Guarantee of Fundamental Rights under the Constitution of India
(Articles 13, 32, and 226)
Q. 6. Examine the statement ‘Indian Constitution guarantees Fundamental Rights’.
Or
How can you say that the Fundamental Rights have been guaranteed in the Constitution? What is the difference between Pre- Constitution Laws and Post-Constitution Laws?
Ans. Guarantee of Fundamental Rights by the Constitution. On the basis of the following provisions enshrined in the Constitution, it may be said that the Fundamental Rights have been guaranteed by the Constitution.
1. Laws inconsistent with or in derogation of the Fundamental Rights are Constitutionally void-Validity of Pre-Constitutional Laws. Article 13 (1) lays down that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void.
Validity of Post-Constitutional Laws. Article 13 (2) lays down that the State shall not make any law which takes away or abridges the Fundamental Rights and any law made in contravention of this clause shall, to the extent of such contravention, be void.
The word ‘law’ is defined in clause (3) of Article 13 as,
“In this Article, unless the context otherwise requires (a) ‘law’ includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.”
Article 13 is the key provision as it gives teeth to the Fundamental Rights and makes them justiciable. The effect of Article 13 is that Fundamental Rights cannot be infringed by the Government either by enacting a law or through administrative action. Article 13 makes the judiciary and especially the Supreme Court, as the guardian, protector and the interpreter of Fundamental Rights. It is the function of the Courts to assess individual laws vis-a-vis the Fundamental Rights so as to ensure that no law infringes a Fundamental Right. The Court performs the arduous task of declaring a law unconstitutional if it infringes a Fundamental Right. It is the function of the Courts to ensure that no statute violates a Fundamental Right. This is by the exercise of its protective role the judiciary protects the Fundamental Rights from being violated by a statute. A statute is declared unconstitutional and void if it comes in conflict with a Fundamental Right.
In State of Madras v. V.G. Row, AIR 1952 SC 196, the Apex Court made it clear that Article 13 confers a power as well as imposes an obligation on the Courts to declare a law void if it is inconsistent with a Fundamental Right. This is a power of great consequences for the Courts. The Supreme Court has figuratively characterised this role of the Courts as that of a sentinel on the qui vive.
In Minerva Mills v. Union of India, AIR 1980 SC 1789, the Supreme Court stated that it is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If Courts are totally deprived of that power, the Fundamental Rights conferred on the people will become a mere adornment because rights without remedies are as writs in water. A controlled Constitution will then become uncontrolled.
In Shankari Prasad v. Union of India, AIR 1951 SC 458, the Supreme Court held that the word ‘law’ in Article 13(2) does not include law made by the Parliament in exercise of its power to amend the Constitution under Article 368. The same view was followed by the Supreme Court in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. But in Golak Nath v. State of Punjab, Punjab, AIR 1971 SC 1643, the Supreme Court overruled its decision in the aforesaid cases and held that the word ‘law’ in Article 13(2) would include constitutional amendment under Article 368.
The Constitution (24th Amendment) Act, 1971 was passed in order to nullify the effect of Golak Nath case. In Keshvananda Bharti v. State of Kerala, AIR 1973 SC 1461, the Supreme Court overruled the Golak Nath case and upheld the validity of 24th Amendment Act.
An enactment made before coming into force of the Constitution and rendered void due to being ultra vires of th of the constitutional provision, becomes valid law when the invalidating constitutional provision is done one away with. The principle of reviving such a void law is called the doctrine of eclipse. A post constitutional law conflicting with any constitutional law is void ab initio and cannot be revived.
The expression ‘State’ is defined in Article 12. It says, ‘In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. All corporate bodies owned and controlled by the Government of India or any State have been held to be State” [V. K. Srivastava v. U.P. Workers Welfare Corp., AIR 2005 SC 411].
The question whether the judiciary is included within the definition of ‘the State in Article 12 arose for consideration of the Supreme Court in Naresh v. State of Maharashtra, (AIR 1967 SC 1), which held:
Even if a Court is the State, a writ under Article 32 cannot be issued to the High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights.
2. Power of judicial review (Article 13).-Judicial review is the power of the Court to pronounce upon constitutionality of Legislative Acts. If a law passed by the Parliament or a State Legislature, is not in accordance with the Constitution, the Supreme Court and the High Courts will declare it ultra vires the Constitution and hence void.
The power of judicial review is derived specifically from Article 13 of the Constitution.
In A. K. Gopalan v. State of Madras, AIR 1950 SC 27, Kania, C.J., observed, “It was only by way of abundant caution that the framers of the Indian Constitution inserted the specific provision in Article 13.” It was further observed that, “in India it is the Constitution that is supreme and that a statute law to be valid must in all conformity be with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.”
In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the Supreme Court has observed that the power of judicial review is the basic structure of the Constitution; therefore, it cannot be taken away by the constitutional amendments.
3. Provisions for the constitutional remedies (Articles 32 and 226).- Article 32, which is itself a Fundamental Right, gives power to an aggrieved person, whose Fundamental Right has been infringed to move the Supreme Court for the enforcement of his Fundamental Right by filing petition. The Supreme Court may thereupon issue any writ in the nature of habeas corpus, mandamus, prohibition, quo-warranto or certiorari.
The writ jurisdiction has been conferred upon the High Courts also under Article 226.
4. Only those restrictions may be imposed upon the Fundamental Rights, which are specially mentioned in the Constitution.- Fundamental Rights guaranteed under the Constitution are not absolute and the State can impose restrictions upon them. But only such restrictions may be imposed for which provision has been made under the Constitution.
To sum up, it may be said that the Constitution of India not only makes provisions with regard to the Fundamental Rights, it also guarantees them.
Test of Infringement of Fundamental Rights
Under the Constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of the right, the interest of the aggrieved party and the degree of harm resulting from the State action.
In R. C. Cooper v. Union of India, AIR 1970 SC 564, the Supreme Court held that the object and form of State action determine the extent of protection which the aggrieved party may claim consistent with the constitutional scheme which aims at affording the individual the fullest protection of his basic rights.
In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Supreme Court again emphasized the relevance of direct effect of the impugned action in adjudging the infringement of a particular fundamental rights.
Difference between Pre-Constitution Laws and Post-Constitution Laws. Pre-Constitution Laws means the laws which were in force immediately before the commencement of the Constitution. According to Article 13 (1) all pre-Constitution laws or existing laws till the date of commencement of the Constitution shall be void to the extent to which they are inconsistent with the fundamental rights from the date of the commencement of the Constitution. However, Article 13 (1) is prospective in nature. All pre- constitutional laws will become void only after the commencement of the Constitution. They are not void-ab-initio, Such inconsistent laws are not wiped out so far as the past acts are concerned. Similarly, a declaration of invalidity by the Courts will, also, be necessary to make laws invalid. In Keshava Madhav Menon v. State of Bombay, AIR 1951 SC 128, the Supreme Court has held that there is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts are concerned the law exists notwithstanding that it does not exist with respect to the future exercise of the fundamental rights.
In this case, the Apex Court observed, “As the Fundamental Rights became estion of the operative only on and from the date of the Constitution, the question inconsistency of the existing laws with those rights must arise from the date those rights came into being…….. The voidness of the existing law is limited to the future exercise of Fundamental Rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess.”
Post-Constitutional Laws means the laws enacted after the commencement of the Constitution. Article 13(2) prohibits State to make any law which takes away or abridges rights conferred by Part III of the Constitution. If a State makes such a law then it will be ultra vires and void to the extent of the contravention. Such law is still-born law and can not be revived by removal of the constitutional prohibition by subsequent amendment of the Constitution. Article 13(2) makes such laws void-ab-initio. Like pre-Constitution laws, a declaration by the Courts of their invalidity is necessary. In Deepchand v. State of U.P., AIR 1959 SC 648, the Supreme Court has held that anything done under such a law will be wholly illegal and the person adversely affected by it will be entitled to relief.
Main object of Article 13(2) is to secure the paramountcy of the Constitution especially with regard to fundamental rights. [Renu v. Distt. & Sessions Judge, AIR 2014 SC 2175].
Definition of ‘State’ (Article 12)
Q. 7. Define the word ‘State’ as used in context of Fundamental Rights in Part III of the Constitution.
Or
What does the word ‘State’ signify as defined in Article 12 of the Constitution? Examine.
Ans. Definition of the word ‘State’ as used in the context of Fundamental Rights. Article 12 of the Constitution defines the term State’. It lays down, “In this Part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” Thus, the term ‘State’ includes:-
1. The Government of India, i.e., the Executive of the Union.
2. The Parliament of India, i.e., the Legislature of the Union.
3. The Government of each State, i.e., Executive of States.
4. The Legislature of each State, i.e., Legislature of States.
5. All local or other authorities within the territory of India.
6. All local or other authorities under the control of the Government of India.
Thus, the term ‘State’ includes Executive and the Legislative organs of the Union and States besides the local or other authorities within the territory of India or under the control of the Government of India. Therefore, the actions of these bodies can be challenged before the Courts as violating fundamental rights.
Authorities. ‘Authority’ means a person, or body exercising power to command (Webster’s Dictionary). Thus, in the context of Article 12, the word ‘authority’ means the person or body, having the power to make laws, orders, regulations, bye-laws, notifications etc. which have the force of law and have the power to enforce those laws.
Local Authorities -According to sub-section (31) of Section 3 of the General Clauses Act, 1897, ‘local authorities refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trust and Mining Settlement Boards.
Other authorities. It was the opinion of the Madras High Court that the term ‘other authorities’ under Article 12 should be construed ejusdem generis with the Government or Legislature and so construed it can only mean authorities exercising governmental functions. [University of Madras v. Santa Bai, AIR 1954 Mad. 67]. This view of the Madras High Court has been rejected by the Supreme Court. In Ujjambai v. State of U.P., AIR 1962 SC 1621, the Supreme Court held that the doctrine of ejusdem generis cannot be applied in the interpretation of the term “other authorities”. In Electricity Board v.Mohan Lal, AIR 1967 SC 1857, the Supreme Court has observed that the term ‘other authorities’ under Article 12 includes all the authorities created by the Constitution or Statute on whom powers are conferred by law, whether or not they are engaged in performing governmental or sovereign functions.
In later decisions, the Supreme Court gave a wider and more liberal interpretation of the expression ‘other authorities.’
In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487, Bhagwati J., discussed in detail various factors relevant for determining whether a body is an instrumentality or agency of the State. These factors are:
(i) If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the Corporation is an instrumentality or authority of the Government.
(ii) When the financial assistance of the State is so much as to meet almost entire expenditure of the Corporation, it would afford some indication of the Corporation being impregnated with Government character.
(iii) Where the Corporation enjoys monopoly status which is State conferred or State protected.
(iv) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
(v) If the functions of a Corporation are of public importance, it would be relevant factor in classifying a Corporation as an agency of Government.
(vi) If a department of Government is transferred to Corporation.
However, the Court held that these tests are not conclusive but illustrative only and would have to be used with care and caution.
In Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677, the Apex Court laid down that in the absence of any authorization, if a private body chooses to discharge any such function which is not prohibited by law then it would be incorrect to hold that such action of the body would make it an instrumentality of the State.
In S.C. Chandra v. State of Jharkhand, AIR 2007 SC 3021, the Supreme Court held that BCCL was not an instrumentality of the State as per Section 617 of the Companies Act as its dominant function was to raise coal and sale and imparting education was not its dominant function.
In State of U.P. v. Radhey Shyam Rai, (2009) 5 SCC 577, the Supreme Court held a company enjoying the monopoly of carrying on a business under an Act of Legislature has the “happenings” of “state” and is an “authority” under Article 12.
In Biman Kumar Bose v. United India Insurance Co. Ltd., (2001) 6 SCC 477, the Supreme Court held that once a body is characterised as an authority under Article 12, several significant incidents invariably follow-
(i) the body becomes subject to the discipline of the Fundamental Rights which means that its actions and decisions can be challenged with reference to Fundamental Rights;
(ii) the body also becomes subject to the discipline of Administrative Law;
(iii) the body becomes subject to the writ jurisdiction of the Supreme Court under Article 32 and that of the High Courts under Article 226.
In State of Assam v. Barak Upatyaka D. V. Karamchari Sansthan, AIR 2009 SC 2249, it was held that the Co-operative Societies could not be, without examination of relevant factual aspects, equated with public sector undertakings.
In S. S. Rana v. Registrar Co-operative Societies, (2006) 11 SCC 634, the Cochin Refineries Ltd. incorporated under the Companies Act was held to be not an ‘authority’ because only 53% of its share capital had been subscribed by the Central Government, 26% share was held by a private foreign company which also nominated two directors on the Board of Directors, Government Control over the company was not large, Government’s financial assistance was not unusual.
In Virendra Kumar Srivastava v. U.P. Rajya Karmchari Kalyan Nigam, AIR 2005 SC 411, the Court held-Even though a body, entity or Corporation is held to be ‘State’ within the definition of Article 12 of the Constitution, what relief is to be granted to the aggrieved person or employee of such a body is entirely a subject-matter in each case for the Court to determine on the basis of the structure of that society and also its financial capability and viability.
In Janet Jeyapaul v. SRM University, AIR 2016 SC 73, SRM University, Madras, declared “Deemed University” by the Central Government under Section 3 of the UGC Act, the Management of which was in the private trust was held to be an authority provided under Article 12 and amenable to the writ jurisdiction because-
1. it imparted education in higher studies to the students at large;
2. it discharged public functions by way of imparting education; 3. it was notified as a deemed university under Section 3 of the UGC Act;
4. being eing a deemed university by the Central Government under Section 3 of the UGC Act, all the provisions of the UGC Act were made applicable to it which, inter-alia, provided for effective discharge of public function, namely, education for benefit of public;
5. Once it was declared as “deemed university” whose all functions and activities were governed by the UGC Act, like other universities, it was “other authority” within the meaning of Article 12;
6. Once it was held to be an authority as provided in Article 12 then as a necessary consequence, it was amenable to writ jurisdiction of High Court under Article 226.
In Jigya Yadav, C.B.S.E., (AIR 2021 SC 4775), the Supreme Court held that the argument that the bye-laws of the Board are contractual elements as C.B.S.E. is a registered society unbacked by a statute cannot be accepted. C.B.S.E. is not a private corporate body. It is a juristic person and a ‘State’ within the meaning of Article 12, which in itself warrants its amenability to the Courts including constitutional writs.
Test of Determination
In Ramanna Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628, the Supreme Court has held that if a body is an agency or instrumentality of government it is an authority within the meaning of Article 12 whether it is a statutory Corporation, a government company or even a registered society. In this case, the Supreme Court laid down the following tests for determining whether or not a body is an agency or instrumentality of the government. “Whether there is any financial assistance given by the State and if so what is the magnitude of such assistance. Whether there is any other form of assistance given by the State and if so, whether it is of the usual kind or it is extraordinary. Whether there is any control of the management and policies of the corporation by the State and the nature and extent of such control. Whether the corporation enjoys State-conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental function.”
In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (CSIR) (2002) 5 SCC 111, the Supreme Court has held that the Council of Scientific and Industrial Research (CSIR) is an instrumentality of the State within the meaning of Article 12 of the Constitution.
In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 987, it has been held that a society registered under the Societies Registration Act, 1898 is an agency or “instrumentality of the State” and hence a ‘State’ within the meaning of Article12.
The Indian Statistical Society in B. S. Minhas v. Indian Statistical Institute, (1983) 4 SCC 582, Food Corporation of India (in Workmen F.C.I. v. M/s. F.C.I., AIR 1985 SC 670) and other similar authorities have been held ‘State’ within the meaning of Article 12.
In Manmohan Singh Jaitla v. Commissioner U. T. of Chandigarh, (1984) Supp. SCC 540 the Supreme Court has held that an aided school which receives a Government grant of 90% is an ‘authority’ within the meaning of Article 12.
But in Satimbla Sharma v. St. Paul’s Senior Secondary School, AIR 2011 SC 2926, it has been held that Unaided Minority Schools over which the Government has no administrative control due to their authority under Article 30 (1) of the Constitution are not ‘State’ within the meaning of Article 12.
Is Judiciary included in the term ‘State’?. The present position appears to be that when the judiciary acts in its judicial capacity, it is not included within the term ‘other authorities’ and therefore, it is not State within the meaning of Article 12 whereas when it acts in administrative capacity it is included within the term ‘other authorities’ and therefore, it is a State. [Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996]
In Naresh v. State of Maharashtra, (AIR 1967 SC 1), the Supreme Court held-Even if a Court is a State, a writ under Article 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights.
A seven Judge Bench of the Supreme Court in A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531, has held that the Court can not pass an order or issue a direction which would be violative of fundamental rights of citizens, it can be said that the expression ‘State’ as defined in Article 12 includes Judiciary also.
Right to Equality (Article 14)
Q. 8. Examine the scope of the ‘right to equality’ under the Indian Constitution. When are the classifications made by Parliament constitutional?
Or
What is meant by the Rule of Law? Discuss the principle of ‘equality before the law’ in the Indian Constitution and distinguish it from the ‘equal protection of the law’.
Or
Is making of classification contrary to the guarantee of “Right of equality” under Article 14 of the Constitution? Discuss fully with the help of decided cases.
Ans. Concept of Rule of Law. The concept of Rule of Law as propounded by A. V. Dicey is that every man is subject to law and ordinary Courts and none is above law. “Every official from the Prime Minister down to constable. is under the same responsibility for every act done without legal justification as any other citizen. He mentions three meanings of the Rule of Law (1) Supremacy of law or absence of arbitrary power, (2) Equality before the laws, and (3) Constitution is outcome of the ordinary law of the land.
(1) Supremacy of the Law or absence of Arbitrary power. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary way by person in authority.
(2) Equality before the law. No man is above the law. Every man, irrespective of his rank and condition, is subject to the ordinary law of the land and amenable to the jurisdiction of ordinary Courts.
(3) The Constitution is the result of the ordinary law of the land.- There is no written Constitution in England and judicial decisions in particular cases lay down the rights of individual and general constitutional principles.
The rule of law may be defined as a recognition of the supremacy of law, the equal subjection of all persons to it. The Government as well as the governed are subject to the law.
The third corollary of Dicey’s Rule of Law is not applicable in Indian context.
The jurisdiction of Courts in England does not extend to the declaration of an Act of the Parliament illegal or unconstitutional while administrative measures of the government come within judicial purview, the reason being that the Parliament is supreme. The administration in India is based on a compromise between judicial and parliamentary supremacy and legislative measure also comes within judicial review and can be declared as unconstitutional if it is inconsistent with or in conflict with any of the provisions of the Constitution.
The rule of the law has thus a wider application in India than in the The rule England.
The rule of law is used in contradiction of the rule of man. In the system where rule of law prevails, it is the law that rules. In such a system all Executive action must be based on legal sanctions. There is no plea for Executive action that springs from individual whim, malice or caprice. Rule of Law, therefore, has a built-in safeguard against arbitrary action Arbitrary action is, therefore, complete anti-thesis of the Rule of Law.
The expansion of rule of law opened a new vista of Public Interest Litigation which has been very much recognised by Indian Judiciary in many cases.
Rule of law requires that no person shall be subjected to harsh, uncivilised or discriminatory treatment even when the object is the securing of the paramount exigencies of law and order. [Rubinder Singh v. Union of India, AIR 1983 SC 65
Right to Equality (Article 14)
The Preamble declares the object of the Constitution which is to secure to all its citizens equality of status and opportunity Article 14 embodies general principles of equality and the succeeding Articles 15, 16, 17 and 18 lay down the specific application of the general rule laid down in Article 14.
Article 14 of the Constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 14 applies to citizens and non-citizens and natural as well as legal persons.
Article 14 incorporates two legal concepts, viz, “equality before law” and “equal protection of the law”.
Equality before the law. Equality before the law connotes equal subjection of all classes to the ordinary law of the land. It implies that every official from higher rank to the lower rank is under the same responsibility for every act done without lawful justification as any other ordinary citizen.
Equality before the law is a negative concept. It declares that everyone is equal before law, that no one can claim special treatment and that all classes are equally subjected to the ordinary law of the land.
The Rule of Law or the equality principle too is not without exceptions. Absolute equality is unknown to all constitutional systems. Law should be equal among equals. In other words like should be treated alike. The State may make a classification on the basis of reasonable distinction relevant to the particular subject dealt with. While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. Classification to be reasonable must fulfil the following two conditions:
1. The classification 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. The differentia must have a rational relation to the object sought to be achieved by the Act. (K. Thimmappa v. Chairman, Central Board of Directors, SBI, AIR 2001 SC 467). There are certain exceptions to the general rule which Constitution itself provides in Article 361.
Breach of Rule of law can be ground for invalidating legislation. Breach of Rule of law amounts to negation of equality under Article 14. [Dr Subramaniam Swamy v. Director, C.B.I., AIR 2014 SC 2140].
Equal protection of Laws. The second concept “equal protection of laws” is more positive in content. This concept is borrowed from the 14th Amendment of the American Constitution. It means subjection to equal law applying to all persons in the same circumstances. All persons similarly circumstanced shall be treated similarly both in privileges conferred and liabilities imposed. Equal laws should be applied to all in the same condition. This is the simple meaning of this doctrine.
Article 14, thus, stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration. (Maneka Gandhi v. Union of India, AIR 1978 SC 597]
In Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, it has been held that removal of a permanent employee from service without giving reasons is arbitrary and violative of Article 14 of the Constitution.
In S. Krishna Sradha v. State of U.P., AIR 2020 SC 47, the Supreme Court held that denial of admission in M.B.B.S. to a candidate without no fault of his/her who has timely approached to the Court at the earliest is violative of Articles 14, 19 and 21.
Exceptions to ‘equality before the law‘. The Indian Constitution allows the following exceptions to the rule in public interest:
(1) The President or the Governor of the State shall not be answerable in any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and duties [Article 361(1)].
(2) No criminal proceedings, whatsoever, shall be instituted or continued against the President or the Governor of a State in any Court during his term of office [Article 361 (2)].
(3) No civil proceedings in which relief is claimed against the President or the Governor of a State shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity whether before or after he has entered upon his office as President or Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims (Article 361 (4)].
(4) Foreign sovereigns and Ambassadors are also exempted from the jurisdiction of Indian Courts.
(5) Another exception is that Article 14 is not retrospective in operation. Proceedings for a period prior to the Constitution cannot be challenged under Article 14 after Constitution came into force. [Ranjeet Singh v. Commissioner of Income-tax, AIR 1962 SC 92.]
The 42nd Amendment Act, 1976 has put a considerable restrictions on Article 14 by incorporating a new Article 31-C in the Constitution. After the amendment, the laws made by the State for implementing the provisions contained in clause (b) or clause (c) of Article 39, shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the provisions conferred by Articles 14 and 19.
In the case of Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147, Supreme Court has held that as soon as Article 31-C comes into action, Article 14 goes under dormancy. In this case the Supreme Court pointed out that “where Article 31-C comes in, Article 14 goes out
Article 14 permits classification. The equal protection of laws guaranteed by Article 14 does all laws must be general in character. It does not mean that the same laws should apply to all persons. The varying needs of different classes of persons often requires separate treatment. From the very nature of society there should be different laws in different places and the Legislature controls the policy and enacts laws in the best interest of the safety and security of the State. In fact, identical treatment in unequal circumstances would amount to inequality. So a reasonable classification is not only permitted but is necessary if society is to progress.
The true meaning and scope of Article 14 have been explained in a number of cases by the Supreme Court, viz. R. K. Dalmia v. Justice Tendolkar, AIR 1958 SC 538, R. K. Garg v. U. O. I., AIR 1981 SC 2136 and Maneka Gandhi v. U. O. I, AIR 1978 SC 597.
Q. 9. What do you understand by reasonable classification in the context of “Right to equality”? Can a single person be treated as a class?
Or
“Article 14 permits classification, but prohibits class legislation.” Discuss this statement.
Ans. Classification and class legislation. The guarantee of “equality, before the law and equal protection of the laws” does not mean that all laws must be universal in application to all persons irrespective of differences in their nature and circumstances. Equal treatment with persons in unequal uneq circumstances amounts to inequality and hence Article 14 permits classification of people differently circumstanced for different treatment provided the difference between those put in class is distinct from the others and bears a reasonable relation to the object sought to be achieved by the Legislature.
But Article 14 does not permit class legislation which means undue discrimination by conferring some advantages or privileges upon an arbitrarily selected group of people though all of them are similarly circumstanced in relation to privilege conferred on the selected class. In other words, class legislation amounts to unequal treatment with equals and hence void under Article 14.
In State of Uttaranchal v. Alok Sharma, (2009) 7 SCC 647, the Apex Court held that Article 14 provides positive and not negative equality. Hence any action or order contrary to law does not confer any right upon any person for similar treatment. Thus unauthorized additional construction and change of user of land cannot be claimed on the basis that the same had been granted in other cases in contravention of law.
Equals in be treated equally. Equality is for equals that is to say, those who are similarly circumstanced are entitled to an equal treatment. The guarantee of equality does not imply that the same rules should be made applicable to all persons in spite of differences in their circumstances and conditions. [Ramesh Prasad Singh v. State of Bihar, AIR 1978 SC 327.
In Dilip Kumar Garg v. State of U.P., (2009) 4 SCC 753, the Court made it clear that the principle of equality of law thus means not that the same law should apply to everyone but that a law should deal alike with all in one class, that there should be an equality of treatment under equal circumstances. Article 14 can be violated not only by treating equals as unequals, but also by treating unequals as equals.
Treating unequals as equals is violative of Article 14. In A. P. B. C. Singh Jharkhand State Vaishya Federation, AIR 2006 SC 2814, the Jharkhand State had amalgamated Extremely Backward Class’ and ‘Backward class into one group for the purpose of reservation in professional and educational Institutions. The Supreme Court has held that the decision of the government, amalgamating the Extremely Backward Classes and Backward Classes in violative of Article 14 because two different classes have been treated similarly. Merely showing that the Council of Ministers had applied their minds in order to arrive at the decision is not tenable and arbitrary and unreasonable and is subject to judicial review.
In State of Haryana v. Jai Singh, AIR 2003 SC 1696, the Supreme Court observed that Article 14 forbids class legislation, but it does not forbid reasonable classification of the persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification to be reasonable should fulfilling the following test:
(a) it should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from others left out of it.
(b) The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question.
Basis of reasonable classification.-“It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be nexus between the basis of classification and the objective of the Act”
It has been held in Thimappa v. Central Boards of Directors, S.8.1. AIR 2011 SC 467, that Article 14 does not forbid but permits reasonable classification, but to be reasonable it must pass the aforesaid two tests.
A classification in a law regulating labour in mines or factories may be based on age or ses but it may not be hased on the colours of one’s skirt for such a classification being irrelevant (without nexus) to the working capacity, is arbitrary and offends against equality before the law.
There should be no discrimination amongst equals. No one has special privilege by reason of birth or the like. All persons are subject to the ordinary of the land.
Equality before law does not mean that for all the law shall be same This maxim means that among equals the law shall be equal and equally administered.
Equal pay for equal work- In Randhir Singh. Union of India, AIR 1997 SC 3014, it has been held that although the principle of “equal pay for equal work is not expressly mentioned in the Constitution as a Fundamental Right but is certainly a goal under Article 14 and therefore, can be enforced in cases of unequal scales of pay based on irrational classification.
In Secretary, Mahatma Gandhi Mission v. Bhartiya Kamgar Sena, AIR 2017 SC 505, the Supreme eme Court held that there was no justification in excluding the non-teaching employee of the unaided education while extending the benefit of revised pay scales to the non-teaching staff of the aided educational institutions. Such a classification was clearly violative of Article 14.
Compensation without solatium and interest.– In Union of India v Tarsem Singh, AIR 2019 SC 4689, the Supreme Court held-Section 3-1 inserted in 1997 in the National Highways Act, 1956 that the provision of Land Acquisitions Act, 1894 would not apply to the National Highways Act was violative of Article 14 to the extent it provided granting of compensation without solatium.
New test for equality- protection against arbitrariness.-In E.P. Royappa v State of Tamil Nadu, AIR 1974 SC 19749 555, the Supreme Court has laid down new test for determining the reasonableness of a law. The Court has held that equality is antithesis of arbitrariness. The equality and arbitrariness are sworn enemies and therefore, 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.
Thus, according to the new concept of equality, if the State action is arbitrary it cannot be justified even on the basis of test of classification.
The Supreme Court has affirmed the new concept of equality in Maneka Gandhi v. Union of India, AIR 1978 SC 597, Bhagwati J., said “Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.”
In this case the petitioner’s passport was impounded without any reason. It was held that the government was not justified in withholding the reasons for impounding the passport from the petitioner.
In Bar Council of India v. Union of India, AIR 2012 SC 3246 the Supreme Court held that there is no right to get the case adjudicated by a Court of law only. The establishment of alternative redressal forum by the Parliament not unfair and unjust.
Admission in M.B.B.S/B.D.5. Seats it is permissible to to lay lay down essential educationalrequirements,residential/domicile in a particular State in respect of basic courses of M.B.B.S/ B.D.S. The object sought to be achieved is that incumbent must serve State concerned and for emancipation of educational standard of people in a particular State [Rajdeep Ghosh v. State Asem, AIR 2018 SC 3832)
Basis to get recognition of a State level political party- In Desia Murpokku Dravide Kazhagam v. Election Commission of India, AIR 2012 SC 2191, the order of the Election Commission amending clause 6 of the Election Symbols Order, 1968 provided that a political party to get recognition of a State level political party must secure at least 6% of the total valid votes polled and has also to return at least two seats. It was held to be not an unreasonable order because to gain recognition as a political party, it has to establish its credibility as a serious player in the political arena of the State.
Legitimate expectation not a right- Legitimate expectation is one of the grounds of judicial review, but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation or desire or hope. Therefore, it cannot be demanded as a ion is not a wish right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees. The resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institution. [State of Bihar v. Dr. Sachindra Narain, AIR 2019 SC 705]
Equality a basic feature of the Constitution. In M. Nagraj v. Union of India, AIK 2007 SC 71, a Constitution Bench of the Supreme Court has declared in no uncertain terms that equality is a basic feature of the Constitution.
In State of Kerala v. PUCL, Kerala State Unit, (2009) 8 SCC 46, the Apex Court laid down that if there is no affectation of a vested rights, the question of applicability of Article 14 would not arise. Article 14 itself confers a ‘vested Fundamental Right and it is difficult to appreciate the logic behind the enunciation.
In New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279, the Supreme Court quoted that the Government Company or corporation must act reasonably not only when terminating of public premises to the authority of occupy the same but also when an occupant it seeks his eviction therefrom. This approval means that the landlord state’s act in initiating proceedings must be not only substantively but also procedurally reasonable.
Single individual as a class. In the case of Chiranjeet Lal v. Union of India, AIR 1951 SC 41, it was held that single individual may be considered as a class in special circumstances. The Supreme Court ruled that a law may be constitutional even if it applies to a single individual on account of some special circumstances or reasons applicable to him and not applicable to others that individual may be treated as a class itself, unless it is shown that there are others who are similarly circumstances.
Ordinarily, a legislation pertaining to a single person would not be valid unless it was possible for the court to discern the special circumstances differentiating that particular person from the rest. Such an Act will however, be bad if it can be established that other persons having the same attributes have not been included within the scope of the Act and that only a single person has been made the target though many exist in the same position. If a classification is discernible in the Act, a presumption arises in favour of its constitutionality, but the person affected may show that while there are others having the same differentiating attributes as he, only he is covered by the Act and not others and the Act will then be void.
Geographical basis of classification-What Article 14 prohibits, is class legislation. But it does not forbid reasonable classification. The classification, however, should not be arbitrary, but must rest upon some real and substantial distinction having some relationship which is reasonable to the things in respect of which the classification is sought to be made. The classification can be based on the basis of geography or other objects or occupation. [Shashi Mohan v. State of West Bengal, AIR 1958 SC 194]
Classification on the basis of black money. In R. K. Garg v. Union of India, AIR 1981 SC 2138, the Supreme Court observed that classification made by the Act between persons having black money and persons not having black money is based on intelligible differentia having rational relation with the object of the Act. In this case, Section 3 of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981 grants certain immunities to person who has invested his unaccountable money in the Special Bearer Bonds. They are not required to disclose the nature and source of acquisition of the Special Bearer Bonds. The Court rejected the contention that the classification is arbitrary and held the Act valid.
Special Courts. In a series of cases, the validity of several State laws creating Special Courts to deal with the problems of law and order have been questioned. The Special Court functions according to a procedure which is less elaborate and formal and hence less favourable to the accused than the ordinary criminal procedure. A law creating Special Courts can, therefore, be sustained only if it makes a reasonable classification either of the offences or of the cases, or the persons triable by the Special Courts. Difficulties usually arise when the law establishing these Courts fails to do so itself and instead leaves it to the Government to decide this matter. In such a situation, the Courts have held that the law would not be valid if it does not lay down the policy or principle to regulate and control administrative discretion to decide which cases, offences or persons would be triable by these Courts.
Termination of service without reasonable opportunity of hearing- In a landmark case, D. K. Yadav v. J. M. A. Industries, (1993) 3 SCC 258, it has been held that termination of the service of a worker without giving him reasonable opportunity of being heard is unjust, arbitrary and illegal. The principle of natural justice justi is part of Article 14 and there is no distinction between a quasi judicial function and an administrative function for the purpose of principle of natural justice.
Suspension of MLAs beyond period prescribed under Rules.- If the resolution passed by the House was to provide for suspension beyond the period prescribed under the Rule, it would be substantially illegal, irrational and violative of Article 14. Ashish Shelar v. Maharashtra Legislative Assembly, AIR 2022 SC 721)
Compassionate Appointment.-Once it is proved that in spite of death of bread winner, family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of interest of several others ignoring mandate of Article 14 of the Constitution. (Steel Authority of India Lid. v. Gauri Devi, AIR 2022 SC 783).
Wife not a near relative-Discriminatory. In John Vellomattom v Union of India, AIR 2003 SC 2902, the petitioner challenged the validity of Section 118 of the Indian Succession Act, 1925 as violative of Article 14 of the Constitution for Section 118 of the Succession Act puts restriction on the power of the Indian Christian who had a nephew or a niece or any near relative to bequeath his property for religious or charitable purposes. The wife of a testator in terms of the definition given in the Act was not to be a near relative but an adopted son was to be a near relative. This restriction was not placed on Christians who had a wife. The Supreme Court held that the Act was discriminatory and violative of Article 14 of the Constitution and therefore invalid.
Different cuts-off dates for enhancement of age of superannuation for Ayush doctors and doctors under C.H.C.- In North Delhi Municipal Corporation v. Dr. Ram Naresh Sharma, (AIR 2021 SC 3795), the Supreme Court held-the different cut-off dates for enhancement of age of superannuation for Ayush doctors and doctors under Central Health Scheme superan (CHS) is not reasonable and permissible. Such classification is discriminatory and unreasonable since doctors under both segments perform the same function of treating and healing their patients.
Liberalised paid vaccination policy.-In Re-Distribution of Essential Supplies and Services during Pandemic-In this case the Supreme Court held that liberalised vaccination policy for managing COVID-19 pandemic by the Central Government conducting paid vaccination for age group between 18- 44 and not prioritising persons with co-morbidities and other diseases. persons with disabilities or any other vulnerable groups on a scientific basis was prima facie arbitrary.
In Bechelal v. State of U.P., AIR 2021 SC 2716, the Supreme Court held that premature release of prisoners restituted to those sentenced to life imprisonment on the event of republic day each year is patently bad, discriminatory and arbitrary having no nexus to be achieved in the absence of any ‘criteria’.
Disqualification to contest election for having more than two children. In Javed v. State of Haryana, AIR 2003 SC 505, the Supreme Court upheld the validity of Section 175 (1) (9) of the Haryana Panchayati Raj Act, 1994 which disqualified a person having more than two children from contesting election for the post of Sarpanch and Panch as the classification made by it was based on intelligible differentia and has nexus with the object of popularizing family planning programme.
Creating a class within class. In State of U.P. v. Committee of Management, AIR 2010 SC 402 the respondents were recognised unaided schools as Junior High Schools and subsequently upgraded as High School and Intermediate College in 1991-1999. After 30th June, 1984 Junior Schools were granted recognition covered by the Grants-in-Aid scheme but the Court held that the action of the State creates class within class which is arbitrary and violates Article 14 of the Constitution. A distinction between two schools of the same category was created while one category egory of schools continued to get the benefit of the Grants-in-Aid in spite of upgradation other Junior High Schools were excluded from benefit.
Doctrine of classification a subsidiary rule. In E.V. Chinnaich v State of UP, ATR 2005 SC 162, the Supreme Court explained that the doctrine of classification is only a subsidiary rule evolved by the Courts to give practical content to the doctrine of equality. Over-emphases of the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution.
Discrimination by State in its own favour. The State viewed as a juristic person is also subject to the law but subject cannot claim equality with the State in its discharge of public functions. The Courts of law can restrain the State from acting in a particular manner or compel it to fulfil certain obligations within the meaning of the laws as it stands in like manner as it has jurisdiction over the subjects of the State. But so far as equality between the State and the subjects is concerned, the State and the subjects may be treated as equal in respect of private acts of the State, such as, commercial enterprises but not in respect of governmental functions. A subject may claim protection of the law against an illegal executive act but he cannot claim equality with the State in its governmental functions though he may do so in the private and commercial enterprises. A subject may sue the State and claim compensation from it. The State is not immune from judicial proceedings by the subjects against it but the scope of such proceedings is limited. The supremacy assigned to the State has a rational basis and is not arbitrary.
In Ajit Kumar Nagi v. G.M. (PS) Indian Oil Corporation Ltd., AIR 2005 SC 4217, the Supreme Court held-Article 14 has evolved into a very meaningful guarantee against any action of the administration which may be arbitrary, discretionary or unequal. This principle manifests itself in the form of the following propositions-
(1) A law conferring unguided and unrestricted power on an authority is bad for arbitrary power is discriminatory.
(2) Article 14 illegalises discrimination in the actual exercise of any discretionary power.
(3) Article 14 strikes at arbitrariness in administrative action and ensures fairness and equality of treatment.
In Naraindas v. State of M.P., AIR 1974 SC 1232, the Supreme Court. held-Article 14 ensures equality before law and strikes at arbitrary and discriminatory State action. If power conferred by statute on any authority of the state is vagrant and un-confined and no standards or principles are laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause, because it would permit arbitrary and capri.ious exercise of power, which is the antithesis of equality before law.
If the legislature stipulates that those who had no functional toilet at their residence and do not follow basic norms of hygiene are ineligible to become administrators of civil bodies and disqualify them from seeking an election to the civic body, such a policy can neither be said to create a class based on unintelligible criterion nor can such classification be said to be unconnected with the object sought to be achieved by the Act. (Rajbala v. State of Haryana, AIR 2016 SC 33)
In Federation of Bank of India Staff Unions v. Union of India, AIR 2019 SC 1260 the Apex Court held that there is no discrimination between the workers/employees, when the latter are nominated as Director in the Board of Directors. The workers are defined and governed by Industrial Disputes Act whereas officers are governed by separate service rules. Both these categories cannot be placed at par.
Prohibition against discrimination on the grounds only of religion, race etc. (Article 15)
Q. 10. “The State shall not discriminate against any citizen on the ground only of religion, race, caste, sex, place of birth or any of them.” Explain. Are there any exceptions to this Fundamental Right?
Ans. Prohibition against discrimination on the grounds only of religion, race, caste, sex or place of birth or any of them (Article 15).– Article 15 is a particular application of the equality principle laid down in Article 14 and forbids (1) discrimination or adverse distinction by the State against its citizens only on the grounds of religion, race, caste, sex or place of birth or any (one or more) of them, and (2) subjecting to any disability, liability or condition a citizen by the State on the grounds only of religion, race, caste, place of birth or any of them with regard to access to shops, hotels, etc. and use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds. It provides two exceptions to the prohibition, namely (1) State is not prohibited from making special provision for women and children and (2) It enables to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
Article 15 states-
“(1) the State shall not discriminate against any citizen on the grounds only of religion, caste, race, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex or 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 general public.
(3) Nothing in this Article shall prevent the State from making any special provision for women and children.
(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 Scheduled Tribes.
(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.
It may be mentioned here that clause (5) to Article 15 was inserted by Constitution (93rd Amendment) Act, 2005 in order to nullify the effect of the Supreme Court’s judgment in T.M.A. Pai Foundation and P.A. Inamdar cases.
(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.
Difference between Article 15 (1) and 15 (2). A discrimination based on one or more of these grounds as mentioned in Article 15 (1) and also on other ground or grounds will not be affected by Article 15 (1). [Dattatraya v. State of Bombay, AIR 1953 Bom 311]. This means that if one or more of the specified grounds is combined with a ground not mentioned in Article 15 (1), the law will be outside the prohibition contained in Article 15 (1). Article 15 (1) prohibits discrimination on the ground of birth and not that of residence A State can, therefore, grant concessions to its residents in matters of fees in an educational institution.
While clause (1) of Article 15 prohibits discrimination by the State, Article 15(2) prohibits both the State and private individuals from making any discriminations.
Difference between Articles 14 and 15. The guarantee of prohibition against discrimination is available to citizens only under Article 15 and to citizens and non-citizens under Article 14. Further the discrimination prohibited under Article 15 can be permitted under Article 14 by showing that the classification is reasonable. Further, the prohibition of discrimination under Article 15 is on the ground of place of birth but not on the ground of residence.
Under Article 15(3), the State is not prevented from making any special provision for women and children.
In Joseph Shine v. Union of India, AIR 2018 SC 4898, the Supreme Court in a five-Judge Bench decision held Section 497 of the Indian Penal Code penalising the adultery violative of Articles 14, 15(1) and 21 and a beneficial legislation covered by Article 15(3). The Court observed that treating adultery as an offence would amount to entering into a real private realm. Adultery does not fit into the concept of a crime. If it is treated as a crime there would be immense intrusion into the extreme privacy of the matrimonial sphere.
Section 198(C) Cr.P.C which deals with the procedure for filing a complaint in relation to the offence of adultery is unconstitutional.
Article 15 (4) or Article 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.
In A.P. Public Service Commission v. Balaji Badhavnath, (2009) 5 SCC 1. the Supreme Court held-The provisions contained in Articles 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.
In Bihari Lal Rada v. Anil Jain (Tinu), (2009) 4 SCC 1, the Supreme Court held-If the office of the President of a Municipality is not reserved or is meant for general category, all the candidates irrespective of their caste, class or community and irrespective of the fact whether they have been elected from a reserved ward or a general ward are entitled to seek election and contest for the office of the President of the Municipality.
In Air India Cabin Crew Association v. Yeshaswinee Merchant, AIR 2004 SC 187, the Supreme Court held-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 Article 15 (3), the State is permitted, despite Article 15 (1) to make any special provision for women, thus carving out a permissible departure from the rigours of Article 15 (1). Articles 15 and 16 do not prohibit special treatment of women. The constitutional mandate is infringed only where the females would have received same treatment with males but for their sex.
Special Provisions for women and children and for advancement of Backward Classes [Articles 15 (3) and 15 (4)].-Clauses (3) and (4) of Article 15 embody exceptions to the general rule laid down in Clauses (1) and (2) Clause (3) empowers the State to make special provisions for women and children Clause (4) empowers the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Schedule Tribes. Though there is nothing in Articles 15 (3) and (4) to qualify the special provisions which the State can make, yet any general prohibition made by Article 14 will apply to such cases and the special provision which the State makes should not be arbitrary or unreasonable. [N. Vasundara v. State of Mysore, AIR 1971 SC 1439].
In Balaji v State of Mysore, AIR 1973 SC 649, the Government reserved seats in the Medical and Engineering Colleges in the State as follows: Backward classes 28%; more backward classes 22%; Scheduled Castes and Scheduled Tribes 18%. The Court has held that the sub-classification made by the order between backward classes and more backward classes was not justified under Article 15 (4). The caste of a person cannot be sole test for ascertaining whether a particular class is backward class or not. Reservation of 68% seats is inconsistent with Article 15(4) and it may amount to fraud upon the Constitution. Article 15 (4) only enables the State to make special and not exclusive provision for the backward classes.
In the Mandal Commission case, namely, Indra Sawhney v. Union of India, AIR 1993 SC 477, the Supreme Court has held that sub-classification of backward classes into more backward and backward classes for the purpose of Article 16 (4) can be done provided as a result of the sub-classification, the reservation cannot exceed more than 50 per cent. Thus, the Court has overruled Balaji case on this point.
In Tripurari Sharan v. Ranjit Kumar Yadav, AIR 2018 SC 366, the Supreme Court held-the meritorious reserved category candidate who obtained more marks than the last general merit candidate for admission to M.B.B.S./B.D.S. course and P.G. courses through common admission test would be treated as a part of the general category but can opt the seat earmarked for reserved category seat in a college but the number of seats in each category would remain constant and upper limit of 50% reservation would not be breached. Due to meritorious reserved category candidate taking admission of choice, one reserved category seat is occupied and one seat among the choices available to general category candidates remains unoccupied. Consequently the lesser ranked candidate who had choices among the reserved category is affected and he does not get any choice any more.
In State of U.P. v. Pradip Tandon, AIR 1975 SC 563, the U.P. Government made reservation of seats for admission to Medical College in favour of candidates coming from rural areas, Hill and Uttarakhand areas. The Supreme Court has held that the reservation in favour of candidates coming from rural areas was unconstitutional, but that for the candidates coming from Hill and Uttarakhand areas was valid because the latter were economically and educationally backward.
In Puneet Gulati v. State of Kerala, AIR 2011 SC 351 a 100% reservation was made in admission in super-speciality medical courses to the students who had completed M.B.B.S. or P.G. courses from Medical Colleges in Kerala. The students not from Kerala could get a chance for admission on the non- availability of students from Kerala. The Single Judge and thereafter the Division Bench of the Kerala High Court struck down 100% reservation but did not give any relief to the petitioners on the ground that the course had already commenced more than six months before. The Supreme Court while upholding the decision of the High Court accommodated the petitioners in the admissions in the next year’s course on the ground that they were denied admission due to invalid policy.
In State of Panjeb v. Anshika Goel, (AIR 2022 SC 918), the Apex Court held that by itsuing writ of mandamus High Court cannot direct the State Government to provide particular percentage of reservation for particular category of persons, other than what has been provided in policy decision taken by the State Government.
In Indian Medical Association v. Union of India, AIR 2011 SC 2365, the Supreme Court has held that permitting 100% reservation by a notification issued by the Government of N.CT. Delhi, in Army College of Medical Sciences to the wards of Army personnel is ultra vires to the provisions of the Delhi Professional Colleges and Institutions Act, 2007 and is also unconstitutional because it violates Articles 14, 15(2), 19(1) (g). 38 and 162.
In Parents Association v. Union of India, AIR 2000 SC 845, the Supreme Court has held that the allotment of 50% seats for pre and post 1942 settlers in the Island of Andaman Nicobar is constitutional and does not infringe Articles 14 and 15(4).
In Guntur Medical College v. Mohan Rao, AIR 1976 SC 1904, an important question arose before the Court as to whether a person belonging to Christian converts, who originally belong to Scheduled Caste, on re conversion to Hinduism could claim the benefit of reservation of seats in a Medical College under Article 15(4). The Court held that a person whose parents belonged to a Scheduled Caste before their conversion to Christianity could on reconversion to Hinduism be regarded as a member of the Scheduled Caste only if he was accepted as a member of that caste by the other members of the caste. On such acceptance, he would be eligible for the benefit of the reservation of the seats for Scheduled Castes in the matter of admission to the Medical college.
In Meera Kanvaria v. Sunita, AIR 2006 SC 597, the Supreme Court laid down that where a high caste woman marries a person belonging to the Schedule Caste and the community of the husband does not recognise and accept her as a member of the community and her marriage has been accepted by Biradari only, she cannot claim the benefit of reservation under Articles 15(4) and 16(4).
In Dr. Priti Srivastava v. State of Madhya Pradesh, AIR 1999 SC 2894, the Supreme Court has held that merit alone can be the criterion for selecting students to the super speciality course like M.D. and M.S and Engineering and there can be no reservation of seats in these courses.
In U. R. Acharya v. State of Karnataka, AIR 2006 SC 2145, the Supreme Court made it clear that pension is a deferred salary, it is not a bounty. It is similar to the right to property. The benefit of the revised pay scale cannot be either withdrawn or reduced by mere an executive order. Employees cannot be deprived of their vested right by executive order.
But in Pepsu Road Transport Corp. v. Mangal Singh, AIR 2011 SC 1974. the Supreme Court has held that the right to pension is not absolute or unconditional right. The person claiming pension must establish his entitlement to such pension in law. Whether he is entitled to pension or not depends on the provisions of interpretation of rules and regulations.
In Indian Hotel and Restaurant Association v. State of Maharashtra, (AIR 2019 SC 589), the Supreme Court quashed the mandatory provision of installation of CCTV camera in dance bars as it was inappropriate and invasion of right to privacy and violative of Articles 14, 19(1)(a) and 21 of the Constitution. The condition which stipulated that the place of dance performance would be at least 1 km. away from educational and religious institutions was held to be arbitrary and irrational and was quashed. The condition restricting service of alchohol in bar-room where dances were staged was held to be totally disappropriate, unreasonable and arbitrary as to why the liquor could not be served at such places.
Article 15 (6)-In Janhit Abhiyan v. Union of India & writ petition (C) of 2019), the Supreme Court by a majority of 3:2, upheld the constitutionality of 103th Amendment of the Constitution by which 10% reservation has been provided in the educational institutions to the candidates belonging to economically backward classes (EWS)
Equality of opportunity in Public Employment (Article 16)
Q. 11 (a). Can the State discriminate against any citizen in respect of employment or appointment to offices under it? Explain and refer to decided cases.
Ans. Equality of opportunity in public employment (Article 16)- Article 16 is an extension of the equality principle of Article 14 in matters of appointment and employment of citizens to any post under the State and prohibits discrimination in the matter on the grounds only of religion, race, caste, descent, place of birth, residence or any of them. Clauses (3) to (5) of Article 16 provide exceptions to the equality principles in favour of the backward classes of people, Scheduled Castes and Scheduled Tribes, incumbents of religious institutions and residents of certain places.
Article 16 provides:
“(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 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.
(4-A) Nothing in this Article shall prevent the State from making any provision for reservation 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-B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filed up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) 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.
(5) Nothing in this Article shall affect the operation of any law which provides that 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.
(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. [Article 16(6) inserted by the Constitution (One Hundred and Third Amendment) Act, 2019].
Clauses (3), (4), (5) and (6) of Article 16 are exceptions to the general rule of equality in respect of public appointments. Equality is guaranteed, not in public service but also in other employments such as government contracts
Only four kinds of departures are permissible:
(1) Residential preference, (2) Reservation of posts for certain communities of backward classes under certain circumstances, (3) offices connected with the managements of religious or denominational institutions being reserved only for members professing the faith connected with such institutions, (4) reservation of appointments or posts in favour of any economically weaker sections of citizens.
Article 14 and Article 16 forbid hostile discrimination. They do not forbid reasonable classification and equality of opportunity in matters of promotion. Equality of opportunity in matters of employment can be predicated only as between person, who are either seeking the same employment, or have obtained the same employment. [All-India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway, AIR 1960 SC 386).
In Principal, Mehar Chand Polytechnic v. Anu Lamba, AIR 2006 SC 3074, the Supreme Court held-Public employment is a facet of right to equality envisaged under Article 16 of Constitution of India. The State although is a model employer its right to create posts and recruit people therefor 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.
In National Fertilizers Ltd. v. Somvir Singh, AIR 2006 SC 2319, the Supreme Court held-Every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring venial variances. But when recruitment rules are made, employer is bound to comply with the same and in case of non-compliance the appointment would be ultra vires the regulations as well as Articles 14 and 16 where the employer is a State owned or operated corporation.
In Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806, the Supreme Court held-Educational qualification is an acceptable criterion for determining suitability for an appointment to a particular post or cadre Educational qualification 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.
In Union of India v. Tarun K. Singh, AIR 2001 SC 2196, the Supreme Court held-Where selection was made without interview or fake or ghost interviews, final records were tampered with and document were fabricated, an inference can be drawn that the whole selection process was motivated by extraneous consideration. The entire selection process was set aside as being arbitrary. The selectees had no right to assume office. The Supreme Court observed that “the whole examination and interview have turned out to be fancier exhibiting bare character of those who have been responsible for the sordid episode. It shocks our conscience to come across such a systematic fraud.
What Article 16 guarantees is equality of opportunity in matters of appointment in State services. Equality of opportunity connotes that every citizen shall be eligible for the employment or appointment to any office under the State according to his qualifications and capability [State of] & K v. Τ. Ν. Khosla, AIR 1974 SC 1). It does not prevent the State from prescribing the necessary qualifications and selective tests for recruitment for government services. The selected test must not be arbitrary.
The Supreme Court has pointed out that interview is the best method for the assessment of the suitability of candidate. While written examination testifies the candidate’s academic knowledge, the interview brings out over all intellectual and personal qualities of a candidate. [K. H. Siraj v. High Court of Kerala, AIR 2006 SC 2339].
The expression “matters relating to employment”, shows that Article 16 is not confined to initial matters but will apply to matters subsequent to appointment as well. Article 16 is not violated by provisions for compulsory retirement to Government servants in public interest. In P. R. Naidu v. Government of Andhra Pradesh, AIR 1977 SC 854, the petitioners were compulsorily retired in public interest. It was held-The provisions for compulsory retirement in public interest applies to all Government servants as such Article 16 does not prohibit the prescription of reasonable rule for compulsory retirement.
In Air India v. Nargesh Meerza, AIR 1981 SC 1829, the air hostesses challenged the provisions which required them to retire at the age of 35 years or if they get married within four years of confirmation or on first pregnancy It was held that these provisions were discriminatory and violative of Articles 14, 15 and 16 of the Constitution.
Existence of vacancies or empanelment not to create any right.- Mere existence of vacancies or empanelment does not create any indefeasible right to appointment. The employer has the discretion not to fill up requisitioned vacancies but that has to be for valid and germane reasons not affected arbitrariness (Kerala SRTC v. Akhilesh VS., AIR 2019 SC 1663).
Ph.D. degree of Open University to be treated at par with Ph.D. degree of Conventional University.- Ph.D. Degree of Open University is to be treated at par with Ph.D. degree of formal conventional university for being issued under the uniform standards prescribed by the UGC. (Abdul Matin v. Manisharikar Maiti, AIR 2018 SC 3665).
Caste can be the basis for prividing reservation, but it cannot be the sole basis. (Patiali Makkal Katchi A Mayile rumperumal, AIR 2022 SC 1865).
Reservation for backward classes. Article 16(4) is the second exception to the general rule embodied in Article 16(1) and (2). According to this provision, nothing in Article 16 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.
The scope of Article 16(4) was considered by the Supreme Court in Devadasan v. Union of India, AIR 1964 SC 179. In this case, “carry forward rule framed by the Government to regulate appointment of persons of backward class in Government service was involved. The Court struck down the carry forward rules as unconstitutional on the ground that the power vested in the Government cannot be so exercised as to deny reasonable equality of opportunity in matters of appointment for members of classes other than backward. Undoubtedly, Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation of appointment in favour of backward class of citizens which in its opinion is not adequately represented but it is not itself a Fundamental Right. The Supreme Court in C. A. Rajendran v. Union of India, AIR 1978 SC 507, held that it is open to State to withdraw the benefits conferred on the Scheduled Castes and Scheduled Tribes and they have no remedy in the Courts.
In Indra Sawhney v. Union of India, AIR 1993 SC 477, the Supreme Court by 6-3 majority has held that the decision of the Union Government to reserve 27% government jobs for backward classes is constitutionally valid provided that socially advanced persons-creamy layer amongst them are excluded. But the Court has held that the reservation should not exceed more than 50 per cent and also that there cannot be reservation in promotions. The Court has held that the backwardness of a class can be identified on the basis of caste and not on economic basis.
In K. C. Vasanth Kumar v. Karnataka, AIR 1985 SC 1495, the Supreme Court has suggested that the reservations in favour of the backward classes must be based on mean test. It has further suggested that the policy of reservations should be reviewed every five years or so and if a class has reached up to a level whereso it does not need reservation its name should be deleted from the list of backward classes.
Not providing reservation in direct appointment in four posts only. Under proviso of Rule 6 of U.P. State Medical Colleges Teachers Service (Second Amendment) Rules, 2005 reservation to Scheduled Castes was inapplicable where number of posts in cadre were less than five. Under the Rules. 75% posts were to be filled up by direct recruitment. In Dr. Professor Rajendra Chaudhary v. State of U.P., AIR 2019 SC 4273, the Apex Court held that there was no error committed by the State in not providing reservations for appointment by direct recruitment when only four posts in each department were available for being filled up by direct recruitment.
The Constitution (77th Amendment) Act, 1995 has added a new clause (4-A) to Article 16 of the Constitution which enables the State to make provisions for reservation in promotion for SC’s and ST’s in government job which are not adequately represented in the services of the State. It says, “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the SC’s and ST’s which in the opinion of the State are not adequately represented in the services under the State.”
The Constitution (81st Amendment) Act, 2000 added a new clause (4- B) after clause (4-A) to Article 16 of the Constitution which seeks to end the 50% ceiling on reservation of SC’s/ST’s in backlog vaca vacancies which could not be filed up in the previous year or years due to non-availability of eligible candidates. Those vacancies will be treated as a separate class and cannot be considered together with vacancies of the succeeding year in which they are to be filled up, even if it exceeds the limit of 50% imposed by the Supreme Court in Indira Sawhney v. Union of India, AIR 1993 SC 477.
Constitution (85th Amendment) Act, 2001.- By this Amendment in Clause 4-A of Article 16, for the words “in matter of promotion to any class” the words in matters of promotion, with consequential seniority, to any class has been substituted. The aim and object is to extend the benefit of reservation in favour of the SC/ST in matters of promotion with constitutional seniority with effect from April, 1995 when the 77th Amendment Act was passed.
Clauses 4-A and 4-B which are inserted in Article 16 of the Constitution neither alter Article 16 nor do they obliterate constitutional requirements. viz. 50% ceiling, creamy-layers: Post based roster, that is, efficiency in administration under Article 335.
77th Amendment, 81st Amendment and 82nd Amendment are valid subject to above limitations. In M. Nagraj v. Union of India, AIR 2007 SC 71 a five-Judge Bench has unanimously observed that the constitutional amendments which have inserted Article 16(4-A) and Article 16(4-B) flow from Article 16(4) and these do not alter basic structure of Article 16(4).
The Supreme Court has held that 77th, 81st and 82nd Constitutional Amendments providing for reservation are enabling provisions and they do not alter the structure of Article 16 (4). They retain the controlling factors, Le, backwardness and inadequacy of representation which enables the States to provide for reservation having regard to the overall efficiency of State administration under Article 335. These Amendments are only limited to SCs and STs. These Amendments do not obliterate constitutional requirements, viz., ceiling limits of 50%, the concept of creamy layer, the sub-classification between OBC and SCs and STs, the concept of post based roaster with inbuilt concept of replacement. The impugned amendments are within the amending power of the Parliament. The two tests must be satisfied in the matter of the application of the principle of basic structure-The ‘width test’ and the ‘test of identity The State is not prevented by Article 16(1) from taking cognizance of the compelling interests of Backward Classes in the society. Article 16 (4) refers to affirmative action by way of reservation. The Government is free to provide reservation if it is satisfied on the basis of quantifiable data that Backward Classes are inadequately represented in the service. In all those cases where the States decide to provide reservation, two circumstances must co-exist-(1) backwardness, and (2) inadequacy of representation. If these tests are not applied by the States the reservation would be invalid. The structure of Articles 14, 15 and 16 is not altered by these Amendments. The identity of the Constitution is not changed by these Amendments. Thus, the Court made it clear that subject to the limitations given above the State is within its power to provide for reservation but it must establish in each case the existence of compelling reasons, namely, backwardness, inadequacy of representation and over all administrative efficiency before making provision for reservation. The State is not bound to provide for reservation But before exercising the discretion to make such provision the State has to collect quantifiable data which show the two grounds-backwardness and inadequacy of representation of that class in Government services. The State has to see that the reservation does not lead to excess of 50% ceiling limit, or obliterate creamy-layer or extend the reservation for indefinite period.
In Ashok Kumar Thakur v. Union of India, AIR 2008 SCW 2899, a five Judge Bench of the Supreme Court headed by Chief Justice K.G. Bal Krishnan held that the 93rd Amendment Act of 2006 providing 27% reservation in admission to OBC candidates in higher educational institutions like IIT’s and IIM’s is constitutional. The Court held that the benefit of reservation cannot be made available to creamy-layer candidates. The Court held that reservation must be reviewed in after every five years. The creamy layer requirement will not apply to SC/ST’s candidates. They will be given reservation every year.
In U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728, the Supreme Court held that a fresh exercise in the light of M. Nagraj v. Union of India, is a categorical imperative in which Articles 16 (4A) and 16 (4B) were held to be constitutionally valid as enabling provisions for reservation in promotion with consequential seniority and the State can make reservation for the same on certain basis or foundation.
In B. K. Pavitra v. Union of India, AIR 2017 SC 820, the Supreme Court held-Sections 3 and 5 of the Karnataka Determination of Seniority of Government Servants promoted on the basis of Reservation (Top the Posts in the Civil Services of the State) Act, 2002 and Rules 4 and 4-A of the Karnataka Government Servants (Seniority) Rules, 1957 providing for consequential seniority against roaster points ultra vires of Articles 14 and 16 and unconstitutional to the extent of doing away with “catch up” rule because there had been no exercise for determining inadequacy of representation, ‘backwardness’ and overall efficiency before amendment of the Act. The exercise for determining inadequacy of representation ‘backwardness’ and over all ‘efficiency, is a must for exercise of power under Article 16 (4-A). Mere fact that there is no proportional representation in promotional posts for the population of S.Cs. and S.Ts. is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy.
After the Apex Court’s judgment in B.K. Pavitra v. Union of India, AIR 2017 SC 820, the State of Karnataka enacted Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018 after collecting the qualifiable data. The Act was challenged in B.K. Pavitra v. Union of India, AIR 2019 SC 2723, the Supreme Court upheld the legislation and held that curative legislation is constitutionally permissible. It is not an encroachment on judicial power.
Constitutionality of Article 16 (6).- In Janhit Abhiyan v. Union of India, [Writ Petition (C) of 2019) the Supreme Court upheld the validity of Article 16(6) which was inserted by the 103th Amendment of the Constitution by which provision for reservation of appointments or posts in favour of economically weaker sections of citizens upto 10% was made.
Q. 11 (b). Will it be proper for the State to prescribe lower qualification for women in matters of public employment?
Ans. Article 16 of the Constitution deals with equality of opportunity in matters of public employment. Clauses (1) and (2) of this Article are pertinent for answer of this question.
Article 16(1) lays down-There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
According to clause (2) of Article 16, 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.
Therefore, no discrimination can be made between citizens on the ground of sex and this Article establishes equality of opportunity among males and females in matters of employment. It is, therefore, humbly submitted that it will not be proper for the State to prescribe lower qualification for women in matters of public employment.
Q. 12. Discuss the constitutional provisions relating to the reservation in the public employment and educational institutions. In this connection refer to the Supreme Court’s view on the meaning of the backward classes.
Or
Explain the term “Socially and Educationally backward Class” as used in Article 15 of the Constitution.
Ans. Constitutional provisions relating to the reservation in the public employment and educational institutions. [Please see answer to Q. No. 11(a)]
Supreme Court’s view on the meaning of the backward classes.- Article 15(4) lays down “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. Thus, the State is competent to make provisions for the reservation for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 335 lays down “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 the State from 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. [Proviso inserted by the Constitution (Eighty-second Amendment Act, 2000).
Article 16 (4) lays down “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 of t the State, is not adequately represented in the services under the State.”
In Indira Sawhney v. Union of India, AIR 1993 SC 477, which is popularly known as Mandal Commission case, the Supreme Court laid down the following principles relating to the reservation for the backward classes of the citizens in the public employment:
(1) Article 16(1) permits reasonable classification for the purpose of reservation in the public employment. Clause (4) of Article 16 is merely an illustration of the classification inherent in Clause (1) of Article 16, Article 16(4) is exhaustive of the subjects of reservation in favour of backward classes of citizens. No reservation can be made for classes other than backward classes under Article 16(4). Under Article 16 (1) reservation of posts in the employment under State can be made in favour of other sections of the society, such as physically handicapped, army personnel etc.
(2) Backwardness under Article 16 (4) need not be both social and educational. The Court opined that backwardness contemplated by Article 16(4) is wider than one contemplated under Article 15(4). State can make reservation in favour of the socially backward classes under Article 16(4) even if they are not educationally backward.
(3) Reservation under Article 16 (1) or Article 16 (4) cannot be made on the basis of economic criteria alone.
(4) Sub-classification of backward classes into more backward and backward classes can be done for the purpose of Article 16(4). But as a result of sub-classification, the reservation cannot exceed 50 per cent of the appointments or posts. Reservation in excess of 50 per cent of the appointments or posts can be made only in exceptional situations.
(5) Those members of a backward class under Article 16(4) who are far too advanced socially which necessarily means economically as well as educationally, should be excluded from the category of the backward class The members of the backward class far too advanced socially and educationally have been named as Creamy-Layer’. The Supreme Court directed the Central Government to specify the basis of exclusion of the Creamy-Layer.
(6) The carry forward rule is not per se unconstitutional but it was held that in so far as Devdasan v. Union of India, AIR 1964 SC 179, struck-down the carry forward rule it is not good law and is therefore overruled. The Supreme Court held that the operation of the carry forward rule should not result in breach of the 50 per cent rule.
(7) Article 335 applies not only in the case of the members belonging to the Scheduled Castes or Scheduled Tribes but also in case of the members belonging to the other backward classes. The reservations made under Article 16(4) should not be contrary to the provisions under Article 335. In this case, the Supreme Court has held that reservation are not antimeritarian but there are certain services or posts which require highest level of intelligence, skill and excellence and therefore it is not advisable to make reservations in respect of such services or posts. The Supreme Court has given the following example of such services or posts-
1. Defence services.
2. Teaching posts of Professors.
3. Posts of Pilots and co-pilots in Indian Airlines and Air India.
4. All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in producing of defence equipment.
5. Post in super specialties in Medicine, Engineering and other Scientific and technical subjects. [Indian Institute of Medical Sciences Students Union v. Indian Institute of Medical Sciences, AIR 2001 SC 3263.]
In Dr. Preeti Sagar Srivastava v. State of M.P., AIR 1999 SC 2894, the Apex Court laid down that the merit alone can be the criterion in selecting the candidates to the super speciality courses in medical and engineering. At the level of admission to super speciality courses, the special opportunity which is provided by reservation cannot, however, be made available to those who are substantially below the levels prescribed for the general category candidates.
Seniority to SC/ST promotees not to be on the basis of resolution only.-In Pravakar Mallick v. State of Orissa, AIR 2020 SC 2122, the Government of Orissa did not issue any executive order or passed any resolution but by a resolution while withdrawing the earlier restrictions for fixation of seniority of SC/ST Government servants on promotion by virtue of rule of reservation, the Government issued instructions to the effect that the ‘catch-up principle’ adopted earlier by the State Government in General Administration Department, Resolution would not be followed any longer. By a further order, the Government servants belonging to SC/ST would retain seniority in the case of promotion by virtue of reservation. The High Court on a writ petition quashed the aforesaid G.O. and gradation mainly on the ground that, unless and until the State Government made a law for conferming ground the benefit of promotion with consequential seniority to SC/ST candidates they were not entitled to seniority in the promoted category. The Supreme Court dismissed the appeal against the judgment of High Court.
Voluntary retirement and resignation-Resignation has the effect of termination of an employee. Voluntary retirement though has the effect of termination of an employee yet it has different consequences. In the former case, the ex-employee could not be entitled to pension, whereas in case of voluntary retirement, the employee would be entitled to pension. (B.S.E.S. Yamuna Power Lid. v. Sh. Gheushyam Chand Sharma, AIR 2020 SC 76).
Compassionate appointment. In State of U.P. v. Premlata, AIR 2021 SC 4984, the Supreme Court held that as per the law laid down by this in catena of decisions on the appointment on compassionate ground, for all the government vacancies, equal opportunity should be provided to all aspirants as mandated in Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession, not a right.