- Articles 15 and 16 of the Indian Constitution are based upon the concept of equality, social justice and social harmony.
- Article 15(4) and 16(4) are not exceptions to their respective provisions. They provide positive and affirmative support to the objective of the provisions.
- These Articles are aimed at promoting real equality in the society and to ensure such real equality, some degree of reasonable classification is essential.
The primary purpose and aim of the Indian Constitution is to ensure and promote social justice in the society. The makers of the Constitution intended to provide every citizen of the country, irrespective of his/her caste, colour, religion, region, etc., the fundamental right to equal opportunity. They envisaged the creation of a nation where every person would be provided with an opportunity to fulfil his or her dreams and aspirations.
The makers were also aware of the discriminatory practices prevalent in the society and recognised the need to provide preferential treatment to certain backward and oppressed sections. The basic underlying theme of both Article 15 and Section 16 of the Indian Constitution is the guarantee of social and equitable justice.
ARTICLE 15 OF THE INDIAN CONSTITUTION
Article 15 provides that discrimination on the basis of race, caste, religion etc., shall be prohibited. The State is restrained from discriminating among its citizens on the basis of these factors. However, Article 15(3) and 15(4) provides that the State is permitted to make special provisions in the favour of women and children and in favour of other minority and backward or oppressed communities. Educationally and socially backward communities are provided an exemption under this Statute.
The 93rd Constitutional Amendment introduced Article 15(5) to the Constitution. This is an enabling provision.The Right to education and several maternity schemes are based upon the concept of Article 15.
ARTICLE 16 OF THE INDIAN CONSTITUTION
Similarly, Article 16 of the Constitution provides that every citizen is entitled to equal opportunity and the State shall not discriminate when dealing with the matters of public employment. Here too, the State is entitled to make special provisions in favour of the backward communities provided the State believes that these communities are not adequately represented in the public offices.
Even though the Article provides that every citizen shall have an equal opportunity when it comes to matters of public employment, this does not mean that the State cannot lay down certain educational qualifications or required skill set as a prerequisite for appointment. This view was upheld in the case of State of J. & K. v. K.V.N.T. Kholo, AIR 1974 S.C.
Since the adoption of the Constitution, several amendments and additions have been made to this Article. Article 16(4a) was added by the 77th Constitutional Amendment and Article 16(4b) was added by the 81st Constitutional Amendment.
Article 16 uses the expression "nothing in this article". This shows that the intention of the Legislature was to ensure that there are no inconsistencies or contradictions among the provisions of the Article.
Several landmark judgments have been passed with respect to the scope as well as interpretation of Section 15 and 16 of the Indian Constitution.
In the case of G.M. Southern Railways v. Rangachari, AIR 1962 SC 36, the Court had categorically stated that Section 15(4) constitutes an exception to Section 15(1). Several subsequent judgments too upheld this view and held that Section 15(4) is a proviso of Section 15(1).
However, this view changed in the case of Indra Sawhney v. Union of India, 1992 (Supp) 3 SCC 217, where the Court firstly emphasised on the intention of the Constitution makers behind the drafting of Articles 15 and 16 of the Constitution. The Court held that these Articles are aimed at promoting real equality in the society and to ensure such real equality, some degree of reasonable classification is essential. Thus, it was held that Articles 15(1) and 16(1) are not exceptions but are rather aimed at fulfilling the objective of the provisions. This judgement also set a ceiling or 50% on reservation policies.
In the case of K.C. Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495, the Court held that economic backwardness formed the primary indicator of backwardness. The Court made this observation while interpreting Article 15(4) of the Indian Constitution. In this case the Court also held that the concept of reservation is aimed at upliftment of the weaker sections and hence the reservation policies need to be regularly reviewed in order to ensure that once a class of people are uplifted, they are deleted from the list of beneficiaries in order to ensure that the benefits of the legislation reached to those who need it the most. This would ensure that the weaker among the weak are also uplifted and the benefits are not only enjoyed by a section of the people.
In the landmark case of State of Madras v. Champakam Dorairajan AIR 1951 SC 226, the decision of the State Government of Madras reserving seats in medical and Engineer educational institutions on the basis of religion, caste and race of students was found to be violative of Article 15.
Another landmark judgment on the issue of reservation was the case of M.R. Balaji and Ors. v. State of Mysore AIR 1963 SC 649. In this case, the Government reserved 68% of the seats in technical education institutions such as medical and engineering colleges for Scheduled Caste and Tribes and for the socially and educationally weaker sections. The Court held that reservation should be aimed at promoting social justice but must also ensure that deserving candidates are not excluded from getting admissions into technical higher education institutions.
In the case of State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, the Court held that Section 14 to 16 are equality sections which are aimed at ensuring real equality.
In Saurabh Yadav v. State of UP (M.A. No. 26141 of 2019 of SLP (Civil) No. 23223 of 2018), the Court held that if candidates belong to the reserved category are able to qualify under the general category on their merit, then they will be appointed under the open category. Thus, the Court rejected the assumption that open category is reserved for those who are not eligible for any sort of reservation.
In the landmark judgement of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, the Court held that a reservation scheme which provided reservation on the basis of education stream (that is, science and arts) was beyond the scope of Article 15 and hence was not Constitutional.
In the case of T. Devadasan v. the Union of India & Anr. AIR 1964 SC 179, the validity of the carry forward rule was challenged on the grounds that it is violative of Articles 14, 16 and 335 of the Indian Constitution. As a result of this rule, members of the Scheduled Caste and Scheduled Tribes could get more than 50% reservation. The Court held that the carry forward rule is unconstitutional. The Court stated that reservation with respect to a certain proportion of appointments in order to provide the weaker sections an equal opportunity is justified but the reservation should not be of such a magnitude so as to deny a deserving candidate the opportunity for appointment.
In the case of M. Nagaraj v. Union of India (2006) 8 SCC 212, the Court held that a Legislative Scheme granting reservation to SC/STs in promotion is reasonable if it fulfils three conditions. Firstly, the State must be able to establish the backwardness of the beneficiaries. Secondly, the State must be able to establish the underrepresentation of the beneficiaries in the subject appointments and thirdly, it must be able to establish that such reservations would benefit administrative efficiency.
In the case of Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1, the Court had deliberated upon the question of determining the criterion for determining educationally backward category. The Court had held that the threshold for determining the educational status of any person would be graduation. If a person has completed graduation, he cannot be considered to be educationally backward.
It becomes essential to understand the criterion on the basis of which welfare schemes and special provisions providing for reservations can be framed by the government under the ambit of Article 15 and 16. Policies have been framed in the basis of domicile, economic status, etc.
Domicile based reservation
In today's times, several governments have come up with schemes of reservation of jobs for domicile residents. Several beneficiary schemes have also been initiated exclusively for domiciles. In order to understand the legal relevance of such policies with reference to Article 15(1) of the Constitution, it is essential to analyse the case of DP Joshi v/s State of Madhya Bharat1955 SCR (1)1215 where the Madhya Pradesh State Government had exempted those students of a medical College who had their domicile in Madhya Pradesh from paying the capitation fees. However, students not having the domicile were required to pay the fees. This decision of the Madhya Pradesh Government was alleged to be violative of Article 15(1) of the Indian Constitution.
However, the Court held that Article 15(1) prohibited discrimination on the basis of place of birth and place of birth is distinct from the expression place of residence. Discrimination on the basis of place of birth has been prohibited by Article 15. However, it is not essential that the place of birth be the same as the place of residence of an individual. Domicile reservation is based upon the concept of providing opportunities to the local residents of any place.
Hence, the policy of the Government was held not to be in violation of Section 15(1) of the Act.
Reservations for Economically Weaker Sections and Article 15(6)
In the recent years, the issue of reservation on the basis of economic status or reservation for Economically Weaker Sections (EWS) has been a part of discussion among the legal circles. The concept of reservation based on economic background finds its root in Article 15(6) of the Indian Constitution which provides that the State shall make reservations, including reservations in educational institutions, for the "economically weaker sections".
Article 15(6) was introduced by the 103rd Constitutional Amendment. Several petitions have been filed challenging the validity of such reservation. This Amendment provided for 10% reservations to the EWS sections in regards to jobs and educational institutions. The 103rd Amendment also amended Article 16 of the Constitution and added Article 16(6).
However, the Supreme Court is yet to deliver a concrete and conclusive judgment on the Constitutionality of EWS reservation.
Those opposing the reservation based on economic status, claim that it violates the ceiling of 50%. However, several reservation schemes have crossed the 50% ceiling. Tamil Nadu, Telangana, Maharashtra and Haryana have crossed the ceiling limit based on the special circumstances prevailing in these states. The 50% upper limit has been set but the Courts have time and again reiterated that it is the rationality behind the scheme which forms the final basis of Constitutionality.
Recently, when appeals were filed before the Supreme Court against reservation policies in NEET, the Court upheld reservation for OBCs. but is yet to decide on the issue of EWS quota.
Thus, both Articles 15 and 16 permit positive or affirmative action by the government in favour of women and backward communities. These Articles enable the government to come up with welfare measures which reduce the degree of inequality in the society and promote justice, liberty and social harmony.
These Sections shield the weaker sections of the society and enable the State to ensure social harmony in the society. They ensure that the concept of equality is not merely an utopian dream but transforms into a practical reality.
Furthermore, after a careful analysis of several judicial pronouncements, it can be concluded that Articles 15(4) and 16(4) are not exceptions to Articles 15 and 16 respectively. Rather they are aimed at ensuring that the purpose of the provisions is fulfilled.
The schemes which used reservation as a tool for social welfare are based on the concept of intelligible differentia. The 103rd Constitutional Amendment was certainly the need of the hour as it provides some sort of social security to those who were left without any socio-economic welfare cover.