ART 15 OF CONSTITUTION

17 May 2020

ART 15 OF CONSTITUTION

Prohibition of Discrimination against citizens Art: 15

 

Construction of Arts: 15

Art- 15 is the specie of the genus provision contained under art-14.

 

  • Clause-1: This clause specifically Barr the state from discriminating against any citizen on the grounds only of religion, race, cast, sex and place of birth or any of them.

 

 

  • Since art- 15(1) is an extension of art-14, the doctrine of reasonable classification is permissible here also. But it should be kept in mind discrimination or classification cannot be permitted solely on the ground mentioned under the clause.

 

Clause-2:

 

  • This clause prohibits any person be it private or government, to discriminate the citizen with regard to :
  1. Access to shops, public restaurants, hotels, and places of public entertainment or

 

(b) The use of wells, tanks, Ghats, roads, maintained by state.

On the ground of sex, religion, cast, race, place of birth.

 

 In whole the substance of the clause (2) is that no citizen shall be discriminated for use or to have access to the places, maintained by state and dedicated to the use of public.

 Clause- (2) is of general nature, which can be restarted not only against the state but also against any private citizen or person.

 

 

 Clause- (3)

 

This clause is an exception to art-15(1) and (2) which allows the state to make ‘special provision’ for women and children.

By this clause state becomes empowered to discriminate the citizen for the welfare and producing opportunities is the socio-economic activities. Solely on the basis of gender.

 

Clause-(4)

 

  • This clause was added by first amendment act of 1951, this clause is also an exception to art-15(1) which allow the state to make special provision for the advancement of any socially and educationally backward classes of citizen or for SC and ST.
  • It is noticeable that the term ‘special provision for advancement of’ is of wide import and not confined to any particular benefit it may include financial assistance, free medical facilities, reservation in education institutions etc.

 

Clause-(5)

 

  • This clause was added by 93rd amendment act of -2005. Which allows the state to make any special provision, by law. For the advancement of socially and educationally backward clauses of citizens or for the scheduled casts and scheduled tribes and the other backward classes  with respect to admission to educational institutions, including private ones, whether aided or unaided by the state, other than the minority institutions referred in clause-2 of art-30.

 

     Clause-5 is an extension of clause-4, which permits the state to make                              

                 Provisions for advancement of OBC,s SC,s ST,s in educational institutions.                        

Cl-5 Puts a restriction upon the sate while exercising its power. That is to do so only by law not by executive action.

Reservation in educational institutions:

 

Case: Ashok Kumar Thakur

Versus

Union of India

 

In this case, the reservation of 27% seats of OBC,s in state aided universities by law made By parliament and 93rd constitutional amendment act adding-art 15(5) was challenged.

 

The court laid down following proposition

 

  1. Art 15(5) was for the purpose of upliftment of socially and educationally backward classes in educational institutions. Such SEBC, did not have sufficient representation in universities in comparison to general class. So for the purpose of bringing society more equal, the separate clause of SEBC can validly be given reservation, hence amendment in not violative of the constitution and art 14 there is no question of violating basic structure.

 

  1. Cl-5 is an expansion of general provision in Cl-4 , Cl-5 is more specific. Both          being enabling provisions of cl-1 are mutually inclusive not exclusive or contradictory.

 

  1.  Who are socially and educationally backward classes classification cannot be done exclusively on the basis of cast, though Cast plays an important role in determination poverty, social backwardness, economic backwardness can also be considered while determining the socially and educationally backward classes However if a real backwardness is found in a clause, it can be tested on the touch stone of social backwardness, then such cast if satisfies the test, can be part of socially and educationally backward classes.

 

 

The real test should be

 

To mark out various occupations, which one on the lower level in the                                        society

  • Then to find out their social acceptability
  • Then weigh this result in the economic conditions prevailing among them.
  • The result would be
  • SEBCs.
  •  
  1. If classification of ‘OBC,’ by the government is with reference to a caste, it must exclude creamy layers from this clause, as they have their separate clause. Otherwise it would amount to severe discrimination, and there will be inequality in a class itself.it is for the government to issue guidelines for determining who are creamy layers.

 

( 5 )     Creamy layer principle is not applies in case of SC,s and ST,s. No sound                        reason was given by the court

 

(6)   Reservation will have to stop someday if it is perpetual, the entire objective is defeated.

 

(7) Once a person becomes graduate, he must not be regarded educationally backward.

 

(8) 27% seat reserved for OBCs is valid as the parliament must be deemed to have taken due consideration for fixing 27%

 

(9) In case of OBCs, some amount of relaxation in cut of marks can validity be given

Provided standard of excellence are not greatly affected.

 

(10) Where OBCs seats fails to be filled up to 27% in a year, the unfilled seats should be given to general candidates.

 

Case

                                                M R BALAJI

                                                  VERSUS

                                          STATE OF MYSORE

In this case the

Court held:

Art:- 15(4) is not an independent provision, as it must always be read with art 15(1). Excessive reservation is against equality principle and it may affect the efficiency of general competition hence 68% reservation is excessive and void.

 

Case: State of MP v. Nivedita Jain-1981

Court upheld 54% reservation, but with caution that it should always roam around 50%. SC-15%, ST 15%, Women 15% children Military person-3%, Nominees of central government- 3%, J&k government Nominees-3%.

 

Case: Dr. Priti Srivastava v. state of MP.

 

In this case, court held lowering the minimum qualifying marks for admission to post graduate medical courses in favour of reserved category candidates is unconstitutional as merit must alone be the sole criterion for admission for super specialities courses, otherwise the purpose of art 15(4) will be defeated. (20% of SC/ST, - gen-45

 

Case:- Dr. Gulshan Prakash v. state of Haryana:

Court held

:- Art 15(4) and 16 (4) are merely enabling provision not of mandatory nature, therefore whether reservation to a particular class for particular course should be given or not, depends upon the sole discretionary power of the state, and no one, can claim reservation as a matter of right

Court also held

  •  
  • In post graduate super special courses like MD/MS lowering the Minimum qualifying marks for reserved category may case efficiency of slandered of education at this leave at stake.
  • But even though, the government is the best judge to consider the issue, if it wishes it can provision but it not, no mandamus can lie against it