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Right to equality with references to emerging judicial responses to the problems of group inequalities.

Right to equality with references to emerging judicial responses to the problems of group inequalities.

Right to equality with references to emerging judicial responses to the problems of group inequalities.

introduction: A -14 to 18 deals with Provisions based on the Principle of equality.

A-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.

Analysis:

Equality before law is a British concept whereas equal Protection of law is brought  from 14th Amendments to the US constitution.

Equality before law is Somewhat negative concept to negate any special privileges in favour of  Some individuals. In other words no one is above law and every person high or low is subject to the ordinary law of land.

Equal Protection of law is Somewhat a positive concept i.e a positive action from the state. In other words all Persons who are in Same Circumstances will be governed by the Same set of rules. it is a guarantee of equal treatment. In other words the rule is like should be treated alike and not unlike should be treated alike. Therefore Justice Chandrachud rightly observed that  all Persons Similarly circumstances should be treated alike both in Privileges conferred and liabilities imposed.

Baswaraj Vs. the special land acquisition officer (2014)( SC)

facts: Here appellant delayed 5-½ years in filing appeal before Karnataka HC which was dismissed under section 54 of the limitation Act. Appellant quoted a number of cases of HC wherein delay Condoned  but not Shared sufficient cause of his own case. SC dismissed appeal and held that A-14 is not meant to perpetuate illegality or fraud even by wrong decision made in other Cases. The said Provision of A- 14 does not envisage negative equality but has a positive aspect. Thus if some other  Similarly situated person has been granted relief or benefit inadvertently or by mistake Such order does not confer any legal right on others to get the Same Relief as well.

Second expression is corollary of the first: in the state of W.B Vs. Anwar Ali Sarkar case Patanjali Shastri. C. J has expressed that the Second expression is corollary of the first and it is difficult to imagine a Situation in which violation of equal Protection of laws will not be the violation of equality before law. Thus in Substance these two expressions mean one and Same thing. 

Protection available to all the Persons:  A-14 Protection available to “any Person”  therefore A-14 available not only to natural persons but also to artificial Juridical Person such as Company . further such rights available to citizens as well as non- Citizen.

Available under all the laws : A-14 applies to both substantive as well as Procedural law. Therefore any classification should be reasonable both from Substantive and procedural law points of view.

Exceptions to the rule of equality

  • During the Proclamation of emergency in operation, enforcement of A-14 may be Suspended. ( A- 359)
  • Privileges to President and Governor:  under A-361 ‘ immunities to the President & Governor from Criminal & civil proceedings, he Shall not be answerable to any Court for exercise & Performance of Powers and duties of office. conduct of the President may be brought to review by any Court, Tribunal or any body appointed or designated by any house of Parliament for investigation of charge under A-61. 

Note: privilege of President or Governor does not mean that no person Could bring appropriate action against the Government of India or Government of State. 

  • MP &  MLA are not liable for anything done or Said Within Parliament or State assembly ( A- 105 & 194). This is important to note that freedom of speech in parliament is subject to provisions of the Constitution & rules and standing instructions or order regulating the Parliamentary Procedure. 
  • foreign Diplomats are immune from Jurisdiction of Court 
  • laws for implementing DPSP may be excluded from A-14  (A-31 C). not absolute – Minerva mills Ltd Vs. UOI. need a balance between fundamental rights and DPSP.

A-14 permit reasonable classification but prohibits hostile discrimination

  • Test of reasonable classification 
  • it should not be arbitrary, artificial or evasive
  • it must be founded on an intelligible differentia and Person or things grouped together Could be distinguished from Persons left out of the group. i. e some rational basis for classification. Basis of classification may be geographical, vocational, difference in time, difference in nature of Person ( Natural Person/ Non-Natural Person), age , trade or occupation. 
  • differentiation must have rational relation or nexus With object to be achieved by such classification/ distinguishing.

Example:  a person who has not attained majority can’t enter into a valid contract. Here classification based on age which is not arbitrary, major Could be identified easily with minor and legislative intents is to Protect minor From losses.

Important Judgment on the scope of the classification

classification based on age

Salil Bali Vs UOI (2013) (SC) in this case a person of 17 and half years was charged with offence of rape in a moving vehicle. 18 years is the upper age limit for treating a Person as Juvenile under Juvenile Justice (Care & protection of children ) Act 2000 held constitutionally valid. The Constitution enables the state Government to make special provisions for children. The basis of fixation of this age is Article 1 of the convention of the Rights of the Child,1989. The age has been fixed on  account of understanding of experts of child psychology and behavioural Pattern. children could Still be redeemed and restored to mainstream Society instead of becoming hardened criminals in future. The essence of the Juvenile justice Act and rules made thereunder is restorative not retributive. It must also be noted that this was in the wake of the Nirbhaya Case.

Discrimination based on sex or residential status

charu Khurana Vs. Union of India (2015) (SC)  Apex court  held that an application from a female makeup artist for membership to the cine costume make-up  and Hairdresser Association could not be rejected only on grounds that they were women and She was not a resident of Mumbai for the past 5 years. Court held that discrimination on the ground of gender to be a clear violation of A-14 and denial of her capacity to earn her livelihood which affected her individual dignity.

A single individual may constitute a class. Chiranjit Lal Chaudhary Vs. UOI (1950) (SC) . In this case, the management of a Solarpur company was being taken over by the Government by  passing the Solapur spinning and weaving co (Emergency Provisions) Act. This was done because mismanagement of Company affairs prejudicially affected the Production of essential commodities and had caused serious unemployment amongst labourer. In the interest of the community at large the legislature has treated the Company as a class by itself. Apex court holds the act valid even though it applies to a single person on account of some special circumstances or reasons applicable to him and not applicable to others. Here, the Petitioner was a shareholder and challenged on the ground that Single company and its shareholders were denied equality before law because such act has treated this particular company but court held that even a single person Could be class for reseasonsle classification .

NALSA Vs. UOI (2014)( SC) in this case the supreme court has recognised transgender persons as a third gender and ordered the government to treat them as minorities and extend reservation in Job under A-16(4) , education and other amenities. A-14 available to all persons and no restriction on its applicability only to male or female and transgender fall within the expression person, they are entitled to legal Protection of laws in all spheres of state activity including employment, health care, education as well as equal civil Citizenship rights as enjoyed by other citizens. The expression sex under A-15 & 16 therefore, includes discrimination on the ground of gender identity. Direction issued to state where state in all laws & Policies allow individuals to decide their own gender and record male, female, or third gender and treat transgender as socially and educationally backward for the Purpose of reservation and employment , social Welfare scheme for transgender, Public awareness.

special Court – Special Procedure – 

State of West Bengal Vs. Anwar Ali Sarkar (1952) (SC) – West Bengal Special Court Act 1950 was challenged where under there was provision for Speedy trial of certain offences as stated in the Preamble.

Held: Apex court held that such law is not violative of A-14, if the Act laid down Proper guidelines for classifying offences to be tried by special Courts. But special procedures prescribed by law should not be substantially different from the Procedure of ordinary law. The basis of classification and the object of the act are two different things. Therefore, an object by itself can’t be a basis of the classification of offences or cases. Here in this case, only speedy trial was mentioned but the nature of offences to be tried by a special court was not mentioned in the Act, the government may act arbitrarily and not only that the procedure laid down for trial was substantially different from the Criminal Procedure Code. 

Kathi Raning Rawat Vs. State of Saurashtra (1952) (SC) 

The object mentioned in the Saurastusa State Public safety measures ordinance was to Provide Public Safety, Public order, and preservation of Peace and tranquility in the State of Saurashtra (Now state of Gujarat) . procedure was also mentioned under the ordinance Which was somewhat harsher than Provisions in Criminal Procedure Code 1973. 

Held: A distinction should be drawn between discrimination without reason and discrimination with reasons. ordinance valid because Specific offences mentioned in the ordinance such as dacoity, murder, nose cutting, ear cutting etc. by some notorious gang, an object of the ordinance / guiding Principle also mentioned i.e to Provide Public Safety, Public order, preservation of Peace and tranquility, a special court and special trial Procedure. Ordinance held valid

the new concept of equality – arbitrariness A-14 

In the case of E.P. Royappa v. State of Tamil Nadu (1973)(SC), in this case, Petitioner was IAS posted at a Subordinate post. It is emphasized that every action undertaken by the State, including any policy changes, must be well-informed, equitable and free from any form of arbitrariness. Equality is a dynamic concept with many aspects & dimensions and it Can’t be imprisoned within traditional and doctrinaire limits. From a positivistic point of view equality is Antithesis to arbitrariness. equality belongs to rules of law whereas arbitrariness to whim and Caprice of absolute monarch. Equality and arbitrariness are Sworn enemies. An arbitrary act is unequal both according to political logic and Constitutional law and therefore violative of A-14.

Ajay Hasia Vs Khalid Mujib  (1981)(SC)  Regional Engineering College made admissions on the basis of an oral interview after a written Test. allocation of 1/3rd of total marks for an interview is plainly arbitrary and violative of A-14 because an Oral interview is quite Subjective and Capable of abuse, it Could be Supplementary or additional test but Could not be an exclusive test. 

Air India Vs. Nargesh Meerza (1981)( SC) 

This case has a significant impact on advancing gender equality in india. this case challaused discriminatory workplace regulation that forced air hostesses to resign from Job in Certain Conditions. Petitioner challenged the regulation where they could retire 

  • at the age of 35 years,Further MD has the discretionary power of extension of 1 year at a time up to 45 years of age without any guideline or principle,or 
  • get married within 4 years ,or 
  • on first Pregnancy 

as they are discriminatory and violative of A-14,15, 16 because no corresponding Conditions of termination of employment exist for air flight Pursuers and only male could be appointed as air flight pursuers while only female could be appointed as air hostess .Further MD has the discretionary power of extension of 1 year at a time up to 45 years of age without any guideline or principle which is arbitrary and is liable to be struck down as unconstitutional.

  1. Srinivasa Rao Vs. J. Veeraiah (1993) (SC) Government Policy to give preference to less educated persons over more educated persons in granting licenses for running fair price shops was arbitrary and liable to be set aside. This Policy amounts to allowing a premium on ignorance, incompetence and Consequently inefficiency and therefore unconstitutional.

A- 15.Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth _ no discrimination on any of these bases

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.  race (means persons belonging to same genetic stock, in Hindi Called nasle )

Comments:  clause (1) is a general statement to avoid discrimination on any of the grounds mentioned herein.  Available to citizens only unlike A-14 which is available to all Persons. Place of birth is not a synonym of the expression domicile.  

(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.

comments: to avoid any restriction on use of Public resources or access to Public infrastructure 

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

comments: women & children can be treated as a separate class and special Provision Can be made for them  Such as Juvenile Justice Act, posco Act, sexual harassment of women on workplace Act 2013 etc. 

Special Provisions may be made by the state for the advancement of BC/ST/ SC

(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. clause (4) Added by the Constitution (First Amendment) Act, 1951, 

Special Provision/reservation for admissions of BC/SC/ST in educational institution

(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.] clause 5 Inserted by the Constitution (93 constitutional Amendment) Act, 2005, w.e.f. 20-1-2006

Comments: clause (5) is related to reservations in Educational institutions to OBC / ST/ SC. This clause brought to nullify the effect of TMA Pai foundation Vs. State of Karnataka (2003)(SC) to some extent. In this case, the Supreme court has kept the autonomy of private educational institutions under A-19(1)(g) and allowed them to operate without excessive Governmental interference. As per guidelines issued by the apex Court State can retain authority to regulate the admission process based on fairness, transparency and merit-based Criteria, actually the government want to introduce reservations in such institutions for OBC/ ST / SC which was opposed based on A-30 available to minority institutions on the linguistic basis, Konkoi language recognised in Karnataka. later on by constitutional amendment reservation in Private educational institutions for OBC/ ST/SC except in Minority educational institutions. so now this judgment has limited  Applicability. 

Reservation for economically weaker section Students in Educational institutions: 

(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 10 % 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. ]

clause (6) inserted by the 103rd Constitutional Amendment) Act, 2019

comments: for reservation in educational institutions for economically backward Section people.

A-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 1[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.

Note 1. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch., for “under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State”.

comments: requirement of residence of a particular State may be prescribed for certain employments under 16 (3).

(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 citizen which, in the opinion of the State, is not adequately represented in the services under the State.

comments: For public employment, the State may reserve for any backward class if not adequately represented in the service. Here the backward class may be socially or economically or otherwise backward, not specifically mentioned unlike A-16(4).

[(4A) Nothing in this article shall prevent the State from making any provision for reservation 4[in matters of promotion 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.]

  1. Ins. by the Constitution (Seventy-seventh Amendment) Act, 1995,s. 2. (w.e.f. 17-6-1995).
  2. Subs. by the Constitution (Eighty-fifth Amendment) Act, 2001, sec. 2 (w.r.e.f. 17-6-1995).

comments: For promotion in Public employment, the State may reserve for any SC / ST if not adequately represented in the service. means reservation to SC / ST for employment as well as in Promotion.

3[(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 50% reservation on the total number of vacancies of that year.

  1. Ins. by the Constitution (Eighty-first Amendment) Act, 2000, s.2 (w.e.f. 09-06-2000)

Comments: unfilled vacancies Shall be treated as separate classes in the succeeding year and Shall not be within 50% of the limit. 

(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.

comments: Religious Posts are not affected by reservation policy.

[(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 10 % of the posts in each category.

comments: reservation in Employment for economically weaker Sections Ins. by The Constitution (103 Amendment) Act, 2019.

Comments: A 16(1) & (2) cover not only initial appointment but also Promotion, age of Superannuation, seniority etc. [upsc Vs. Girish Jayantilal vaghela (2006)(SC)] 

equal work equal Pay – Randhir singh Vs. Union of India (1982) (SC) 

Balaji Vs. State of Mysore (1963)( SC)

The apex court held that A-16(4) is an enabling Provisions to make special provisions and not exclusive Provisions for backward-class Citizens. it does not cast any obligation on the state to take any special action, it just Confer discretion upon state. Backward class is a group and no further Sub-classification can be done. 

State of Kerala Vs. N. M Thomas (1976) (SC)

whether it is permissible to give preferential treatment to Sc/ ST under A-16(1)?  i_e outside the exception clause 16 (4). under A-16(4) State Can make law for reservation in service of backward class if not adequately represented .

Discrimination based on any of the grounds mentioned in A- 16(2) is Prohibited but this clause may not be attracted if discrimination made on some other ground such as backwardness of SC/ ST , A-16 (2) Will not be attracted. Here in this case Protected exemption of LDC belonging to Sc/ ST from passing special test for Promotions as UDC for 2 years more. Apex Court held that classification of employees belonging to SC/ST is just and reasonable classification having rational nexus to the object of providing equal opportunity in employment and appointment for Such Citizens.  Apex court held that 14, 15 & 16 are Supplemental to each other, A-16 (1) is incidental to A-14.

Protective discrimination: There Should be affirmative positive action for bringing equality. The court has held so many times that equality is a positive right and requires the state to minimize existing inequalities and to treat unequal or underprivileged with Special care. Equality of opportunity is not just a  matter of legal equality. Its existence depends not merely on an absence of disabilities but on the presence of abilities and opportunity for excellence in each Cadre/ grade. wherever there is any inequality in fact, legal equality always tends to accentuate (emphasize) inequality. it is therefore necessary to take into account de facto inequalities which exist in the Society and to bring real equality affirmative action required by way of giving preference to the Socially and economically disadvantaged group. Protective discrimination is a facet of equality under A-14, 15 & 16.

Reservation in Employment

Indra Sawhney Vs. Union of India (Mandal case) (1993)(SC)

  1. Backward class of citizens under A-16(4) can be  identified on the basis of caste and not only on economic basis.
  2. A-16(4) is not an exception to A-16 (1) but an independent clause. Reservation can be made under A-16(1) on the basis of reasonable classification. Court has approved thomas case and overruled Balaji judgment 
  3. A-16(4) is exhaustive for reservation of backward class, reservation for other class may be made under A-16 (1)
  4. A-16 (4) permits not only reservation of appointment which is the highest form of special Provision but also preference, Concession and exemptions which are lesser forms of special provisions.
  5. Backward classes in A-16(4) are not Similar to Socially and economically backward classes in A-15(4). A-16(4) is wider in scope because it uses the word backward class only without any qualification whether Socially or economically or otherwise. so include OBC/ ST/ SC or even other backward. It is mainly social and not necessarily educationally backward. 
  6. A- 16(4) permits classification of backward class into backward & more backward class So that advance section of backward class might not take all the benefits of reservation. base for exclusion of Creamy layer.
  7. Backward class of Citizen can’t be identified only and exclusively with reference to Economic Criteria
  8. Reservation shall not exceed 50%. This rule should be applied each year. this is applicable to reservation Proper only, not to exemption, Concessions relaxation provided to backward classes under A-16(4)
  9. A carry forward rule related to c/f of unfilled vacancy in next year is valid but subject to  50%. This was also nullified by inserting new clause 4B in A-16 to remove 50% Limit while filling a backlog of vacancies which could not be filled due to non-availability of eligible candidates. this unfilled vacancy Shall be treated Separately and not with current year vacancy So S-50% limits not applicable.
  10. No reservation in Promotion. This was later on nullified by inserting clause 4A in A-16 where under reservation in Promotion also to SC/ ST if not adequately represented in service.
  11. merit when necessary and when not – rule of reservation can’t be called anti meriterian , merely getting high marks in examination does not make a good administrator. An efficient administrator has the capacity to understand with Sympathy and to bravely tackle the Problem of weaker sections. A person of this very Section is most appropriate. Court also observed that there are certain Services where reservation Should not be applied e.g Professor, Pilots, scientists, Technicians, Technical Post, Super specialities, defence services etc. in these Services and position on the merit alone counts. 
  12. Creamy layer to be excluded from reservation . A committee to identify creamy layers. In accordance with the direction given by the Supreme Court, the union government appointed an expert Committee known as Justice Ram Nandan Committee to identify the Creamy layer among Socially & educationally backward classes. The committee submitted a report in 1993 and it was accepted by the government.

validity of Reservations in promotion

  1. Nagaraj Vs Union of India (2007)( SC): in this case writ under A-32 to Quash the 85th constitutional amendment Act 2000) inserting Article 16(4A) retrospectively from 17-06-1995 providing reservation in Promotion to SC/ST as being unconstitutional and violative of the basic structure of Constitution. But Judges held that this is enabling Provisions. clause (4A) of A-16 is governed by two compelling reasons 1) backwardness and 2) inadequacy of representation and applicable only when these two Conditions exist.

further treating unfilled reserve Vacancies as a separate Category beyond 50% by inserting clause 4B in A-16 is also an enabling Provisions and does not obliterate constitutional requirements namely the quantitative limitation of 50%, Qualitative limitation of Creamy layer, the concept of sub-classification between OBC & S/ST and do not change equality Code indicated in A-14,15 & 16 also uphold the constitutional Validity of 82 nd Amendment Act 2000 which inserted a Proviso in A-335 relaxing qualifying marks of promotion to SC/ST Candidates. The apex court observed and held that

  1. There is a Conceptual difference between the non-discrimination principle and affirmative action where the state is under obligation to provide a level Playing field to the oppressed class. Both of these concepts constitute equality of opportunity
  2. Social Justice is one of the Subdivisions of the Concept of Justice, it is concerned with the distribution of benefits and burdens. The basis of distribution is the area of conflicts between rights, needs and means. There are 1) formal equality means law treats everyone equal and 2) Proportional equality or egalitarian equality where under the State to take affirmative action in favour of disadvantaged sections of Society. 
  3. A-14 Confer a personal right by enacting a Prohibition which is absolute. Basic Principle is that law must operate equally on are persons under like Circumstances. Every discretionary Power is not necessarily discriminatory. equality is not violated by more Conferring discretionary Power. this is violated by arbitrary exercise of Such Power, and it would be corrected by Court. enabling Provisions in A-16 (4A) & (4B) are Permissive in nature to balance equality with positive discrimination.
  4. constitutional law is a law of evolving concepts. Some of them are generic and others are to be identified and valued. enabling Provisions are to be dealt with the Concept which has to be identified and valued which depends upon facts of situation only. Equality before law in A-14 is a positive as well as negative concept, first limb is a negative Concept but the last limb is a positive concept where equalizing measures depending upon the fact Situation.
  5. A-16 (4), (4A) & (4B) are enabling Provisions so that the State is empowered to identify and recognise the compelling interests. If the state has quantifiable data to show backwardness and inadequacy then the state can make a reservation in Promotions keeping in mind maintenance of efficiency, if inadequacy of representation Could be identified and measured.
  6. There is a difference between equality in law and equality in facts. if 16(4A) & (4B) flow from A-16 (4) and A-16 (4) is enabling Provision then 16(4A) & (4B) are also enabling provisions. In a given case where excessiveness results in reverse discrimination, the Court has to examine individual Cases and decide matters in accordance with law. This is the theory of guided Power.
  7. The limit of 50% is a  balancing act to get the right of general category Vis a vis right of BC en block consisting of OBC, ST, SC. withins egalitarian equality indicated in A-16(4) , Sub classification in favour of SC /ST in principle constitutionally valid. there are chances where OBC may take away all the vacancies leaving SC/ST high and dry, the State is entitled to categories and sub-classify SC/ST on one hand Vis. a vis OBC on the other hand.
  8. The test of Judging the width of Power and test for adjudicating the exercise of Power by state are two different tests and therefore require two different Judicial approaches.  For the Test of width of Power, we apply width test where we have to see Whether amendments obliterate the constitutional limitation under A-16 (4).  The boundaries of width Power are a) Quantitative limitation of 50% b) Qualitative exclusion of Creamy layer c) the compelling reason i.e. backwardness, inadequacy of representation etc & d) the overall administrative efficiency.
  9. The so-called catch up rule where under reserved category Candidates promoted on the basis of reservation earlier than his Senior of general category in feeder grade Shall necessarily be Junior in Promoted category to such general category Candidates. The concept of catch rule are not constitutional requirements or limitation but a Judicially evolved concept to control the extent of reservation derived from Service Jurisprudence . since they are not constitutional Donnaple so they are amendable. obliteration of these concept does not change equality code indicated under A-14.

validity of Reservation for OBC is Educational institution

Ashok Kumar Thakur Vs. UOI  (2008)( SC)

93rd constitutional amendment Act 2005 inserted clause 5 in A-15 so as reservation for SC/ ST/ BC in educational institutions including Private Educational institutions whether aided or unaided by state other than minority educational institutions. Further 27% seats for OBC in State aided central universities under the central Educational institution (Reservation in Admission ) Act 2006 . The validity of this Act depends upon the 93rd Amendment which was chathanged on many grounds including basic structure because Such amendment Seriously abridged the equality principle guaranteed in A-15. further this type of act divides the country on caste basis and affects social and communal harmony. Constitutional guarantee of equality and equal opportunity Shall be seriously prejudiced. 

observation & decisions on various issues as under:

  1. Constitutional validity of 93rd Amendment _it does not violate basic structure. equality is a multi Colour concept incapable of a single definition. facets & Principle of equality can always be altered, especially to carry out the directive Principle of state Policy, if any Constitutional amendment is made which moderately bridges the principle of equality, it Can’t be Said that ih violate the basic structure. It was not held in Kesavananda Bharati case that all facets of A-14 or any fundamental rights would form Part of a basic Structure. The court held that affirmative action of the state Is nothing but a crucial Component of Social Justice. when fundamental rights are at stake, they must be harmonized with the directive principle of state policy and not subject to the directive principle. 
  2. A-15 (5) is Constitutionally valid and clause 4 & 5 of A-15 are not mutually contradictory. A-15(5) is enabling Provisions to Carry out Certain constitutional mandates and thus it is constitutionally valid. while interpreting any Constitutional provisions, effect shall be given to all the Provisions of the constitution and no provision to be interpreted in a manner so as to make other Provisions inoperative or otiose.
  3. Exclusion of minorities Educational institution from A-15(5) is not violative of A-14 as minority institution by themselves asea separate class and their rights are Protected by other Constitutional Provision under A-30. 
  4. constitutional Validity of 2007 Act – valid, for determining Socially and economically backward can’t be only on the basis of caste but Poverty, Social backwardness, economic backwardness etc, caste play important role in determining the backwardness of the individual . So if real backwardness is found in a Caste, it can be considered backward. It is clear from Indira sawhney case that caste itself is not the final destination, that caste by itself can’t be determinative of social and educational backwardness, though caste can be Starting Points for determination of backwardness. 
  5. whether Creamy layer to be excluded?  Yes creamy layer to be excluded from socially and economically backward class. identification of Socially and economically backward class not complete till exclusion of Creamy layer
  6. Whether the Creamy layer principle is applicable to SC /ST ?  No, in the Indira Sawhney case it was decided that the creamy layer principle is not applicable to SC/ST. Here no issue of SC/ ST so need to express any opinion.
  7. Parameter for determining creamy layer – office memorandum issued by Government of india, ministry of personnel, Public Grievance and Pension ( Department of Personnel and training) on 08-09- 1993 may be applied. This was issued after the Judgements of Indira Sawhney case. 
  8. Quantum  of Reservation -27% for SEBC valid and not illegal and Parliament must be deemed to have taken into Consideration are relevant Circumstances when fixing 27% reservation.
  9. Educational standard for educationally backward – graduation or professional Shall be Standard test /yardstick for measuring backwardness. once a Candidate has graduate from a university, said candidate is educationally forward and in eligible for Special benefits
  10. Delegation of Power to union government to determine as to who shall be the backward class is constitutionally valid and not excessive delegation.

single isolated Post & reservation: constitutional bench held that until there is plurality of Posts in a Cadre, the question of reservation will not arise. Apex Court also held That A-14,15,16 including 16 (4A) & (4A) should be applied in Such a manner so that a balance is stuck in the matter of appointments by Creating reasonable opportunities for reserved class and also for non- reserved Community. P. G.I of medical Education & Research Vs. faculty Association of PGI  (1998)  (SC) 

Reservation in Super specialities:

Dr. Priti Srivastava Vs. State of M P (1999)( SC) case in was held that lowering of minimum qualifying marks for admission to super speciality postgraduate medical courses in favour of the reserved category candidates is unconstitutional and violative of A-15(4). This Judgment Is in agreement with Mandal case Judgment in which also it was held that merit alone would Count in super speciality courses because of limited facelikes of training. the objective of A-15 (4) is to advance the equality principle by Providing for Protective discrimination in favour of weaker sections of the Society so that they may become Stronger and ableto Compete equally with others, one Can’t ignore the wider interest of the Society while devising such Special provisions.

  1. Duraiswamy Vs. state of T-N (2001)(SC)  apex court laid down that it is now a propositions well Settled that at super speciality level in particular and at post graduate level, reservation in favour of Backward class Should be avoided as being not permissible.

Reserve category Candidate competing in open category: in Mandal case it was held that Reserve category candidates getting selected in open competition on the basis of their merit Should not be counted against Quota resolved for them. further in P.G.I of medical Education & Research (1997) Case it was held that if a reserve category candidate gets selected for admission to a course Or appointment to a post on the basis of merit as a general Candidate, he should not be treated as reserve Candidates. only those who are getting admission or appointment by virtue of relaxation of eligibility Criteria Should be treated as reserved candidates.

Reservation for women:

Union of India Vs. K. P Prabhakaran (1997) (SC): Railway administration decided to resume the Post of enquiry cum Reservation clerk in Reservation offices in the metropolitan cities exclusively for women. madras HC decided that it is against A-14 , 16 (1) & 16 ( 2) and is not Protected by A-15(3)  but SC has upheld the validity of railway administration and held thats since A-15 (1) & (3) go together & Protection of A-15 (3) would be applicable to employment under State falling under A- 16 (1) and (2) .

marriage & status of SC/ ST: A girl of high caste or forward caste married with a boy of SC/ST , such girl is not entitled to such lady benefits of reservation of SC/ ST category. Neelima V. Dean, P. G Studies A. P Agricultural university (1993) (SC)

A female  of high caste or forward caste married with a boy of SC , such girl is not entitled to benefits of reservation of SC under A-15 (4) and A-16(4) category because a person of high caste not subjected to any social or educational backwardness in her life, by reason of marriage alone can’t ipso facto become a member of SC/ST. in absence of any Strict Proof , She can’t be allowed to defeat the very Purpose of reservation for disadvantageous people . Meera kawaria V. sunita (2006) (SC)

Appellant who by birth did not belong to a backward class or community would not be entitled to contest a seat reserved for a backward class or community merely on the basis of her marriage to a male of that Community. Sandhya Thakur vs Vimla Devi Kushwah (2005) (SC)

Reservation to children born out of such marriage of a high  caste girl with a boy of SC/ ST: the caste of a Person depends upon birth. Burden ison the person who claims the benefits to establish that he/ she is subjected to the same hardship and disadvantages having been born as a member of SC/ ST. Earlier a particular community was declared as SC / ST by the president and now Parliament by law can add a new group in this list  M.C. Valsala Us. State of Kerala (2006) (SC) 

A-17.Abolition of Untouchability

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability rising out of “Untouchability” shall be an offence punishable in accordance with law.

A-18.Abolition of titles

(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Name: CA P P SINGH
Qualification: LLM(P) LLB, FCA, CS, GSTCC, B.Sc. (H),
Company: PPSINGH AND ASSOCIAES
Location: NCR DELHI

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