Right to Equality under Indian Constitution - Articles 14-18

Reservation under
Constitution of India
Unit II

Right to Equality – Articles 14-18
• Art. 14 lays out the general principle regarding equality
• Art. 15 prohibits discrimination by the State on grounds of religion, race,
caste, sex, or place of birth
• Art. 16 prohibits discrimination by the State in matters of public
services/employment
• Art. 17 abolishes & criminalizes the practice of untouchability, only article
which talks about an “offence punishable in accordance with law
• Articles 341 & 342 define as to who would be Scheduled Castes and
Scheduled Tribes with respect to any State or Union Territory. empower the
President of India to draw up a list of these castes and tribes. The President
of India in consultation with the Governor, is to draw a list of such castes
and tribes and issue a public notification to that effect.

Article 14 – Equality before Law
• 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: Equality before Law
• Negative Concept
• Implies absence of any special privilege in favour of any individual and
equal subjugation of all classes to the law
• No man is above the law
• Every person, high or low, is subject to the ordinary law of the land
and amenable to the jurisdiction of the ordinary courts

Article 14: Equal Protection of Law
• Positive concept i.e., it excepts a positive action from the State
• Implies equality of treatment in equal circumstances
• Guarantee of equal treatment
• All persons who are in the same circumstances will be governed by
the same set of rules; equal law applied with equal hand to all
persons who are equal

Article 14 – Reasonable Classification
• Article 14 does not mean that all laws must be general in character i.e., universal in its
application.
• Identical treatment in unequal circumstances would amount to inequality.
• Hence, the legislature must possess power to group persons, objects and
transactions with a view to attain specific aims.
• This segregation of persons, objects or transactions into classes which have a systematic
relation with each other i.e., they share common properties and/or characteristics and
bear a relationship inter se on a rational basis, is called as reasonable classification.
• Class legislation on the other hand makes an improper discrimination by
conferring particular privileges upon a class of persons arbitrarily selected. And
no reasonable distinction can be found to justify inclusion of one and exclusion of other
from such privilege.
• Article 14 forbids class legislation, while permitting reasonable classification by the
legislature for the purpose of achieving specific ends.

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

Article 15
• Forbids discrimination on grounds only of religion, race, caste, sex, or place
of birth
• Discrimination = the unjust or prejudicial treatment of different categories
of people, especially on the grounds of race, age, sex, or disability; legally
meaning would be different treatment for similarly situated parties,
especially when no legitimate reason appears to exist
• To promote equality, the State is empowered to make special provisions
for:
• Women & Children
• Socially and Educationally Backward Classes of citizens
• Scheduled Castes and Scheduled Tribes
• Any Other Economically Weaker Sections of Citizens, especially in matters of
Education

Article 16 - Equality of opportunity in matters
of public employment
(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.
(4A) 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.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) or clause (4A) 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 the 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.

Articles 14, 15 and 16: A scheme of the
Constitutional Right to Equality
• Article 14 sets a general rule of equality i.e., it is a guarantee of equal treatment & equal protection
• Article 15 secures the citizens from every sort of discrimination by the State, on the grounds of religion, race, caste,
sex or place of birth or any of them.
• However, this article does not prevent the State from making any special provisions for women or children.
• Further, it also allows the State to extend special provisions for socially and economically backward classes for
their advancement.
• It applies to the Scheduled Castes (SC) and Scheduled Tribes (ST) as well.
• Article 16 assures equality of opportunity in matters of public employment and prevents the State from any sort of
discrimination on the grounds of religion, race, caste, sex, descent, place of birth, residence or any of them.
• Also provides the autonomy to the State to grant special provisions for the backward classes,
underrepresented States, SC & ST for posts under the State.
• Local candidates may also be given preference is certain posts.
• Reservation of posts for people of a certain religion or denomination in a religious or denominational
institution will not be deemed illegal.
• Thus, Arts. 14, 15 and 16 form part of a scheme of the Constitutional Right to Equality. Article 15 and 16 are
incidents of guarantees of Equality and give effect to Article 14.

Articles 14, 15 and 16: A scheme of the
Constitutional Right to Equality Contd.
• Over the course of time, the courts have increasing emphasized of "positive equality" or
"affirmative action"
• Jagdish Lal v. State of Haryana (1997, SC): Equality of opportunity is not simply a matter of legal
equality. Its existence depends not merely on the absence of disabilities but on the presence of
abilities and opportunity for excellence in each cadre/grade. Where, therefore, there is
inequality, in fact, legal equality always tends to accentuate inequality. It is, therefore,
necessary to take into account de facto inequalities which exist in the society and in order to
bring about real equality, affirmative action fills the bill and allows to give preference to the
socially and economically disadvantaged persons by inflicting handicaps on those more
advantageously placed. Such affirmative action though apparently discriminatory, is calculated to
produce equality in result on a broader basis by eliminating de facto inequalities and placing the
weaker section of the community on a footing of equality with the stronger and more powerful
and a disadvantaged section so that each member of the community, whatever is by his birth,
occupation or social position, may enjoy equal opportunity of using to the full, his natural
endowments of physique, of character and of intelligence.

So, what are Reservations?
• An attempt to achieve "positive equality"; "affirmative action" with the objective of
achieving 'Equality'
• In words of India's first President Rajendra Prasad, the aim was to 'end poverty and
squalor to abolish distinction and exploitation and to ensure decent conditions of living'
• These are in form of proportionate opportunities to the members of an identified,
historically discriminated or socially 'backward' class of people in, primarily, matters
of public employment and educational institutions
• Maximum 50% of the seats can be reserved for members of these identified 'backward'
or 'under-privileged' classes – 50% limit set by the Supreme Court in Indira Sawhney v.
Union of India 1992 [Mandal Commission case]
• For the remaining 50%, any member / candidate to compete on merit for the
opportunity

Two types of Reservations
• Vertical reservation: Reservation for Scheduled Castes, Scheduled
Tribes, and Other Backward Classes is referred to as vertical
reservation. It applies separately for each of the groups specified
under the law.
• Horizontal reservation refers to the equal opportunity provided to
other categories of beneficiaries such as women, veterans, the
transgender community, and individuals with disabilities, cutting
through the vertical categories.

Mandal Commission
• On 20 December 1978, India's then Prime Minister, Shri Morarji Desai announced the formation of a second Backward Classes Commission
under chairman B. P. Mandal, a former member of Parliament.
• The Commission's assignments were:
• to determine criteria for defining India's "socially and educationally backward classes";
• to recommend steps to be taken for the advancement of those classes;
• to examine the desirability of reserving state- and central-government jobs for those classes; and to present a report to the president
of India.
• On 31 December 1980, the Mandal Commission submitted its report to President N. S. Reddy, recommending ways to advance India's
"socially and educationally backward classes."
• Procedures and Recommendations: The Commission developed eleven indicators of social, educational, and economic backwardness to
identify backward classes among Hindus, apart from the Schedule Castes & Scheduled Tribes.
• In addition to identifying backward classes among Hindus, the Mandal Commission identified backward classes among non-Hindus (e.g.,
Muslims, Sikhs, Christians, and Buddhists) if they had belonged to "untouchable" castes before they converted to a non-Hindu religion, or if
Hindu castes with the same occupational names, such as dhobi (launderer), lohar (iron worker), nai (barber), or teli (oil presser), were
considered backward.
• Commission conducted a nationwide socioeconomic field survey in which it gathered interview data from two villages and one urban block
in 405 of the nation's 406 districts and generate an all-India "other backward classes" (OBC) list of 3,743 castes and a more-underprivileged
"depressed backward classes" list of 2,108 castes.

Mandal Commission Contd. 1
Commission developed 11 criteria to identify the backward classes and were classified as social, economic and educational:
Social Indicators
• Castes or classes considered socially backward by others.
• Castes or classes that relied on manual labour for their livelihood.
• Castes or classes where:
• At least 10% males and 25% females more than the state average got married below the age of 17 years in rural areas
• At least 5% males and 10% of females more than the state average got married below the age of 17 years in urban areas
• Castes/classes where participation of women in work is at least 25% more than the state average.
Educational Indicators
• Castes or classes where the number of children between the ages of 5 and 15 who never attended school is at least 25% more than the
state average.
• Castes or classes when the rate of student dropout between the ages of 5 and 15 is at least 25% more than the state average.
• Castes or classes amongst whom the proportion of matriculates is at least 25% less than the state average.
Economic Indicators
• Castes or classes where the average value of family assets is at least 25% less than the state average.
• Castes or classes where the number of families living in kutcha houses is at least 25% more than the state average.
• Castes or classes where the number of households having taken consumption loans is at least 25% more than the state average.
All the indicators were given different weightage points. The social indicators were given 3 points each, educational indicators were given 2
points each and the economic indicators were given 1 point each. The 11 indicators were applied to all castes covered by the survey in a state.
All castes which had a score of 11 points were declared as socially and educationally backwards.

Mandal Commission Contd. 2
The recommendations of the Commissions in brief were as follows:
1. Reservation of 27% public sector and government jobs for OBCs for those who do not qualify on merit.
2. Reservation of 27% for promotions at all levels for OBCs in public service.
3. The reserved quota, if unfilled, should be carried forward for a period of 3 years and deserved after that.
4. Age relaxation for OBCs to be the same as that for SCs and STs.
5. A roster system should be prepared for the backward classes on the pattern of that for the SCs and STs.
6. Reservations to be made in PSUs, banks, private sector undertakings receiving government grants, colleges and
universities.
7. The government to make the necessary legal provisions to implement these recommendations.
In 1990, the then Prime Minister V P Singh announced in the Parliament that the recommendations of the Mandal
Commission would be implemented. Violent protests ensued in northern and western India. Many students immolated
themselves in protest and a few of them died as well.
The implementation of the Commission's report was challenged in the Indira Sawhney v. Union of India (1992) case, where
the SC upheld the 27% reservation for OBCs but also stated that the only caste was not an indicator of social and educational
backwardness. It said that the ‘creamy layer’ among the OBCs should not be the beneficiaries of the reservations.

Indira Sawhney v. Union of India
• 27% of Government jobs would be reserved for OBCs’. Also, it was stated in this case, that the reservation would be
provided only for the “initial stages of appointments” and not for further promotion process. In total the reservation shall
not exceed 50% ( since already 22.5% is reserved for SCs’ and STs’).
• To bring about equality between the unequals, it was necessary to adopt positive measures to abolish
inequality; equalizing measures would have to use the same tools by which inequality was introduced and perpetuated
Majority opinion:
• Backward class of citizens in Art. 16(4) can be identified on the basis of caste, and not only on economic basis (caste is
often a social class in India, overruling an earlier case called Balaji case)
• Reservations can be made under Art. 16(1) on the basis of reasonable classification
• Creamy layer must be excluded from backward classes
• Art. 16(4) permits classification into backward & more-backward classes (overruling Balaji case)
• Only economic criteria cannot be used to identify backward classes
• Reservation cannot cross the 50% mark
• Carry forward rule is valid, but subject to 50% bar
• Merit when necessary

Musilamani Mudaliar v. Idol of Sri Swaminathaswami
Hirukoli (1996) 8 SCC 525
Certain Observations of the Supreme Court:
It is seen that if after the Constitution came into force, the right to equality and dignity of person enshrined
in the Preamble of the Constitution, Fundamental Rights and Directive Principles which are a trinity
intended to remove discrimination or disability on grounds only of social status or gender, removed the
pre-existing impediments that stood in the way of female or weaker segments of the society. In S.R.
Bommai v. Union of India, 1994(2) RRR 33 (SC) this Court held that the Preamble is part of the basic structure
of the Constitution. Handicaps should be removed only under rule of law to enliven the trinity of justice,
equality and liberty with dignity of person. The basic structure permeates equality of status and opportunity.
The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived
not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with
the Constitution lest they became void under Article 13 if they violated fundamental rights. Right to
equality is a fundamental right. Parliament, therefore, has enacted Section 14 (of the Hindu Succession Act,
1956) to remove pre-existing disabilities fastened on the Hindu female limiting her right to property without
full ownership thereof. The discrimination is sought to be remedied by Section 14 (1) enlarging the scope of
acquisition of the property by a Hindu female appending an explanation with it.

Hirukoli (1996) 8 SCC 525 Contd. 1
The General Assembly of the United Nations adopted a declaration on December 4, 1986, on "THE DEVELOPMENT ON THE RIGHT TO
DEVELOPMENT" to which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and
fundamental freedom are indivisible and interdependent. All Nation States are concerned at the existence of serious obstacles to development
and complete fulfilment of human beings, denial of civil, political, economic, social and cultural rights. In order to promote development, equal
attention should be given to the implementation, promotion and protection of civil, political economic, social and political rights.
Article 1(1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in,
contribute to and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully
realised.
Article 6(1) obligates the state to observance of all human right and fundamental freedom for all without any discrimination as to race, sex
language or religion.
Sub-Article (2) enjoins that ......... equal attention and urgent consideration should be given to implement, promotion and protection of civil,
political economic, social and political rights.
Sub-article (3) thereof enjoins that "state should take steps to eliminate obstacle to development, resulting from failure to observe civil and
political rights as well as economic, social and economic rights. Article 8 casts duty on the state to undertake ......... necessary measures for the
realisation of right to development and ensure, inter alia, equality of opportunity for all in their access to basic resources .......... and distribution of
income".
Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social
reforms should be carried out with a view to eradicate all social injustice.

Vienna declaration on the elimination of all forms of discrimination against women for short "CEDAW" was
ratified by the U.N.O. on December 18, 1979. The Government of India who was an active participant to
CEDAW ratified it on June 19, 1993 and acceded to CEDAW on August 8, 1993 with reservation on Articles
5(e), 16(1), 16(2) and 29 of CEDAW. The Preamble of CEDAW reiterates that discrimination against women,
violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation
on equal terms with men in the political, social, economic and cultural life of their country; hampers the
growth of the personality from society and family and makes more difficult for the full development of
potentialities of women in the service of their countries and of humanity Poverty of women is a handicap.
Establishment of new international economic order based on equality and justice will contribute
significantly towards the promotion of equality between men and women etc. Article 1 defines
discrimination against women to mean many distinctions exclusion or restriction made on the basis of sex
which has the effect or purpose on impairing or nullifying the recognized enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women all human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 2(b) enjoins the State parties while condemning discrimination against women in all its forms to pursue by appropriate means
without delay, elimination of discrimination against women by adopting "appropriate legislative and other measures including sanctions
where appropriate, prohibiting all discriminations against women." To take all appropriate measures including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause C enjoins to ensure legal
protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against
any act of discrimination to provide effective protection to women. Article 3 enjoins state parties that it shall take, in all fields, in
particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development
and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental
freedoms on the basis of equality with men. Article 13 states that "the state parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women", in
particular................
Article 14 laid emphasis to eliminate discrimination on the problems faced by rural women so as to enable them to play "in the
economic survival of their families including their work in the non-monetized sectors of the economy and shall take.... all appropriate
measures....". Participation in and benefit from rural development and, in particular, shall ensure to such women the right to participate
in the development programme to organize self groups and cooperatives to obtain equal access to economic opportunities through
employment or self-employment etc. Article 15(2) enjoins to accord to women in equality with men before the law, in particular, to
administer property.......

Constitution (Eighty First Amendment) Bill
1996 for Reservation of seats for women in the
House of the People
The Constitution (One Hundred and Eighth Amendment) Bill, 2008, popularly known as Women’s
Reservation Bill, was introduced in the Rajya Sabha on 6 May 2008. The Bill aims at eliminating
gender inequality and discrimination against women, by political empowerment of women, so as to
fulfill people’s mandate of Women Empowerment as envisaged in the National Common Minimum
Programme of the Government and seeks:
• reservation for women, as nearly as may be, one-third seats of the present strength of the House
of the People and the Legislative Assembly of every State;
• to provide, as nearly as may be, one-third reservation for women including one-third the number
of seats reserved for the Scheduled Castes and the Scheduled Tribes in the House of the People
and in the Legislative Assembly of every State to be reserved for women of that category;
• to provide for reservation for women in respect of nominations of members of Anglo-Indian
community in the House of the People and in the Legislative Assemblies of the States;
• to provide reservation for women in the Legislative Assembly of the National Capital Territory of
Delhi; and
• to provide that reservation of seats for women should cease to have effect on the expiration of a
period of fifteen years from the enactment of the Bill.

Differing perceptions about the reservation
for Women
The Women’s Reservation Bill has evoked mixed reactions across the political spectrum.
• Some parties were is completely in support of the Bill in its present form
• Other parties demanded quota to be fixed for the women belonging to backward sections of the society
within this 33 per cent as they believed that the benefit of this reservation is likely to be cornered by the
women belonging to upper and well-off sections of the society
• One party was in support of the Election Commission’s proposal for making it mandatory for parties to
reserve 33 per cent seats for women
• The proposal of the Election Commission of India (known as the Gill formula) is to make it mandatory
for the recognized political parties to ensure putting of minimum agreed percentage for women in State
Assembly and Parliamentary elections so as to allow them to retain the recognition with the Election
Commission as political parties
• Other view was that if 33 per cent reservation for women is added to the already existing 22.5 per cent for
scheduled castes and tribes, then more than 55 per cent of seats in Parliament would be reserved.13 This
would not be fair to other sections of the population, and so, they favour making it mandatory for political
parties to give 10 per cent of election tickets to women.

Women’s Reservation - Questions asked
However, the larger question is whether women’s reservation will actually “empower” ordinary women
citizens. Although as a retort, some pertinent questions were:
• Has the presence of 500 plus male legislators in Parliament empowered the men of India?
• Have these MPs facilitated the growth of men’s freedom from abuse and harassment? Or Freedom from
hunger and malnutrition?
• Do men feel secure and safe in today’s India?
• If most men in this country have not benefited from the preponderant presence of male parliamentarians,
why should we naively believe that 180 women in Parliament will change the fate of women in India?
However, the main obstacle of the bill’s passing through the parliament is the demand of quota within quota
for women on caste basis.
Sharad Yadav: "Do you think these women with short hair can speak for women, for our women."
Mulayam Singh Yadav: "Bade bade gharon ki ladkiyan aur mahilayan kewal upar ja sakti hain... yaad rakhna...
aapko mauka nahi milega... hamare gaon ki mahili mein akarshan itna nahin"

Gender Quotas/Reservations in Legislatures
• It is an accepted fact that without being
proportionately present in the political system,
a group’s ability to influence policy-making, or
indeed the nature of representative system, is
rather limited
• Equal participation of women and men in public
life is one of the cornerstones of CEDAW
• So, what are Quotas?
• Quotas for women entail that women must
constitute a certain number or percentage
of the members of a body, whether it is a
candidate list, a parliamentary assembly, a
committee or a government.
• Quotas aim at increasing women’s
representation in publicly elected or
appointed institutions such as
governments, parliaments and local
councils.
• Gender quotas draw legitimacy from
women’s under-representation due to
exclusionary practices of the political
parties and the political institutions at
large.
• Quotas place the burden of candidate
selection basically on those who control the
selection process, first and foremost the
political parties.
• Quotas force those who nominate and
select to start recruiting women and give
them chance which they otherwise would
not get.

Types of Quota
The two most common types of electoral gender
quotas are candidate quota and reserved quota
• Candidate Quota: It specifies the minimum
percentage of candidates for election that must
be women, and apply to political parties’ lists of
candidates for election; these can be Legal
candidate quotas (mandated by a statute) or
Voluntary party quota (voluntarily adopted by
parties)
• Reserved Quota: It sets aside a certain number
of seats for women among representatives in a
legislature by law. This can be done either by
having separate electorates, proportionate
allocation of seats to parties of women’s seats,
marking a particular constituency as a reserved
seat, filling by appointment, etc.
• Gender-neutral quotas: Here neither gender
can occupy more than 60 per cent or less that
40 per cent of the positions on a party list or in
a decision-making body. While quotas for
women set a maximum for men’s
representation, gender-neutral quotas
construct a maximum limit for both sexes.
Gender neutral quota rules are sometimes used
as a strategic choice in order to refute the
arguments of opponents of quotas that they
are discriminatory against men.

Pros
• Quotas for women do not discriminate but
compensate for actual barriers that prevent
women from their fair share of the political
seats.
• Quotas imply that there are several women
together in a committee or assembly, thus
minimizing the stress often experienced by the
token women.
• Women have the right as citizens to equal
representation.
• Women’s experience is needed in political life.
• Men cannot represent the interest of women.
Only many women can represent the diversity
of women.
• Election is about representation, not
educational or other qualifications.
• Women are just as qualified as men, but
women’s qualifications are downgraded and
minimized in a male-dominated political
system.
• Quotas do not discriminate against individual
men. Rather quota rules limit the tendency of
political parties to nominate only men. For the
voters, the opportunities are expanded, since
it now becomes possible to vote for women
candidates.
• Introducing quotas may cause conflicts, but
only temporarily.
• Several internationally recognized conventions
on gender equality have set targets for
women’s political representation.
• How can it be justified that men occupy more
than 80 per cent of the parliamentary seats in
the world?

Cons
• Quotas are against the principle of
equal opportunity for all, since
women are given preference.
• Political representation should be a
choice between ideas and party
platforms, not between social
categories.
• Quotas are undemocratic, because
voters should be able to decide who
is elected.
• Quotas imply that politicians are
elected because of their gender, not
because of their qualifications, and
that better-qualified candidates are
pushed aside.
• Many women do not want to get
elected just because they are
women.
• Introducing quotas creates
significant conflicts within the party
organization.
• Quotas for women will be followed
by demands for quotas for other
groups, which will result in a politics
of sheer group-interest
representation.

Cases - 1
K.C. Vasanth Kumar v. State of
Karnataka: Economic criterion for
compensatory discrimination or
affirmative action
• “One, to strike at the perpetuation of
the caste stratification of Indian society
so as to arrest progressive movement
and to make a firm step towards
establishing a casteless society; and
two, to progressively eliminate poverty
by giving an opportunity to the
disadvantaged sections of the society
to raise their position and be part of
the mainstream of life which means
eradication of poverty.”
• “Max Weber gives us a three-
dimensional picture of social inequality.
According to Weber, the three
dimensions are class, status and power.
A person’s class-situation, in the Weber
sense, is what he shares with others,
similarly placed in the process of
production, distribution and exchange,
a definition of class which is very near
to that of the Marxist conception The
inequality of class depends primarily on
inequality of income and to some
extent on an equal opportunity for
upward mobility. persons class,
according this definition, is his shared
situation in the economic hierarchy.”

Cases - 2
Janaki Prasad Parimoo v. State of Jammu &
Kashmir: Poverty alone cannot be the test of
backwardness
• “Mere poverty cannot be the test of
backwardness because in this country
except for a small percentage of the
population the people are generally poor -
some being more poor, others less poor. In
the rural areas, some sectors of the
population are advancing socially and
educationally while other sectors are
apathetic. These sectors require to be
goaded into the social stream by positive
efforts by the State. That accounts for
the raison d’être of the principle
explained in Balaji’s case which pointed
out that backward classes for whose
improvement special provision was
contemplated by Art. 15(4) must be
comparable to Scheduled Castes and
Scheduled Tribes who are standing
examples of backwardness socially and
educationally. If those examples are
steadily kept before the mind the difficulty
in determining which other class is should
be ranked as backward classes will be
considerably based. In identifying
backward classes, one has to guard
oneself against including therein sections
which are socially and educationally
advanced’ because the whole object of
reservation would otherwise be
frustrated.”

Cases - 3
Indra Sawhney vs. Union of India: Backward class of
citizens can be identified based on caste, and not only on
economic basis; Creamy layer must be excluded from
backward classes; Merit is necessary
• Venkataramiah, J. also defined "caste" in practically the
same terms. He said: “A caste is an association of families
which practice the custom of endogamy i.e., which
permits marriages amongst the members belonging to
such families only. Caste rules prohibit its members from
marrying outside their caste.... A caste is based on
various factors. Sometimes it may be a class, a race or a
racial unit. A caste has nothing to do with wealth. The
caste of a person is governed by his birth, in a family.
Certain ideas of ceremonial purity are peculiar to each
caste.... Even the choice of occupation of members of
castes was predetermined in many cases, and the
members of particular caste were prohibited from
engaging themselves in other types of callings, profession
or occupations. Certain occupations were considered to
be degrading or impure.” The above material makes it
amply clear that a caste is nothing but a social class - a
socially homogeneous class. It is also an occupational
grouping, with this difference that its membership is
hereditary. One is born into it. Its membership is
involuntary. Even if one ceases to follow that occupation,
still he remains and continues a member of that group.
To repeat, it is a socially and occupationally homogenous
class. Endogamy is its main characteristic. Its social status
and standing depends upon the nature of the
occupation followed by it. Lowlier the occupation,
lowlier the social standing of the class in the graded
hierarchy. In rural India, occupation-caste nexus is true
even today. A few members may have gone to cities or
even abroad but when they return - they do, barring a
few exceptions they go into the same fold again. It
doesn't matter if he has earned money. He may not
follow that particular occupation. Still, the label remains.
His identity is not changed. For the purposes of
marriage, death and all other social functions, it is his
social class - the caste - that is relevant.

Cases - 3
Indra Sawhney vs. Union of India:
Backward class of citizens can be
identified based on caste, and not
only on economic basis; Creamy layer
must be excluded from backward
classes; Merit is necessary
• In a backward class under Clause (4)
of Article 16, if the connecting link is
the social backwardness, it should
broadly be the same in a given class.
If some of the members are far too
advanced socially (which in the
context, necessarily means
economically and, may also mean
educationally) the connecting
thread between them and the
remaining class snaps. They would
be misfits in the class. After
excluding them alone, would the
class be a compact class. In fact,
such exclusion benefits the truly
backward.

Cases - 3
Indra Sawhney vs. Union of India: Backward class of
citizens can be identified based on caste, and not only on
economic basis; Creamy layer must be excluded from
backward classes; Merit is necessary
• In Balaji and other cases, it was assumed that
reservations are necessarily anti-meritarian. For example,
in Janaki Prasad Parimoo it was observed, “it is implicit in
the idea of reservation that a less meritorious person be
preferred to another who is more meritorious.” To the
same effect is the opinion of Khanna, J. in Thomas,
though it is a minority opinion. Even Subba Rao, J. who
did not agree with this view did recognize some force in
it. In his dissenting opinion in Devadasan, While holding
that there is no conflict between Article 16(4) and Article
335, he did say, “it is inevitable in the nature of
reservation that there will be a lowering of standards to
some extent”, but, he said, on that account the provision
cannot be said to be bad, inasmuch as in that case, the
State had, as a matter of fact, prescribed minimum
qualifications, and only those possessing such minimum
qualifications were appointed. This view was, however,
not accepted by Krishna Iyer, J. in Thomas. He said
“efficiency means, in terms of good government, not
marks in examinations only, but responsible and
responsive service to the people. A chaotic genius is a
grave danger to public administration. The inputs of
efficiency rule include a sense of belonging and of
accountability (not pejoratively used) if its composition
takes in also the weaker segments of “We, the people of
India”. No other understanding can reconcile the claim of
a radical present and the hangover of the unjust past”…
If any authority thinks that for ensuring adequate
representation of backward class of citizens in any
service, class or category, it is necessary to provide for
direct recruitment therein, it shall be open to it do so… It
would not be impermissible for the State to extent
concessions and relaxations to members of reserved
categories in the matter of promotion without
compromising the efficiency of the administration.

Cases - 4
Chattar Singh vs. State of Rajasthan: Sc & ST are
distinct from the other backward classes and benefits
given specifically to them as a class cannot be
deemed to be extended the OBCs.
• The Rule expressly confines the benefit of the
proviso to Scheduled Castes and Scheduled tribes.
By process of interpretation, OBCs cannot be
declared alike the Scheduled Castes and Scheduled
Tribes. Therefore, the contention that the doctrine
of fusing "any backward class of citizen' in Article
16(J), further classification of Scheduled Castes
and Scheduled Tribes and OBCs as distinct classes
for the purpose of reservation and omission to
extend the same benefits to OBCs violates Article
14 is devoid of substance. If the logic of equality as
propounded by minority Judge is given acceptance,
logically they are also entitled to reservation of
seats in the House of the People or in the
Legislative Assemblies of States, though confined to
Scheduled Tribes and Scheduled Castes, by
operation of Article 334(a) of the Constitution with
a non obstante clause engrafted therein. The
founding fathers of the Constitution, having been
alive to the dissimilarities of the socio-economic
and educational conditions of the Scheduled Castes
and Scheduled Tribes and others segments of the
society have given them separate treatment in the
Constitution. The Constitution has not expressly
provided such benefits to the OBCs except by way
of specific orders and public notifications by the
appropriate Government. It would, therefore, be
illogical and unrealistic to think that omission to
provide same benefits to OBCs, as was provided to
Scheduled Castes and Scheduled Tribes, was void
under Articles 16(1) and 14 of the Constitution.

Cases - 5
Ashok Kumar Gupta vs. State of U.P.: Right to reservation in
promotions; Merit is necessary
• After the judgment in Mandal's case, however, the Constitution
(77th Amendment) Act was enacted by the parliament which was
come into force w.e.f. June 17, 1995 for which date Article 16
(4A) was brought into the Constitution. It provides that "nothing in
this Article shall prevent the State from making any provision for
reservation in matters of promotion of any class or classes of posts in
the services under State in favour of Scheduled Castes and
Scheduled Tribes which, in favour of Scheduled Castes and Scheduled
Tribes which , in the opinion of the State, are not adequately
represented i the services under the State". Thereby, the Parliament
has re-manifested its policy that right to reservation in promotion is
a part of constitutional scheme or public policy in order to accord
socio-economic empowerment and dignity of person and status to
the Dalits and Tribes. The right to reservation in promotion would be
available to Dalits and Tribes in any, class or class, of post in the state
does not get adequate representation of Dalits & Tribes. This due to
the historical evidence that the Dalits and Tribes are socially,
educationally and economically deprived, denied and
disadvantaged sections of the society to make their right to equality
meaningful. They are equally entitled to the facilities and
apportunities, by way of reservation in promotions, and the State in
compliance of the mandate of the Preamble. Article 14, 21, 38,
46 and 335 of constitution, has provided them with the right to
equality of opportunity is all post of classes of posts in the services
under the State. Therefore, the majority section of the society are
required to reconcile to an accept the equal fundamental rights of
Dalits and Tribes guaranteed under Articles 16 and 14 of the
Constitution. The right to reservation in promotions is not an
anathema to right to equality enshrined to other general
candidates. The competing rights of both should co-exist and
consistently be given effect by balancing the abstract doctrine of
equality and the distributive justice would filled in the gap. Only
upholding of affirmative action of State by pragmatic interpretation
under rule of law would enable the State to harmonise competing
rights of all sections of the society.

Cases - 6
S. Rangrajan vs. P. Jagjivan Ram: Criticism of the
Reservation Policy is allowed
• The producer or as a matter of fact any other
person has a right to draw attention of the
Government and people that the existing
method of reservation in education institutions
overlooks merits. He has a right to state that
reservation could be made on the basis of
economic backwardness to the benefit of all
sections of community. Whether this view is
right or wrong is another matter altogether
and at any rate we are not concerned with its
correctness or usefulness to the people. We
are only concerned whether such a view could
be advocated in a film. To say that one should
not be permitted to advocate that view goes
against the first principle of our democracy. We
end here as we began on this topic. Freedom
of expression which is legitimate and
constitutionally protected, cannot be held to
ransom, by an intolerant group of people.
• The fundamental freedom under Article
19(1)(a) can be reasonably restricted only for
the purposes mentioned in Articles 19(2) and
the restriction must be justified on the anvil of
necessity and not the quicks and of
convenience or expediency. Open criticism of
Government policies and operations is not a
ground for restricting expression. We must
practice tolerance to the views of others.
Intolerance is as much dangerous to
democracy as to the person himself.

Important Questions
• What are the ‘Reservation’ provisions for SC’s & ST’s in the Constitution?
• Evaluate the ‘Reservation’ provisions in the Constitution with the help of case
laws, and explain their significance.
• Explain the importance of Reservation in the upliftment of SC’s & ST’s in India.
• Discuss the provisions relating to reservations under the Indian Constitution with
the views of the Courts as expressed in the case laws.
• Evaluate the ‘Reservations’ provisions under Part III (Fundamental Rights) of the
Indian Constitution with the help of case laws.
• Write a short note on ‘Positive Discrimination’.
• What is the status of women in India giving relevant legal provisions.
• Write a short note on Mandal Commission.
• Explain the provisions of Reservation in India’s Constitution with the help of
Mandal Commission.

Right to Equality under Indian Constitution - Articles 14-18

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Right to Equality under Indian Constitution - Articles 14-18