UNIT-II (Right To Equality)

03-10-2022
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
ARTICLE 14: EQUALITY

BEFORE LAW
ATUL KUMAR TIWARI’S CLASS
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14. EQUALITY BEFORE LAW.—THE STATE

SHALL NOT DENY TO ANY PERSON EQUALITY
BEFORE THE LAW OR THE EQUAL
PROTECTION OF THE LAWS WITHIN THE
TERRITORY OF INDIA.
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INTRODUCTION
• ARTICLE 14 OUTLAWS DISCRIMINATION IN A GENERAL WAY

• SEPARATE PROVISIONS TO COVER SPECIFIC DISCRIMINATORY
SITUATIONS
• ART. 15 PROHIBITS DISCRIMINATION
• SPECIFIC GROUNDS - RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH.
• ARTICLE 16 : EQUAL OPPORTUNITY IN PUBLIC EMPLOYMENT.
• ARTICLE 17 ABOLISHES UNTOUCHABILITY, AND
• ART. 18 ABOLISHES TITLES
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PERSON
• THE RIGHT- AVAILABLE AGAINST THE STATE

•AVAILABLE TO :
–ALL PERSONS
•INCLUDING ARTIFICIAL PERSONS LIKE A COMPANY
•FOREIGNERS- WHILE THEY ARE RESIDING IN INDIA
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY EQUALITY BEFORE THE LAW
• A.V. DICEY’S DISCUSSION OF THE ‘RULE OF LAW’

•DD BASU:
•JEEVAN REDDY, J. –
IN SRI SRINIVASA THEATER V. GOVT. OF TAMIL NADU,

(1992) 2 SCC 643
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EQUAL PROTECTION OF THE LAWS
•SEC 1 OF THE XIV AMENDMENT OF US CONSTITUTION
•DD BASU:
- POSITIVE CONTENT AND
- DENOTES EQUALITY OF TREATMENT IN EQUAL CIRCUMSTANCES

–FASHIONABLE TO USE BOTH THE PHRASES
• THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
• THE COVENANT ON POLITICAL AND CIVIL RIGHTS, 1976
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DOCTRINE OF CLASSIFICATION
•ART. 14
• FORBIDS CLASS LEGISLATION, BUT

• DOES NOT FORBID CLASSIFICATION OR DIFFERENTIATION
• WHICH RESTS UPON REASONABLE GROUNDS OF DISTINCTION
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TEST FOR VALID CLASSIFICATION
1. IT MUST BE REASONABLE
2. THE CLASSIFICATION MUST BE FOUNDED ON AN INTELLIGIBLE
DIFFERENTIA WHICH DISTINGUISHES PERSONS OR THINGS THAT ARE
GROUPED TOGETHER FROM OTHER LEFT OUT OF THE GROUP
3. THE DIFFERENTIA MUST HAVE A RATIONAL RELATION TO THE OBJECT
SOUGHT TO BE ACHIEVED BY THE STATUTE IN QUESTION
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY APPLICATION OF ART. 14

(1) SINGLE PERSON LAWS:
•CHARANJIT LAL CHOWDHURY V. UNION OF INDIA, AIR 1951 SC41
• PETITIONER SOUGHT PROTECTION U/A 14 AND 31 AGAINST THE ENFORCEMENT OF
THE SHOLAPUR SPINNING AND WEAVING CO. (EMERGENCY PROVISIONS) ACT, 1950
• THE ACT DECLARED THAT THE SHAREHOLDERS COULD NEITHER APPOINT A NEW
DIRECTOR, NOR COULD THEY TAKE PROCEEDINGS FOR THE WINDING UP OF THE CO.
• SC- DISMISSED THE PETITION AND HELD THE LEGISLATION VALID.
• SINGLE INDIVIDUAL MAY BE TREATED AS A CLASS BY ITSELF AND THAT UNLESS IT
WAS SHOWN THAT THERE WERE OTHER COMPANIES SIMILARLY CIRCUMSTANCED, THE
LEGISLATION COULD BE PRESUMED TO BE CONSTITUTIONAL
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2. CLASSIFICATION WITHOUT A
DIFFERENCE
• P RAJENDRAN V. STATE OF MADRAS, 1968 SC 1012
• THE COURT STRUCK DOWN PROVISION WHICH LAYS DOWN
• DISTRICT WISE DISTRIBUTION OF SEATS IN THE STATE MEDICAL COLLEGES
• ON THE BASIS OF THE PROPORTION OF POPULATION OF A DISTRICT TO THE TOTAL
POPULATION OF THE STATE.
• IT IS, IN FACT, DISCRIMINATORY AS A BETTER QUALIFIED CANDIDATE FROM ONE
DISTRICT MAY BE REJECTED
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY 3. SPECIAL COURTS AND
PROCEDURAL INEQUALITY
• THE CONSTITUTIONALITY FOR CREATING THE SPECIAL COURT

• TO TRY PERSON HOLDING HIGH PUBLIC OFFICES
• FOR OFFENCES COMMITTED BY THEM
• DURING THE PERIOD OF EMERGENCY I.E. 1975 - 1977,
• CAME UP BEFORE A SEVEN JUDGE BENCH OF THE SC.
• IN SPECIAL COURTS BILL, 1978, RE, AIR 1979 SC 478
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... SPECIAL COURTS BILL, 1978, RE,
• SC HELD:
• THE CLASSIFICATION PROVIDED IN THE BILL WAS VALID.
• THE OFFENCES ALLEGED TO HAVE BEEN COMMITTED DURING THE PERIOD OF
EMERGENCY CONSTITUTED A CLASS BY THEMSELVES
• THE BILL DID NOT LEAVE IT TO DISCRETION OF THE CENTRAL GOVERNMENT TO
PICK AND CHOOSE PERSONS FOR TRIAL BEFORE THE SPECIAL COURT.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY 4. PROCEDURAL FAIRNESS
• THE COURTS HAVE ALSO EVOLVED SOME GENERAL PRINCIPLE OF FAIR PROCEDURE
FROM ARTICLE 14.
• ERUSIAN EQUIPMENT & CHEMICALS LTD. V. STATE OF W.B., AIR 1975 SC 226
• SC QUASHED THE ORDER OF BLACKLISTING THE PETITIONER WHOSE NAME APPEARED

ON THE APPROVED LIST OF D.G.S. & D (DIRECTORATE GENERAL OF SUPPLIES AND
DISPOSALS) WITHOUT GIVING ANY NOTICE.
• AS IT HAD THE EFFECT OF DEPRIVING A PERSON OF EQUALITY OF OPPORTUNITY

IN THE MATTER OF PUBLIC CONTRACTS.
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5. ADMINISTRATIVE DISCRETION
• A LEGISLATION MAY EITHER ITSELF MAKE A CLASSIFICATION FOR ITS APPLICATION OR

NON-APPLICATION, OR
• MAY LEAVE THE CLASSIFICATION TO BE MADE BY THE EXECUTIVE.
• LEGISLATION MOSTLY FOLLOW THE LATTER COURSE.
• VALIDITY OF SUCH LEGISLATION?
– THE COURT WILL EXAMINE AND ASCERTAIN IF THE STATUTE HAS LAID DOWN ANY
PRINCIPLE OR POLICY FOR THE GUIDANCE OF EXERCISE OF DISCRETION BY THE
EXECUTIVE, OR FOR THE ADMINISTRATION IN THE MATTER OF SELECTION OR
CLASSIFICATION.
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6. TAX LAWS AND EQUALITY
• THE POWER TO IMPOSE AND COLLECT TAXES IS CONSIDERED ONE OF THE MOST
IMPORTANT SOVEREIGN POWER AND FUNCTION OF THE STATE.
– IT MAY SELECT THE PERSONS OR OBJECTS TO BE TAXED
– A STATUE IS NOT OPEN TO ATTACK ON THE GROUND THAT IT TAXES SOME PERSONS OR
OBJECTS AND NOT OTHERS.
• R.K.GARG V. UNION OF INDIA, AIR 1981 SC 2138 (BEARER BONDS CASE)
• THE SPECIAL BEARER BONDS IMMUNITY AND EXEMPTIONS ACT 1981, WHICH IN
ORDER TO CANALISE BLACK MONEY FOR PRODUCTIVE PURPOSES, AUTHORISED
INVESTMENT OF SUCH MONEY IN BEARER BONDS WITH FULL IMMUNITY AND
EXEMPTION UNDER THE INCOME TAX, WEALTH TAX AND GIFT TAX ACTS AS WELL AS
FROM DISCLOSURE OF SOURCES FOR THE INVESTORS IN SUCH BONDS,
• WAS UPHELD BY THE COURT.
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THE NEW DOCTRINE OF EQUAL

PROTECTION ORIGIN AND EVOLUTION
• E P ROYAPPA V STATE OF TN, (1974) 2 SCR 348
• FACTS: THE PETITIONER WAS BEING KEPT OUT OF THE OFFICE OF
CHIEF SECRETARY OF THE STATE TO WHICH HE HAD BEEN APPOINTED
IN AN ACTING CAPACITY.
• THIS PROMPTED TO ROYAPPA TO APPROACH THE SC.
• THE BASIS OF THE PETITION WAS THE ALLEGATION OF ABUSE OF
POWER FOR MALAFIDE REASONS. ALL THIS RESULTED IN VIOLATION
OF FUNDAMENTAL RIGHTS UNDER ARTICLE 14 AND 16 OF THE
CONSTITUTION.
• A CONSTITUTION BENCH REJECTED THE PETITION UNANIMOUSLY,
• HOWEVER THE BENCH WAS NOT UNANIMOUS IN GIVING REASONS
FOR THE REJECTION
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… THE NEW DOCTRINE
• BHAGWATI J. GAVE JUDGEMENT FOR HIMSELF AND CHANDRACHUD

AND KRISHNA IYER JJ. AND THEREIN,
• HE PUT A NOVEL, THOUGH AT THE TIME INNOCUOUS INTERPRETATION
OF THESE ARTICLES.
– “ EQUALITY IS A DYNAMIC CONCEPT WITH MANY ASPECTS AND
DIMENSIONS AND IT CANNOT BE “CRIBBED, CABINED AND CONFINED”
WITHIN TRADITIONAL AND DOCTRINAIRE LIMITS. FROM A POSITIVISTIC
POINT-OF-VIEW, EQUALITY IS ANTITHETIC TO ARBITRARINESS. IN FACT
EQUALITY AND ARBITRARINESS ARE SWORN ENEMIES; … WHERE AN ACT IS
ARBITRARY, IT IS IMPLICIT IN IT THAT IT IS UNEQUAL BOTH ACCORDING TO
POLITICAL LOGIC AND CONSTITUTIONAL LAW AND IS, THEREFORE,
VIOLATIVE OF ARTICLE 14.”
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MANEKA GANDHI V UNION OF INDIA

(1978) 1 SCC 248
• THE PETITIONER INVOKED ARTICLE 14 FOR CHALLENGING THE VIRES

OF SECTION 10(3)(C) OF THE PASSPORTS ACT 1967
• BHAGWATI, J. - REASONABLENESS “ LEGALLY AS WELL AS

PHILOSOPHICALLY IS AN ESSENTIAL ELEMENT OF EQUALITY OR NON
ARBITRARINESS
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY R.D. SHETTY V. INTERNATIONAL AIRPORT
AUTHORITY OF INDIA, (1979) 3 SCC 489
• THE ISSUE WAS WHETHER THE INTERNATIONAL AIRPORT AUTHORITY WAS FREE
TO ACCEPT THE TENDER OF SOMEONE FOR PUTTING UP AND RUNNING A
RESTAURANT AND TWO SNACK BARS AT BOMBAY AIRPORT
• EVEN THOUGH THAT PERSON DID NOT FULFILL THE REQUIRED ELIGIBILITY
CONDITIONS?
• BHAGWATI, J. SAID “ THAT ARTICLE 14 STRIKES AT ARBITRARINESS OF STATE
ACTION”, AND IN ORDER TO BE NON-ARBITRARY, STATE ACTION, “MUST BE
BASED ON SOME RATIONAL AND RELEVANT PRINCIPLE WHICH IS NON-
DISCRIMINATORY” AND SHOULD “NOT BE GUIDED BY ANY IRRELEVANT AND
EXTRANEOUS CONSIDERATIONS .
• OUTCOME - COURT INTERACTED WITH ENOUGH EMPHASIS THAT “IN THE
MATTER OF GRANT OF LARGESSE INCLUDING AWARD OF JOB, CONTRACTS,
QUOTAS, LICENCES ETC. THE GOVERNMENT WAS TO CONFIRM TO THE NORMS
OF EQUALITY AND NON ARBITRARINESS.
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AJAY HASIA V KHALID MUJIB, (1981) 1

SCC 722 (CONSTITUTION BENCH)
• BHAGWATI, J., “IT MUST THEREFORE NOW BE TAKEN TO BE WELL
SETTLED THAT WHAT ARTICLE 14 STRIKES AT IS ARBITRARINESS BECAUSE
ANY ACTION THAT IS ARBITRARY, MUST NECESSARILY INVOLVE
NEGATION OF EQUALITY. THE DOCTRINE OF CLASSIFICATION WHICH IS
EVOLVED BY THE COURTS IS NOT PARA-PHRASE OF ARTICLE 14 NOR IS
IT THE OBJECTIVE AND END OF THAT ARTICLE. “
• BHAGWATI, J., INDICATE TWO THINGS
• DOCTRINE OF REASONABLE CLASSIFICATION IS ONLY A FACET OF THE
WIDER PRINCIPLE OF NON ARBITRARINESS.
• JUST A CONVENIENT FORMULA TO FIND OUT WHETHER IN A GIVEN CASE
THE STATE HAS ACTED ARBITRARILY OR NOT.
• TO BHAGWATI, J., THE FORMULA OF CLASSIFICATION APPEARED TO BE
INADEQUATE.
• THE NEW DOCTRINE CAN BE CRITICIZED FOR CONCEDING TO THE
COURT AN UNDEFINED POWER OF REVIEW.
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RECENT CASES
Shayara Bano v. Union of India, 2017 (9) SCALE 178 (articles 14, 15 and 21)
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321 (Art 14, 15)
Joseph Shine v. Union of India, AIR 2018 SC 4898 (Art 14, 15 & 21)
Indian Young Lawyers Association v. State of Kerala, AIR 2018 SC (Supp) 1650
(Art 14, 15, 25 and 51A(e))
Jarnail Singh v. Lachhmi Narayan Gupta, AIR 2018 SC 4729 (Articles 14 and 16(1))
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ARTICLE 15
PROHIBITION OF DISCRIMINATION ON GROUNDS
OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH
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ARTICLE 15 - PROHIBITION OF DISCRIMINATION ON
GROUNDS OF RELIGION, RACE, CASTE, SEX OR
PLACE OF BIRTH
• (1) THE STATE SHALL NOT DISCRIMINATE AGAINST ANY CITIZEN ON GROUNDS ONLY
OF RELIGION, RACE, CASTE, SEX, PLACE OF BIRTH OR ANY OF THEM.
• (2) NO CITIZEN SHALL, ON GROUNDS ONLY OF RELIGION, RACE, CASTE, SEX, PLACE OF
BIRTH OR ANY OF THEM, BE SUBJECT TO ANY DISABILITY, LIABILITY, RESTRICTION OR
CONDITION WITH REGARD TO-
• (A) ACCESS TO SHOPS, PUBLIC RESTAURANTS, HOTELS AND PLACES OF PUBLIC
ENTERTAINMENT; OR
• (B) THE USE OF WELLS, TANKS, BATHING GHATS, ROADS AND PLACES OF PUBLIC RESORT
MAINTAINED WHOLLY OR PARTLY OUT OF STATE FUNDS OR DEDICATED TO THE USE OF THE
GENERAL PUBLIC.
• (3) NOTHING IN THIS ARTICLE SHALL PREVENT THE STATE FROM MAKING ANY
SPECIAL PROVISION FOR WOMEN AND CHILDREN.
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CLAUSE 4 AND 5
• (4) NOTHING IN THIS ARTICLE OR IN CLAUSE (2) OF ARTICLE 29 SHALL PREVENT
THE STATE FROM MAKING ANY SPECIAL PROVISION FOR THE ADVANCEMENT OF
ANY SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES OF CITIZENS OR FOR
THE SCHEDULED CASTES AND THE SCHEDULED TRIBES. (ADDED BY THE
CONSTITUTION (FIRST AMENDMENT) ACT, 1951)
• (5) NOTHING IN THIS ARTICLE OR IN SUB-CLAUSE (G) OF CLAUSE (1) OF ARTICLE
19 SHALL PREVENT THE STATE FROM MAKING ANY SPECIAL PROVISION, BY LAW,
FOR THE ADVANCEMENT OF ANY SOCIALLY AND EDUCATIONALLY BACKWARD
CLASSES OF CITIZENS OR FOR THE SCHEDULED CASTES OR THE SCHEDULED TRIBES
IN SO FAR AS SUCH SPECIAL PROVISIONS RELATE TO THEIR ADMISSION TO
EDUCATIONAL INSTITUTIONS INCLUDING PRIVATE EDUCATIONAL INSTITUTIONS,
WHETHER AIDED OR UNAIDED BY THE STATE, OTHER THAN THE MINORITY
EDUCATIONAL INSTITUTIONS REFERRED TO IN CLAUSE (1) OF ARTICLE 30.
(INSERTED VIDE CONSTITUTION (NINETY-THIRD AMENDMENT) ACT, 2005, W.E.F.
20.1.2006).)
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CLAUSE 6
• (6) NOTHING IN THIS ARTICLE OR SUB-CLAUSE (G) OF CLAUSE (1) OF ARTICLE 19
OR CLAUSE (2) OF ARTICLE 29 SHALL PREVENT THE STATE FROM MAKING,--
• (A) ANY SPECIAL PROVISION FOR THE ADVANCEMENT OF ANY ECONOMICALLY
WEAKER SECTIONS OF CITIZENS OTHER THAN THE CLASSES MENTIONED IN CLAUSES (4)
AND (5); AND
• (B) ANY SPECIAL PROVISION FOR THE ADVANCEMENT OF ANY ECONOMICALLY
WEAKER SECTIONS OF CITIZENS OTHER THAN THE CLASSES MENTIONED IN CLAUSES (4)
AND (5) IN SO FAR AS SUCH SPECIAL PROVISIONS RELATE TO THEIR ADMISSION TO
EDUCATIONAL INSTITUTIONS INCLUDING PRIVATE EDUCATIONAL INSTITUTIONS,
WHETHER AIDED OR UNAIDED BY THE STATE, OTHER THAN THE MINORITY EDUCATIONAL
INSTITUTIONS REFERRED TO IN CLAUSE (1) OF ARTICLE 30, WHICH IN THE CASE OF
RESERVATION WOULD BE IN ADDITION TO THE EXISTING RESERVATIONS AND SUBJECT
TO A MAXIMUM OF TEN PER CENT. OF THE TOTAL SEATS IN EACH CATEGORY.
• EXPLANATION.-- FOR THE PURPOSES OF THIS ARTICLE AND ARTICLE 16,
"ECONOMICALLY WEAKER SECTIONS" SHALL BE SUCH AS MAY BE NOTIFIED BY THE
STATE FROM TIME TO TIME ON THE BASIS OF FAMILY INCOME AND OTHER INDICATORS
OF ECONOMIC DISADVANTAGE. (INSERTED VIDE CONSTITUTION (ONE HUNDRED AND
THIRD AMENDMENT) ACT, 2019 W.E.F. 14.01.2019.)
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CLAUSE (1)
• SCOPE OF ARTICLE 15 IS VERY WIDE.

• WHILE THE PROHIBITION IN CLAUSE (1) IS LEVELLED AGAINST STATE
ACTION,
• THE PROHIBITION IN CLAUSE (2) IS LEVELLED AGAINST INDIVIDUALS
AS WELL.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY THE SIGNIFICANCE OF THE WORD
‘ONLY’
• IF THERE IS ANY OTHER GROUND OR CONSIDERATION FOR THE
DIFFERENTIAL TREATMENT BESIDES THOSE PROHIBITED BY THIS ARTICLE
THE DISCRIMINATION MAY NOT BE UNCONSTITUTIONAL.
• DISCRIMINATION IN FAVOUR OF A PARTICULAR SEX WILL BE
PERMISSIBLE IF THE CLASSIFICATION IS THE RESULT OF OTHER
CONSIDERATIONS E.G. PHYSICAL OR INTELLECTUAL FITNESS FOR
SOME WORK.
• SUCH DISCRIMINATION, BEING BASED ON A GROUND OTHER THAN
SEX WOULD NOT BE CONSIDERED TO BE UNCONSTITUTIONAL.
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CLAUSE (2) (a)
• THERE CANNOT BE SHOPS OR PUBLIC RESTAURANTS OR OTHER

PLACES OF PUBLIC ENTERTAINMENT LIKE CINEMA, THEATRE, COFFEE
HOUSE, CIRCUS, FAIR, EXHIBITION, MUSIC HALL, RACE COURSE, ETC.
EXCLUSIVELY RESERVED FOR MEMBERS OF A PARTICULAR CASTE,
RELIGION, RACE, ETC.
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CLAUSE (2) (b)
• A PRIVATE WELL OR TANK DOES NOT COME WITHIN THE MEANING

OF THIS CLAUSE
• BURIAL GROUND SHALL BE A PLACE OF PUBLIC RESORT IF IT IS
MAINTAINED WHOLLY OR PARTLY BY THE STATE, AND SHALL BE OPEN
FOR ALL.
• WHERE A PLACE OF PUBLIC RESORT IS NOT MAINTAINED BY THE
STATE IT MUST BE DEDICATED BY THE OWNER TO THE USE OF THE
GENERAL PUBLIC
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CLAUSE (3)
• FROM READING CLAUSES 1, 2 AND 3 TOGETHER IT FOLLOWS THAT

WHILE DISCRIMINATION ON THE GROUND OF SEX IS IMPERMISSIBLE,
SPECIAL PROVISIONS FOR WOMEN AND CHILDREN ARE PERMISSIBLE.
• THUS, IT IS NO VIOLATION OF ARTICLE 15 IF INSTITUTIONS ARE SET UP
BY STATE EXCLUSIVELY FOR WOMEN OR
• PLACES ARE RESERVED FOR WOMEN AT PUBLIC ENTERTAINMENTS OR IN
PUBLIC CONVEYANCES
• SECTION 125 CR.PC. IS VALID ALTHOUGH IT OBLIGES THE HUSBAND TO
MAINTAIN HIS WIFE BUT NOT VICE VERSA .
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY CLAUSE (4)
• WAS ADDED BY THE CONSTITUTION (1ST AMENDMENT) ACT, 1951 AS A RESULT OF THE
DECISION OF THE SUPREME COURT IN
• STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN, AIR 1951 SC 226 THE COURT STRUCK
DOWN THE COMMUNAL GOVERNMENT ORDER OF THE MADRAS GOVERNMENT
WHICH, WITH THE OBJECT OF HELPING THE BACKWARD CLASSES, HAD FIXED THE
PROPORTION OF STUDENTS OF EACH COMMUNITY THAT COULD BE ADMITTED INTO
THE STATE MEDICAL AND ENGINEERING COLLEGES.
• ALTHOUGH DPSP IN ARTICLE 46 LAYS DOWN THAT THE STATE SHOULD PROMOTE
WITH SPECIAL CARE THE EDUCATIONAL AND ECONOMIC INTERESTS OF THE WEAKER
SECTIONS OF THE PEOPLE AND PROTECT THEM FROM SOCIAL INJUSTICE
• SC - HELD THAT THE “DIRECTIVE PRINCIPLES OF STATE POLICY HAVE TO CONFIRM
TO AND RUN AS SUBSIDIARY TO THE CHAPTER OF FUNDAMENTAL RIGHTS”.
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ENABLING PROVISION
• CLAUSE (4) ENABLES THE STATE TO MAKE SPECIAL PROVISIONS FOR

THE ADVANCEMENT OF SOCIALLY AND EDUCATIONALLY BACKWARD
CLASSES (SEBCS) OF CITIZENS OR FOR THE SCHEDULED CASTES AND
SCHEDULED TRIBES.
• SUCH PROVISIONS INCLUDE RESERVATION FOR QUOTA AND CAN BE
MADE IN THE EXERCISE OF EXECUTIVE POWERS WITHOUT ANY
LEGISLATIVE SUPPORT.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY THE TWO MOST CONTENTIOUS ISSUES IN
THE APPLICATION OF ARTICLE 15(4)
• DETERMINATION OF BACKWARD CLASSES, AND

• EXTENT OR QUANTUM OF RESERVATION
• (1) BACKWARD CLASSES: SO FAR AS THE SCHEDULED CASTE AND SCHEDULED
TRIBES ARE CONCERN THEY ARE DEFINED IN THE DEFINITIONAL ARTICLE 366
UNDER CLAUSE (24) AND (25) RESPECTIVELY.
• EARLIER THE CONSTITUTION HAD NO DEFINITION OF THE BACKWARD CLASSES
BUT NOW IT HAS
• ARTICLE 342-A, INSERTED BY THE CONSTITUTION (ONE HUNDRED AND SECOND
AMENDMENT) ACT, 2018 W.E.F. 15.08.2018 VIDE NOTIFICATION NO. SO3989(E)
DATED 14.08.2018.
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ARTICLE 342A - SOCIALLY AND

EDUCATIONALLY BACKWARD CLASSES
• 1) THE PRESIDENT MAY WITH RESPECT TO ANY STATE OR UNION TERRITORY, AND
WHERE IT IS A STATE, AFTER CONSULTATION WITH THE GOVERNOR THEREOF, BY
PUBLIC NOTIFICATION, SPECIFY THE SOCIALLY AND EDUCATIONALLY BACKWARD
CLASSES WHICH SHALL FOR THE PURPOSES OF THIS CONSTITUTION BE DEEMED
TO BE SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES IN RELATION TO THAT
STATE OR UNION TERRITORY, AS THE CASE MAY BE.
• (2) PARLIAMENT MAY BY LAW INCLUDE IN OR EXCLUDE FROM THE CENTRAL LIST
OF SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES SPECIFIED IN A
NOTIFICATION ISSUED UNDER CLAUSE (1) ANY SOCIALLY AND EDUCATIONALLY
BACKWARD CLASS, BUT SAVE AS AFORESAID A NOTIFICATION ISSUED UNDER THE
SAID CLAUSE SHALL NOT BE VARIED BY ANY SUBSEQUENT NOTIFICATION.]
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105TH CONSTITUTIONAL AMENDMENT
• THE 105 CONSTITUTIONAL AMENDMENT ACT RESTORED STATE

GOVERNMENTS’ POWER TO PREPARE THE SOCIALLY AND EDUCATIONALLY
BACKWARD CLASSES (SEBC) LIST. AS PER THE SUPREME COURT, THE 102
CONSTITUTIONAL AMENDMENT ACT IMPLIED THAT THE STATE
GOVERNMENTS DID NOT HAVE THE AUTHORITY TO IDENTIFY THE SEBC.
• 105 CONSTITUTIONAL AMENDMENT ACT ALSO STATED THAT THE NATIONAL
COMMISSION FOR BACKWARD CLASSES' POWERS AND RESPONSIBILITIES
(CONSULTED ON ALL POLICY ISSUES AND HONOR) DID NOT APPLY TO THE
INDEPENDENT STATE LISTS. IT INDICATED THAT STATES DO NOT REQUIRE TO
CONSULT THE NATIONAL COMMISSION. TO RESTORE THIS POWER, THE 105
CONSTITUTIONAL AMENDMENT ACT WAS PASSED.
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NEED FOR THE 105TH AMENDMENT
• WHEN THE 102 CONSTITUTIONAL AMENDMENT ACT GIVING

CONSTITUTIONAL STATUS TO THE NATIONAL COMMISSION FOR THE
BACKWARD CLASS (NCBC) WAS PASSED, IT WAS INTERPRETED BY THE
SUPREME COURT THAT THE 102ND AMENDMENT HAD TAKEN AWAY THE
STATES’ RIGHT TO IDENTIFY THE SEBCS.
• THIS FACT CAME TO LIGHT WHEN A MONTH AFTER THE PASSING OF THE
102ND AMENDMENT, THE MAHARASHTRA GOVERNMENT’S LAW
GRANTING THE MARATHAS A SOCIALLY AND ECONOMICALLY
BACKWARD CLASSES STATUS WAS CHALLENGED IN THE SUPREME
COURT, AND THE SUPREME COURT, FOR THE FIRST TIME, HELD THAT
102ND AMENDMENT HAD TAKEN AWAY STATES’ POWERS TO RECOGNIZE
SEBCS
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COMMISSIONS
• ART 338. NATIONAL COMMISSION FOR SCHEDULED CASTES

• 338A. NATIONAL COMMISSION FOR SCHEDULED TRIBES
• 338B. NATIONAL COMMISSION FOR BACKWARD CLASSES
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ART 340. APPOINTMENT OF A COMMISSION TO

INVESTIGATE THE CONDITIONS OF BACKWARD CLASSES
• CONTEMPLATE APPOINTMENT OF A COMMISSION TO INVESTIGATE

THE CONDITIONS OF SOCIALLY AND EDUCATIONALLY BACKWARD
CLASSES AND SUCH OTHER MATTERS AS MAY BE REFERRED TO THE
COMMISSION BY THE PRESIDENT.
• THE PRESIDENT HAS, IN FACT, EXERCISED HIS POWER UNDER THIS
PROVISION TWICE
• FIRST IN 1953 UNDER THE CHAIRMANSHIP OF KAKA KALELKAR AND
• SECOND IN 1978 UNDER THE CHAIRMANSHIP OF BP MANDAL
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY M. R. BALAJI V STATE OF MYSORE,
AIR 1963 SC 649
• HELD THAT CASTE OF A GROUP OF PERSONS COULD NOT BE THE
SOLE OR EVEN PREDOMINANT FACTOR
• ONE’S OCCUPATION AND PLACE OF HABITATION COULD BE THE
OTHER RELEVANT FACTORS IN DETERMINING SOCIAL
BACKWARDNESS.
• COURT INVALIDATED THE TEST OF BACKWARDNESS WHICH WAS
BASED PREDOMINANTLY, IF NOT SOLELY ON CASTE.
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P RAJENDRAN V. STATE OF MADRAS,

AIR 1968 SC 1012
• THE COURT UPHELD THE TEST OF BACKWARDNESS WHICH WAS PREDOMINANTLY

BASED ON CASTE.
• IT SAID: “ IF THE RESERVATION IN QUESTION HAD BEEN BASED ONLY ON CASTE AND
HAD NOT TAKEN INTO ACCOUNT THE SOCIAL AND EDUCATIONAL BACKWARDNESS OF
THE CASTE IN QUESTION IT WOULD BE VIOLATIVE OF ARTICLE 15(1).
• BUT IT MUST NOT BE FORGOTTEN THAT A CASTE IS ALSO A CLASS OF CITIZENS AND IF
THE CASTE AS A WHOLE IS SOCIALLY AND EDUCATIONALLY BACKWARD RESERVATION
CAN BE MADE IN FAVOUR OF SUCH A CASTE ON THE GROUND THAT IT IS SOCIALLY
AND EDUCATIONALLY BACKWARD CLASS OF CITIZENS WITHIN THE MEANING OF
ARTICLE 15(4).”
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY STATE OF UP V. PRADEEP TANDON, AIR
1975 SC 563
• ADMISSION TO MEDICAL COLLEGES IN UP IN FAVOUR OF CANDIDATES FROM
• RURAL AREAS, HILL AREAS AND UTTARAKHAND AREA WAS CHALLENGED
• COURT HELD: THE ACCENT UNDER ARTICLE 15 (4) WAS ON CLASSES OF CITIZENS
AND THE CONSTITUTION DID NOT ENABLE THE STATE TO BRING SOCIALLY AND
EDUCATIONALLY BACKWARD AREAS WITHIN THE PROTECTION OF ARTICLE 15
(4).
• THE PLACE OF HABITATION AND ITS ENVIRONMENT COULD BE A DETERMINING
FACTOR IN JUDGING THE SOCIAL AND EDUCATIONAL BACKWARDNESS.
• THE COURT UPHELD RESERVATION FOR PERSONS FROM HILL AND
UTTARAKHAND AREA IT WAS FOUND THAT THE ABSENCE OF MEANS OF
COMMUNICATION TECHNICAL PROCESSES AND EDUCATIONAL FACILITIES KEPT
THE POOR AND ILLITERATE PEOPLE IN THE REMOTE AND SPARSELY POPULATED
AREAS BACKWARD.
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INDIRA SAWHANI V. UNION OF INDIA,

AIR 1993 SC 477 (MANDAL

COMMISSION CASE)
• The court was asked to pronounce on the constitutional
validity of two office Memorandum of the central
government.
1. it reserved 27% vacancies in civil post and services under the
Government of India to be filled by direct recruitment from the
SEBC.
2. made additional reservation of 10% vacancies for other economic
backward section of the people who were not covered by any
existing schemes of reservation
• By a 6:3 majority the court upheld the first memorandum but

invalidated the addition of 10% by the second.
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… INDIRA SAWHANI
• the first memorandum was based on the Mandal Commission
report which took caste as a dominant, rather sole criteria
for determining the SEBC.
• The commission in fact had made a nationwide survey of the

entire population and on that basis had evolved 11
indicators divided into social educational and economic
criteria.
• the castes/classes which scored 50% or points under these
indicators were listed as SEBCs.
43
… INDIRA SAWHANI
• caste represented an existing, identifiable social
group/class
• Cast, however, was not essential factor for determining
the social and educational backwardness.
• Within SEBCs, classification between the backward and
more backward is permissible.
• To maintain the cohesiveness and character of a class,
the creamy layer can and must be excluded from the
SEBCs .
44
22
03-10-2022

… INDIRA SAWHANI
• the economic criteria alone cannot be the basis of
backwardness although it may be considered along with or
in addition to social backwardness.
• The court also suggested creation of a permanent body at

the Central and state levels to look into the complaints of
over and under inclusion as well as to revise the list of SEBCs
periodically.
• Following the courts directions the centre and the states have
appointed backward class Commission for constant revision
of such classes and for the exclusion of creamy layer from
among them.
45
… INDIRA SAWHANI
• Since birth in a particular caste or community is a determining factor for
availing of special provisions under article 15(4)
• a person who had the advantageous start in life being born in a forward
caste but is transplanted in backward class by
• adoption or
• marriage or
• conversion
• at a later stage, does not become eligible to the benefit of reservation
46
23
03-10-2022

2. QUANTUM OF RESERVATION
M R Balaji v. State of Mysore, AIR 1963 SC 649
• The validity of Mysore government order reserving 68% of the
seats in the engineering and medical colleges and other technical
institutions, in favour of backward classes, including the Scheduled
caste and Scheduled tribe was challenged,
• the court held:

“a special provision should be less than 50%; how much less than
50% would depend upon the present prevailing circumstances in
each case.”
• Reservation of 68% of seats in that case was found by the

Supreme Court plainly inconsistent with article 15(4).
47
T DEVADASAN V. UNION OF INDIA,

AIR 1964 SC 179

• Rule of the central government which actually reserved only
17.5% posts in the central services for the scheduled caste
and Scheduled Tribes but provided for carrying forward of
their unfilled quota to the next to succeeding years, If suitable
candidates were not available,
• was invalidated on the ground that accumulation of 17.5% in
three years would come to approximately 54% and
• in the instant case it had come to 64% because out of 45
vacancies, 29 went to the reserved quota.
48
24
03-10-2022

…T DEVADASAN
• Article 15(4) and article 16(4): exceptions to the general rule

under article 14, 15(1) and 16(1)?
• The general rule required that in the interest of the community as
a whole, admissions to the Institutions of higher learning or
employment with State must be made on merit in order to ensure
an efficient society and administration.
• An exception could not be so construed as to eat away or even
substantially dilute the general rule.
49
STATE OF KERALA V. N M THOMAS,

AIR 1976 SC 490

• in a particular year out of 51 posts, 34 i.e. approximately 68%
had gone to the candidates belonging to the SCs and STs,
• the court upheld the rule providing for exemption.
• Majority: Rejected the argument that article 16(4) was an
exception to article 16(1) and
• emphasized that article 16(4) and 15(4) were emphatic
assertions and directions to the State to take effective affirmative
steps to enforce the concept of equality as laid down in Article 14,
15 and 16.
• To bring about that equality, the state could make reservations to
any extent
50
25
03-10-2022

AKHIL BHARTIYA SHOSHIT KARMCHARI SANGH
(RAILWAY) V. UNION OF INDIA, AIR 1981 SC 298
• Circulars of the Railway Board giving some favours to the

Scheduled Castes and Scheduled Tribes,
• the provision for raising their quota from 17 to 22% and carry
forward rule on the lines invalidated in Devadasan, were
challenged,
• the Court by and large stuck to its position in Thomas and insisted
that the quantum of reservation was to be seen in the context of
overall representation of the scheduled caste and Scheduled Tribes
and not in a particular year.
51
INDIRA SAWHNEY V. UNION OF INDIA ,

AIR 1993 SC 477
• upholding the validity of a totall 49.5% reservation (22.5% for SCs and
STs and 27% for SEBCs, the court held that barring any extraordinary
situations, reservation should not exceed 50%
• For the application of 50% rule, a year should be taken as the unit and
not the entire strength of the cadre, service or the unit, as the case may
be. So long as this limit is observed, carry forward rule is permissible.
The court overruled Devadasan on this point.
• In arriving at the 50% limit, the court has rejected that article 16(4) is an
exception to article 16(1) but has relied on the balancing of interest
under these two provisions and on the reasonable exercise of power
under article 16(4).
52
26
03-10-2022
PREETI SRIVASTAVA V. STATE OF

MADHYA PRADESH, AIR 1999 SC 2894
• Reservation in education for Super Specialities And in certain services

requiring special skills such as defence, technical and specific services,
University professors, pilots etc. are not advisable
• Constitutional bench by a majority of 4 : 1 invalidated admission criteria for

the SCs/STs and SEBCs, which provided lower percentage of marks for
admission to postgraduate medical courses for these classes then provided
for the general category.
- The difference was of more than 10% marks
• Held-
• Though the difference of 10% marks at the level of admission to MBBS
course could be justified, bigger difference at the level of postgraduate
courses could not be upheld.
•
53
54
27
03-10-2022
ARTICLE 16
EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT
55
16. EQUALITY OF OPPORTUNITY IN MATTERS OF

PUBLIC EMPLOYMENT
(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to
a class or classes of employment or appointment to an office 1 [under the Government of, or
any local or other authority within, a State or Union territory, any requirement as to
residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation
of appointments or posts in favour of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the State.
1. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch., for “under any State specified in the
First Schedule or any local or other authority within its territory, any requirement as to residence within that
state.” (w.e.f. 1-11-1956).
56
28
03-10-2022

…ARTICLE 16
• 2 [(4A) Nothing in this article shall prevent the State from making any provision for
reservation 3 [in matters of promotion, with consequential seniority, to any class] or
classes of posts in the services under the State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State, are not adequately represented in
the services under the State.]
• 4 [(4B) Nothing in this article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such class of vacancies shall
not be considered together with the vacancies of the year in which they are being filled
up for determining the ceiling of fifty per cent. reservation on total number of vacancies
of that year.]
2. Ins. by the Constitution (Seventy-seventh Amendment) Act, 1995, s. 2 (w.e.f. 17-6-1995).
3. Subs. by the Constitution (Eighty-fifth Amendment) Act, 2001, s. 2 for certain words (retrospectively w.e.f. 17-6-1995).
4. Ins. by the Constitution (Eighty-first Amendment) Act, 2000, s. 2 (w.e.f. 9-6-2000).
57
…ARTICLE 16
• (5) Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the affairs of
any religious or denominational institution or any member of the governing
body thereof shall be a person professing a particular religion or belonging
to a particular denomination.
• 5 [(6) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned
in clause (4), in addition to the existing reservation and subject to a
maximum of ten per cent. of the posts in each category.]
5. 1. Ins. by the Constitution (One Hundred and Third Amendment) Act, 2019, s. 3 (w.e.f. 14-1-2019).
58
29
03-10-2022
The relative scope of Articles 14, 15 and 16

• justice Das said: (GD Rama Rao v. State of Andhra Pradesh , AIR 1961
SC 564)
• “Art 14 guarantees the general right of equality;
• Art 15 and 16 are instances of the same right in favour of citizens in
some special circumstances.
• Art 15 is more general than Art 16, the latter being confined to
matters relating to employment or appointments to any office under
the State.
• It is also worthy to note that Art 15 does not mention “descent” as
one of the prohibited grounds of discrimination, whereas Art 16
does”.
59
Clause (1)
• It gives the right only to equal opportunity i.e. right to

be considered for employment.
• It does not give the right to be employed or appointed
to any office under the State.
• Does not prevent the State from laying down the
requisite qualifications for recruitment for government
services, and
• Selection test must not be arbitrary
60
30
03-10-2022
Matters relating to employment or appointment

• 1. Initial appointment
• 2. Promotions
• 3. termination of employment and
• 4. matters relating to salary, periodical
increment, leave, gratuity, Pension, age of
superannuation etc.
61
State of Kerala v. N.M. Thomas,

AIR 1976 SC 490
• In Important questions arose regarding the relationship of articles 14, 15 and 16.
• Weather 16(1) protected exemption for the LDC belonging to SCs and STs from
passing the special test for promotions as the UDC and the filling up of 34 out of 51
vacancies of the UDCs by promoting the LDCs from these groups in preference to
those who had passed those tests. (valid under 16 (1) and 16 (4))?
• Majority of seven judges (5:2)
• Roy CJ, Matthew, Beg, Krishna Iyer and Fazal Ali JJ.
• Held that these arrangements did not fall under article 16 (4) but were valid
under article 16(1).
62
31
03-10-2022
…Thomas
• Khanna and Gupta JJ. In their dissent, followed M.R. Balaji v. State of Mysore,
AIR 1963 SC 649 and argued that carving out classes of citizens for favoured
treatment in matters of public employment, except in cases for which there is
an express provision in clause (4), would in the very nature of things run
counter to the principle of equality of opportunity enshrined in clause (1) of
Art. 16.
• Reservation of seats for backward classes should not be at the cost of
efficiency.
Contribution:
• A requirement of positive steps was read in article 16(1) and clause (4) was seen as
complementary to it rather than an exception as was thought until then.
63
Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India,

AIR 1981 SC298 (ABSK Sangh)
• Justice Krishna Iyer reiterated that Article 16 (4) imparts to the

seemingly static equality embedded in article 16(1) a dynamic
quality by importing equalisation
• Chinnappa Reddy emphasised that Article 16 (4) is not in the
nature of an exemption to article 16 (1),
• it is a facet of Article 16 (1) fostering and furthering the idea of
equality of opportunity with special reference to underprivileged and
deprived class of citizens.
64
32
03-10-2022
…ABSK
• In ABSK Sangh Justice Krishna Iyer, emphasized upon the categorization of the
scheduled castes and schedule tribes as a class on the basis of which the
classification would be justified as just and reasonable within the meaning of
article 15(1) and 16 (1)
• because these classes stand on a substantially different footing from the rest
of the Indian community in our constitution.
• Other weaker sections in this context, in his opinion, would mean not other
“backward class” but dismally depressed categories comparable economically
and educationally to the scheduled castes and scheduled tribes,
• Chinnappa Reddy J did not make any such distinction between the two classes.
65
Mandal Commission case

• The Thomas case view on the relationship between clauses (1) and (4)
of article 16 that the latter is not an exception to but complementary of
the former has been confirmed in Mandal Commission case.
• But the Mandal Commission case has also held that clause (4) exhaust
all special provisions for the backward classes and no favour can be
granted to them under clause (1).
• However, the court has admitted that clause (1) permits classification
and special provisions can be made under it for handicapped or
disadvantaged groups other than the backward classes.
66
33
03-10-2022
…cl. (1) Independent contractors

• Article 16 (1) is confined to employment by the state and

has reference to employment in service rather than as
contractors.
• Accordingly, a contractor for the supply of goods is not a
contract of employment in the sense in which that word
has been used in the article.
• Independent contractors are not employees of the state
and cannot claim the rights conferred under this clause.
67
CLAUSE (2)
• Clause (2) lays down specific grounds on the basis of which

citizens are not to be discriminated against one another in
respect of any appointment or office under the state.
• The scope of clause (1) of article 16 is wider than the scope
of clause 2 because discrimination on grounds other than
those mentioned in clause (2) of article 16 has to be
weighed and judged in the light of the general principles
laid down in clause (1).
68
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03-10-2022
CLAUSE (3)
• Under this clause, Parliament is competent to regulate the extent to which it

would be permissible for a State to depart from the law laid down in clause
(2).
• It is parliament alone which can prescribe such conditions, and that too in
regard to State and not the union appointments.
• In exercise of the power conferred by this clause, Parliament in 1957 passed
the Public Employment (Requirement as to Residence) Act.
• The Act repealed all the laws in force prescribing any requirement to
residence within a State or Union territory for any public employment in that
State or Union territory.
• Whatever exceptions the Act initially made have also expired
69
ARTICLE 16 (4)
(NOTHING IN THIS ARTICLE SHALL PREVENT THE STATE FROM MAKING ANY PROVISION FOR THE
RESERVATION OF APPOINTMENTS OR POSTS IN FAVOUR OF ANY BACKWARD CLASS OF CITIZENS
WHICH, IN THE OPINION OF THE STATE, IS NOT ADEQUATELY REPRESENTED IN THE SERVICES
UNDER THE STATE. )
• WHO IS BACKWARD CLASS?

– STATE HAS TO ASCERTAIN
– HAVING REGARD TO ACCEPTABLE CRITERIA
– JUSTICIABLE--- MAY BE CHALLENGED IF BASED ON IRRELEVANT CONSIDERATIONS
70
35
03-10-2022

T DEVADASAN V. UNION OF INDIA, AIR1964 SC 179
• Constitutionality of the carry forward rule framed by the central government to

regulate appointment of persons belonging to backward class in public services
was challenged.
• Supreme court by majority of 4:1 invalidated the rule of carry forward
• on the ground that the power vested in the state under article 16 (4) could not
be so exercised as to deny reasonable equality of opportunity in matters of
public employment to members of classes other than “backward classes”.
• Since in instant case, the number of vacancies reserved by virtue of the “carry
forward rule” could go up to 54% of the Total vacancies (Balaji case below
50% AIR 1963 SC 49)
71
INDRA SAWHNEY V. UNION OF INDIA, AIR 1993 SC

477
• Devadasan was overruled

• carry forward rule is valid so long as the actual reservation in a
particular year does not exceed 50% of the vacancies
• 50% limit has to be worked out on the basis of the total vacancies in
a particular year and not on the basis of the total strength in a
cadre for service
• (The Constitution (Eighty-first Amendment) Act, 2000 - the matter is
now governed by clause (4-B) in Article 16)
72
36
03-10-2022

SINGLE POST
• In Arati Roy Choudhary v. Union of India, A I R 1974 Supreme Court

532
• “if there is only one post in the cadre there can be no reservation
with reference to that post either for recruitment at the initial stage
or for filling up a future vacancy in respect of that post”.
73
P & T SCHEDULED CASTE / TRIBE EMPLOYEES WELFARE

ASSOCIATION V. UNION OF INDIA, A I R 1989 SC139
• The Supreme Court held - Article 16 (4) is only an
enabling clause and no “writ” can be issued

ordinally compelling the government to make
reservation under it.
74
37
03-10-2022

RESERVATION IN PROMOTION
• Southern Railway v. Rangachari, AIR 1962 SC 36

• Supreme Court held that the power of reservation which is conferred on the
state could be exercised by it not only for providing for reservation in
appointments but also for providing reservation in selection posts as well as
promotional posts
• Rangachari was overruled in the Mandal Commission case
• The Supreme Court held in Mandal Case that reservation could be made only in
respect of direct recruitment at any level but not in respect of promotions
75
CLAUSE (4-A)
• INSERTED BY THE CONSTITUTION( 77TH AMENDMENT) ACT, 1995

• TO OVERCOME THE DECISION IN MANDAL COMMISSION CASE THAT NO
RESERVATION IN PROMOTION COULD BE MADE UNDER CLAUSE(4)
• *CLAUSE (4A) DOES NOT AFFECT THE DECISION( MANDAL) AS REGARDS
OBCS BUT MAKES IT INAPPLICABLE TO THE SCHEDULED CASTE AND
SCHEDULED TRIBES.
76
38
03-10-2022

CATCH UP RULE
AJIT SINGH(II) V. STATE OF PUNJAB, (1999) 7SCC209
• HELD: RESERVED CATEGORY PROMOTEES COULD NOT COUNT THEIR SENIORITY IN THE
PROMOTED CATEGORY FROM THE DATE OF THEIR CONTINUOUS OFFICIATING IN THE PROMOTED
POST VIS-A-VIS THE GENERAL CANDIDATES WHO WERE SENIOR TO THEM IN LOWER CATEGORY
AND WHO WERE LATER PROMOTED.
• A SENIOR GENERAL CANDIDATE AT THE LOWER LEVEL, IF HE REACHES THE PROMOTIONAL LEVEL
LATER BUT BEFORE THE FURTHER PROMOTION OF THE RESERVED CATEGORY CANDIDATE, WILL BE
TREATED AS SENIOR AT THE PROMOTIONAL LEVEL TO THE RESERVED CATEGORY CANDIDATE EVEN
IF THE RESERVED CATEGORY CANDIDATE WAS PROMOTED TO THAT LEVEL EARLIER.
77
CONSEQUENTIAL SENIORITY
• THE CONSTITUTION (85TH AMENDMENT) ACT, 2001

• INTRODUCED THE WORDS “ WITH CONSEQUENT SENIORITY” IN CLAUSE (4A) TO ABROGATE THE
DECISION OF THE SUPREME COURT IN AJIT SINGH CASE
M. NAGRAJ V. UNION OF INDIA, AIR 2007 SC 71

(5 JUDGE BENCH)
• UPHOLDING THE AMENDMENT THE SUPREME COURT OBSERVED
• THE STATE IS NOT BOUND TO MAKE RESERVATION FOR SC / ST IN MATTERS OF PROMOTIONS
• THE STATE HAS TO COLLECT QUANTIFIABLE DATA
78
39
03-10-2022
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY 335. CLAIMS OF SCHEDULED CASTES AND
SCHEDULED TRIBES TO SERVICES AND POSTS.—
• (The claims of the members of the Scheduled Castes and the Scheduled Tribes
shall be taken into consideration, consistently with the maintenance of efficiency
of administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State:
• [Provided that nothing in this article shall prevent in making of any provision in
favour of the members of the Scheduled Castes and the Scheduled Tribes for
relaxation in qualifying marks in any examination or lowering the standards of
evaluation, for reservation in matters or promotion to any class or classes of
services or posts in connection with the affairs of the Union or of a State.] )
79
…M. NAGRAJ
• State will have to see that it's reservation

provision does not lead to excessiveness so as
to
–breach the ceiling limit of 50% or
–obliterate the creamy layer or
–extend the reservation indefinitely
80
40
03-10-2022

CLAUSE (4B)
• inserted by the Constitution (81st Amendment) Act 2000

• Mandal Commission case laid down 50% upper limit for
reservation in a year under clause (4) and no scope was left
to fill in the backlog vacancies and to hold special
recruitment drive
• this amendment was passed to overcome this hurdle
81
JARNAIL SINGH V. LACHHMI NARAIN GUPTA, AIR

2018 SC 4729
• Dipak Misra, C.J.I., Kurian Joseph, Rohinton Fali Nariman, Sanjay Kishan Kaul and Indu Malhotra,
JJ.
• Reference filed for correctness of decision in M. Nagaraj v. Union of India
• when case of Nagaraj states that State had to collect quantifiable data showing backwardness,
such observation would be contrary to Indra Sawhney v. Union of India -
• Further, argued that creamy layer concept had not been applied in case of Indra Sawhney to
Scheduled Castes and Scheduled Tribes and case of Nagaraj had misread Indira Sawhney
judgment to apply this concept to Scheduled Castes and the Scheduled Tribes -
• Whether impugned judgment of M. Nagaraj v. Union of India in relation to promotion in
reservation warrant any interference.?
82
41
03-10-2022

…JARNAIL SINGH
• HELD
• “Nagaraj had, in unmistakable terms, stated that the State had to collect quantifiable data
showing backwardness of the Scheduled Castes and the Scheduled Tribes. This Court was
afraid that this portion of the judgment was directly contrary to the Indra Sawhney which had
held that the test or requirement of social and educational backwardness cannot be applied to
Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression backward
class of citizens”.
83
…JARNAIL SINGH
• Thus, the judgment in Nagaraj need not need to be referred to a

seven-Judge Bench.
• However, the conclusion in Nagaraj that the State had to collect
quantifiable data showing backwardness of the Scheduled Castes
and the Scheduled Tribes, being contrary to the Indra Sawhney was
held to be invalid to this extent.
84
42
03-10-2022

THE STATE OF PUNJAB V. DAVINDER SINGH Arun
Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose, JJ.
(27.08.2020 - SC) : MANU/SC/0620/2020
• Facts:
1. The case stemmed from a law enacted by the Punjab government in 2006
requiring 50% of vacancies in the quota for SCs in recruitment to be filled by the
members of the Balmiki community and 50% by those from the Mazhbi community
2. In the case of E.V. Chinnaiah v. State of Andhra Pradesh, (MANU/SC/0960/2004)
• going against well-known and what would seem to be obvious wisdom, the
Supreme Court held that the Scheduled Castes form one “homogenous”
group and therefore any inter-se classification within the Scheduled Castes
would be a violation of Article 14).
85
…THE STATE OF PUNJAB V. DAVINDER SINGH
Held: 1.“We cannot revisit E.V. Chinnaiah being Bench of coordinate

strength.
We request the Hon'ble Chief Justice to place the matters before a Bench
comprising of 7 Judges or more as considered appropriate”.
2. States can sub-classify Scheduled Castes and Scheduled Tribes in the
Central List to provide preferential treatment to the “weakest out of the weak”.
3. The Court said reservation has created inequalities within the reserved
castes itself.
86
43
03-10-2022

CLAUSE 5
• The incumbent of an office in connection with the affairs of any

religious or denominational institution or any member of its
governing body shall be a person professing a particular religion or
belonging to a particular denomination shall not be treated as
repugnant to this article
• Appointment to religious Institutions or Institutions regulating religious
Institutions may be restricted to persons of that religion
87
CLAUSE 6
• THE 103RD (CONSTITUTIONAL AMENDMENT) ACT, 2018

RESERVATION TO PEOPLE FROM ECONOMICALLY WEAKER
SECTIONS IN GOVERNMENT POST (MAXIMUM OF 10%)
88
44
03-10-2022
RECENT CASE LAW ON ARTICLE

14 AND 15
89
Shayara Bano v. Union of India, (2017) 9 SCC 1

• Five-judge bench declared the practise of triple talaq ‘talaq al biddat’ as unlawful
by a 3:2 majority
• Facts:
• Rizwan Ahmed was Shayara Bano’s husband for 15 years. He divorced her in 2016
via talaq–al-bidat (triple talaq).
• Ms Bano maintained that three practises – triple talaq, polygamy, and nikah halala
(the practise of compelling women to marry and divorce another man so that their
prior husband might remarry her after triple talaq) – were illegal, citing the
Constitution’s Articles 14, 15, 21, and 25.
90
45
03-10-2022
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY Khehar CJI, for himself and on behalf of Nazeer J
(Minority view)
• Rejected the contention that the Muslim Personal Law (Shariat) Application Act,
1937 did not alter the ‘personal law’ status of ‘Shariat’; after the enactment of the
Act, the subjects covered by it ceased to be ‘personal law’ and became ‘statutory
law’.
• Held: The Muslim personal law – Shariat – was not based on any state legislative
action,
• the same could not be tested on the touchstone of being a state action.
• ‘Talaq-al-biddat’ was a matter of religious faith and not a state action and,
therefore, there was no question of violation of any fundamental right.
91
Rohinton Fali Nariman, J (on behalf of Uday Umesh

Lalit, J also)
• Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of
Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an
irregular or heretical form of Talaq.
• this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously
and whimsically by a Muslim man without any attempt at reconciliation so as to save it.
• This form of Talaq must, therefore, be held to be violative of the fundamental right contained under
article 14 of the Constitution of India.
• Therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the
meaning of the expression “laws in force” in article 13(1) and must be struck down as being void to
the extent that it recognizes and enforces Triple Talaq.
92
46
03-10-2022

Kurian J
(Concurring opinion)
• Kurian J, disagreed with Nariman J’s view that 1937 Act was a
legislation regulating triple talaq and could be tested on the anvil of
article 14
• Triple talaq is prohibited by the Quran and hence has no legal
standing.
• “What is considered wrong in the holy Quran cannot be good in
Shariat,” he added,
• “and what is bad in theology is bad in law.”
93
Navtej Singh Johar v. Union of India,

AIR 2018 SC 4321
• Bench: CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice, D.Y.
Chandrachud and Justice Indu Malhotra.
• Facts:
• Sec 377 of IPC categorized consensual sex between homosexuals as “unnatural offence” and
criminalized it.
• It discriminates a minority solely on the ground of their sexual orientation which is analogous to
prohibited ground of sex.
• Issues:
• (1) Whether Section 377 of IPC violates Right to Equality under Article 14 of the Constitution?
• (2) Whether discrimination based on sexual orientation under Section 377 of IPC violates Article 15
of the Constitution?
94
47
03-10-2022

JUDGMENT
• The five-judge bench of the Indian Supreme Court unanimously held that Section 377
of the Indian Penal Code, 1860, insofar as it applied to consensual sexual conduct
between adults in private, was unconstitutional.
• The bench found that Section 377 discriminates against individuals based on their
sexual orientation and/or gender identity, violating Article 14 and 15 of the
Constitution.
• Further, they ruled that Section 377 violates the rights to life, dignity, and autonomy
of personal choice under Article 21.
• Finally, they found that it inhibits an LGBT individual’s ability to fully realize their
identity, by violating the right to freedom of expression under Article 19(1)(a).
95
Joseph Shine v. Union of India, AIR 2018 SC 4898

• Bench: Chief Justice, Deepak Mishra, Justice A.M khanwilkar, Justice Indu Malhotra, Justice D.Y Chandrachud
and Justice R.F Nariman
• Facts:
• The petition was filed by Joseph Shine who raised question on the constitutionality of the Section 497 IPC
read with Section 198 of Code of Criminal Procedure, he said that this is violative of Article 14, 15 and 21
• The reason behind this petition was to shield Indian men from being punished for extra marital relationships
by vengeful women or their husbands.
• Further he claimed that Section 497 is an egregious occurrence of sexuality unfairness, authoritative
imperialism and male patriotism.
• The traditional framework within which Section 497 was drafted, is not any longer applicable in modern
society.
• The petitioner claimed the availability for adultery to be arbitrary and discriminatory on the idea of gender.
96
48
03-10-2022
JUDGEMENT
• The Constitution Bench, delivering four separate judgments, unanimously held section 497, IPC and
section 198, CrPC, as violative of articles 14, 15 and 21 of the Constitution.
• Dipak Misra, CJI felt that section 497 affected the dignity and equality of a woman as it treated
the husband as the master of his wife and
• this provision gave legal sovereignty to one sex over the other sex.
• It was held regarding test of manifest arbitrariness that such classification is unfair and
discriminatory and has no relevance in present times where women have their own identity and
stand adequate men in every aspect of life.
• This provision clearly violates Article 14.
97
INDIAN YOUNG LAWYERS ASSOCIATION V. STATE OF

KERALA, AIR 2018 SC (SUPP) 1650
• Bench: CJI Dipak Misra, and Justices A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu
Malhotra
• FACT: a writ petition was filed to issue directions to ensure entry of female devotees
between the age group of 10 – 50 years to the Lord Ayappa Temple at Sabarimala
which has been denied to them on the basis of certain usage and customs.
• That the petition seeked declaration of Rule 3(b) of the Kerala Hindu Places of Worship
(Authorisation of Entry) Rules, 1965 as ultra vires of Section 3 of the Kerala Hindu
Places of Worship (Authorisation of Entry) Act, 1965 and violative of Articles 14, 15, 25
and 51A(e) of the Constitution.TS:
98
49
03-10-2022
ISSUES INVOLVED
1. Whether exclusion of women amounts to ‘discrimination’ and thereby violates Articles 14 and 15
of the Constitution?
2. Whether this exclusionary practice constitutes to ‘an essential religious practice’ and cannot be
parted with under Article 25 of the Constitution?
3. Whether the Ayappa Temple is a ‘religious denomination’, and if so, it is permissible to a
religious denomination to violate the constitutional principles embedded under Articles 14, 15,
39(a) and 51A(e)?
99
JUDGMENT
• Dipak Misra, CJI and Justices A.M. Khanwilkar held the impugned rule ultra vires, being arbitrary
and discriminatory to women.
• The Chief Justice observed that “The dualism that persists in religion by glorifying and venerating
women as goddesses on one hand and by imposing rigorous sanctions on the other hand in
matters of devotion has to be abandoned.
• Such a dualistic approach and an entrenched mindset results in indignity to women and the
degradation of their status.
• While R.F. Nariman and D.Y. Chandrachud, JJ agreed with the Chief Justice by their separate
judgements, Indu Malhotra, J dissented.
100
50
03-10-2022
DISSENTING OPINION
• J. Indu Malhotra delivered a dissenting opinion stating that the Sabarimala temple fulfils all
conditions of a religious denomination under Article 26 and therefore,
• has a right to manage its own affairs. She further said that
• the State must respect the rights of certain sects and their freedom to practice their faith.
• She opined that Article 14 cannot override the freedom under Article 25.
• She also iterated that Rule 3(b) does not conflict with the 1965 Act and dismissing the Article 17
argument she held that
• untouchability is to be construed only in reference to ‘caste’ and not discrimination on the basis of
‘gender’.
101
51

UNIT-II (Right To Equality)

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UNIT-II (Right To Equality)

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03-10-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ARTICLE 14: EQUALITY

ATUL KUMAR TIWARI’S CLASS

14. EQUALITY BEFORE LAW.—THE STATE

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• ARTICLE 14 OUTLAWS DISCRIMINATION IN A GENERAL WAY

ATUL KUMAR TIWARI’S CLASS

• THE RIGHT- AVAILABLE AGAINST THE STATE

•INCLUDING ARTIFICIAL PERSONS LIKE A COMPANY

•FOREIGNERS- WHILE THEY ARE RESIDING IN INDIA

ATUL KUMAR TIWARI’S CLASS

• A.V. DICEY’S DISCUSSION OF THE ‘RULE OF LAW’

IN SRI SRINIVASA THEATER V. GOVT. OF TAMIL NADU,

ATUL KUMAR TIWARI’S CLASS

EQUAL PROTECTION OF THE LAWS

•SEC 1 OF THE XIV AMENDMENT OF US CONSTITUTION

- DENOTES EQUALITY OF TREATMENT IN EQUAL CIRCUMSTANCES

• THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

• THE COVENANT ON POLITICAL AND CIVIL RIGHTS, 1976

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• FORBIDS CLASS LEGISLATION, BUT

ATUL KUMAR TIWARI’S CLASS

TEST FOR VALID CLASSIFICATION

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY APPLICATION OF ART. 14

ATUL KUMAR TIWARI’S CLASS

• P RAJENDRAN V. STATE OF MADRAS, 1968 SC 1012

• THE COURT STRUCK DOWN PROVISION WHICH LAYS DOWN

• DISTRICT WISE DISTRIBUTION OF SEATS IN THE STATE MEDICAL COLLEGES

• ON THE BASIS OF THE PROPORTION OF POPULATION OF A DISTRICT TO THE TOTAL

POPULATION OF THE STATE.

• IT IS, IN FACT, DISCRIMINATORY AS A BETTER QUALIFIED CANDIDATE FROM ONE

DISTRICT MAY BE REJECTED

ATUL KUMAR TIWARI’S CLASS

• THE CONSTITUTIONALITY FOR CREATING THE SPECIAL COURT

• IN SPECIAL COURTS BILL, 1978, RE, AIR 1979 SC 478

ATUL KUMAR TIWARI’S CLASS

... SPECIAL COURTS BILL, 1978, RE,

• THE CLASSIFICATION PROVIDED IN THE BILL WAS VALID.

• THE OFFENCES ALLEGED TO HAVE BEEN COMMITTED DURING THE PERIOD OF

EMERGENCY CONSTITUTED A CLASS BY THEMSELVES

• THE BILL DID NOT LEAVE IT TO DISCRETION OF THE CENTRAL GOVERNMENT TO

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY 4. PROCEDURAL FAIRNESS

• SC QUASHED THE ORDER OF BLACKLISTING THE PETITIONER WHOSE NAME APPEARED

• AS IT HAD THE EFFECT OF DEPRIVING A PERSON OF EQUALITY OF OPPORTUNITY

ATUL KUMAR TIWARI’S CLASS

• A LEGISLATION MAY EITHER ITSELF MAKE A CLASSIFICATION FOR ITS APPLICATION OR

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ATUL KUMAR TIWARI’S CLASS

THE NEW DOCTRINE OF EQUAL

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• BHAGWATI J. GAVE JUDGEMENT FOR HIMSELF AND CHANDRACHUD

ATUL KUMAR TIWARI’S CLASS

MANEKA GANDHI V UNION OF INDIA

• THE PETITIONER INVOKED ARTICLE 14 FOR CHALLENGING THE VIRES

• BHAGWATI, J. - REASONABLENESS “ LEGALLY AS WELL AS