case study on article 15 of indian constitution

Article 15 of the Constitution of India

• Constitutional Law Blogs Subject-wise Law Notes
• Aishwarya Agrawal
• March 26, 2023

Article 15 of the Indian Constitution prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. This article ensures equality before the law and prohibits any form of discrimination in public access to shops, public restaurants, hotels, and places of public entertainment. It also prohibits any form of discrimination in employment or the use of public resources.

In this article, we will delve into the various subclauses of Article 15 and the landmark judgments passed by the Supreme Court of India to understand the scope and impact of this fundamental right.

What is Article 15 of the Constitution of India?

Article 15 of the Constitution of India prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, or place of birth. The article states that the State shall not discriminate against any citizen on these grounds and also empowers the State to make special provisions for women and children and for the advancement of socially and educationally backward classes, Scheduled Castes and Scheduled Tribes.

The article prohibits discrimination in matters related to access to public places such as shops, restaurants, hotels, and places of public entertainment. It also prohibits discrimination in matters related to employment, education, and the use of public utilities such as wells, tanks, and bathing ghats.

The objective of Article 15 of the Constitution of India

The objective of Article 15 is to promote equality and eliminate discrimination on the basis of various factors that historically have been the basis of social inequality and injustice in India.

Provisions of Article 15 Indian Constitution

“(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 (1) of the Constitution

Article 15(1) of the Constitution of India states that the State, which includes the government and its institutions, shall not discriminate against any citizen based solely on religion, race, caste, sex, place of birth or any of them.

This means that the State cannot treat individuals or groups differently or unfairly based on these grounds. For example, the State cannot deny an individual a job, admission to an educational institution, or access to public services, solely based on their religion, race, caste, sex, or place of birth.

DP Joshi v. State of Madhya Bharat 

DP Joshi v. State of Madhya Bharat is a landmark case in Indian constitutional law that deals with the interpretation of Article 15(1) of the Indian Constitution.

In this case, the petitioner challenged the constitutional validity of an order issued by the State of Madhya Bharat, which provided for the reservation of seats in medical and engineering colleges for candidates from backward classes. The petitioner argued that the order violated Article 15(1) of the Indian Constitution, which prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.

The Supreme Court, in its judgment, upheld the constitutional validity of the reservation order. The Court held that Article 15(1) prohibits discrimination on the grounds mentioned above, but it does not prohibit the State from making special provisions for the advancement of socially and educationally backward classes of citizens. The Court further held that the reservation order was a special provision aimed at promoting the educational advancement of the backward classes and was, therefore, valid under Article 15(1).

The Court also observed that the classification of backward classes for the purpose of reservation must be based on objective criteria such as social and educational backwardness, and not solely on the basis of caste. Additionally, the Court held that the reservation policy must be based on the needs of the society and should be flexible enough to accommodate changing social and economic conditions.

State of Rajasthan v. Pratap Singh

In the case of State of Rajasthan v. Pratap Singh (1969) , the Supreme Court dealt with the issue of discrimination based on residence. The case involved a rule made by the Rajasthan government that only the candidates who had been residents of the state for a certain period of time would be eligible for admission to medical colleges in the state.

The court held that the government’s rule violated Article 15(1) of the Constitution, which prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. The court held that the rule was discriminatory as it excluded non-resident candidates from consideration, irrespective of their merit. 

The court further held that the rule was not covered under the exception provided in Article 15(3), which allows the state to make special provisions for women and children.

The court held that the right to equal opportunity in the matter of education cannot be limited by any discrimination based on residence. The court observed that the purpose of education is to create a pool of skilled individuals who can serve society and the nation as a whole. The court held that it is in the larger interest of society and the nation to admit the best candidates, irrespective of their residence.

Article 15 (2) of the Constitution

Article 15(2) of the Constitution of India is a fundamental right that prohibits discrimination against any citizen of India solely based on religion, race, caste, sex, place of birth, or any of them. The provision prohibits any citizen from being subjected to any disability, liability, restriction, or condition on these grounds.

Clause (a) of Article 15(2) specifically prohibits discrimination in access to shops, public restaurants, hotels, and places of public entertainment. This means that no citizen can be denied entry or services at these establishments on the basis of their religion, race, caste, sex, place of birth or any of them.

Clause (b) of Article 15(2) prohibits discrimination in the use of public facilities such as wells, tanks, bathing ghats, roads, and places of the public resort that are maintained either wholly or partly out of State funds or dedicated to the use of the general public. 

This means that no citizen can be denied access to these public facilities on the basis of their religion, race, caste, sex, place of birth or any of them.

Article 15 (3): Special Provisions for women and children

Article 15(3) of the Constitution of India is a provision that allows the State to make special provisions for women and children, despite the general prohibition on discrimination on the basis of religion, race, caste, sex, place of birth or any of them under Article 15(1).

The provision recognizes that women and children have historically been disadvantaged and marginalized due to various social and economic factors, and hence, require special provisions to promote their welfare and advancement.

Article 15(3) permits the State to make such special provisions without violating the fundamental right to equality guaranteed to all citizens. 

These special provisions may include policies and programs that aim to uplift women and children, such as reservations in educational institutions, employment opportunities, and healthcare facilities, as well as protection against various forms of discrimination and violence.

Yusuf Abdul Aziz v. State of Bombay

In Yusuf Abdul Aziz v. State of Bombay (1954) , the appellant was charged with adultery under Section 497 of the Indian Penal Code, 1860. The case raised the issue of whether Section 497 was in contradiction with Articles 14 and 15 of the Indian Constitution.

 The argument was made that Section 497 stated that only men could commit adultery and that women could not be punished as abettors, which raised questions of discrimination based on gender.

However, it was noted that Clause (3) of Article 15 allows the state to make special provisions for women and children, indicating that the provision was not intended to prevent such provisions. It was also argued that Article 15(3) should not be interpreted as shielding women from crimes.

Moreover, the appellant was not an Indian citizen, and only Indian citizens can invoke fundamental rights under Articles 14 and 15. As a result, the appeal was dismissed.

Paramjit Singh v. State of Punjab

In the case of Paramjit Singh v. State of Punjab (2009) , the petitioner was elected as a Panch for a reserved seat for women of Scheduled Castes. The petitioner challenged the election of respondent number 5 as Sarpanch, claiming that she was not eligible to contest for the reserved seat for Scheduled Castes (women) as she was elected only as a Panch for a reserved seat for Scheduled Castes (women).

The court held that if the seat of the Sarpanch for a village was reserved for Scheduled Castes, then both men and women belonging to those categories could stand for election for the Sarpanch’s post. The eligibility criterion was being a Scheduled Caste and representing the constituency as Panch. Therefore, the election of respondent number 5 as Sarpanch was held valid.

Article 15 (4): Special provision for SEBCs, or SCs & STs

Article 15(4) of the Indian Constitution allows the State to make special provisions for the advancement of socially and educationally backward classes of citizens, Scheduled Castes, and Scheduled Tribes. This provision overrules any potential conflict between the fundamental right against discrimination and any affirmative action programs implemented by the government to address historical social and educational disadvantages.

This means that the State can implement programs, policies, and laws that provide preferential treatment to disadvantaged communities based on their caste, tribe, or economic status, without violating the anti-discrimination provisions of Article 15(2) or Article 29(2). 

These provisions can include reservations in education, employment, and political representation, as well as other programs aimed at addressing social and educational inequalities faced by these groups. 

The aim of such special provisions is to help these communities to have access to opportunities and resources that were denied to them in the past, and to bring them to par with the rest of society.

The reason for adding this clause is linked to two significant instances.

Firstly, in the case of the State Of Madras v. Srimathi Champakam (1951) , the government of Madras issued an order that allocated seats in medical and engineering colleges based on the caste and community of the students. 

However, the seven-judge bench declared that the order was against Clause (1) of Article 15 of the Constitution of India, which provides that no citizen shall be discriminated against on grounds of religion, race, caste, sex, place of birth or any of them, in access to educational institutions maintained by the State or receiving aid out of State funds.

Secondly, in Jagwant Kaur v. State of Maharashtra (1952) , the construction of a colony solely for Harijans was found to be violative of Article 15(1). To help the socially and educationally disadvantaged citizens without violating the provisions of Article 15, Clause(4) was added to the article.

Additionally, Article 29(2) is mentioned in Article 15(4), and it prohibits discrimination against any citizen on grounds of religion, race, caste, language, or any of them concerning admission to any educational institution maintained by the state or receiving aid out of state funds. 

Thus, Article 15(4) is not an exception to the principle of non-discrimination but rather a special provision to promote the advancement of socially and educationally backward sections of society.

A. Periakaruppan v. State of Tamil Nadu 

In A. Periakaruppan v. State of Tamil Nadu (1971) , the Supreme Court held that classifying socially and educationally backward classes based on caste was in violation of Article 15(4), and that reservations were necessary for improving the conditions of such classes. 

Balaji v. State of Mysore

In Balaji v. State of Mysore (1963) , the Court held that categorizing backwards and more backward classes was not justified under Article 15(4), and that reservations could not exceed 50%. 

State of AP v. USV Balaram

The Court also held in State of AP v. USV Balaram (1972) that caste should not be the determining factor for belonging to a backward class and that the list of backward classes would automatically be updated if they no longer require special aid from the state. 

State of UP v. Pradeep Tandon

In State of UP v. Pradeep Tandon (1974) , the Court held that providing reserved seats to students from rural areas was unconstitutional, as poverty in rural areas does not equate to backwardness, and reservations could only be provided to socially and educationally backward classes.

Article 15(5) of the Constitution

Article 15(5) is a clause under the Indian Constitution that permits the government to make special provisions for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes with regard to their admission to educational institutions, including private educational institutions, aided or unaided by the State. This clause was added by the Constitution (First Amendment) Act, 1951.

The clause specifies that nothing in Article 15 or sub-clause (g) of clause (1) of Article 19 shall prevent the State from making such special provisions by law. Article 19(1)(g) grants citizens the right to practice any profession or to carry on any occupation, trade, or business. However, it is subject to reasonable restrictions imposed by the State in the interest of the general public.

The clause also makes an exception for minority educational institutions referred to in clause (1) of Article 30. Article 30(1) guarantees the right of minorities, whether based on religion or language, to establish and administer educational institutions of their choice.

In essence, Article 15(5) allows the State to provide affirmative action or reservations for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes in educational institutions. 

This provision was introduced to ensure that these marginalized sections of society have access to education and to promote equality of opportunity. However, it does not apply to minority educational institutions that have the constitutional right to establish and administer educational institutions of their choice.

Article 15(6) of the Constitution

Article 15(6) allows the state to make special provisions for the advancement of economically weaker sections of citizens, other than the socially and educationally backward classes of citizens, Scheduled Castes, and Scheduled Tribes, which are already covered under clauses (4) and (5) of Article 15 of the Constitution of India.

Clause (a) of Article 15(6) allows the state to make special provisions for the advancement of EWS of citizens other than those covered under clauses (4) and (5). This means that the state can make provisions for the economic betterment of any citizen who falls below a certain income level, regardless of their caste or community.

Clause (b) of Article 15(6) allows the state to make special provisions for the admission of economically weaker sections of citizens, other than those covered under clauses (4) and (5), to educational institutions, including private educational institutions, whether aided or unaided by the state. However, such provisions for admission would be in addition to existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Janhit Abhiyan v Union of India

On 16th January 2023, in a 3-2 majority, the Supreme Court upheld the 103rd Constitutional Amendment providing EWS reservation. With this, the Court extended the net of reservation benefits to include solely economic backwardness.

In conclusion, Article 15 of the Indian Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. The interpretation of this article by the judiciary has evolved over the years and expanded its scope to include indirect discrimination and positive discrimination in favour of historically disadvantaged groups. 

The Supreme Court has also clarified that economic backwardness can be a basis for affirmative action under Article 15(6) but not under Article 15(4) and (5) which are specifically limited to socially and educationally backward classes and Scheduled Castes and Tribes.

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Home / clat ug / Landmark Judgements on Article 15

Landmark judgements on article 15, introduction.

Discrimination on the basis of caste, race, gender, place of birth, or religion is forbidden by Article 15. The Indian Constitution forbids any kind of restriction, disability, or condition with regard to accessing public parks, stores, hotels, and restaurants.

Article 15 has enabled Indian society remain tall and proud in the face of great diversity, sexism, and racism. It is a protector of the underprivileged and a shield against prejudice. Despite a strict caste system, it has long contributed to the unity and equality of India and will always do so.

Article 15 has always made an extra effort to assist those who are truly in need. The position of the oppressed has significantly improved since it began in 1949. It provides the legislative branch with all they need to implement policies that promote societal harmony. Atrocities committed against the poor have dramatically decreased in frequency.

[Also Read: Notes on Article 15 of the Indian Constitution]

State of madras v. champakam dorairajan.

This significant constitutional ruling paved the way for the first amendment to the Indian Constitution. The First Amendment allows the inclusion of a reservation policy by introducing clause 4 in the Constitution.

Clause 4 of the Constitution as it stands now gives the state the authority to work for the Scheduled Caste and Scheduled Tribe through policies that are educationally and socially advantageous. While the Lok Sabha was still in the process of being created, the Constitution’s first amendment was approved. It was started back in 1952.

It was the first choice made to reconcile the disparity between fundamental rights and the guiding principles of governmental policy. In this groundbreaking case, the Supreme Court ruled that the government’s order reserving seats in educational institutions based on caste and religion was unconstitutional.

The judgement laid the foundation for the concept of “reasonable classification,” emphasizing that affirmative action and reservations must be based on valid criteria to address social and educational backwardness rather than religious or caste considerations.

DP Joshi v. State of Madhya Bharat  

In the landmark case of DP Joshi v. State of Madhya Bharat, the constitutional validity of a reservation order providing seats in medical and engineering colleges for candidates from backward classes was challenged under Article 15(1) of the Indian Constitution, which prohibits discrimination based on various grounds.

The Supreme Court upheld the reservation order, asserting that Article 15(1) does not bar the state from making special provisions for the advancement of socially and educationally backward classes.

The Court emphasized that such provisions must be aimed at promoting educational advancement and based on objective criteria like social and educational backwardness, rather than mere caste considerations. Moreover, the Court stressed the importance of a flexible reservation policy responsive to changing social and economic conditions in society.

M. Nagaraj v. Union of India

The Supreme Court, in this case, reiterated the importance of the “creamy layer” principle in reservations for Scheduled Castes (SCs) and Scheduled Tribes (STs) in promotions in public employment. The court held that the state must provide quantifiable data showing backwardness and inadequacy of representation to justify such promotions.

The court also assessed the workability of the Rules of 2002 and found them to be in violation of Article 16(4) (A) and (4) (B) and Article 335 of the Constitution. The rules’ provision concerning reservation, backlog vacancies, carry-forward of unfilled posts, and roster operation was deemed contrary to the law laid down in the Nagaraj case.

The major issue identified was the indefinite carrying forward of unfilled reserved posts, which are not included in the 50% ceiling, leading to a continuous increase in such vacancies. As a result of the court’s decision, more than 50,000 officials from various ranks may face reversion, and the promotions of SC/ST category individuals made under these rules were deemed invalid and must be reversed.

Janhit Abhiyan v. UOI

The Constitution (One Hundred and Third Amendment) Act, 2019, and the reservation for economically weaker sections (EWS) were affirmed by the Supreme Court of India as a result of Janhit Abhiyan v. Union of India.

This case has had a big influence since it has made sure that those in the economically underprivileged parts of society are given equal opportunity in both education and employment. The reservation for EWS is an enabling clause that gives the state the authority to provide special accommodations in educational settings and job opportunities for members of the society who are economically weaker.

People from economically disadvantaged backgrounds now have new options to access high-quality education and stable employment thanks to the reservation for EWS. The implementation of reservation for Economically Weaker Sections (EWS) has raised concerns about its potential impact on existing reservations for SCs, STs, and OBCs.

It is essential to prevent any dilution of existing reservations and to ensure that the total reservation percentage does not exceed 50%. Despite these concerns, the overall impact of the case has been positive, as it aims to uplift economically weaker sections and promote social and economic equality in India.

However, careful monitoring of the EWS reservation’s implementation will be crucial to ensure it achieves its intended objective without adversely affecting existing reservations.

Article 15 has significantly improved the condition of the downtrodden in India by promoting harmony and reducing atrocities against underprivileged classes. It prohibits discrimination based on religion, race, caste, gender, or place of birth, aiming to ensure equal opportunities and advancement for socially backward groups.

While reservations have sparked disputes, their purpose is to aid the disadvantaged rather than divide society. Although discrimination persists, the article has contributed to reducing inequality and upholding India’s unity and equality, aligning with the Constitution’s preamble.

The landmark judgements on Article 15 have played a crucial role in ensuring social justice and equality in India. Through these rulings, the judiciary has struck a balance between the promotion of affirmative action and the preservation of meritocracy. Article 15 continues to serve as a powerful tool in the fight against discrimination, and these decisions have significantly contributed to the nation’s progress towards a more inclusive and equitable society.

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TheLawmatics

Prohibition of Discrimination: Article 15 and Evolved Jurisprudence on it

Clauses 1 and 2 of Article 15 provide that:

“ 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.”

Table of Contents

Clause (1) of Article 15

Article 15(1) imposes an enforceable obligation on the State to not discriminate against citizens on any of several grounds, including “caste”. If the State itself discriminates against a citizen under any of the mentioned grounds, then it is discrimination of the highest form. After all, the State is expected to prevent discrimination, not perpetuate it. That is why our Constitution prohibits the State from discriminating against any citizen. Besides, Article 15(2) was adopted to specifically prohibit the discrimination faced by certain marginalized communities in accessing public services and resources.

Historically, the so-called untouchable community was not allowed to use public resources such as water tanks and wells. This provision has a unique imprint of Dr Ambedkar, as he consistently advocated for such a provision for decades. [1] Not only does Article 15(2) prohibit the State from discriminating, it also restricts the citizens or private entities from discriminating against other citizens on the grounds mentioned therein.

Various Dimensions of Discriminations

Discrimination is prohibited, because it has several repercussions on human lives. Discrimination arises due to a feeling of superiority/inferiority, bias, contempt, or hatred against a person or a group. In history, such feelings have led to the genocide of certain communities. Discrimination also lowers the self-esteem of the person being discriminated against. It can lead to unfair denial of opportunities and constant violence against a set of people. Discrimination can also be done by continuously ridiculing or humiliating someone, who is on the weaker side of the social spectrum. It can cause trauma to a person with which they may be affected their entire life.

Discrimination also includes stigmatizing the identity or existence of a marginalized social group. Discrimination can also happen based on certain stereotypes against a marginalized group. As a society that divided people into a hierarchy, we must remain conscious of the forms and kinds of discrimination against marginalized groups.

Discriminatory Laws before Independence and Court Rulings on those laws

Discriminatory laws enacted before the Constitution of India came into force need to be scrutinized and done away with. In India, there have been several instances of laws being enacted based on certain stereotypes against certain groups of people. Our citizens have brought challenges before the constitutional courts against the validity of such laws.

In Anuj Garg v. Hotel Association of India , [2] the validity of Section 30 of the Punjab Excise Act, 1914 was challenged. The provision prohibited the employment of women and men under the age of 25 years in premises where liquor or other intoxicating drugs were consumed by the public. In adjudicating the case, Supreme Court applied the principle that

“[l]egislation should not be only assessed on its proposed aims but rather on the implications and the effects”. It struck down the provision, holding that it “suffers from incurable fixations of stereotype morality and conception of sexual role.”

It was held that “[n]o law in its ultimate effect should end up perpetuating the oppression of women”.

In National Legal Services Authority v. Union of India , [3] the Court recognised hijras, eunuchs, apart from binary gender, as “third gender” and extended the protection of Articles 15 and 16 to them. It was held that discrimination on the ground of “sex” under Articles 15 and 16 includes “discrimination on the ground of gender identity”.

The Court declared that the expression “sex” used in Articles 15 and 16 “is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male or female.”

Supreme Court concluded that “discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution”.

However, the judgment of a two-judge bench in Rajbala v. State of Haryana [4] rejected a challenge founded on the claim of discriminatory impact. A state legislation introduced conditions to contest Panchayati elections, as a result of which, a significant section of Scheduled Castes was debarred from contesting elections. The Bench held that a statute cannot be held unconstitutional on the ground that it is “arbitrary”.

The Court held, “If it is constitutionally permissible to debar certain classes of people from seeking to occupy the constitutional offices, numerical dimension of such classes, in our opinion should make no difference for determining whether prescription of such disqualification is constitutionally permissible unless the prescription is of such nature as would frustrate the constitutional scheme by resulting in a situation where holding of elections to these various bodies becomes completely impossible”.

However, this reasoning prima facie is contrary to the decisions in Shayara Bano, Navtej Singh Johar, and Joseph Shine, which upheld manifest arbitrariness as a ground to strike down a law. At the same time, the impact of the law on the Scheduled Caste population is an example of “indirect discrimination”, a constitutional test which has been applied by the Court in subsequent decisions.

In Karma Dorjee v. Union of India , [5] the Court emphasized that “[t]he Governments, both at the centre and the states have a non-negotiable obligation to take positive steps to give effect to India’s commitment to racial equality”. The Court was hearing a public interest petition seeking guidelines to be set down to curb acts of discrimination against persons from the north-eastern states. It directed the Union Government to take “proactive steps to monitor the redressal of issues pertaining to racial discrimination faced by citizens of the nation drawn from the north-east”.

A Constitution Bench in Navtej Singh Johar [6] gave a broader interpretation to Article 15, while striking down Section 377 of the Indian Penal Code insofar as it decriminalizes homosexual intercourse amongst consenting adults, on the ground that it was discriminatory. In a concurring opinion written by Justice DY Chandrachud, it was held that discrimination, whether direct or indirect, “founded on a stereotypical understanding of the role of the sex” is prohibited by Article 15.

The Court held, “If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate.” It was further held that a provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) “is to be assessed not by the objects of the State in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights”.

The Court discussed the principle that even if the law or action by the State is facially neutral, it “may have a disproportionate impact upon a particular class”. Though facially neutral, the effect of Section 377 was seen to target members of the LGBTQIA+ community.

Another Constitution Bench in Joseph Shine [7] struck down Section 497 of the Indian Penal Code, which related to adultery. It was held that the premise of “Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible”, and hence, it violates the non-discrimination principle embodied in Article 15. The provision, the Court held, “builds on existing gender stereotypes and bias and further perpetuates them”, by giving “legal recognition to socially discriminatory and gender-based norms”.

The Court held that a “provision of law must not be viewed as operating in isolation from the social, political, historical and cultural contexts in which it operates”.

In Indian Young Lawyers Association v. The State of Kerala [8] , Supreme Court dealt with the validity of a rule excluding menstruating women between the ages of 10 and 50 from entry in a temple in Kerala, based upon a custom. In his concurring opinion, Justice Nariman held that the said rule is hit by Article 15(1), as it “discriminates against women on the basis of their sex only”. Justice DY Chandrachud who was also a part of the judgment held,

“Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity”.

In Secretary, Ministry of Defence v. Babita Puniya , [9] a two-judge Bench upheld the claims of women engaged on Short Service Commissions in the Army to seek parity with their male counterparts in obtaining Permanent Commissions. It was held that “Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers.”

The Court gave several directions to the Union Government to grant Permanent Commission to women officers in the Army and consequential benefits.

The issue of Permanent Commissions to women officers once again came before the Court in Lt. Col. Nitisha v. Union of India. [10] The petitioners challenged the evaluation criteria applied by the Army as unjust and arbitrary as “the women officers who are in the age group of 40-50 years of age are being required to conform to the medical standards that a male officer would have to conform to at the age of 25 to 30 years, among other factors”.

In deciding the case, the Court discussed the principles of substantive equality, indirect discrimination, and anti-stereotyping under Articles 14 and 15(1). The Court defined indirect discrimination as follows:

“We must clarify here that the use of the term ‘indirect discrimination’ is not to refer to discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion.”

The Court distinguished between direct and indirect discrimination in the following formulation: “… as long as a court’s focus is on the mental state underlying the impugned action that is allegedly discriminatory, we are in the territory of direct discrimination. However, when the focus switches to the effects of the concerned action, we enter the territory of indirect discrimination. An enquiry as to indirect discrimination looks, not at the form of the impugned conduct, but at its consequences.

In a case of direct discrimination, the judicial enquiry is confined to the act or conduct at issue, abstracted from the social setting or background fact-situation in which the act or conduct takes place. In indirect discrimination, on the other hand, the subject matter of the enquiry is the institutional or societal framework within which the impugned conduct occurs. The doctrine seeks to broaden the scope of antidiscrimination law to equip the law to remedy patterns of discrimination that are not as easily discernible.”

The Court however held that “[i]n order to conceptualize substantive equality, it would be apposite to conduct a systemic analysis of discrimination that combines tools of direct and indirect discrimination”, and not just the claim of either of the two.

To evaluate the claim of discrimination, the Court laid down the following test:

“A particular discriminatory practice or provision might often be insufficient to expose the entire gamut of discrimination that a particular structure may perpetuate. Exclusive reliance on tools of direct or indirect discrimination may also not effectively account for patterns arising out of multiple axles of discrimination. Therefore, a systemic view of discrimination, in perceiving discriminatory disadvantage as a continuum, would account for not just unjust action but also inaction.

Structures, in the form of organizations or otherwise, would be probed for the systems or cultures they produce that influence day-today interaction and decision making. The duty of constitutional courts, when confronted with such a scheme of things, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them; but also structure adequate reliefs and remedies that facilitate social redistribution by providing for positive entitlements that aim to negate the scope of future harm…

Therefore, an analysis of discrimination, with a view towards its systemic manifestations (direct and indirect), would be best suited for achieving our constitutional vision of equality and antidiscrimination. Systemic discrimination on account of gender at the workplace would then encapsulate the patriarchal disadvantage that permeates all aspects of her being from the outset, including reproduction, sexuality and private choices which operate within an unjust structure.”

Applying the above principles, the Court concluded that the process adopted by the Army to grant Permanent Commissions to women officers “did not redress the harms of gendered discrimination that were identified by Supreme Court in Babita Puniya”. The Court found the evaluation process to be an instance of “indirect discrimination” and “systemic discrimination”, which “disproportionately affects women”. “This discrimination”, it was held, “has caused an economic and psychological harm and an affront to their dignity”.

The petitioner in Nipun Malhotra v. Sony Pictures Films India (P) Ltd, [11] was aggrieved by the manner in which persons with disabilities have been portrayed in a movie and approached the Court seeking directions for the inclusion of an expert on disability within the Central Board of Film Certification and its advisory panel constituted under Sections 3 and 5 of the Cinematograph Act, among other reliefs. Supreme Court recapitulated “the impact of stereotypes on discrimination and the enjoyment of fundamental rights”.

It reiterated that the anti-discrimination code under Article 15 prevents stereotyping. Regarding the safeguards against stereotyping of persons with disabilities, the Court held:

“… language that disparages persons with disabilities, marginalises them further and supplements the disabling barriers in their social participation, without the redeeming quality of the overall message of such portrayal must be approached with caution. Such representation is problematic not because it offends subjective feelings but rather, because it impairs the objective societal treatment of the affected groups by society. We believe that representation of persons with disabilities must regard the objective social context of their representation and not marginalise persons with disability…”

The jurisprudence evolved by Supreme Court shows that discriminatory laws have no place in our democracy. Discriminatory laws based on stereotypes against a social group were stuck down in judgments like Anuj Garg, Navtej Johar, Joseph Shine, and Indian Young Lawyers Association. Through judgments like NALSA and Babita Puniya, Supreme Court recognized the dignity and aspirations of social groups which have traditionally faced exclusion from equal rights.

Supreme Court recognized indirect discrimination and systemic discrimination in Lt. Col. Nitisha, emphasized the responsibility of the State to curb discrimination in Karma Dorjee, and provided safeguards against discriminatory stereotypes in Nipun Malhotra.

Based on the analysis of the judgments, certain anti-discrimination principles emerge under Article 15(1).

First, discrimination can be either direct or indirect, or both.

Second , facially neutral laws may have an adverse impact on certain social groups that are marginalized.

Third, stereotypes can further discrimination against a marginalized social group.

Fourth , the State is under a positive obligation to prevent discrimination against a marginalized social group.

Fifth, discriminatory laws based on stereotypes and causing harm or disadvantage against a social group, directly or indirectly, are not permissible under the constitutional scheme.

Sixth , courts are required to examine the claims of indirect discrimination and systemic discrimination; and

Seventh , the test to examine indirect discrimination and systemic discrimination has been laid down in judgments of the Court such as Lt. Col. Nitisha.

Sukanya Shantha v. Union of India (2024)

[1] Anurag Bhaskar, The Foresighted Ambedkar: Ideas that Shaped Indian Constitutional Discourse, Penguin

(2024), pp. 68-87.

[2] (2008) 3 SCC 1

[3]  (2014) 5 SCC 438

[4] 2015 INSC 912

[5] (2017) 1 SCC 799

[6] 2018) 10 SCC 1

[7] (2019) 3 SCC 39

[8] 2018 INSC 908

[9] 2020 INSC 198

[10] 2021) 15 SCC 125

[11] 2024 INSC 465

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The constitution of india: a living tree, from 1950 to 1991: planned economy to liberalization, privatisation and globalisation (“lpg”), debates about the text of article 39(b) in constituent assembly, directive principles- article 37 and 38 of the constitution.

Home > Cases > EWS Reservation

EWS Reservation

Janhit Abhiyan v Union of India

In a 3-2 majority, the Supreme Court upheld the 103rd Constitutional Amendment providing EWS reservation. With this, the Court extended the net of reservation benefits to include solely economic backwardness.

U.U. Lalit CJI

Dinesh Maheshwari J

S.R. Bhat J

B.M. Trivedi J

J.B. Pardiwala J

Petitioner: Janhit Abhiyan Akhil Bhartiya Kushwaha Mahasabha; Youth for Equality; SC/ST Agricultural Research and Education Employees Welfare Association; Peoples Party of India(Democratic)

Lawyers: Rajeev Dhawan; Gopal Sankaranarayanan; MN Rao; Meenakshi Arora

Respondent : Union of India; Ministry of Social Justice & Empowerment; The State of Maharashtra; Ministry of Personnel, Public Grievances and Pensions

Lawyers: Attorney General KK Venugopal; Solicitor General Tushar Mehta

Case Details

Case Number: WP (C) 55/2019

Next Hearing:

Last Updated: May 26, 2023

TAGS: 103rd Constitutional Amendment , 50% Limit , EWS , Reservation

Can reservations be granted solely on the basis of economic criteria?

Can Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes be excluded from the scope of EWS Reservations?

Can EWS Reservations breach the 50% ceiling for reservations established by the Supreme Court in  Indra Sawhney  (1992)

Can States provide reservations in private educational institutions which do not receive government aid?

Case Description

On January 9th  2019, the Parliament of India enacted the Constitution (One Hundred and Third Amendment) Act, 2019  which enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone. The Act amended  Articles 15  and  16 of the Constitution by inserting 15(6) and 16(6). It received presidential assent on January 12th  2019 and was published in the Gazette on the same day.

The Amendment under Article 15(6) enables the State to make special provisions for the advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservations can be made in any educational institution, including both aided and unaided private institutions, except minority educational institutions covered under  Article 30(1) . It further states that the upper limit of EWS reservations will be 10% (meaning up to 10% of seats can be reserved for citizens falling in the EWS category). This 10% ceiling is independent of ceilings on existing reservations.

Article 16(6) enables the State to make provisions for reservation in appointments. Again, these provisions will be subject to a 10% ceiling, in addition to the existing reservations.

More than 20 petitions have been filed challenging the constitutional validity of the 103rd Amendment. They argue that the Amendment violates the basic features of the Constitution and violates the fundamental right to equality under  Article 14 . In particular, they make the following  arguments:

• Reservations cannot be based solely on economic criteria, given the Supreme Court’s judgment in  Indra Sawhney v. Union of India  (1992).
• SCs/STs and OBCs cannot be excluded from economic reservations, as this would violate the fundamental right to equality.
• The Amendment introduces reservations that exceed the 50% ceiling-limit on reservations, established by  Indra Sawhney.
• Imposing reservations on educational institutions that do  not  receive State aid violates the fundamental right to equality.

At present, 49.5% of seats in education and public appointments are reserved, with 15%, 7.5% and 27% quotas for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively.

After five days of hearings in 2019, the Court had reserved its order on the issue of referring the case to a Constitution Bench. On August 5th 2020, the Court decided  to refer this case to a five-judge bench.

On August 30th, 2022, the Supreme Court  listed  the matter to be heard, along with  four other Constitution Bench matters , from the first week of September. A 5-Judge Constitution Bench led by CJI  U.U. Lalit stated its intention to hear this case along with the challenge to Andhra Pradesh’s 2005 Act providing reservations for Muslims in the State.

However, on September 6th, the Bench stated that they would decide when to hear the EWS reservation case first. On September 8th the Bench accepted the issues framed by Attorney General K.K. Venugopal. They will decide:

• If reservations can be granted solely on the basis of economic criteria?
• If States can provide reservations in private educational institutions which do not receive government aid, as provided in the Amendment?
• If EWS reservations are invalid for excluding Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes from its scope?

On September 27th, 2022, the Bench finished hearing arguments from all the parties and reserved Judgment in the case. In a 3:2 split, the Bench delivered the Judgment on November 7th, 2022 and declared that the Amendment and EWS Reservations were constitutionally valid. Justices Maheshwari, Trivedi and Pardiwala wrote separate concurring opinions for the majority and Justice Bhat wrote a dissent on behalf of himself and Chief Justice U.U. Lalit.

On December 6th, 2022, the Society for the Rights of Backward Communities filed a petition seeking a review of the Judgment allowing EWS reservations. On May 9th, 2023, CJI D.Y. Chandrachud led a 5-Judge Constitution Bench and dismissed the petition stating there were no grounds to review the Judgement.

Documents (13)

EWS Reservations: Dinesh Maheshwari J's Majority Opinion

November 7, 2022

EWS Reservations: Bela M. Trivedi J's Majority Opinion

EWS Reservations: J.B. Pardiwala's Majority Opinion

EWS Reservations: Ravindra Bhat J's Dissenting Opinion for himself and CJI U.U. Lalit

EWS Reservations: Supreme Court Judgment

Compilation of Written Submissions Filed by All Parties

September 6, 2022

EWS: Order Referring the Case to a Five-judge Bench

August 5, 2020

Writ Petition: by Dr. Thol. Thirumavalavan

January 28, 2019

EWS: Writ Petition By Youth for Equality

January 10, 2019

EWS: The Constitution (103rd Amendment) Act, 2019

January 12, 2019

EWS: Writ Petition by Adv. Reepak Kansal

January 21, 2019

EWS: Counter Affidavit Filed by the Union of India

March 12, 2019

Review Against The Judgment By Dr Jaya Thakur

Reports (22)

EWS Reservations: Judgment Matrix

EWS Reservation Judgment: SC Upholds 103rd Amendment in 3-2 Majority

EWS Reservations: Pre-Judgment Matrix

October 28, 2022

EWS Reservations: Argument Matrix

October 10, 2022

EWS Reservation Day #8: Responses to Governments Arguments on Last Day of Hearing

September 27, 2022

EWS Reservations Day #7: SG Tushar Mehta Argues Amendment Does Not Violate Equality

September 22, 2022

EWS Reservations Day #6: AG Venugopal Argues EWS Reservations are Independant

September 21, 2022

EWS Reservations Day #5: Sr. Adv. Shankaranarayanan Argues Amendment Makes Reservations Permanent

September 20, 2022

EWS Reservations Day #4: Reservations on Economic Criteria Violates Basic Structure of the Constitution

September 15, 2022

EWS Reservations Day #3: (Sr. Advs. P. Wilson and Salman Khurshid): Mr. Khurshid Suggests Alternatives to Reservation

September 14, 2022

EWS Reservations Day #3: (Sr. Adv. Ravi Varma Kumar): 103rd Amendment Violates the Right to Equality

EWS Reservation Day #2: Petitioners Argue that EWS Reservations are a ‘Constitutional Fraud’

September 13, 2022

EWS Reservations Day #1: Bench Accepts Issues Framed for Hearing by AG Venugopal

September 8, 2022

Referral Order in Plain English

August 6, 2020

Union Counter Affidavit Summary

August 1, 2019

Writ Petition Summary

Day 5 Arguments

July 31, 2019

Day 4 Arguments

July 30, 2019

Writ Petition & Counter Affidavit Summary

June 20, 2019

Day 3 Arguments

April 8, 2019

Day 2 Arguments

March 28, 2019

Day 1 Arguments

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

The word ‘ discrimination ’ means to make an adverse distinction or to distinguish unfavourable from others. For example, In Nainsukhdas vs State of U.P . a law which provided for elections on the basis of separate electorates for members of different religious communities was held to be unconstitutional.

 The word ‘ only ’ used in Article 15(1) indicates that discrimination cannot be made merely on the grounds that one belongs to a particular caste, sex, etc. It follows from this that discrimination on grounds other than religion, race, caste, sex or place of birth is not prohibited. It means that discrimination based on any of these grounds and also on other grounds is not hit by Article 15(1).

In D.P. Joshi vs State of M.B. , a rule of the State Medical College requiring a capitation fee from non-Madhya Bharat Students for admission in the college was held valid as the ground of exemption was residence and not place of birth. 

Inter-Relation of Articles 14 and 15

Articles 14 and 15 are all different facets of the concept of equality. These Articles guarantee equality of opportunity and of treatment to all the citizens in different forms, while specifically mandating that the State shall not discriminate against the citizens only on the grounds of religion, race, etc.However, while prohibiting discrimination against citizens, neither of these Articles, prohibit reasonable classification, an essential content of equality.

Thus, as in Article 14, as well in Article 15(1), if it is demonstrated that special treatment is meted out to a class of citizens, not only on the ground of religion, etc., but due to some special reasons and circumstances, the enquiry would be "does such a classification stand the test of reasonableness."

So, Gujarat High Court in Adam Chaki v. Government of India, upheld the pre-matric Scholarship Scheme, made by the Government for students of minority community as not violative of Article 15. The Scheme involved grant of scholarship to class of citizens found to be socially, educationally, and economically disadvantaged on account of their minority status.

The Court said that even if constitutionality of the Scheme could not be upheld on the anvil of Article 15(4), the same satisfied the test of reasonable classification.

 It is a specific application of the general prohibition contained in Clause (1). It says that no citizen shall be subjected to any disability, liability, restriction, or condition on grounds only of religion, race, caste, sex, or place of birth with regard to 

• Access to shops, public restaurants, hotels, and places of public entertainment; and
• The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly by State funds or dedicated to the use of the public.

While clause (1) of Article 15 prohibits discrimination by the State but clause (2) prohibits both the State and private individuals from making any discrimination.

There are three exceptions to this general rule of non-discrimination which are discussed in the upcoming clauses.

 It says, ‘Nothing in this article shall prevent the State from making any special provision for women and children’. For example, women workers can be given special maternity relief and free education for children .

 In Joseph Shine vs Union of India, 2018 case, the Supreme Court in a five Judge Bench held Section 497 of I.P.C. penalising the adultery violative of Articles 14, 15(1) and 21 of the Constitution of India and not a beneficial legislation covered by Article 15(3) of the Constitution.

Adultery can be grounds for civil issues including dissolution of marriage , but it cannot be a criminal offence.

The Bench had also held that Section 198 (2) of the CrPC, which gave the cuckolded husband the exclusive right to prosecute his wife’s lover, was manifestly Section 198 (2) of the CrPC arbitrary.

It says that ‘Nothing in this article or clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes .

Article 15(4) is another exception to clauses (1), (2) of Article 15, which was inserted by the constitution (First Amendment) Act, 1951, due to the decision in State of Madras vs Champakam Dorairajan, 1951 . 

Article 15(4) an enabling provision

 In M.R. Balaji vs State of Mysore, 1963 the Supreme Court held that the provisions made in clause (4) of Article 15 is only an enabling provision and does not impose any obligation on the State to take any special action under it. It merely confers a discretion to act if necessary, by way of making special provision for backward classes.

Article 15(4) and reservation

 In Gulson Prakash vs State of Haryana, 2010 , the Supreme Court held that a writ cannot be issued to the State to make reservation. The principle behind Article 15(4) is that a preferential treatment can be given validly where socially, and educationally backward classes need it.

It is not an exception but only makes a special application of the principle of reasonable classification. The class contemplated under the clause must be both socially and educationally backward. Thus, under clause (4) of Article 15, two things are to be determined:

• Socially and educationally backward classes. 
• The limit of reservation

  Determining Socially and Educationally Backward class:

• P Rajendran vs State of Madras: Backwardness based on Caste solely.
• KC Vasanth Kumar vs State of Karnataka: Both caste and Poverty is a relevant criterion in determining the backwardness of citizens. Occupations and place of habitation may be counted.
• Indira Sawhney vs UOI : Caste can be important and sole factor in determining the backwardness.
• National legal service authority vs UOI: In case of Jat Reservation, The Division Bench of the Court strongly advised the Government to gradually discard "the caste-centric definition of backward" and evolve new practices, methods and yardsticks to discover and address emerging forms of backwardness.

Define the limit of reservation:

Indra Sawhney vs Union of India

• Barring the extraordinary circumstances, the maximum limit can’t be more than 50%.
• The classification of Backward Classes into "Backward" and More Backward" not only permissible but essential. The Court while discharging explained that the object of the special provision contained in the Constitution was not to uplift a few individuals and families in the Backward Classes, but to ensure the advancement of the Backward Classes as a whole. In this respect, Balaji decision" stands overruled.

Later, the Apex Court in A.P.B.C. Sangh v. J.S.V. Federation , held the amalgamation of extremely Backward Classes and Backward into one group as tantamount to treating categories unequal as equals and hence violative of Article 14.

The Constitution (93rd Amendment) Act, 2005, inserted clause (5) in Article 15 with effect from 2006 to nullify the effect of the judgments of the Supreme Court on the point of admission in educational institutions.

It provides that, “ Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such 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”.

Pramati Educational and Cultural Trust vs Union of India

This case deals with the constitutional validity of clause (5) of Article 15. The Supreme Court held that None of the rights under Articles 14, 19(1)(g) and 21 of the Constitution had been abrogated by Clause (5) of Article 15 of the Constitution and the view taken by Bhandari, J. in Ashok Kumar Thakur v. Union of India that the imposition of reservation on unaided institutions by the Ninety third Amendment has abrogated Article 19(1)(g), a basic feature of the Constitution is not correct. Instead, the Court held that the (Ninety-third Amendment) Act, 2005 of the Constitution inserting Clause (5) of Article 15 of the Constitution was valid.

The Constitution (One Hundred and third Amendment) Act, 2019 has inserted clause (6) in Article 15 which is as follows: 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:

• Any special provision for the advancement of any economically weaker sections of citizens other than the class mentioned in clauses (4) and (5); and
• Any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clause (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private 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 percent of the total seats in each category.

Note : 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. 

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