Articles 15 and 16: protective discrimination and social justice - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Read this with Article 14. Articles 15 and 16 are specific applications of the general equality guarantee. Article 14 states the principle; Articles 15 and 16 name the forbidden grounds and then permit departures in favour of those the law has historically left behind. That is why the subject is called protective discrimination: it is discrimination that serves equality rather than defeats it.

1. Article 15

15(1) — the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.
15(2) — no citizen shall, on those grounds, be subject to any disability or restriction regarding access to shops, public restaurants, hotels and places of public entertainment, or 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 public. Note this clause binds private persons too, not only the State.
15(3) — nothing prevents the State making special provision for women and children.
15(4) — special provision for socially and educationally backward classes, Scheduled Castes and Scheduled Tribes. Inserted by the First Amendment, 1951, in direct response to Champakam.
15(5) — reservation in educational institutions including private unaided ones, other than minority institutions. Inserted by the Ninety-third Amendment, 2005.
15(6) — special provision for economically weaker sections, inserted by the One Hundred and Third Amendment, 2019.

The word “only” in clause (1) carries weight. Discrimination is forbidden where it rests on a prohibited ground and nothing else. If the ground is combined with another relevant consideration, the clause is not necessarily attracted.

2. Article 16

16(1) — equality of opportunity in matters of public employment.
16(2) — no discrimination on grounds of religion, race, caste, sex, descent, place of birth or residence. Note the two extra grounds compared with Article 15: descent and residence.
16(3) — Parliament may prescribe a residence requirement for certain appointments.
16(4) — reservation of appointments for any backward class not adequately represented in the services.
16(4-A) — reservation in promotion for Scheduled Castes and Scheduled Tribes, inserted by the Seventy-seventh Amendment, 1995.
16(4-B) — carry forward of unfilled vacancies, inserted by the Eighty-first Amendment, 2000.
16(5) — offices connected with religious institutions may be reserved for persons of that religion.
16(6) — reservation for economically weaker sections, inserted in 2019.

3. The line of cases

Champakam and the First Amendment

In State of Madras v. Champakam Dorairajan, 1951 INSC 26, AIR 1951 SC 226, a communal government order allotting seats in medical and engineering colleges by community was struck down. The Court held that directive principles cannot override fundamental rights, and that Article 15 as it then stood permitted no such classification. Parliament responded with the First Amendment, inserting Article 15(4). This case is therefore both an Article 15 case and the classic authority on the relationship between Parts III and IV.

Balaji and the ceiling

In M.R. Balaji v. State of Mysore, 1962 INSC 279, AIR 1963 SC 649, an order reserving 68 per cent of seats was struck down. The Court held that caste alone cannot be the test of backwardness, that backwardness must be both social and educational, and that reservation should generally not exceed 50 per cent. The sub-classification into backward and more backward was also disapproved on the facts.

The Mandal case

Indra Sawhney v. Union of India, decided by a nine-Judge Bench of the Supreme Court on 16 November 1992, is the central authority. It upheld reservation of 27 per cent for other backward classes in Central services, held that caste may be a relevant criterion in identifying a backward class in Indian conditions, directed the exclusion of the creamy layer, affirmed the 50 per cent ceiling save in extraordinary circumstances, and held that Article 16(4) does not extend to reservation in promotions. Parliament's answer to the last point was Article 16(4-A).

A note on citing this one. Indra Sawhney does not appear in Ratio's index, which covers Supreme Court judgments by neutral citation, and neutral citations were not assigned in 1992 in the form now used. Identify it by parties, Bench strength and date, as above, rather than attaching a citation you cannot verify.

Nagaraj and the conditions on promotion

In M. Nagaraj v. Union of India, 2006 INSC 711, (2006) 8 SCC 212, the constitutional amendments enabling reservation in promotion were upheld, but subject to conditions: the State must collect quantifiable data showing backwardness of the class, inadequacy of representation, and must ensure that overall administrative efficiency is maintained under Article 335. The 50 per cent ceiling, the creamy layer exclusion and the extent of reservation were described as limits flowing from the equality code itself.

The economic criterion

In Janhit Abhiyan v. Union of India, 2022 INSC 1175, the One Hundred and Third Amendment, introducing reservation for economically weaker sections under Articles 15(6) and 16(6), was upheld by majority. The judgment is significant for holding that reservation based on economic criteria alone does not by itself violate the basic structure, and that the 50 per cent ceiling is not inviolable in relation to this separate class.

4. The principles to carry into an answer

Reservation is an exception within equality, not to it — it advances substantive rather than formal equality.
Backwardness must be established, not assumed; caste may be a starting point but is not by itself conclusive.
The creamy layer must be excluded, so that the benefit reaches those for whom it is intended.
The 50 per cent ceiling is the general rule, subject to extraordinary circumstances and now to the separate treatment of the economically weaker sections.
Administrative efficiency under Article 335 is a relevant consideration, not an override.

How this is examined

Very frequently, and usually as a long essay: discuss protective discrimination under Articles 15 and 16, or trace the judicial trends on reservation. Short notes appear on Article 15(3), the creamy layer, or reservation in promotion.

Structure that works: set out the text of both Articles including the amendments and their years; then run the case line in order — Champakam, Balaji, Mandal, Nagaraj, Janhit Abhiyan — showing at each step what the Court decided and how Parliament replied; then state the settled principles. The dialogue between Court and Parliament is the story the examiner wants.

Now go and read the questions themselves: Constitutional Law I past question papers.