Art 15: Prohibition of Discrimination

Reservation

“Reservation”, also denoted as

“affirmative action” or “positive
discrimination”, it refers to a policy or
program, or giving certain preferences to
certain groups (usually under-represented
groups) over the others.
 Historical Background of Reservation inIndia

1. “Reservations in favour of the backward classed (BCs) were

introduced long before independence in a large area, comprising the
presidency areas and the princely states in the south of the Vindhyas.
Chatrapati Sahuji Maharaj, Maharaja of Kohlapur in
Maharashtra, introduced reservation in favour of backward
classes in as early as 1902 to eradicate poverty from amongst them
and to give them their due share in the state administration. The
notification of 1902 created 50% reservation in services for
different communities in the State.
2. This notification was the first government order providing for
reservation for the welfare of depressed classes in India.
In the year 1942, Dr. B.R Ambedkar established the all India
depressed classes’ federation to support the advancement
of the scheduled castes. He demanded reservations for the
Scheduled castes in government services as well as other sectors.
However, in the year 1947, India obtained independence and
Dr. B.R. Ambedkar was appointed chairman of the drafting
committee for Indian Constitution.
the Constitution contains special clauses “for the
advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the
Scheduled Tribes”.
 ARTICLE 15 (1)
• Clause (1)- The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them
➢Case Law

Nainsukhdas v. State of Uttar Pradesh , AIR 1953

• In the above-mentioned case, the state election commission sets
up different electoral boards for different religions, which were
declared unconstitutional by the Supreme court of India. Under
this clause the state shall not do any kind of discrimination to its
citizens.
 Dr Pradeep Jain Etc. v. Union of India &
Ors. (1984).

• In this case, the petitioner challenged the domicile

reservation system in the medical colleges on the
grounds that it violates Article 14, 15 & 16 of the Indian
Constitution.
• The respondents presented their arguments that the
main aim behind this reservation system is to promote
welfare and betterment of the local people and
therefore, it falls under the domain of ‘reasonable
classification’ under Article 14.
• The Supreme Court (SC) held that while some
preference could be given to domicile candidates, it
should not be absolute and should not exclude non-
domicile candidates altogether.
 DP Joshi Vs State of Madhya Bharat AIR 1955 SC 334
• Facts:
• ‘Mahatma Gandhi Memorial Medical College’ in Indore was a private enterprise but was taken
over by the Madhya Bharat Government later. It introduced a law that all students, who lived in
Madhya Bharat i.e. “citizens of Bonafide of the country”, were exempted from the amount that
had to be paid to the college.
• The writ petition was filed, before the Supreme court under Article 32 of the Indian Constitution,
against the new rule by Madhya Bharat government claiming that the rule violated the right to
equality enshrined under the Constitution of India under Article 14 and 15.
• Issue Involved:
• Whether the rule regarding the domicile of the candidate infringed the Fundamental Rights
guaranteed by Articles 14 and 15(1) of the Indian Constitution?
• Whether the petitioner is entitled to a writ which restrains the concerned authorities from
imposing capitation fee if the said rule violates the Constitution?
• Judgement:
• It was held by the Court in majority that the above-mentioned rule was not violation of
the Fundamental rights enshrined under Article 15(1) of Indian Constitution. The court
held by majority that “Place of Birth” and “Place of Residence” are two different and
distinct things both in facts and law and the imposition of capitation fees was based on
“Place of Residence” rather than “Place of birth” and Article 15(1) of Indian Constitution
deals with discrimination based on “Place of birth” and it can’t be read as “Place of
residence”.
• The court further held that the rule was also not violation of Article 14 of Indian
Constitution because the classification was just and reasonable because it was based on
a ground which was a primary duty of state i.e. to encourage education within its
geographical boundaries.
• Therefore, the majority of the Judges rejected the writ petition by the Supreme Court &
held that the state law of the state of Madhya Bharat did not violate the principles of the
constitution.
 In State of UP v. Pradeep Tandon (1974)
• The Court held that providing reserved seats to students from rural areas was
unconstitutional, as poverty in rural areas does not equate to backwardness, and
reservations could only be provided to socially and educationally backward classes.
• The Court observed that Article 5 of the Constitution is clear and explicit on
this point, and it refers only to one domicile, namely, “domicile in the
territory of India.”
• “It is dangerous to use a legal concept for conveying a sense different that
which is ordinarily associated with it as a result of legal usage over the years.
Therefore, it is strongly urged upon the State Government to exercise
this wrong use of the expression “domicile” from the rules regulating
admissions to their educational institutions and particularly medical
colleges and to desist from introducing and maintaining domiciliary
requirement as a condition of eligibility for such admissions.”
• Union of India v. Lt Cdr Annie Nagaraja Case, 2015:
• In 2015, seventeen women officers who had joined the Indian Navy as Short
Service Commissioned (SSC) officers in various cadres (such as Logistics,
Law, and Education) filed writ petitions before the Delhi High Court.
• These officers had completed fourteen years of service as SSC officers but
were not considered for the grant of Permanent Commissions (PCs) and
were subsequently discharged from service.
• In 2020, the SC held that serving women Short Service Commission Officers in the
Indian Navy were entitled to Permanent Commission at par with their male
counterparts.
• Secretary, Ministry of Defence vs. Babita Puniya Case, 2020:
• In February 2020, SC upheld the demands of women in the SSC, stating that
seeking a Permanent Commission (PC) or a full-length career was
“justified”.
• Before the ruling, only male officers on Short Service Commission (SSC)
could opt for PC after 10 years of service, leaving women unable to qualify
for a government pension.
• The court's decision brought women officers in 10 streams of the Army at
par with men.
• Lt. Col. Nitisha & Ors v. Union of India & Ors. 2021
• The Petitioner moved to the Supreme Court against the Indian Army alleging gender-
based discrimination. The petitioners are women short service commission (SSC) officers
who had applied to be appointed as Permanent Commissions (PC).
• Court Recognises Indirect Discrimination & Strikes Down Army’s Gender
Discriminatory Promotion Practices
• The Court held that the manner of granting women officers Permanent Commission in
the army reflected indirect and systemic discrimination.
• In Priyanka Tyagi v. Union of India Case, 2024,
• SC underscored the necessity for the Central government to ensure that eligible
women officers receive permanent commission in the Indian Coast Guard.
• The Attorney General presented arguments citing operational challenges in
granting permanent commissions to women officers.
• However, the Court dismissed these arguments, emphasising that in the year 2024, such
justifications hold no merit.
• The SC further urged the Centre to develop a gender-neutral policy on this
matter, calling for a departure from patriarchal norms.
• This instance underscores the ongoing struggle for gender equality and the necessity for
proactive measures to ensure women's inclusion and empowerment in all spheres of
society, including the armed forces.
• Union of India & Others vs. Ex. Lt. Selina John’ 2024
• The Supreme Court (SC) has directed the Ministry of Defence to
pay Rs 60 lakh in compensation to a former permanent
commissioned officer in the Military Nursing Service (MNS).
• It is ruled that the officer was “wrongly” released from service in
1988 on grounds of her marriage.
• SC’s Observations:
• The SC stated that her release from the service was “wrong and
illegal”.
• The court also rejected the Centre’s argument, based on a rule in force
at the time.
• Such rule was ex facie manifestly arbitrary, as
terminating employment because the woman has got
married is a coarse case of gender discrimination and
inequality.
 ARTICLE 15 (2)
• Clause (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 palaces 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.
• Does the Constitution provide protection against private discrimination?
• Private discrimination in India is pervasive. Article 15(2) of the Constitution is
unique. While most other fundamental rights concern the actions of the State. This
provision Article 15(2) is addressed to private individuals.
Indian Medical Association v. Union of India, (2011) 7
SCC 179
• Despite widespread discrimination in the private sector on the basis of
caste, gender and religion, among other things, very few cases are
litigated on private discrimination before our courts. The Supreme Court’s
interpretation of Article 15(2) of the Constitution in its 2011 judgment in
the case of Indian Medical Association vs. Union of India provides
recourse, mandating the private sector must conduct its affairs in a non-
discriminatory manner.
• The context of egalitarian jurisprudence inherent in Articles 14, 15, 16 and
Article 38, and read with our national aspirations of establishing a society
in which equality of status and opportunity, and Justice, social, economic
and political, would imply that the private sector which offers such
facilities ought not to be conducting their affairs in a manner which
promote existing discriminations and disadvantages.”
• The court’s renewed interpretation of Article 15(2) is in consonance with
the history, social context, and the jurisprudence of discrimination law.
Contd…
• The question was whether a private, non-minority higher educational
institution that admits students only on the basis of their scores in an
entrance test is in violation of Article 15 (2). The Court held that it
was. The Court invoked the applicability of Article 15(2) by holding
an educational institution to come within the definition of “shops”,
under Article 15(2). The Court observed that entrance tests operate
so as to discriminate against students who hailed from socially and
educationally backward backgrounds.
• Quoting Ambedkar, in the Constituent Assembly Debates, the Court
observed:
• “To define the word `shop’ in the most generic term one can think of is to
state that `shop’ is a place where the owner is prepared to offer his service
to anybody who is prepared to go there seeking his service. …. Certainly, it
will include anybody who offers his services. I am using it in a generic sense.
I should like to point out therefore that the word `shop’ used here is not
used in the limited sense of permitting entry. It is used in the larger sense
of requiring the services if the terms of service are agreed to.”
 ARTICLE 15
• Clause (3)- Nothing in this article shall prevent the State from
making any special provision for women and children
• For example:
• Maternity Benefit (Amendment) Act 2017
• Child labour (Prohibition & Regulation) Act
• Juvenile Justice (Care and Protection of Children)
Act, 2015
• The Prohibition of Child Marriage Act, 2006
• Protection of Women from Domestic Violence Act, 2005
(PWDVA)
The above-mentioned legislations were enacted for
the welfare and development of women and
children.
• The Supreme Court in a landmark judgment in the Vishakha and others v State
of Rajasthan 1997 case gave ‘Vishakha guidelines’.These guidelines formed the
basis for the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.
• The SC also drew its strength from several provisions of the Constitution
including Article 15 (against discrimination on grounds only of religion, race,
caste, sex, and place of birth), also drawing from relevant International
Conventions and norms such as the General Recommendations of the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), which India ratified in 1993.
• MC Mehta vs State of Tamil Nadu
• The Supreme Court held that the employment of child labor in India violates the
fundamental right against exploitation as recognized in Article 24 of the Indian
Constitution and the Convention on the Rights of the Child.
• This landmark ruling addressed the exploitation of children in hazardous
industries. The court outlined the Constitution's vision for children and set
precedents for protecting children's rights and enforcing child labor laws.
 ARTICLE 15 (4)
• In Champakam Dorairajan v State of Madras (AIR 1951 SC 226), the Apex Court
struck down a Madras government order as unconstitutional. The order was
recommending for reservation of seats in medical colleges in the state on the basis
of religion and caste.

• The Constitution (First Amendment) Act, 1951 brought Art.15(4) to provide for
special arrangements for the backward classes.

• Clause- (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. (First Constitutional Amendment, 1951)
 Jagwant Kaur v. State of Maharashtra (1952)

• The construction of a colony solely for harijans was

considered to be violative of Article 15(1). Clause(4)
under Article 15 was thus introduced for the purpose
of helping the socially and educationally
disadvantaged citizens without violating any other
provisions.
 Dr Neelima vs Dean of P.G. studies A.P. Agriculture University,
Hyderabad (1993)

• In this case, it was held that a girl of a high caste who

married a boy belonging to Scheduled Tribes is not
eligible for the privilege of reservation available to
Schedules Tribes as the girl originally belonged to a
high caste. Merely marrying a boy of Scheduled Tribes
will not make her eligible for the benefits reserved for
them.
 In Balaji v. State of Mysore (1963)
• The Mysore Government issued an order and decided to provide
68% reservation for students belonging to backward classes for
their admissions in medical and engineering colleges. The
government left only 32% of reservation for students getting
admission on merit. Because of this reservation, students with
higher marks than those in the reserved category failed to obtain
a seat.
• Additionally, the Court stated that reserving 68% of seats in
medical and engineering schools would constitute constitutional
fraud, as Clause (4) of Article 15 prohibits exclusive provisions for
backward classes. Therefore, reservations could not exceed 50%.
• The court made the following declarations
• Backwardness must be both social and educational
• Caste cannot be sole determinant to check
backwardness, poverty and occupational.
• For the first time, the court defined 50% ceiling limit for
reservations.
• Ruled out the further classification of backward classes
into backward and more backward classes.
 HISTORY
• After independence, in pursuance of Article 340 of the

Constitution the first backward classes commission was set up in

1953 under the Chairmanship of Kakasaheb Kalelkar who was an

MP belonging to a backward class in the then Parliament.

• The commission was named as Kakasaheb Kalelkar commission

and submitted a detailed report on the socially, economically and

educationally backward classes of India in 1955

 History (Contd.)

• The report listed all the criteria on the basis of which backwardness was
determined by the commission

• The commission recommended for reservation of 70% seats in technical

and professional institutions for students of backward classes

• The commission’s report was criticized on the ground that it did not
apply any objective and clearly defined criteria in identifying the
backward classes
Evolution of the concept of creamy layer among
backward classes
• In 1980 the 2nd backward classes commission also called the “Mandal

Commission” was constituted as the Kakasaheb Kalelkar commission

report was completely rejected by successive governments.

• The Mandal Commission submitted its report in 1989-90 which

initially recommended 52% reservation for OBCs as the report said

that 52%
 Creamy layer (Contd.)

• The report identified creamy layer as “some members of a backward class

who are socially, economically as well as educationally advanced as
compared to the rest of the members of that community. They constitute
the forward section of that particular backward class and eat up all the
benefits of reservations meant for that class, without allowing benefits to
reach the truly backward members”
 Creamy layer (Contd.)

• The report said that the creamy layer among OBCs do not need

reservation.

• Both the Indira Sahney judgments & Mandal commission report

enforced the creamy layer concept but made it inapplicable for the

SC/STs.
 Indira Sawhney v. Union of India

• The court, in this case, reversed the M.R. Balaji

case judgement as under:
• Caste can be the sole determinant in judging
backwardness
• Validated further classification of backward
classes into backward and more backward
classes
• The Supreme Court while upholding the 27% quota for backward
classes, struck down the government notification reserving 10%
government jobs for economically backward classes among the higher
castes.
• SC in the same case also upheld the principle that the combined
reservation beneficiaries should not exceed 50% of India’s population
unless exceptional circumstances warranting the breach, so that the
constitutionally guaranteed right to equality under Article 14 would
remain secured.
• The concept of ‘creamy layer’ also gained currency through this
judgment and provision that reservation for backward classes should
be confined to initial appointments only and not extend to
promotions.
• In P.A. Inamdar and Ors v. State of
Maharashtra and Ors (2005) case,
Supreme Court of India held that the
minority and the non-minority unaided
private educational institution does not
come under the reservation policy of the
state.
 Article 15 Clause (5) 93rd constitutional Amendment of 2005.
• Clause (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 insofar as such special provisions relate to their
admission to educational institutions including private education
institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of Article 30
 Ashoka Kumar Thakur Vs. Union of India and Ors (2008)
• Whether the Ninety-Third Amendment (2005) of the Constitution is against the "basic structure"
of the Constitution?
The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the
Constitution so far as it relates to the state-maintained institutions and aided educational institutions.
• Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra
vires?
Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory.
• Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14
of Constitution?
Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the
Constitution as the minority educational institutions, by themselves, are a separate class and their
rights are protected by other constitutional provisions.
• Whether the Central Educational Institutions Reservation in Admission Act 2007) is
constitutionally invalid in view of definition of "Backward Class" and whether the identification of
such "Backward Class" based on "caste" is constitutionally valid?
The Court has said that while identifying backward class, recommendation of Manal Commission had
been taken into consideration. Identification of "backward class" is not done solely based on caste.
Other parameters are followed in identifying the backward class. Therefore, 2007 Act is not invalid for
this reason. The Court has relied on the landmark Judgement of Indra Sawney by the Larger Bench.
Whether the "creamy layer" principle is applicable to Scheduled Tribes
and Scheduled Castes?
"Creamy Layer" principle is not applicable to Scheduled Castes and
Scheduled Tribes.
• This case dealt with the Constitutional validity of 27% reservations for
Other Backward Classes (OBCs) in institutions of higher education. The
Supreme Court held that the 27% quota is valid. The State could not rely
solely on caste as a criterion for identifying backwardness.
• The socially and educationally backward classes refer to underprivileged
classes of people that have faced discrimination or bias from the
privileged classes. This class may not necessarily fall under the category
of the Scheduled Castes or Scheduled Tribes.
 In Ram Singh v Union of India (2015)

• The Court commented that there was a need to evolve away

from a ‘caste centric definition of backwardness’. This
comment was relied on by the NCBC in its resolution in
favour of including orphans in the OBC category. The Court
has observed that the State cannot blind itself to the
existence of other forms and instances of backwardness, not
based on caste.
 Paramati Educational and Cultural Trust v.
Union of India, (2014) 8 SCC1
• Several unaided non-minority schools approaches a Constitution Bench of the Supreme
Court challenging not only the RTE Act, but also Article 21 A and 15(5).

• Article 15 (5) was introduced into the Constitution through The Constitution
(Ninety-Third Amendment) Act 2005
• To enable the State to require private non-minority educational institutions to admit
students form socially and economically backward classes. The 5-judge bench
upheld the constitutional validity of Article 15(5) was to provide equal opportunities to
student the admission of a small percentage of students from weaker and disadvantaged
sections of the society would not erode the right to do business under Article 19(1) (g).
•Secondly, the Article 15(5) distinction between minority and non-minority schools did not
damage the equality principle as the Constitution already recognized minority schools as a
separate class.
 CATCH UP RULE
• Virpal Singh Chauhan vs Union Of India 1995
• The Supreme Court held that once a general candidate is promoted, he
would become senior to an already promoted SC/ST candidate if he/she
had been senior in the lower cadre. This was termed the ‘catch-up’ rule.
• Again in the case of Ajit Singh And Ors vs State Of Punjab And
Ors,1999 Supreme Court had held that a general candidate employee will
regain seniority over an earlier promoted SC/ST employee if the former is
promoted prior to the latter to the next higher cadre.
• Parliament intervened against the ruling in 2001, with the 85th
Constitutional Amendment to provide consequential seniority. The
amendment substituted the words ‘in matters of promotion to any class’
with the words ‘in matters of promotion, with consequential seniority, to
any class’ in clause (4A) of Article 16 of the Constitution. Even the
government of Karnataka enacted a law providing consequential seniority
for SCs/STs promoted under reservation in promotions.
• Both of these amendments were challenged in the case of M Nagraj
Case. Even though the Supreme Court upheld both the amendments
and rejected the argument that replacement of ‘catch-up rule’ with
‘consequential seniority rule’ as it violates the basic structure of the
Constitution. The Supreme Court held that Article 16(4A) is just an
enabling provision, and the state is not bound to provide for
reservation in promotion, but if it wants to do so, it must meet the
requirement of collection of quantifiable data on three aspects:
• The backwardness of the class,
• Inadequacy of representation
• The general efficiency of services not to be affected.
 In M. Nagraj v Union of India (2006) 8 SCC 212
• In this case applying the creamy layer concept in SC/ST reservation in promotions,
the SC reversed its earlier stance in the Indra Sawhney case (1992), in which it had
excluded the creamy layer concept on SCs/STs (that was applicable on OBCs).
• The SC had upheld the Constitutional amendments by which Articles 16 (4A) and 16
(4B) were inserted.
• It also laid down three conditions for promotion of SCs and STs in public employment.
• The SC and ST community should be socially and educationally backward.
• The SC and ST communities are not adequately represented in Public employment.
• Such a reservation policy shall not affect the overall efficiency in the administration.
• The court held that the government cannot introduce a quota in promotion for its
SC/ST employees unless it proves that the particular community was backward,
inadequately represented and providing reservation in promotion would not affect the
overall efficiency of public administration.
• The Supreme Court held that If the State choose to grant reservation in promotions,
the state must collect quantifiable data to show backwardness and inadequacy to
make reservations in promotions.
• The opinion of the government should be based on quantifiable data.
 Challenge to Nagaraj - State of Tripura v Jayanta Chakraborty

• Various States have filed an appeal before the

Supreme Court to review its Nagaraj judgment. The
three controlling conditions that Nagaraj introduced
made it very difficult to advance reservation in
promotion policies.
 BK Pavitra vs UOI 2017- (I)

• Karnataka 2002 Act (The Karnataka Determination of Seniority of the Government servants promoted
on the basis of Reservation).
• The 2002 Act was declared invalid by the 2 judge bench of the supreme court on the ground that such
Act was made with inadequate quantifiable data.
• After this Judgment, the Karnataka government made a committee namely Ratna Prabha Committee
that was assigned to work on the data in an efficient and quantifiable manner.
• On the basis of the finding of the committee, the Karnataka government passed a new law namely
Karnataka Extension of Consequential Seniority to Government Servants promoted on the basis of
reservation and it got presidential assent in 2018.
 Jarnail Singh v Laxmi Narain Gupta (2018 SCC Online
SC 1641)
• K.K. Venugopal, Attorney General for India, submitted that Nagaraj needs
reconsideration on two points.
• First, when Nagaraj states that the State has to collect quantifiable data showing
backwardness, such observation would be contrary to the 9-Judge Bench in Indra
Sawhney, as it has been held therein that the SC/ST are the most backward among
backward classes and it is, therefore, presumed that once they are contained in the
Presidential List under Articles 341 and 342, there is no question of showing
backwardness all over again.
• Second, the creamy layer concept has not been applied in Indra Sawhney in regard to
SC/ST and Nagaraj has misread the aforesaid judgment to apply this concept to the
SCT/ST.
• In 2018, in the Jarnail Singh case, SC modified the Nagaraj judgement to the extent
that State need not produce quantifiable data to prove the “backwardness” of a
Scheduled Caste/Scheduled Tribe community in order to provide quota in promotion
in public employment. The Court held that collection of quantifiable data on
backwardness in relation to SC, ST was contrary to Indra Swaney judgment and
therefore bad in law.
• The 5-Judge Constitution Bench comprising of CJ Dipak Misra and Kurian
Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ.,
disposed of a batch of petitions holding that the judgment in M. Nagaraj
v. Union of India does not need to be referred to a 7- Judge Bench.
• The Bench also Struck down the demonstration of the further
backwardness criterion from Nagraj case.
• The court had given a huge fillip to the government’s efforts to
provide “accelerated promotion with consequential seniority” for
Scheduled Castes/ Scheduled Tribes (SC/ST) members in
government services.
• The Court has also said that creamy layer exclusion extends to SC/ST’s
and hence therefore the state cannot grant reservation in promotion to
SC/ST’s Individuals who belong to the creamy layer of their community.
The Court held that creamy layer exclusion is a principle of equality.
• Justice Rohinton Nariman authored the Unanimous Judgement.
• Justice Rohinton Nariman Observed:
• The whole object of reservation is to see that backward classes of citizens move
forward so that they may march hand in hand with other citizens of India on an
equal basis. This will not be possible if only the creamy layer within that class
bag all the coveted jobs in the public sector and perpetuate themselves, leaving
the rest of the class as backward as they always were.
• It has been further clarified that when a Court applies the creamy layer
principle to Scheduled Castes and Scheduled Tribes, it does not in any manner
tinker with the Presidential List under Articles 341 or 342 of the Constitution of
India. The caste or group or sub-group named in the said List continues exactly
as before. It is only those persons within that group or sub-group, who have
come out of untouchability or backwardness by virtue of belonging to the
creamy layer, who are excluded from the benefit of reservation.
 BK Pavitra vs UOI- II (2019)
• The Supreme Court has upheld the law of Karnataka Reservation Act 2018 which provides
reservation in promotions in favour of Scheduled Castes and Scheduled Tribes. The court
upheld the law which provides consequential seniority .i.e. a person promoted would also
get seniority as a consequence.
• In 2019, the Supreme Court upheld a reservation in promotion policy. The Supreme Court
upheld a 2018 Karnataka Reservation Act on the ground that the State had furnished
sufficient data to demonstrate both that SC/STs are inadequately represented and that the
policy would not adversely affect efficiency. The 2018 Act introduces consequential
seniority for SC/STs in State Government Services.
• In its judgment, the Court introduced a new inclusive definition of administrative efficiency
under Article 335 of the Constitution. The new definition balances merit with ensuring
adequate representation.
• Court held that the Reservation Act 2018 is not a legislative overruling of BK Pavitra I.
Justice Chandrachud stated the 2018 Act changed the basis of BK Pavitra I by providing
data. He held that corrective legislation is constitutionally possible.
 Jarnail Singh v Laxmi Narain Gupta (2022)

• The court’s judgement came in a batch of petitions from across the

country seeking further clarity on the modalities for granting reservation
in promotion.
• The Supreme Court (SC) refused to lay down the “yardstick” for
determining the inadequacy of representation for granting reservation in
promotions for Scheduled Caste (SC)/Scheduled Tribe (ST) candidates in
government jobs.
• Key Points
• SC’s Ruling:
• Cadre for Collecting Data:
• It held ‘cadre’ and not class, group or the entire service as the unit
for the purpose of collection of quantifiable data for giving
promotion quotas.
• Set Aside the Judgement in B.K. Pavithra Case (2019):
• With the recognition of ‘cadre’ as the unit for collection of quantifiable data, the court set
aside its earlier judgement in the B.K. Pavithra case.
• SC held that the conclusion of this court approving the collection of data on the basis of
groups and not cadres is contrary to the law laid down by the SC in Nagaraj and Jarnail
Singh judgments.
• The court held that the Nagaraj judgement would have “prospective effect.”
• No Yardstick:
• The question of adequate representation of an SC/ST community ought to be left to the respective
States to determine and it cannot lay down any yardstick for determining the inadequacy of representation.
• Set Aside the Judgement in B.K. Pavithra Case (2019):
• With the recognition of ‘cadre’ as the unit for collection of quantifiable data,
the court set aside its earlier judgement in the B.K. Pavithra case.
• SC held that the conclusion of this court approving the collection of data on
the basis of groups and not cadres is contrary to the law laid down by the
SC in Nagaraj and Jarnail Singh judgments.
• The court held that the Nagaraj judgement would have “prospective effect.”
• Review Ordered:
• The SC ordered that a review had to be conducted regarding the data for
the purpose of determining the inadequacy of representation in promotions.
• However, the court left it to the Union government to fix a “reasonable”
time for the States to conduct the review.
 Mukesh Kumar and Another vs State of Uttarakhand & Ors.
2020:
• In this Case, the Supreme Court held that there is no fundamental right to reservation or
promotion under Article 16(4) or Article 16(4 A) of the Constitution rather they are enabling
provisions for providing reservation, if the circumstances warrant.
• Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021)
• Despite the Indra Sawhney ruling, there have been attempts on the part of many States to
breach the rule by way of expanding the reservation coverage.
 Article 15 Clause 6

Clause(6)- Economically weaker sections 10% (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).
 Breach of the Limit by the States:
• Notwithstanding the judgement passed by the Supreme Court, since
Indira Sawhney judgment 1992, many states have passed laws
breaching the limit of 50%
• Such as Maharashtra, Telangana, Tamil Nadu, Haryana, Chhattisgarh,
Rajasthan and Madhya Pradesh. Tamil Nadu Reservation Act, 1993
provides 69% reservation in State government jobs and educational
institutions.
• In January 2000, the Governor of the erstwhile state of Andhra Pradesh
declared 100% reservation to Scheduled Tribes (ST) candidates in posts
of school teachers in Scheduled Areas. However, it was ruled as
unconstitutional by the apex court.
• The Maharashtra State Reservation for Socially and Educationally
Backward Classes (SEBC) Act of 2018, which provides 12% to 13%
quota benefits for the Maratha community, takes the reservation
percentage in the State across the 50% mark, was enacted. Supreme
Court declares Maratha quota law unconstitutional.
 How was the creamy layer made inapplicable to SC/ST members
• In the Nagaraj case (2006) the issue had arisen regarding the validity of the following four Constitutional amendments,
claiming that these amendments made by the government were meant to reverse the decisions made by the Court in
the Indra Sawhney Case, 1992:
• 77th Constitutional Amendment Act, 1995: The Indra Sawhney verdict had held there would
be reservation only in initial appointments and not promotions. But the government through
this amendment introduced Article 16 (4A) to the Constitution, empowering the state to
make provisions for reservation in matters of promotion to SC/ST employees if the state feels
they are not adequately represented.
• 81st Constitutional Amendment Act, 2000: It introduced Article 16(4B), which says unfilled
SC/ST quota of a particular year, when carried forward to the next year, will be treated
separately and not clubbed with the regular vacancies of that year. While the Supreme Court
in the Indra Sawhney Case capped the reservation quota at 50%, the government by this
amendment ensured that 50% ceiling for these carried forward unfilled posts does not apply.
• 82nd Constitutional Amendment Act, 2000: It inserted a condition at the end of Article
335 that enables the state to make any provision in favour of the members of the SC/STs for
relaxation in qualifying marks in any examination or lowering the standards of evaluation,
for reservation in matters of promotion to any class or classes of services or posts in
connection with the affairs of the Union or of a State.
• 2001- 85th Amendment- Article 16(4A) & Consequential Seniority for SC/STs.
 Article 15 Clause (5) 93rd constitutional Amendment of 2005.
• Clause (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
insofar as such special provisions relate to their admission to educational institutions including
private education institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of Article 30
Some landmark judgments between 1951-
2022

• M.R. Balaji v. State of Mysore, AIR 1963 SC 649

• T.Devadasan v. Union of India, AIR 1964 SC 179

• State of Kerala v. N.M. Thomas, AIR 1976 SC 490

• Indira Sahney v. Union of India, AIR 1993 SC 477

• Indira Sahney v. Union of India (II), AIR 2000 SC 498

• M. Nagaraj v. Union of India, (2006) 8 SCC 212

• Jarnail Singh v Laxmi Narain Gupta (2018 SCC Online SC 1641) & 2022
 Regulatory framework for protection of
backward classes in India

• Ministry of Social Justice & Empowerment, Govt. of India

• National Commission for Scheduled Castes

• National Commission for Scheduled Tribes

• National Commission for Backward Classes (only for OBCs)

• National Commission for Minorities (only for religious minorities such as

Muslims, Christians, Parsis)

• SC & ST Atrocities Courts established under the SC & ST (Prevention of Atrocities)

Act, 1989