PART III- FUNDAMENTAL RIGHTS

ARTICLE 15
PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION, RACE,
CASTE, ETC.

ARTICLE 15: Prohibition of discrimination on grounds of religion, race, caste, sex or

place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing Ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(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.

(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.

The “Principle of Equality” as mentioned under Article 14 basically flows over like a river
and is then gets distributed under Articles 15,16,17,18,19 and other fundamental rights as
embodied in Part-III of the Constitution of India and therefore aims at establishing a just and
equitable society.
Article 14,15 and 16 have a common genesis from the word “equality”. To be more precise,
Article 14 provides for the fundamental right of “Equality before law and Equal protection of
Laws” to all the persons, and is therefore having a general application. But, Articles 15 and
16 more precisely strikes upon the prohibition of discrimination on certain grounds, therefore
establishing ‘equality among the equals”, and are available to “citizens of India” only.
Article 14 is a genus while Articles 15,16 are the species although all of them occupy
doctrine of “equality” embodied in these Articles. The three Articles together form part of the
same constitutional code of guarantee of equality and supplement each other.
Article 15 provides for a particular application of the general principle of Equality embodied
in Article 14. When a law comes within the prohibition of Article 15 it cannot be validated by
recourse to Article 14 by applying the principle of reasonable classification. [Kathi Ranning
Rawat v. State of Saurashtra AIR 1952 SC]. It is when the “discrimination”, if based upon
one of the grounds mentioned in Articles 15 and 16, the reasonableness of the classification
will be tested on the touchstone of the principle of “equality among equals” as under Article
14.

Article 15 is available to:

The guarantee under Article 15 is available to citizens only and not to every person
whether 'citizen or non-citizen' unlike Article 14.

Availability of Article 14,15 and 16:

As stated above, it has been clearly mentioned that Article 14, 15 and 16 are supplementary
to each other and therefore it is imperative to understand them together.
Right to equality under Article 14 is available to ‘any person’ and therefore treats every
person alike, whether a “citizen or non-citizen” but this does not carry with it the right against
discrimination on the prohibited grounds.
On the other hand, Articles 15 and 16 contain in them the right against discrimination on the
prohibited grounds and are therefore available to ‘citizens of India’ only. However, this does
not mean that the ‘non-citizens’ can be discriminated against on these prohibited grounds. It
only means that if non-citizens are discriminated against, they could not complain of the
violation of fundamental rights as are embodied under Article 15 and 16. For example:
Article 15(2) provides for the prohibition of discrimination based on religion; these specific
prohibitions are not provided under Article 14. This however, does not mean that any person
who is a ‘non-citizen’, would be discriminated on the basis of religion, as Article 14 would
come to his rescue and he would be treated ‘equally before law’ and also his right to freely
profess, practice and propagate his religion is further protected under Article 25, which is
available to “all persons”.

 “The State” for the meaning and purpose of Article 15 refers to ‘the state’ as
mentioned and defined under Article 12 of the Constitution of India.

 Scope of the word ‘Discrimination’:

The word “discrimination” refers to create “difference in treatment” even if the circumstances
are equal or the same. The word “discrimination” is antithesis to “equality”.
Discrimination occurs when you are distinguished or treated in a less favourable manner
than the other person under similar circumstances or if you are disadvantaged by being
placed on equal footing under different circumstances. Thus, discrimination involves a
subtle element of unfavourable bias and if such bias is disclosed and is based on any of the
grounds as mentioned under Article 15 and 16, it will invariably attract condemnation, as the
violation of specific constitutional right (unless it is saved by one or other of the provisions to
those Articles) is expressly been prohibited.
The actions containing “discrimination” cannot be reasonably and objectively justified. This
leads to jeopardise the unfavourable one and giving unfair advantage to the favourable one
and therefore, cannot be considered as a “progressive view.”
Therefore, we can say that the word 'discrimination' means to make an adverse distinction or
to distinguish unfavourable from others. [Srinivas Iyyer v. Saraswathi Ammal AIR 1952]

 Article 15 restricts discrimination on the ground of:

(a) Religion – refers to a “particular system of faith and worship.”

Article 15 provides that no person should be discriminated on the basis of
religion from accessing any public place or policy by the state or any
group. While, Articles 25-28 lays down the freedom of all persons within
the territory of India in the matter of religion, the Articles 15(1), (2) and
16(2) ensures that religion shall not be the ground for any disqualification
or discrimination in any public matter.
(b) Race – Race refers to a person's 'roots' and should not be confused with his
or her citizenship, nationality, language or place of birth. Ethnic origin
should not form a basis of discrimination. For example, the people from
‘North-eastern’ origin, belonging to Mongolian race and also ‘South-
Indians’(Dravidians) are discriminated in India and many instances of
violence against them have been reported in the recent time.
The reason why racial discrimination is specifically prohibited under
Article 15(1) and (2) is that during the colonial rule, the imperial privileges
were granted in the favour of whites in the matter of criminal trial under
law and other amenities and therefore, after the commencement of Indian
Constitution, the Europeans and other races are now on the same footing
as Indians and people of other races in these matters.
It is pertinent here to mention that there is no acute problem of racial
discrimination in India presently as compared to, the western countries
especially in USA, where discrimination between whites and black has
marked its inception since 17th century and it is going on till this date.

(c) Caste – Caste refers to a social system based on such distinctions as

heredity, rank, wealth, profession, etc. Hindu society is divided amongst
four major hereditary classes, namely the Brahman, Kshatriya, Vaisya, and
Sudra. A caste may be taken to mean a “jati”- an endogamous group
bearing a common name and claiming a common origin membership of
which is heredity, linked to one or more traditional occupation,, imposing
on its members certain obligations in the matter of social intercourse and
having more or less determinate position in a hierarchical scale of ranks”

In the case of Ashok Kumar Thakur v. UOI, AIR 2008, it was held that
‘caste’ is often used interchangeably with ‘class’ and can be called as one
of the basic units in social stratification.
Discrimination on the basis of caste is also prohibited to prevent atrocities
on the lower castes by the upper caste.

(d) Sex – Sex refers to the “gender of an individual. The India Constitution,
while incorporating equal protection clause in Article 14, specifically bans
discrimination between the sexes under Article 15(1) and 16(2),
guaranteeing that the State shall not discriminate between citizens only on
the ground of sex; at the same time retaining an exception in Article 15(3)
to enable State to make ‘special provisions’ for women.
Sexual discrimination involves discriminating transgenders, females, etc.

(e) Place of birth – Place of birth is a ‘place where an individual is born’ and
should not become a reason for discriminating among other members of
the country. ‘Place of birth’ in the Indian Constitution should not be
confused with ‘domicile’ or ‘residence’.
Clause (1) of Article 15 states that “the State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.”
Article 15 (1) prohibits the State to discriminate against the citizens on grounds only of
religion, race, caste, sex, place of birth or any of them. If a law is passed by the legislature,
which discriminates the citizens of India on any of the above grounds ‘individually’, it can be
declared invalid. It means that a discrimination based on ‘any of the grounds’ and also on the
‘other grounds’, not being mentioned above is not hit by Article 15 (1). 

 Scope of word “Only”:

The word “only” used under Article 15(1) signifies that the discrimination cannot be
done on the grounds mentioned under this Article ‘individually’ i.e. the discrimination
made solely on the grounds such as ‘religion’ or ‘race’ or ‘caste’ or ‘sex’ or ‘place of
birth’ shall attract the bar under Article 15. On the other hand, if the discrimination is
based upon may be ‘caste’ and some other ground, not been mentioned in the Article
15, then it shall not be considered as “discrimination” for the purpose of this Article.
For example, a person may not have been born at a place where he resides. The words
‘place of birth’ and ‘only’ in the present clause leaves a scope for State to
discriminate on the grounds of ‘domicile’ or ‘residence’ (subject to other provisions
of the Constitution) and then such discrimination would be considered as valid and
therefore would not be violative of Article 15 clause 1.

In the case of Yusuf v. State of Bombay AIR 1954, it was held that the word “only” makes
it clear that the discrimination which is forbidden by this Article is such discrimination as is
based solely on the ground that a person belongs to a particular race or professes a particular
religion or was born at a particular place or is of a particular sex, and on no other ground. A
discrimination based on ‘one or more of these grounds’ and also on ‘other grounds’ is not hit
by the Article 15.
In D.P. Joshi v. State of Madhya Bharat, AIR 1955, it was held that a law which
discriminates on the ground of residence does not violate Article 15 (1). In this case a rule of
the College requiring a capitation fee form non-Madhya Bharat Students for admission in the
college was held valid as the ground that exemption was residence and not place of
birth. Place of birth is different form residence. What Article 15 (1) prohibits is
discrimination based on place of birth and not that based on residence. 
Similarly, the requirement of test in the regional languages for State employment, does not
contravene Article 15 as the test is made compulsory for all persons seeking employment.
Thus, in Nainsukhdas v.  State of U.P. AIR 1953, a law which provided for elections on the
basis of separate electorates for members of different religious communities was held to be
unconstitutional as the “religion” is a ground expressly been mentioned under Article 15(1).
Clause (2) of Article 15 states that “No citizen shall, on grounds only of religion, race,
caste, sex, place of birth or any of them, be subject to any disability, liability, restriction
or condition with regard to-
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing Ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of
the general public.”

Article 15(2) is a specific application of the general prohibition contained under Article
15(1).
Article 15 (2) declares that no citizens shall be subjected to any disability, restriction or
condition on grounds only of religion, race, caste, sex, place of birth or any of them with
regard to:
(a) access to shops, public restaurants, hotels and places of public entertainment, or
(b)  the use of wells, tanks, baths, roads, and place of public resort.
The expression “places of public entertainment” means a place open to members of the
public without any discrimination, who desire to get entertained, where means of
entertainment are provided.
And the “place of public resort” means ‘places which are frequented by the public like a
public park, a public road, a public bus, ferry, public urinal, railway or hospital, etc. 
The “State funds” under Article 15 includes the revenue of the Union and the State as well
as the funds of the local and other authorities who are included in Article 12.
It is to be noted that while clause (1) of Article 15 prohibits discrimination by the State,
clause (2) prohibits both the State and private individuals form making any
discrimination. In the case of Arunugha v. Narayana, AIR 1958, the court held that Article
15(2) contains a prohibition of a general nature and is not confined to State only.
Since, the prohibition under Clause 2 is addressed to private individuals and collective bodies
and institutions which may not be covered by the definition of “state” in Article 12, question
arises how the prohibition can be enforced against private individuals and bodies?
The answer is that, Article 15(2)(a) provides for the prohibition to any disability, liability,
restriction, or condition with regards to access to any place of public entertainment of any
citizen on the ground let’s say “sex”. Article 51-A in part IV-A of the Constitution says that it
shall be the duty of every citizen of India to renounce practice derogatory to the dignity of a
woman. Therefore, it can be inferred that if any private individual does some act of exhibiting
the obscene and vulgar films exposing a woman is violative of her fundamental right as
guaranteed by Article 15(2)(a), and this right can therefore be enforced against such private
individual resorting to such practice in the court of law [ An anonymous Letter-unsigned v.
Commissioner of Police, Hyderabad, AIR 1998].
The object of Article 15 (2) is to eradicate the abuse of the Hindu social system and to herald
a united nation. Therefore, no law, custom or usage could authorize any person to prevent any
Harijans, depressed classes or the like from having access to the public places mentioned in
the Act.
It is pertinent here to mention that Article 15(2) has a wider scope than that of Article 17.
Article 15(2) does not make any violation of the prohibition punishable by law, so as to
attract Article 35(ii). Of course, so far as the discrimination under Article 15(2) is on the
ground of caste, it might be punishable under the Untouchability (Offences) Act, read with
Article 17 of the Constitution of India. But the ambit of Article 15(2) is wider and it prohibits
discrimination on grounds other than caste, such as race, sex, religion, place of birth. So long
as no legislation is made by the State to enforce the prohibition of discrimination on these
grounds other than that of caste, such prohibition is non-executory and does not create any
enforceable right in the favour of the person who has been discriminated against on any of
these grounds.

Clause (3) Of Article 15: States that “nothing in this article shall prevent the State from
making any special provision for women and children.”
Article 15 (3) is one of the exceptions to the general rule laid down in clauses (1) and (2) of
Article 15 as the Constitution of India makes specific provisions for “protective
discrimination” in favour of women and children.
The expression “special provisions” under this Article means those provisions which “State”
may make to improve women’s participation in all the activities under the supervision and
control of State, which can be either in the form of affirmative action or reservation. It
includes the state’s power to make reservation for woman in admission to the educational
institutions and Government posts. This is how Article 15 is designed to create an egalitarian
society and therefore, it can be said that the intention of framers of Constitution was to
protect the interest of the women and children.
In the case of Muller v. Oregon, 52 L.Ed 551 it was held that the "women's physical
structure and the performance of maternal functions place her at a disadvantage in the
struggle for subsistence and her physical well- being becomes an object of public interest and
care in order to preserve the strength and vigour of the race.” This was reiterated in the case
of State of U.P.v. Deoman, AIR 1960 and the court further added that “the equality clauses,
in Indian Constitution, were in particular framed in the light of the American Constitution”.
Thus, under Article 42, women workers can be given special maternity relief and a law to
this effect will not infringe Article 15(1). Again, it would not be violation of Article 15 if
Educational institutions are established by the state exclusively for women. The reservation
of seats for women in a college does not offend against Article 15(1).

Clause 3 of Article 15 also allows the government to frame special laws regarding the
protection of women and abolition of sexual harassment. Sexual harassment is a clear
violation of the fundamental rights of equality guaranteed under Article 14(2) and Article
15(3). The sexual harassment of women that had become a frequent story of everyday
newspapers was dealt with by the supreme court in the famous Vishaka v. State of
Rajasthan, AIR 1997, a three judge Bench of the Supreme Court made a significant
contribution in evolving the code against sexual harassment. While emphasizing the need to
have guidelines, it was observed that “the primary responsibility for ensuring such safety and
dignity through suitable legislation, and the creation of a mechanism for its enforcement is of
the legislative and the executive. When, however, instances of sexual harassment resulting in
violation of fundamental rights of women workers under Article 14,19 and 21 are brought
before us for redress under Article 32, effective redressal requires that some guidelines
should be laid down for the protection of these rights to fill the legislative vacuum.” The
court gave certain directions and held that these directions would be binding and enforceable
in law until suitable legislation is enacted to occupy the field. However, these guidelines will
not prejudice any rights available under the protection of Human Rights Act, 1993. It was
held that incidents of sexual harassment violate Article 14, 15 and 21 of the Constitution. It
was further declared that the logical conclusion of such violation amounts to violation of
Article 19(1)(g) i.e., to practice any profession or to carry on any occupation, trade or
profession depends on the availability of a “safe” working environment. Right to life means
“life with dignity”.
Although there were provisions in Indian Penal Code, 1908 for the protection of woman such
as Section 354, 375, 498-A etc., but they were quite general and insufficient for the purpose
of protection of woman.
The Visaka case was a major breakthrough and led to the formulation of Protection of
Woman from Domestic Violence Act, 2005; The Sexual Harassment of Woman At Work
Place (Prevention, Prohibition and Redressal) Act, 2013 etc. are some of the Acts which
reflect the intention of the legislature to protect and uplift woman.
Though the act of legislature to partially impose differential benefits and ostensibly to the
advantage of women at the cost of burdening men may ponder in your mind. But it is justified
as it compensates for early injustice met by women and children at the hands of a male-
dominated society.
The interpretation as done by the Courts time and again on the constitutionality of these
favours as conferred to the woman therefore, clearly and unambiguously projects the
intention of the legislature of discriminating in favour of woman and against men. But this
favour is not unconstitutional as it constitutes an exception to the prohibition of
discrimination on the ground of sex contained in Article 15(1) as in the case of Yusuf Abdul
Aziz v. State of Bombay AIR 1954, Section 497 of Indian Penal Code was first challenged
being discriminatory in the favour of woman, as it only punishes man for adultery and
exempts the woman from punishment even though she may be equally guilty as an abettor
was held to be valid since the Classification was not based on the ground of sex alone.
The Supreme Court of India, in the case of Joseph Shine v. Union of India, AIR 2018
struck down Section 497 of the Indian Penal Code, 1908 as being violative of Articles 14,15
and 21 of the Constitution.
The special provision for the Children can also be made by the Act of legislation under
Article 15(3) so as to take care, protect and uplift them. Several laws have been passed by the
parliament in the favour of delinquent children, who due to the reason of impoverished
conditions and tender age jumps into the vicious ocean of crimes namely Probation of
Offenders Act, 1958; Juvenile Justice (Care and Protection of Children) Act, 2015 etc.
Article 45 of the Constitution is one of the Directive Principles of the State Policy, which
imposes a duty upon the State to provide free education for children below six years of
age.
Measures for prevention of exploitation of Children, through Acts such as the Child Labour
(Prohibition and Regulation) Act, 1986; Prohibition of Child Marriage Act, 2006;
POCSO Act, 2012; etc. have also been taken by the Legislature for the care and protection of
Children in India.
In the case of Anjali Roy v. State of West Bengal, AIR 1952, it has however, been held,
that Article 15 (3) provides for only special provisions for the benefits of women and children
and does not require that absolutely identical treatment as that enjoyed by males in similar
matters must be afforded to them.
 Instances of Special provisions for Women and Children
Right to free and compulsory education for children under the age of 14 years, section
56 of CPC, the Maternity Benefit (Amendment) Act 2017, etc. are some of the best
examples of such provisions.
In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540,
U.P. govt made provision providing reservation BTC training programme as follows:
 50% of the candidates to be selected shall be from Science stream,
 50% from the Arts stream,
 further 50% would be female candidates,
 And the other 50% would be male candidates.
The contentions raised were that the reservation format formulated was arbitrary and
violative of Articles 15. The court held that the reservation format introduced was not
warranted by the provisions of the Indian constitution, being over and above the
constitutional reservations in favour of backward classes.

Whereas in Union of India v. K.P. Prabhakaran, (1997), the railway administration

took the decision to appoint Enquiry cum reservation clerks in four metropolitan cities
i.e. Mumbai, Delhi, Kolkata, and Chennai. The decision stated that the post would be
held by women only. The court rejected the contention of the government urging that
this provision is protected under Article 15(3). It said that Article 15(3) cannot be read
as the provision or as an exception to what is guaranteed under Article 16 (1)(2).
These cases clearly explain the applicability of the phrase ‘Special provisions for
women and children’ in matters of the reservation to education and employability. But
 what if there are laws which differentiate or prefer women over men, can it be called
discrimination.
In Choki v. the State of Rajasthan, AIR 1957 Raj 10, Choki and her husband
conspired and murdered their child, the application of bail was presented on the plea
that she is an imprisoned woman, with no one to look after her young son. The judge
rejected the application saying that there were no extenuating circumstances and the
Constitution has no provisions under which leniency could be shown to women on
account of her sex. The same was challenged before the Supreme Court. It was held
that Article 15(3) talks about special provisions for women and children. And under
the light of this provision, Mt. Choki was granted bail as she was a woman and there
is a young child dependent on her, thus it becomes necessary for the state to protect
the rights of the child.

 
Clause (4) of Article 15: States that “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.”
Article 15(4) is another exception to clauses (1) and (2) of Article 15.
The phrase “socially and educationally backward classes” under Article 15(4) refers to
underprivileged classes of people who have faced discrimination and prejudice from the
privileged class. This category includes the class of people who belong to backward classes
in society but are not covered under SCs or STs. OBCs have been included under this phrase
of socially and educationally backward classes as a category for reservation.
Article 15, Clause 4 was added by the Constitution (Ist Amendment) Act. 1951, as a
result of the decision in State of Madres v. Champakam Dorairajan AIR 1951.
In that case the Madras Government had reserved seats in State Medical and Engineering
Colleges for different Communities in certain proportions on the basis of religion, race and
caste. The State defended the law on the ground that it was enacted with a view to promote
the social justice for all sections of the people as required by Article 46 of the Directive
Principles of State Policy. The Supreme court held the law void because it classified
students on the basis of caste and religion irrespective of merit. The Directive Principles
of State Policy cannot override the Fundamental Rights.
In case of Jagwant Kaur v. State of Bombay AIR 1952, an order requisitioning land for the
construction of a Harijan Colony was held to be void under Article 15 (1).
To modify the effect of these two decisions, Article 15 was amended by the Constitution
(Ist Amendment) Act, 1951. Under this clause, the State is empowered to make special
provisions for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and Scheduled Tribes.  After the amendment it
would be possible for the State to put up a Harijan Colony in order to advance the
interest of the backward classes.
 The provisions made in clause (4) of Article 15 is only an enabling provision and does not
impose any obligation on the State to take any special action under it.  It merely confers a
discretion to act if necessary, by way of making special provision for backward classes.
[Balaji v. State of Mysore AIR 1973]
A writ cannot be issued to the State to make reservation. The principle behind Article 15
(4) is that a preferential treatment can be given validly where socially and educationally
backward classes need it. 
Article 15 (4) is not an exception but only makes a special application of the principle of
reasonable classification. "The class contemplated under the clause must be both socially and
educationally backward.”
Thus, under clause 15(4) two things are to be determined-
(1) who are socially and educationally backward classes? 
(2) what is the limit of reservation? 
What are Backward Classes is not defined in the Constitution.  Article 340, however,
empowers the President to appoint a Commission to investigate conditions of socially and
educationally backward classes.  On the basis of the report of the Commission the President
may specify who are to be considered as Backward Classes.  The decision of the Government
is, however, a justiciable issue.  The Court can consider whether the classification made,
by the Government is arbitrary or is based on any intelligible and tangible principle.
In the historic Indira Sawhney v. Union of India, AIR 1993 SC 477 (Mandal Commission
case), the Supreme Court by 6-3 majority has held that the sub-classification of backward
classes into more backward and backward classes for the purpose of Article 16 (4) can be
done.  But as a result of sub-classification the reservation cannot exceed more than 50 per
cent.  The distinction should be on the basis of degrees of social backwardness.  In fact, such
a classification would be necessary to help the more backward classes otherwise those of the
Backward classes who are little more advanced than the more backward classes might take
away all the seats.  This interpretation is equally applicable to Article 15 (4), as the words
"Backward classes of citizen in Article 16 (4) are wider and includes the SCs and STs and
other socially and educationally backward classes also.
Reservation of 27% for the ‘Other Backward Classes’ was also introduced in the Indra
Sawhney case and the Supreme Court of India put up a limit of 50% as the total percentage of
reservation as it was reasoned that allowing the limit to exceed will deprive others of their
right to equality. Supreme Court also provided for the guidelines to exceed the limit of
reservation under extraordinary situations.
In Ajay Kumar v. State of Bihar AIR 1994, the issue was raised regarding the
permissibility or providing reservation under Article 15(4) in postgraduate medical courses.
The contentions raised by the appellant were that Article 15(4) neither speaks nor permits
reservation in educational institutions. While certain preferences and concessions can be
given, reservation of seats is beyond the limits of clause (4) of Article 15 of the constitution
of India. The appeal was rejected by the court as special provisions also include reservation
provisions and not just preferences and concessions.
In the landmark judgment of Dr. Priti Shrivastava v. State of Madhya Pradesh AIR 1999,
A 5 judge bench of SC by 4:1 majority has held that merit alone can be the criterion for
selecting students to the super speciality courses in medical and engineering, as these
professions require keen practice, precision and skill, and therefore merit based criteria would
be proper at the instance of admission in such courses.

 Clause 5 of Article 15: states that “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.”

The expression “socially and educationally backward classes of citizens” refers to the
underprivileged classes of people who have faced discrimination and prejudice from the
privileged class. This category includes the class of people who belong to backward classes
in society but are not covered under SCs or STs. OBCs have been included under this phrase
of socially and educationally backward classes as a category for reservation.
The right to “practice any profession, or to carry on any occupation, trade or business”
conferred under Article 19(1)(g) are not only subjected to restrictions [as provided by Article
19(6)] in the interest of general public, but such restrictions can also be extended to total
prohibition and to creation of state monopoly completely or partially excluding any citizen,
corporation or other body from that business or occupation. This is the reason why it has been
clearly mentioned under Article 15(3) that “Nothing…. 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….”
Clause 5 of Article 15 was Added by the Constitution (93rd Amendment) Act, 2006 was
enacted to nullify the effect of the three decisions of the Supreme Court, i.e. TM Pai
Foundation v.  State of Karnataka AIR 2003, Islamic Academy V. State of Karnataka
AIR 2003 and PA. Inamdar v. State of Maharashtra 2005.
In TM Pai Foundation and PA Inamdar cases it has been held that the State cannot
make reservation of seats in admissions in privately run educational institutions.  There
the admissions can be done on the basis of common admission test conducted by the State or
these institutions and on the basis of merit.
In Islamic Academy case the Court held that State can fix quota for admissions to these
educational institutions but it cannot fix fee and also admissions can be done on the
basis of common admission test and on the basis of merit.
In PA Inamdar, however, the Court has overruled the Islamic Academy to the effect that
the “State could fix the quota for admissions to private Professional educational
institutions.”
This Amendment enables the State to make provision for reservation for the above categories
of classes in admission to private educational institutions.  The expression “private
educational institutions” refers to all those educational institutions which are owned and
controlled by the private individuals and are devoid of any aid or control of the State.
The court has left the constitutionality of above amendment undecided insofar as it applies to
the private educational institutions because no such educational institution has come to the
court to challenge its validity.

This Amendment, however, keeps the minority educational institutions as referred under
clause (1) of Article 30 out of the purview.

 Clause 6 of Article 15 states that “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.”

The sixth clause under Article 15 was added by Constitution (103rd Amendment) Act,
2018 that gives the State power to make special provisions for those from the Economically
Weaker Sections (EWS) other than those mentioned in clauses 4 and 5 regarding
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.
The expression “Economically Weaker Section” refers to that section of the society which
is not covered under the other backward class, STs and SCs. It basically covers the people
from economically weaker sections of the society have largely remained excluded from
attending the higher educational institutions and public employment on account of their
financial incapacity to compete with the persons who are economically more privileged.
Therefore, we can say that “Economically Weaker Section” includes the citizens
belonging to the economically weaker sections from the upper castes.
Article 15(6) provides for the reservation to the economically backward section of the
society and will be in addition to the existing reservation with a capping restricted at
maximum 10%.
The Article 15(6) aims to provide reservation to those who do not fall in 15 (4) and 15(5)
(effectively, SCs, STs and OBCs) in central government jobs as well as government
educational institutions. It is also applicable on admissions to private higher educational
institutions.
The government notification providing 10% reservation to weaker economic sections of
society was struck down in Indra Sawhney v. Union of India AIR 1992. Therefore,
Constitution (103rd Amendment) Act, 2018 brought about a significant breakthrough as it
upholds the power of Legislature to provide for reservation to economically backward section
of the society.
However, it is noteworthy that these rulings were given in relation to a law or subordinate
legislation and have never been discarded in violation of Basic Structure Doctrine.
Moreover, the amendment only provides reservation to the extent of 10%, however, the
existing articles 15(4), 15(5) and 16(4) do not mention that reservation shall be 50%
explicitly, by way of legislation. And also, Article 46 of the Constitution of India, a
Directive Principle urges the government to protect the educational and economic interests of
the weaker sections of society. While socially disadvantaged sections have enjoyed
participation in the employment in the services of the state, no such benefit was provided to
the economically weaker sections.
Therefore, the Article 15(6) aims at uplifting the weaker sections of the society so as to
upheld the intention of the Constitution makers of establishing an egalitarian society which
may create hue and cry, disharmony and friction amongst the society. It is natural and
invariable that the section of the society which is not been favoured, may feel that their Right
to Equality as conferred by Article 14 is infringed, but so as to bring the deprived and
impoverished on the equal footing with the privileged strata of the society and to bridge the
gap between ‘haves’ and ‘have-nots’, and to bring about “equality amongst equals”, the
reservation policy is justified.
In the case of Youth for Equality v. Union of India, AIR 2019, a writ petition has been
filed by Youth for Equality, contending that 103rd amendment violates the basis structure
doctrine and as of now, the decision of the SC is still pending.

RESERVATION
As mentioned above, the Article 15 Clause (3), (4) and (5) and (6) itself stands as an
exception to Article 15 Clause (1) and (2). Article 15 Clause (3), (4), (5) and (6) states that
the legislature is free to formulate special provisions:
 For women and children,
  For the advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes and Scheduled Tribes, provisions relating to their admission
to educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions.
 For those from the Economically Weaker Sections (EWS) regarding admission to
educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions
In India the preferential policy is of two types:
1. to impart special benefits to the socially and educationally backward classes,
scheduled classes and scheduled tribes.
2. to provide special benefits to the local ethical groups of the state against the
migrant from the other states.
Though being the exception to the legislation that forbids discrimination on grounds of sex
and caste, this does not come under discrimination. Rather, the term ‘PROTECTIVE
DISCRIMINATION’ (also known as Positive Discrimination) is used by the legislators
to justify reservation and is defined as the policy of providing an equal platform to the
underprivileged and the suppressed classes and to lift their status in the society. This
system of reservation works on the principles of intelligible differentia (difference
capable of being understood).