
be included in it. If such relative tests are applied by reason
most advanced classes, there will be several layers of backward c
and each of them may claim to be included under exception clau
The condition precedent to the application of article 16(4)
the State must be satisfied that any backward class of citizen
adequately represented in the services. The advancement of s
and educationally backward classes requires that they shoul
representation in the lowest rung of services as well as in se
posts. The expression "adequately represented," imports consider
of "size," as well as "values," "numbers," as well as the "nat
appointments" held, and it needs both the "numerical" as w
"qualitative" tests. By these tests, the adequacy of the represent
of backward classes in the services should be judged.'50
146 ld., p. 659.
147 Ibid.
148 Id., p. 658.
49 Ibid.
150 General Manager, Southern Railway v. V. K. Rangachari A.I.R. 1962 S.C. 36, p. 44.
At this stage some important decisions of the Supreme Court may

be cited. In M. R. Balaji v. State of Mysore 151 the application of article
15(4) was involved. In July 1962, the Mysore Government issued an
order reserving 28 per cent of seats in technical institutions for back-
ward classes, 22 per cent for more backward classes, 15 per cent for the
Scheduled Castes, and 3 per cent for the Scheduled Tribes. Only 32
per cent of the seats was made available to the merit pool. In making
this classification, the Government took the view that in India the
higher social status was generally accorded on the basis of caste, and
the low social position of any class or community was, therefore, mainly
on account of the caste system. Social backwardness was taken to be
mainly based on racial, tribal, caste, and denominational differences,
even though economic backwardness might have also contributed. The
Government concluded that the only practical method of classifying
the backward classes was on the basis of castes and communities. In
determining the educational backwardness of the classes of citizens,
the Government proceeded on the basis of the average of student pop-
ulation in the last three high school classes of all high schools in the
State in relation to a thousand citizens of that community. On the
strength of the data supplied, it was found that the state average of
student population in the last three high school classes was 6.9 per
thousand. The Government decided that all castes whose average
was even just less than the state average of 6.9 per thousand should be
regarded as backward classes; and if the average of any community
was less than 50 per cent of the state average, it should be regarded
as constituting more backward classes. The government order was
challenged as a fraud on article 15(4) and unconstitutional. The peti-
tioners, who did not belong to any of the classified groups, complained
that it denied them the protection of article 29(2), and said that while
they were not admitted to the colleges they applied to, the students
who secured a smaller percentage of marks were given admission.
The Supreme Court was moved by these persons under article 32 152
for a writ of mandamus or other suitable writ or direction.
The Supreme Court unanimously decided against the State. It
observed that the impugned order enumerated and classified the so-
cially and educationally backward communities almost solely on the
basis of caste, by virtually equating them with the castes, though in-
cidentally referring to the economic factor also; 153 that the reservation
of 68 per cent of seats for the backward groups was plainly inconsistent
151 A.I.R. 1963 S.C. 649.
152 Art. 32 empowers the Supreme Court to issue directions or orders, or writs, in-
cluding writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and
certiorari, whichever may be appropriate, for the enforcement of any of the fundamental
rights.
153 A.I.R. 1963 S.C. 649, pp. 657, 660.
with the requirements of article 15(4); and that the executive

was a fraud on the constitutional power conferred by this article.
The Court said that in the Hindu social structure, caste unfortuna
played an important role in determining the status of citizen
the special provision was contemplated for classes of citizens and no
individual citizens as such. Therefore, the caste of the group of ci
might be relevant, but its importance should not be exaggerated.15
caste system has been the greatest hindrance in the way of pr
towards an egalitarian society and the recognition of the spe
castes as backward might maintain and perpetuate the existing dis
tions on the basis of castes.156 Besides, the sole test of "caste"
inevitably break down in relation to many sections of Indian socie
for example, Muslims and Christians, which do not recognize
in the Hindu conventional sense. Therefore, the caste should n
the dominant factor in the determination of social backwardness.
As regards the test applied in ascertaining the educational back
ness, the Court expressed its appropriateness; yet assuming it
rational and permissible under article 15(4), it posed the ques
whether the castes or communities, just below the state average, c
be legitimately treated as educationally backward. If the state aver
was 6.9 per thousand, a community which satisfied the said te
was just below the said test could not be regarded as backward
the communities well below the state average could properly b
garded as educationally backward. Classes of citizens whose av
of student population worked below 50 per cent of the state av
were obviously backward. The State was not, therefore, justif
including in the list of backward classes, castes or communities w
average of student population per thousand was slightly above, or
near, or just below the state average.158 The Court further added
the subclassification into backward and more backward classes
beyond the scope of article 15(4) .15
In B. Venkataramana v. State of Madras,'60 the constitutionali
a communal "Government order" was at stake. Seats were reser
in the Judicial Service for Harijans, Backward Hindus, Mu
Christians, Non-Brahmin Hindus, and Brahmins. The petition
Brahmin, was not selected though he possessed the requisite qualif
tions. In a writ petition under article 32, the Supreme Court justi
the order so far as it related to Harijans and Backward Hindus
154 Id., p. 663.
155 Id., p. 659.
156 Id., p. 656.
157 Id., p. 659.
158 d., p. 660.
159 Id., p. 661.
160 A.I.R. 1951 S.C. 229.
rest being condemned as violating clauses (1) and (2) of article 16.
In classifying various communities as beneficiaries under the order,
the Government adopted the prohibited criteria, viz., race, caste, and
religion. The Court said that the petitioner was discriminated against
on the ground of caste. His ineligibility for any of the posts reserved
for the communities other than backward ones was brought about
because of his being a Brahmin and because the seats reserved for
Brahmins were already filled up. It issued therefore a direction for
the consideration and disposal of petitioner's application for the post
without applying the rule of communal rotation.61
Another case is General Manager, Southern Railway v. V. K. Ranga-
chari.'62 In the Railway Services, among the four grades of the posts
of court inspectors, the last three were classified as the selection posts
to be filled by promotion. The Railway Board issued a circular in
1959, reserving a quota of the selection posts for candidates belonging
to the Scheduled Classes, viz., the Scheduled Castes and the Scheduled
Tribes. The circular was to operate retrospectively, effective from
1957. The result was that the posts which should have been made
available to those candidates in 1957 and 1958 were to be carried for-
ward so as to be filled in 1959. The respondent did not belong to any
of the Classes. He was holding one of the selection posts of court
inspectors in Class III. Being affected by the circular, he applied to
the High Court of Madras under article 226 163 for mandamus, which
was issued. Thereupon the appellant went in appeal before the Su-
preme Court. The respondent sought to impugn the circular on the
ground that direct promotion to selection posts by reservation was not
permitted by clause (4) of article 16, and, further, that the reservation
must work from the bottom and could not be permitted to allow direct
appointment to selection posts. The Supreme Court, by a majority
vote, did not agree with respondent and endorsed the action of the
Board. It said that the words "posts" and "appointments" used in said
clause meant posts and appointments in the services, not ex-cadre
posts and appointments. The incorporation of clause (4) in article
16 is a matter of great significance. The framers of the Constitution
considered the advancement of backward classes of people as a matter
of paramount importance on account of historical reasons. It would
be illogical and unreasonable, therefore, to assume that for making the
representation adequate in the services under the State a power was
given to the State to reserve posts outside the cadre of services. If the
161 Id., p. 230.
162 A.I.R. 1962 S.C. 36.
163 Art. 226 empowers each High Court to issue to any person or authority, including
in appropriate cases any Government, in its jurisdiction directions, orders or writs, in-
cluding writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and
certiorari for the enforcement of any of the fundamental rights or for any other purpose.
word "posts" meant ex-cadre posts, reservation of such posts could not
possibly cure the imbalance which, according to the State, was dis
closed in the representation in state-services.'64 The Court furthe
said that the weaker sections of the people might be given representa-
tion both in the lowest rung of services as well as in selection posts in
the services. The adequacy of representation should be judged by th
numerical as well as the qualitative test, and for this purpose it wa
not necessary to reserve a proportionately higher percentage of appoint
ments at the initial stage. The State might consider the adequacy o
representation qualitatively and reserve a certain percentage of selec-
tion posts to make the representation of the backward people in th
services adequate. The word "posts" was not used to expedite the
reservation of "appointments" themselves and it was not confined
initial posts. Reservation may be made not only in respect of the initi
appointments but also in respect of the selection posts which migh
be filled by employees after their employment. According to the Court
this broad and liberal interpretation of the words "posts" and "appoint
ments" properly gave effect to the policy which was the basis of the
incorporation of clause (4) in the Constitution.165
The last case to be presented here is T. Devadasan v. Union o
India.'66 The petitioner, not belonging to any of the Scheduled Classes
was an Assistant in the Central Secretariat Service. In a competitiv
examination for promotion to a higher post, he secured 61 per cen
marks, whereas the percentage obtained by candidates belonging t
the Scheduled Classes was as low as 35. 17/ per cent of the vacancie
were reserved for these Classes, but the Government made 29 appoint
ments out of 45 for the members of these Classes. This raised the per
centage of reservations to about 65, consequently, the petitioner lo
the higher post. In a writ petition filed before the Supreme Cour
under article 32, the petitioner challenged the validity of the govern-
ment action on the ground that had the quota of 172 per cent rese
vations been adhered to, he would have been selected in view of h
higher percentage of marks. The Government justified its action
as being taken in pursuance of its policy disclosed by the "carry
forward rule" which empowered it to carry the unfilled reserved post
in a year to the next year, and so on. For example, if in two successiv
years no candidate of the backward class was found eligible to fill the
reserved posts and the number of vacancies in each year was 100, the
reserved vacancies in each year would be 18. Thus, 36 vacancies would
be carried forward to the third year when the sum total of the reserve
posts would be 54 out of 100. If, in the third year, the total numbe
164 A.I.R. 1962 S.C. 36, pp. 42, 43.
165 Id., p. 44.
"66 A.I.R. 1964 S.C. 179.
of posts is 50, the reserved quota would be 45 out of 50, that is, 90 per
cent. In a majority decision the Supreme Court sustained the objec
tion raised by petitioner. It observed that the rule permitted, in effect,
"a perpetual carry forward" of unfilled reserved posts in the two year
preceding the year of recruitment and provided an addition of 17?
per cent of the total posts to be filled in the year of recruitment.'67
This was not permitted by clause (4). A reservation of vacancies i
excess of 50 per cent would not be constitutional.168 The Court sai
that the problem of giving adequate representation to members of
backward classes enjoined by clause (4) could not be solved by layin
down a general formula without bearing in mind its repercussions from
year to year. The Government can work out any method for thi
purpose, but it must aim at maintaining a reasonable balance between
the interests of the backward classes and those of other citizens. I
order to give effect to the right guaranteed in clause (1) of article 16,
each year of recruitment would have to be considered by itself, an
the reservation should not be so excessive as to create a monopoly
or unduly hamper the legitimate claims of others.'69
Reverting to the theoretical discussion, as is obvious, the expression
"backward class" has not been defined by the Constitution; but as
interpreted in the Constituent Assembly, it is wide enough to include
all kinds of backwardness.70 Undoubtedly, the State is the sole author-
ity to classify the communities as "backward classes." 17 This cla
sification should be based on intelligible differentia. If there are
no such differentia on which the classification has been made, thi
has to be declared arbitrary and, therefore, unconstitutional. If th
selection is not made in furtherance of the policy and object of th
Constitution, it is to be set aside. In cases of classification and selection
the principles laid down under article 14 may be invoked. The
selecting authority has no discretion as to members within a specified
class. If a particular class is selected by the State as backward, an
member of that class, who is denied that reservation, may go to th
courts and claim the protection of article 14.172
It has already been said that the scope of judicial review is not ruled
out in the clauses under consideration. The State enjoys, however
a broad discretion in determining the backwardness of various classes.
There is every likelihood of such determination being discriminatory
or preferential. It may perpetuate sectionalism rather than establis
167 Id., p. 186.
168 Id., p. 188. See also id., p. 187.
169 Id., p. 187.
170 Constituent Assembly Debates. Vol. VII, p. 697.
17 Id., p. 702; B. S. Kesava Iyengar v. State of Mysore A.I.R. 1956 Mys. 20, pp. 27-2
(D.B.).
172D. D. Basu, 1 Commentary on the Constitution of India (1961) 477.
unity and create vested interests in backwardness or its preten

The continuance of the reservation policy is generally motivat
the hope of getting support from the classes of the people concer
in political battles rather than by a genuine desire to raise th
the level of the rest of society.74
Though article 340 (1) provides for the appointment of a C
mission to investigate the conditions of backward classes, it
roneous to assume that it constitutes a condition precedent t
action being taken under the relevant clauses.175 It is, therefore,
mitted that "the Courts must see that this experiment in prot
and advancing the backward does not ossify into a scheme of
munal quotas and thus postpone the achievement of the equali
is designed to promote." 176
Hopefully, the Supreme Court itself has observed that the s
provisions contemplated by articles 15(4) and 16(4) must be a
within reasonable limits.177 "The interests of weaker sections of so
which are a first charge on the States and the Centre have t
adjusted with the interests of the community as a whole. The a
ment of these competing claims is undoubtedly a difficult matter
[T]he State . . . has to approach its task objectively and in a ra
manner. Undoubtedly, it has to take reasonable and even gen
steps to help the advancement of weaker elements; the extent
problem must be weighed, the requirements of the commun
large must be borne in mind and a formula must be evolved w
would strike a reasonable balance between the several relevant
siderations." 178
Provisions dealing with untouchability and titles

Articles 17 and 18 were discussed at length in the Constitu
Assembly.179 They form an important part of the right to eq
and aim at creating social equality. No case has so far been d
by the Supreme Court under these articles.
Abolition of untouchability
Article 17 abolishes "untouchability," the practice of which i

form is forbidden and is punishable by law. Parliament has en
173 J. B. Kripalani, "Away with this 'Backward' Classification," 8 Bhavan's J
(November 26, 1961) 36 at 37.
174 "Editorial," Northern India Patrika, News Daily, September 7, 1963.
175 M. R. Balaji v. State of Mysore A.I.R. 1963 S.C. 649, pp. 657-658.
176 Marc Galanter, supra note 144, p. 69.
178 Ibid. See also General Manager, Southern Railway v. V. K. Rangachari A.I.R
S.C. 36, p. 45; T. Devadasan v. Union of India A.I.R. 1964 S.C. 179, p. 187.
179 See Mittal, supra note 93.
the Untouchability (Offences) Act, 1955, as required by article 35(a)

(ii),'80 with a view to giving effect to the constitutional provision
of article 17.181 The Act came into force on June 1, 1955. It prescribes
punishment for the practice of untouchability, the enforcement of any
disability arising therefrom, and other matters connected therewith.'82
Neither the Constitution nor the Act define the word "untouchability."
In the original Bill, this word was defined but was dropped by the
Joint Committee hoping that its deletion would not stand in the way
of attaining the object of the Act.'83 According to the Bill, an un-
touchable meant a member of a Scheduled Caste as defined in clause
(24) of article 366,184 and included any other person who by custom
or usage was regarded as an untouchable by any community or section
thereof.85 It was explained that a member of a Scheduled Caste should
not cease to be such member if he resided in any locality other than
the locality specified in relation to him in any public notification is-
sued or any law passed by Parliament under article 341.188 It was
further explained that a member of a Scheduled Caste converted from
the Hindu religion to any other religion should, notwithstanding such
conversion, be deemed to be an untouchable.8'
It is submitted that the meaning of the word "untouchability" is
well known and needs no precise definition. It refers to the social
disabilities historically imposed on certain classes of people by reason
of their birth in certain low castes.'88
The Act provides penalties for enforcing various disabilities on the
ground of untouchability. Enforcement of religious disabilities like
preventing a person from entering a place of public worship, offering
prayers therein or using water of any sacred well, tank or spring, is
punished under the Act.l89 Punishment is also provided for enforcing
180 This article empowers the Parliament to make laws for prescribing punishment for
those acts which have been declared to be offenses in Part III of the Constitution deal-
ing with the fundamental rights.
181 See "Statement of Objects and Reasons," The Gazette of India, Extraordinary,
Part II, Sec. 2 (1953) 1208.
182 Preamble.
183 "Report of the Joint Committee," The Gazette of India, Extraordinary, Part II,
Sec. 2 (1954) 673C.
184Under this clause "Scheduled Castes" mean such castes, races or tribes as are
deemed under article 341 to be Scheduled Castes. Article 341 empowers the President
to specify, by public notification, the castes, races or tribes as Scheduled Castes. In the
matter of a State, he has to consult the Governor of the State. Parliament may by law
amend the notification issued by the President.
185 C1. (f) of S. 2 of the Bill, supra note 183.
186 Explanation I appended to Cl. (f) of S. 2 of the Bill, supra note 183. For article
341, see supra note 184.
187 Explanation II appended to Cl. (f) of S. 2 of the Bill, supra note 183.
188Devarajah v. B. Padmanna A.I.R. 1958 Mys. 84, p. 85 (S.B.). See also Basu, supra
note 172, p. 479.
189 S. 3.
social disabilities, such as denying (a) access to any shop, publi

restaurant, hotel, or place of public entertainment; (b) the use of
roads, river, well, tank, water-tap, bathing-ghat, cremation ground
sanitary convenience, dharamshala, musafirkhana, public conveyance,
charitable place, or jewelry; (c) the practice of any profession or th
carrying on of any occupation, trade or business; (d) the enjoymen
of any benefit under a charitable trust; (e) the construction, acquisitio
or occupation of any residential premises in any locality; and (f) th
observance of any social or religious custom, usage or ceremony.90
The Act similarly provides penalties for refusing to admit persons to
hospitals and educational institutions 91 and to sell them goods o
render them services;192 for molesting or annoying a person or or
ganizing a boycott of, or taking part in, the excommunication of
person by reason of his having exercised any right accruing to him as
a result of the abolition of untouchability.193 An increased penalt
has been provided for subsequent offenses.194 Incitement or abatemen
of an offense under the Act has been treated as the commission of
the offense.'95 The burden of proof has been shifted from the prosecu-
tion to the accused where an offense has been committed in relation
to a member of a Scheduled Caste as defined in clause (24) or article
366.19 Offenses under the Act are cognizable and compoundable.'97
No case has so far been decided by the Supreme Court under the
Act. The number of cases decided by the High Courts is very small.198
This may be due to some reluctance on the part of the Government
to take cognizance of the offenses being committed under the Act every
day. Public opinion has not become enlightened to such an extent
as to enforce various disabilities on the ground of untouchability. A
society saturated with caste prejudices for ages will not adopt a pro-
gressive attitude towards untouchables so soon. Though change of
heart is the best remedy, it is too slow to keep pace with the demand
of the day.
Abolition of titles
Article 18 is enacted to check the growth of nobility in India, which

is inconsistent with the "equality of status" as declared in the preamble
of the Constitution. Clause (1) prohibits the State from conferring
190 S. 4.
191 S. 5.
192 S. 6.
193 S. 7.
194 S. 11.
195 SS. 7(1) (c), 10.
196 S. 12.
o97 S. 15.
198 See, The A.I.R. Manual, Vol. XVI (1962) 144-146.
any title except a military or academic distinction. Clause (2) bans

the acceptance of any foreign title by any citizen. Clause (3) prohibits
a noncitizen, holding some office of profit or trust under the State,
from accepting a foreign title without the consent of the President.
Clause (4) prohibits a person, holding office of profit or trust under
the State, from accepting any present, emolument or office from, or
under, any foreign State.
This article is a self-executing provision and does not require imple-
menting legislation. There does not seem to be any sanction prescribed
for its violation. In case of noncompliance with its terms, Parliament
may disqualify the recipient of the title as a citizen according to the
law of citizenship.199 No such disqualification has, however, been
mentioned in the Citizenship Act, 1955. The question arises whether
any person other than the recipient of the title has a right to move
the Supreme Court under article 32 or the High Court under article
226 against the conferment of any title.200 The courts may hold that
every person has a right to have enforced a mandatory provision of
Part III of the Constitution dealing with the fundamental rights in
case of its violation.201
199 Constituent Assembly Debates, Vol. VII, p. 709.

200 For Arts. 32 and 226, see supra notes 152 and 163 respectively.
201 See also Basu, supra note 172, p. 482.

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Right to Equality and the Indian Supreme Court

Right to Equality and the

institution would be a person professing a particular religion o

Comparison of equality provisions

Article 14 is directly related to the preamble of the Constitu

and 29(2), the general equality principle of article 14 may be invoked.17

cases decided under other articles. Thus, article 14 has proved to be on

Equal protection of the laws

It may be inferred that the second expression is a corollary of th

"When the principle of equality before the law is incorporated

the basis of American authorities, was made in Ram Krishna Dalmia

Evidently, therefore, "[l]egislation is essentially empiric. It addresses

At this stage the principles laid down by the Supreme Court in

"In order . .. to pass the test of permissible classification two

must be founded on an intelligible differentia which distinguishes

case should be closely examined to find real difference and mere h

mode of life, conditioned and regulated in a particular way. They

ment in the matter of such selection or classification. In such a ca

(5) A statute may not make any classification of the persons or

holding the impugned section constitutional, observed that in the

fled individuals and their companies could be regarded as a class b

Provisions prohibiting discrimination on certain grounds and in cert

In the Constituent Assembly of India, article 15, 16, and 29(2)

sumption of constitutionality in favor of an enactment which prima

Clause (1) has been given an important interpretation by t

ever, arbitrarily impose a ban against the employment of a person

element of service, but every person whose offer to perform a contract

necessary for recruitment as guards or roadside station masters were

Clause (2) of article 29 mentions religion, race, caste, and langua

educational institutions for persons of either sex or of a particular

Special provisions for backward classes

Clause (4) of article 15 empowers the State to make special provi-

At this stage some important decisions of the Supreme Court may

with the requirements of article 15(4); and that the executive

unity and create vested interests in backwardness or its preten

Provisions dealing with untouchability and titles

Article 17 abolishes "untouchability," the practice of which i

the Untouchability (Offences) Act, 1955, as required by article 35(a)

social disabilities, such as denying (a) access to any shop, publi

Article 18 is enacted to check the growth of nobility in India, which

any title except a military or academic distinction. Clause (2) bans

199 Constituent Assembly Debates, Vol. VII, p. 709.

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