Right to Equality Article 14-18

Article 14 

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 

“equality before law” is a somewhat negative concept implying the absence of any special privilege in favour of individuals and the equal subject of all classes to the ordinary law. It means no man is above the law and that every Person, high or low, is subject to the ordinary law of the land and amenable to the Jurisdiction of the ordinary courts. 

“Equal protection of Law” is a more positive concept (as it expects a positive action from the State) implying equality of treatment in equal circumstances. In other Words, all persons who are in the same circumstances will be governed by the same set of rules. It is a guarantee of equal treatment Equal law should be applies j with an equal hand to all persons who are equals. The rule is that like should be treated alike and not that unlike should be treated alike. 

Article 14 outlaws discrimination in a general way and guarantees equality before law to all persons. In view of a certain amount of indefiniteness attached to the general principle of equality enunciated in Article 14, separate provisions to cover specific discriminatory situations have been made by subsequent Articles. Thus, Art. 15 prohibits discrimination against citizens on such specific grounds as religion, race, caste, sex or place of birth. Art. 16 guarantees to the citizens of India equality of opportunity in matters of public employment. Art. 17 abolishes untouchability, and Art. 18 abolishes titles, other than a military or academic distinction. Thus, the Supreme Court has said that the Constitution lays down provisions both for protective discrimination as also affirmative action. 

Article 14 has provided the provision for equality of all people before the law but every person is not the same and therefore it is not practically possible to have a universal application of equality. Thus, the laws cannot be of a general character and some classification is permitted under Article 14. 

Thus, the legislature has been allowed to identify and classify different people in groups because it has been accepted that treating the unequal in the same manner is likely to cause more problems instead of preventing them. So for the society to progress, classification is important.

Test of reasonable classification 

Article 14 of the Indian constitution forbids class legislation but it does not prohibit the reasonable classification of objects, persons, and transactions for the purpose so as to achieve specific ends by the parliament. Such classification should not be artificial, arbitrary or evasive and it must rest on substantial distinction which is real. It must bear a reasonable and just relation to the sought object which is to be achieved by the legislation. Classification of reasonable as laid by the Indian Supreme Court has two conditions as in the case of State of West Bengal v Anwar Ali Sarkar , are 

The classification must not be “arbitrary, artificial or evasive”, and it must fulfill following two conditions – 

1. (a) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and 

2. (b) the differentia must have a rational relation to the object sought to be achieved by the Act 

A Single Individual may constitute a Class 

Chiranjit Lal Chaudhary V UOl 

In this case, it was held that a single individual may constitute a class for the purpose of Art. 14. In this case, the management of a company in Solapur was taken over by the Government by passing the Sholapur Spinning and Weaving Co. (Emergency Provision) Act The Act was challenged by a shareholder of the company on the ground that a single company and its shareholder was being denied equality before the law, because the Act treated him differently vis-a-vis other companies and their shareholders. In other words, law had selected one particular company and its shareholders and had taken away from them their right to manage their own affairs

but the same treatment had not been meted out to all other companies or shareholders in an identical manner. 

Holding the Act to be valid, the Apex Court said that a law may be constitutional even though it applies 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 itself, unless it is shown that there are others who are similarly circumstanced. The Legislature is free to recognize the degree of harm and it may confine its restriction to those cases where the need is deemed to be the clearest 

Special Courts and Procedural Inequality 

Whether Special Courts may be constituted by the Legislature to try certain types of offences, was discussed in detail by the Supreme Court in ‘in re Special Courts ‘case. The Court held that the Bill was valid. The classification of offences during Emergency had been defined. The duration had been specified. There were no unguided and uncontrolled powers to the Executive. 

The guidelines were clear. Art. 14 guarantees to all persons (1) Equality before the law and (2) Equal protection of the Laws, within the territory of India. 

Equality before the law means that among equals, law should be equal and should be equally administered, and that like should be treated alike. It includes the right to sue and to be sued, to prosecute and to be prosecuted without any distinction of religion race, Wealth, Social Status or Political Influence. This includes the concept of “Rule of Law”. According to Dicey, this means the supremacy of law, and, that no man is above the Law; It means that no person shall suffer in body or goods except for a distinct breach of law, and, that all persons are amenable to the jurisdiction of the ordinary Courts. 

In State of West Bengal V Anwar Ali, the Act had provided for special courts to conduct “speedier trial of certain offences”. The Govt. could select the offences for speedy trial. The Supreme Court held that this was an arbitrary Power and violated Art. 14. No guidelines were given by the Act to classify the offences. Further, the procedure for trial also varied from the general procedure provided in the Cr.P.C.

This was also held bad. However, in Kathai Raning V.State of Saurastra, the law had given proper guidelines and also had specified the categories of offence that could be selected for special trial. Hence, the law was held good. In its advisory opinion, in “In re special courts case “, the Supreme Court held that special courts set up to try offences committed during national emergency of 1975-77,did not violate Art. 14. and the procedure provided therein, was held not against the Constitution. Hence, in India ,Special 

Courts may be constituted by law, but the law should classify the offences or provide clear guidelines to the Govt. to classify. There should be no room for any arbitrary discretion of the executive. The procedure should not be substantially different from the one prescribed by ordinary law. 

Cases on Article 14 

In Ajay Hasia v Khalid Mujib (AIR 1981 SC 487), the Regional Engineering College made admissions on the basis of oral interview after a written test. The court held that allocation of one-third of total marks for interview was plainly arbitrary and violative of Art. 14. The oral interview can’t be regarded as a very satisfactory test for evaluating the calibre, as it is subjective and capable of abuse. It can’t be the exclusive test. It should be resorted to only as an additional or supplementary test. 

In Air India v Nargesh Meerza (AIR 1981 SC 1829), the petitioner challenged the validity of the regulations under which they could he retired at the age of 35 years or if they got married within 4 years of their service or on first pregnancy on the ground that they were discriminatory and violative of Arts. 14, 15 and 16 Held that the termination of service on pregnancy was manifestly unreasonable and arbitrary and was, therefore, clearly violative of Art. 14. Further, the provision for extension of service of Air Hostess “at the option” of Managing Director confers a discretionary power without laying down any guidelines or principles and liable to be struck down as unconstitutional. 

In Mithu v State of Punjab (AIR 1983 SC 473), the court struck down Sec. 303 of I.PC. as unconstitutional on the ground that the classification between persons who commit murders whilst under the sentence of life- imprisonment and those who commit murders whilst under no imprisonment, for the purpose of making death

sentence mandatory in case of former class and optional in latter class, was not based on any rational principle. The discretion as to which sentence is to be awarded is to be exercised by courts which will determine the matter on the nature of offence committed by an accused. This judicial discretion is not available to a life convict under Sec. 303 I.P.C. 

In Javed v State of Haryana [JT 2003 (6) SC 283], the apex court upheld the constitutional validity of certain provisions of Haryana Panchayati Raj Act, 1994, which disqualified a person for holding office of Sarpanch or a Panch of a Gram Panchayat, etc. if he had more than two living children. The provision was held to be not discriminatory and the classification made by it (viz. persons having more than two children and persons having not more than two children) is based on intelligible differentia having nexus with the object of popularisation of family planning programme. The provision also does not violate Art 25 of the Constitution. 

Article 15 and Article 16 

Protective discrimination and Social Justice under Articles 15 and 16 and Judicial Trends 

Social justice means availability of equal social opportunities for the development of personality to all the people in the society, without any discrimination on the basis of caste, sex or race. No one should be deprived, because of these differences, those social conditions which are essential for social development. The issue of social justice is associated with social equality and social equality and social rights and these are depended on economic equality and rights. Social justice can be made available only in a social system where the exploitation of man by man is absent, and where privileges of the few are not built upon the miseries of the many. 

The Preamble to the constitution of India assures to all citizens, justice-social, economic and political; Liberty of status and of opportunity, and promotion among them all; Fraternity assuring the dignity and the unity of the nation. The spirit represented in the Preamble is further enshrined in the chapter of Fundamental Rights and Directive Principles of State Policy, the purpose of which is to promote the social welfare of the by securing and protecting as effectively as it may social order in which justice- social, economic and political shall inform to all the institution of national life. The 42nd Amendment Act by introducing the word “Socialist” in the preamble has strengthened the constitutional ethos of social and economies justice. 

The constitution of India recognizes and seeks to realize the various components of social justice. Article 14 guarantees to every person “equality before law or equal protection of the laws within the territory of India”. Article 15(1) prohibits discrimination against any citizen on grounds of religion, race, caste, and place of

birth or any of them. In the same view Article 16 (1) provide equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. By Article 17 “untouchability” the age-old practice has been done away all its manifestations. 

Article 15(1) specifically bars the state from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth, or any of them. Article 15(2) prohibits subjection of a citizen to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex or place of birth with regard to— (a) access to shops, public restaurants, hotels and places of 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 general public. Under Art. 15(3), the state is not prevented from making any special provision for women and children. 

Art. 29(2) does not prevent the state from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Provisions contained in Arts.15 and 16 are merely enabling provisions. No citizen of India can claim reservation as a matter of right and accordingly no writ of mandamus can be issued. (a) ART. 15(1) Article 15(1) prohibits differentiation on certain grounds mentioned above 

Under Art. 15(4), the State can make special provisions for certain sections of the society as stated above. But for any section of population not falling under Art. 15(4), special provisions can be made if there is reasonable classification. The word ‘discrimination’ in Art. 15(1) involves an element of unfavourable bias. 

15 is narrower than that of Art. 14 in several respects. One, while Art. 14 is general in nature in the sense that it applies both to citizens as well as non-citizens, Art. 15(1) covers only the Indian citizens, and does not apply to non-citizens. No non-citizen can claim any right under Art. 15, though he can do so under Art. 14. Two, while Art. 14 permits any reasonable classification on the basis of any rational criterion, under Art. 15(1), certain grounds mentioned therein can never form the basis of classification. The residents of Madhya Bharat were exempted from payment of a capitation fee for admission to the State medical college, while the non-residents were required to pay the same. 

The Supreme Court negatived the plea of discrimination by the non-residents under Art. 15(1) because the ground of exemption was ‘residence’ and not ‘place of birth’. Residence and place of birth are two distinct concepts with different connotations. Art. 15(1) prohibits discrimination on the basis of place of birth but not residence. And, in the instant case, classification on the basis of ‘residence’ was held to be reasonable. Education is a State subject. A State spends money on the upkeep of

educational institutions. There is, therefore, nothing wrong in the State if it so orders the educational system that some advantage ensures for the benefit of the State. Some of the resident students after securing their degree may settle in the State as doctors and serve the community. Thus, the justification for the classification on the basis of residence rested on the assumption that the residents of the State would after becoming doctors settle down and serve the needs of the people of the State. 

Art. 15(3) : Women and Children : Articles 15(3) and 15(4) constitute exceptions to Arts. 15(1) and 15(2). According to Art. 15(3), the state is not prevented from making any “special provision” for women and children. Articles 15(1) and 15(2) prevent the state from making any discriminatory law on the ground of gender alone. The Constitution is thus characterised by gender equality. The Constitution insists on equality of status and it negates gender bias. Nevertheless, by virtue of Art. 15(3), the state is permitted, despite Art. 15(1), to make any special provision for women, thus carving out a permissible departure from the rigours of Art. 15(1). Articles 15 and 16 do not prohibit special treatment of women. 

SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES 

A major difficulty raised by Art. 15(4) is regarding the determination of who are ‘socially and educationally backward classes.’ This is not a simple matter as sociological and economic considerations come into play in evolving proper criteria for its determination. Art. 15(4) lays down no criteria to designate ‘backward classes’; it leaves the matter to the state to specify backward classes, but the courts can go into the question whether the criteria used by the state for the purpose are relevant or not. 

The question of defining backward classes has been considered by the Supreme Court in a number of cases. On the whole, the Supreme Court’s approach has been that state resources are limited; protection to one group affects the constitutional rights of other citizens to demand equal opportunity, and efficiency and public interest have to be maintained in public services because it is implicit in the very idea of reservation that a less meritorious person is being preferred to a more meritorious person. The Court also seeks to guard against the perpetuation of the caste system in India and the inclusion of advance classes within the term backward classes. From the several judicial pronouncements concerning the definition of backward classes, several propositions emerge. First, the backwardness envisaged by Art. 15(4) is both social and educational and not either social or educational. This means that a class to be identified as backward should be both socially and educationally backward. 

In Balaji case, the Court equated the “social and educational backwardness” to that of the “Scheduled Castes and Scheduled Tribes”. The Court observed: “It was

realised that in the Indian society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special provision ought to be made even for them.” Secondly, poverty alone cannot be the test of backwardness in India because by and large people are poor and, therefore, large sections of population would fall under the backward category and thus the whole object of reservation would be frustrated. 

In Narayan Sharma v. Pankaj Kumar Lehkar, the Supreme Court considered the validity of the following scheme of reservation made by the Assam Government for seats in the post-graduate medical courses in its medical colleges: (i) 25% All India quota; (ii) 4 seats for North Eastern Council; (iii) 6 seats for teachers in medical colleges, (iv) 20 seats for doctors who had worked for five years in a health centre outside the municipal limits; (v) 7% for Scheduled Caste candidates and (vi) 15% OBC candidates. An entrance examination was to be conducted but candidates in categories (i), (ii), (iii) and (iv) were not required to appear at such an examination. The Supreme Court upheld reservation for category (ii) as these seats were meant for the five Eastern States having no medical college of their own. The students of these States being handicapped in getting medical education formed a separate class and reserving a few seats for them did not violate Art. 14. But the provision exempting them from appearing at an entrance examination was quashed as selection ought to be based on merit and could not be left to the arbitrary discretion of any administrative body. Reservation for category (iii) was also upheld. It was mandatory for teachers in medical colleges to have a postgraduate degree for their future promotions. The classification was based on an intelligible differentia having rational nexus to the object of the rule. The teachers being constantly in touch with medical subjects could be validly exempted from the entrance examination. 

Equality of Status and Opportunity in Public Employment 

Article16(1) is a facet of Art. 14. Arts. 14 and 16(1) are closely interconnected. Art. 16(1) takes its roots from Art. 14. Art. 16(1) particularizes the generality of Art. 14 and identifies, in a constitutional sense, “equality of opportunity” in matters of employment under the state. An important point of distinction between Arts. 14 and 16 is that while Art. 14 applies to all persons, citizens as well as non-citizens, Art. 16 applies only to citizens and not to non-citizens. Article16(1) guarantees equality of opportunity to all citizens “in matters relating to employment” or “appointment to any office” under the state. According to Art. 16(2), no citizen can be discriminated against, or be ineligible for any employment or office under the state, on the grounds only of religion, race, caste, sex, descent, place of birth or residence or any of them. Adherence to the rule of equality in public employment is a being feature of our

constitution and the rule of law is its core, the Court cannot disable itself from making an order inconsistent with Articles 14 and 16 of the Constitution. 

Article16(2) is also an elaboration of a facet of Art. 16(1). These two clauses thus postulate the universality of Indian citizenship. As there is common citizenship, residence qualification is not required for service in any State. Public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India. The State although is a model employer, its right to create posts and recruit people there for emanates from the statutes or statutory rules and/or rules framed under the proviso appended to Article 309 of the Constitution of India. The recruitment rules are to be framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts. 

Article 16(1) is much wider in scope than Art. 16(2) and the grounds of discrimination expressly mentioned in Art. 16(2) are not exhaustive. Art. 16(2) brings out emphatically, in a negative form, what is guaranteed affirmatively by Art. 16(1). Discrimination is a double edged weapon; it would operate in favour of some persons but against some others. Art. 16(2) prohibits discrimination and, thus, assures the effective enforcement of the Fundamental Right guaranteed in Art. 16(1) 

Educational qualifications can be made the basis for classification of employees in State service in the matter of pay scales, promotion, etc. Higher pay scale can be prescribed for employees possessing higher qualifications. Similarly, in the matter of promotion, classification on the basis of educational qualification so as to deny eligibility to a higher post to an employer possessing lesser qualifications is valid. Educational qualifications can justifiably be made the basis for qualification for the purpose of promotion to the higher post. 

Articles 16 and 14 do not forbid the government from creating different cadres or categories of posts carrying different emoluments. Also, there is no bar in the way of the state integrating different cadres into one cadre. “It is entirely a matter for the state to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. 

The Supreme Court has deduced the principle of “equal pay for equal work” from Arts. 14, 16 and 39(d) and the Preamble to the Constitution. No such principle is expressly embodied in the Constitution but the principle has now matured in a Fundamental Right. 

As the Supreme Court has explained in State of Madhya Pradesh v. Pramod Bhartiya, the doctrine of “equal pay for equal work” is implicit in the doctrine of equality enshrined in Art. 14, and flows from it. The rule is as much a part of Art. 14

as it is of Art. 16(1). The doctrine is also stated in Art. 39(d), a directive principle, which ordains the State to direct its policy towards securing equal pay for equal work for both men and women. 

In Purshottam v. Union of India, implementation of revised pay scales as recommended by the Pay Commission for certain categories of servants but nonimplementation thereof for certain other categories was held to be discriminatory. The Government had made a reference to the Commission in respect of all its employees, and when it accepted its recommendations it should 

implement them in respect of all employees. Not to implement the recommendations with respect to some employees only violated Arts. 14 and 16. 

EXCEPTIONS TO ARTS. 16(1) & 16(2): The right of equality guaranteed by Arts. 16(1) and (2) are subject to a few exceptions. 

ART. 16(3) First, under Art. 16(3), Parliament may make a law to prescribe a requirement as to residence within a State or Union Territory for eligibility to be appointed with respect to specified classes of appointments or posts. Thus, Art. 16(2) which bans discrimination of citizens on the ground of ‘residence’ only in respect of any office or employment under the state, can be qualified as regards residence, and a ‘residential qualification’ imposed on the right of appointment in the State for specified appointments. This provision, therefore, introduces some flexibility, and takes cognisance of the fact that there may be some very good reasons for restricting certain posts in a State for its residents. 

Art. 16(5) provides that a law may prescribe that the incumbent of an office in connection with the affairs of a religious or denominational institution, or a member of the governing body thereof, shall belong to the particular religion or denomination. 

ART. 16(4) constitutes a very significant exception to the principle of equality embodied in Art. 16(1) and, therefore, needs to be discussed in some detail. 

In Balaji case, the Court attempted to impose a constitutional limit on the extent of preference, not on the “narrower ground of reservation,” but on the broader grounds of policy. The Court spoke of adjusting the interests of the weaker sections of society with the interests of the community as a whole. The Court declared that a formula must be evolved which would strike a reasonable balance between the several relevant considerations. 

While striking down as unconstitutional a government order by which 68% of the seats in educational institutions were reserved for Scheduled Castes, Scheduled Tribes and other Backward Classes on the ground of excessive reservation and as a fraud on the Constitution, the Court observed: “Speaking generally and in a broad

way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case. 

Immediately thereafter came the Devadasan case before the Supreme Court in which the Court was required to adjudge the validity of the ‘carry forward’ rule. The ‘carry forward’ rule envisaged that in a year, 171⁄2 per cent posts were to be reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for want of suitable candidates from those classes, then the shortfall was to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years. The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the reserved quota and only 16 posts were left for others. This meant reservation upto 65% in the third year, and while candidates with low marks from the Scheduled Castes and Scheduled Tribes were appointed, candidates with higher marks from other classes were not taken. 

In State of Kerala v. N.M. Thomas. the Supreme Court held that it was permissible to give preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4). In Devadasan, the majority had taken the view that Art. 16(4) was an exception to Arts. 16(1) an 16(2). This was the view expressed also in Balaji and Rangachari. On the other hand, in Devadasan, in a dissenting opinion, SUBBA RAO, J., had expressed the opinion that Art. 16(4) was not an exception to Art. 16(1), but was a legislative device by which the framers of the Constitution had sought to preserve a power untrammelled by the other provisions of the Article. It was a facet of Art. 16(1) as “it fosters and furthers the idea of equality of opportunity with special reference to under privileged and deprived classes of citizens. 

In A.B.S.K. Sangh (Rly.) v. Union of India, the Supreme Court again went into the question of reservation in public services vis-a-vis Art. 16. The Court upheld reservation of posts at various levels and making of various concessions in favour of the members of the Scheduled Castes and Scheduled Tribes. 

G Indra Sawhney v. Union of India, known as the Mandal Commission case, is a very significant pronouncement of the Supreme Court on the question of reser vation of posts for backward classes. The Court has dealt with this question in a very exhaustive manner. The Mandal Commission was appointed by the Government of India in terms of Art. 340 of the Constitution in 1979 to investigate the conditions of socially and educationally backward classes. One of the major recommendations made by the Commission was that, besides the Scheduled Castes (SCs) and Scheduled Tribes (STs), for Other Backward Classes (OBCs) which constitute nearly 52% component of the population, 27% government jobs be reserved so that the total reservation for all, SCs, STs and OBCs, amounts to 50%. No action was taken on the basis of the Mandal Report for long after it was submitted, except that it was discussed in the Houses of Parliament twice, once in 1982 and again in 1983. On

Aug. 13, 1990, the V.P. Singh Government at the centre issued an office memorandum accepting the Mandal Commission recommendation and announcing 27% reservation for the socially and educationally backward classes in vacancies in civil posts and services under the Government of India. This memorandum led to widespread disturbances in the country. 

In 1991, the Narasimha Rao Government modified the above memorandum in two respects: one, the poorer sections among the backward classes would get preference over the other sections; two, 10% vacancies would be reserved for other “economically backward sections” of the people who were not covered by any existing reservation scheme. Ultimately, the constitutional validity of the memorandum came to be questioned in the Supreme Court through several writ petitions. The question of constitutional validity of the memorandum was considered by a Bench of 9 Judges. Six opinions were delivered. The leading opinion was delivered by JEEVAN REDDY, J., on behalf of himself, KANIA, C.J., VENKATACHALIAH, and AHMADI, JJ. Two judges, PANDIAN and SAWANT, JJ., in separate opinions concurred with REDDY, J. Three judges, THOMMEN, KULDIP SINGH and SAHAI, JJ., in separate opinions dissented from REDDY, J., on several points. After referring to the previous decisions of the Supreme Court on Arts. 15 and 16, and also after taking note of some of the decisions of the U.S. Supreme Court on racial discrimination, REDDY, J., in his elaborate judgment answered the several questions which emerged in the instant case. Some of the significant points emerging from REDDY, J.’s opinion are noted below: 

A measure of the nature contemplated by Art. 16(4) can be provided not only by the Parliament/Legislature but also by the executive through administrative instructions in respect of Central/State services and by the local bodies and ‘other authorities’ as contemplated by Art. 12, in respect of their services. 

The provision made by the executive under Art. 16(4) becomes effective and enforceable by itself without its being enacted into a law made by a legislature. 

The Court has reiterated the view, expressed by it earlier in Thomas, 55 that Art. 16(1) permits classification for ensuring attainment of equality of opportunity assured by Art. 16(1) itself. Art. 16(1) is a facet of Art. 14. Just as Art. 14 permits reasonable classification so does Art. 16(1). A classification may involve reservation of seats or vacancies, as the case may be. In other words, under Art. 16(1), appointments and/or posts can be reserved in favour of a class. Article 16(4) is not an exception to Art. 16(1), but only an instance of classification implicit and permitted by Art. 16(1). Even without Art. 16(4), the State could have classified “backward class of citizens” in a separate category for special treatment in the nature of reservation of posts/appointments in government services. Art. 16(4) merely puts the matter beyond any shadow of doubt in specific terms.

Art. 16(4) permits reservation in favour of any “backward classes of citizens”. Backward classes having been classified by the Constitution itself as a class deserving special treatment, and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Art. 16(4). Article 16(4) is exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment. No reservations can be provided outside Art. 16(4) in favour of backward classes though it may not be exhaustive of the very concept of reservation. 

Even under Art. 16(1), reservations cannot be made on the basis of economic criterion alone. 

What is the meaning of the expression “backward class of citizens” used in Art. 16(4)? What does the expression signify and how should such classes be identified? The accent of Art. 16(4) is on social backwardness. From a review of the previous case-law in the area, the Court has concluded that the judicial opinions emphasize the integral connection between caste, occupation, poverty and social backwardness. Social, educational and economic backwardness are closely intertwined in the Indian context. As regards identification of backward classes, caste may be used as a criterion because caste often is a social class in India. But caste cannot be the sole criterion for reservation. Reservation is not being made under Art. 16(4) in favour of a caste but a backward class. Once a caste satisfies the criteria of backwardness, it becomes a backward class for purposes of Art. 16(4). “Besides castes 

(whether found among the Hindus or others) there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. REDDY, J., has observed in this connection: 

“……. the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the State.” Among the non-Hindus, there are several occupational groups, sects and denominations which, for historical reasons, are socially backward. They too represent backward social collectivities for the purposes of Art. 16(4). 

Backwardness under Art. 16(4) need not be social as well as educational as is the case under Art. 15(4). Art. 16(4) does not contain the qualifying words “socially and educationally” as does Art. 15(4). It is not correct to say that “backward class of citizens” in Art. 16(4) are the same as the “socially and educationally backward classes” in Art. 15(4). “Saying so would mean and imply reading a limitation into a beneficial provision like Art. 16(4).” Backwardness contemplated by Art. 16(4) is

mainly social backwardness. A backward class cannot be identified only and exclusively with reference to economic criterion. A backward class may, however, be identified on the basis of occupation-cum-income without any reference to caste. 

The Court has left the task of actually identifying backward classes to the commission/authority to be appointed by the Government. This body would evolve a proper and relevant criteria and test the several groups, castes, classes and sections of people against that criteria. 

A very important recommendation made by the Court is that the “creamy layer”, the socially advanced members of a backward class, should be excluded from the benefit of reservation. Such exclusion would benefit the truly backward people and, thus, more appropriately serve the purpose of Art. 16(4). But the real difficulty is how and where to draw the line? “For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other.” REDDY, J., has opined that the basis of exclusion should not merely be economic, unless, of course, “the economic advancement is so high that it necessarily means social advancement”. 

Not only should a class be a backward class for meriting reservations, it should also be inadequately represented in the services under the state. This matter lies within the subjective satisfaction of the State under Art. 16(4). However, there must be some material upon the basis of which the opinion is formed by the state. 

The total reservation cannot exceed 50% in any one year. Art. 16(4) speaks of ‘adequate representation’ and not ‘proportional representation’. The power under Art. 16(4) must be exercised in a fair manner and within reasonable limits. Therefore, reservation under Art. 16(4) should not exceed 50% of the appointments or posts “barring certain extraordinary situations” as explained hereafter. Accordingly, 27% reservation in favour of backward classes together with reservation in favour of Scheduled Castes and Scheduled Tribes, comes to a total of 49.5%. 

The extraordinary situations meriting exceptions from the 50% rule have been explained thus by REDDY, J. “While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

Further, if a member belonging to, say, a Scheduled Caste gets selected in the open competition on the basis of his own merit, he will not be counted against the quota reserved for the Scheduled Castes; he will be treated as open competition candidate. 

The Court has divided the total reservation of 50% into “vertical” and “horizontal” reservations. The reservation in favour of S/C, S/T and other backward classes (OBC) under Art. 16(4) may be called vertical reservation whereas reservation made in favour of physically handicapped [under Art. 16(1)] can be referred to as horizontal reservation. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. 

A year is to be taken as a unit for the purposes of applying the 50% rule. The Court has now overruled the Devadasan case64 which ruled out the ‘carry forward’ rule. Thus, reserved posts 

remaining unfilled in one year may be carried forward to the next year but subject to the over-all limit that over-all reservation in any one year ought not to be more than 50%. 

A significant point made by the Court is not to apply the rule of reservation to promotions. Under Art. 16(4), reservation is permissible only at the stage of entry into the State service, i.e. only at the initial stage of direct recruitment and not at the subsequent promotional stage. 

For the reserved category in service, minimum standards can be prescribed. In fact, Art. 335 demands that some such standards be prescribed. In the words of REDDY, J. “It may be permissible for the Government to prescribe a reasonable lower standard for Scheduled Castes/Scheduled Tribes/Backward Classes—consistent with the requirements of efficiency of administration—it would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature of duties attached to the post and the interest of the general public also should be kept in mind.” 

For certain services and certain posts, it may not be advisable to apply the rule of reservation. These are posts where merit alone counts. The Court has included the following posts in this category: 

(i) Defence services including all technical posts therein but excluding civil posts; 

(ii) All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defence equipment; 

(iii) Teaching posts of Professors—and above, if any;

(iv) Posts in super-specialities in Medicine, engineering and other scientific and technical subjects; 

(v) Posts of pilots (and co-pilots) in Indian Airlines and Air India. (a) AFTER INDRA SAWHNEY 

The Court has not been able to completely eliminate the caste factor in identifying the backward classes. However, the Court has sought to keep the caste factor within limits. Caste can be one 

of the factors, but not the sole factor, to assess backwardness. Reservation has become the bane of the contemporary Indian life. More and more sections of the society are demanding reservation for themselves in government services. The politicians are also vying among themselves for demanding reservations to all and sundry groups whether deserved or not. Needless to say, reservation is inequitable insofar as a meritorious candidate may have to be passed over in favour of a much less meritorious candidate in the reserved category. 

(b) CREAMY LAYER 

In the Mandal case, the Supreme Court has clearly and authoritatively laid down that the “socially” advanced members of a backward class, the “creamy layer”, has to be excluded from the backward class and the benefit of reservation under Art. 16(4) can only be given to the “class” which remains after the exclusion of the ‘creamy layer’. This would more appropriately serve the purpose and object of Art. 16(4). 

After Indra Sawhny, two Constitutional Amendments have been incorporated in Art. 16(4) to somewhat tone down the impact of the Supreme Court pronouncement. (a) ART. 16(4A) In Rangachari, the Supreme Court by majority had held that Art. 16(4) permitted reservation of posts not only at the initial stage of appointment but also included promotion to selection posts. This proposition was reiterated in several subsequent pronouncements by the Supreme Court. The Supreme Court had thus interpreted the term ‘appointment’ in Art. 16 liberally as including initial appointment as well as promotion. This position continued till the Indra Sawhney pronouncement. 

ART. 16(4B) The Constitution (Eighty-First Amendment) Act, 2000, has added Art. 16(4B) to the Constitution. Art. 16(4B) runs as follows: “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 percent reservation on total number of vacancies of that year.” 

Article 17 

Article 17 “abolishes untouchability and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.” The ‘law’ includes a law passed before the coming into force of the Constitution. 

Article 17 of the Indian Constitution abolishes untouchability and forbids its practice in any form, making its enforcement a punishable offense. It aims to eliminate untouchability entirely, applying to state actions and acts or omissions by individuals, institutions, or juristic bodies. To implement Article 17, Parliament enacted the Untouchability (Offences) Act, 1955, later renamed the Protection of Civil Rights Act, 1955. This legislation prescribes punishments for practicing untouchability in various forms. 

The term “untouchability” is not precisely defined in the Constitution or the Act, as it encompasses a historically developed social practice. Hence, temporary or situational exclusions, such as those related to contagious diseases or social observances, do not fall under Article 17. The focus is on eliminating the historically ingrained practice of untouchability. Therefore, actions like social boycotts or exclusions from religious services do not come within the purview of Article 17. 

There is ambiguity about whether Article 17 prohibits outcasting or ex-communication of individuals from higher castes. For instance, a State Legislature’s law aimed at improving the living conditions of untouchables by constructing colonies was challenged but upheld by the Madras High Court. The court argued that Article 17 prohibits hostile treatment, not state efforts to improve living conditions. This was further supported by referencing Article 15(4). 

The Supreme Court has emphasized that when a Fundamental Right like Article 17 is violated by a private individual, the state has a constitutional obligation to intervene and ensure the observance of the right. The state must act to prevent violations and uphold the Fundamental Right of individuals. This obligation extends to protecting individuals from untouchability-related violations by private parties.

The Directive Principles, particularly Articles 38 and 46, mandate the state to provide socio-economic and political justice to Dalits and enhance their quality of life. The abolition of untouchability is seen as central to fulfilling the Constitution’s preamble and integrating Dalits into the national mainstream. 

To prevent the commission of offences or atrocities against the members of the Scheduled Castes and Scheduled Tribes, the Parliament also enacted the ‘Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.’ 

Safai Karamchari Andolan v. UOI 

The Safai Karamchari Andolan (SKA) initiated a national movement in 1997 to eradicate manual scavenging, a degrading occupation prevalent in India.The SKA, along with other organizations, filed a public interest litigation in 2003 seeking the eradication of manual scavenging, liberation of manual scavengers, and their rehabilitation.The case highlighted the continued existence of manual scavenging and the lack of proper implementation of laws aimed at eradicating this practice, despite legislative efforts dating back to 1993.The Supreme Court of India, in its landmark ruling, emphasized the imperative to eradicate manual scavenging, declaring it a violation of Article 17 of the Constitution that abolishes untouchability. 

Article 18 

Art 18(1) abolishes all titles. It prohibits the State to confer titles on any body whether a citizen or a non-citizen. Military and academic distinctions are, however,’ exempted from the prohibition. Thus, a university can give title or honour on a man of merit. 

(2) prohibits a citizen of India from accepting any title from any foreign State Clause 

(3) prohibits a person not being a citizen of India, but holding any office of profit or trust under the State, from accepting any title from any foreign State without the consent of the President.

(4) further prohibits such a person from accepting present, emolument or office of any kind from or under any foreign State without the consent of the President (3) and (4) have been added to ensure that a non-citizen should remain loyal to the State i.e. do not commit the breach of trust reposed in him. 

In Dr Dasarathi v State of A P. (AIR 1985 A. P.), the Andhra Pradesh High Court opined that constitutional government consistent with its obligations under Arts. 14 and 18 could not confer the title of Poet Laureateship’ on any one. It was held that the institution of Poet Laureateship could not be regarded as consistent with the nature of poetry or with the democratic polity. Conferment of Poet Laureateship, which more or less, looked like conferment of a title, the court held, might be a constitutional anathema.