Notes: Fundamental Rights- 2 | Political Science & International Relations: Mains Optional - UPSC PDF Download

 Page 2


• There is a lot of confusion on the issue as to whether “state” includes judiciary within the meaning of Article 12. 
The Judiciary is seen as being included in the definition of ‘other authorities’ however in a  limited manner: 
o The administrative side and the quasi-legislative (rule-making) side of the judiciary are “state” within the 
meaning of Article 12 of the Constitution of India. 
o However, the judicial side of the judiciary is NOT “state” within the meaning of Article 12 of the 
Constitution. 
• To deal with the judicial aspect and ensure that fundamental rights secured utmost protection, the Supreme 
court in the Rupa Ashok Hurra v Ashok Hurra fashioned institutional remedy as a curative petition in all cases 
where the petitioner has been denied a hearing or the judge is biased.  
• The Court added that superior courts of justice fell outside the ambit of State under Article 12. The court has 
confirmed the scope of errors that could potentially violate fundamental rights while in the discharge of judicial 
functions to the two tenets of natural justice: no man shall be condemned unheard, and no man shall be a 
judge in his own cause. 
• The court has recently identified another circumstance, a scenario where public confidence in the integrity of 
administration of justice is shaken, as inviting appropriate intervention through a review petition under Article 
137 or a subsequent curative petition. 
• Unlike the American Constitution, the Indian Constitution contains an express provision conferring power on the 
court to strike down a ‘law’ inconsistent with fundamental rights as being void.  
• Article 13(3)(a) defines ‘law’ to include ‘any ordinance, order, bye-law,rule, regulation, notification, custom or 
usage having in the territory of India the force of law’.  
• As Seervai notes, this is a very broad definition that covers subordinate delegated legislation as well as law that 
has not been enacted by the legislature, that is, long- held customs. 
• Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the 
Supreme Court held in the Kesavananda Bharati case(1973) that a Constitutional amendment  can be challenged 
on the ground that it violates a fundamental right  that forms a part of the ‘basic structure’ of the Constitution 
and hence, can be declared as void. 
• Pre-constitutional enactments are also affected by the vice of unconstitutionality. Article 13(1) provides that all 
laws in force in the territory of India immediately before the commencement of the Constitution shall be void to 
the extent of their inconsistency with fundamental rights.  
• Both pre- and post- constitutional legislations are only declared void to the extent of their inconsistency with any 
of the fundamental rights. The rest of the law can be saved using the doctrine of severability.  
• It asserts that valid provision of a legislation ought to be enforced despite the finding of invalidity in respect of 
its other provisions.  
• The technique of reading down avoids unconstitutionally by internally addressing the scope and coverage of the 
statutory provision.  
• Severance, on the other hand, mitigates the effect of unconstitutionality by saving those provisions that fall 
outside its vice.  
• Therefore, sequentially, the latter follows the former, and the Court proceeds to sever only in cases where a 
reading down is not possible. 
Page 3


• There is a lot of confusion on the issue as to whether “state” includes judiciary within the meaning of Article 12. 
The Judiciary is seen as being included in the definition of ‘other authorities’ however in a  limited manner: 
o The administrative side and the quasi-legislative (rule-making) side of the judiciary are “state” within the 
meaning of Article 12 of the Constitution of India. 
o However, the judicial side of the judiciary is NOT “state” within the meaning of Article 12 of the 
Constitution. 
• To deal with the judicial aspect and ensure that fundamental rights secured utmost protection, the Supreme 
court in the Rupa Ashok Hurra v Ashok Hurra fashioned institutional remedy as a curative petition in all cases 
where the petitioner has been denied a hearing or the judge is biased.  
• The Court added that superior courts of justice fell outside the ambit of State under Article 12. The court has 
confirmed the scope of errors that could potentially violate fundamental rights while in the discharge of judicial 
functions to the two tenets of natural justice: no man shall be condemned unheard, and no man shall be a 
judge in his own cause. 
• The court has recently identified another circumstance, a scenario where public confidence in the integrity of 
administration of justice is shaken, as inviting appropriate intervention through a review petition under Article 
137 or a subsequent curative petition. 
• Unlike the American Constitution, the Indian Constitution contains an express provision conferring power on the 
court to strike down a ‘law’ inconsistent with fundamental rights as being void.  
• Article 13(3)(a) defines ‘law’ to include ‘any ordinance, order, bye-law,rule, regulation, notification, custom or 
usage having in the territory of India the force of law’.  
• As Seervai notes, this is a very broad definition that covers subordinate delegated legislation as well as law that 
has not been enacted by the legislature, that is, long- held customs. 
• Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the 
Supreme Court held in the Kesavananda Bharati case(1973) that a Constitutional amendment  can be challenged 
on the ground that it violates a fundamental right  that forms a part of the ‘basic structure’ of the Constitution 
and hence, can be declared as void. 
• Pre-constitutional enactments are also affected by the vice of unconstitutionality. Article 13(1) provides that all 
laws in force in the territory of India immediately before the commencement of the Constitution shall be void to 
the extent of their inconsistency with fundamental rights.  
• Both pre- and post- constitutional legislations are only declared void to the extent of their inconsistency with any 
of the fundamental rights. The rest of the law can be saved using the doctrine of severability.  
• It asserts that valid provision of a legislation ought to be enforced despite the finding of invalidity in respect of 
its other provisions.  
• The technique of reading down avoids unconstitutionally by internally addressing the scope and coverage of the 
statutory provision.  
• Severance, on the other hand, mitigates the effect of unconstitutionality by saving those provisions that fall 
outside its vice.  
• Therefore, sequentially, the latter follows the former, and the Court proceeds to sever only in cases where a 
reading down is not possible. 
• The Court explained that the operation of fundamental rights eclipses a law that has been validly enacted 
otherwise. As a consequence, if the constitutional bar is removed by way of a subsequent amendment, the law 
would be automatically revived without any further legislative intervention 
• This doctrine of Eclipse is of limited relevance today because the Supreme Court has categorically held it 
inapplicable to post-constitutional legislation that was invalid at the time it was passed.  
• No subsequent action can revive such legislation, except where the initial invalidity of the provision was due to a 
procedural lapse— such as failure to take prior Presidential assent –rather than a substantive bar such as Part III 
or legislative incompetence. 
• Article 14 says that the state shall not deny to any person equality before the law or the equal protection of the 
laws within the territory of India.  
• This provision confers rights on all persons whether citizens or foreigners. Moreover the word ‘person’ includes 
legal persons, viz, statutory corporation, companies, registered societies or any other type of legal person 
• The British idea of equality before law connotes: 
o the absence of any special privileges in favour of any person, 
o the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, 
and 
o no person (whether rich or poor, high or law, official or non- official) is above the law. 
• This was further derived from the concept of ‘Rule of Law’ propounded by the British Jurist A.V Dicey consisting 
of three elements or aspects: 
o Absence of arbitrary power, that is, no man can be punished except for a breach of law. 
o Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-
official) to the ordinary law of the land administered by the ordinary law courts 
o The primacy of the rights of the individual, that is, the constitution is the result of the rights of the 
individual as defined and enforced by the courts of law rather than the constitution being the source of 
the individual rights. 
• The first and the second elements are applicable to the Indian System and not the third one. In the Indian 
System, the constitution is the source of the individual rights. The Supreme court held that the ‘ Rule of Law’ as 
embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an 
amendment  
• Equal protection of Laws which is an American concept connotes: 
o the equality of treatment under equal circumstances, both in the privileges conferred and liabilities 
imposed by the laws, 
o the similar application of the same laws to all the person who are similarly situated, and 
o the like should be treated alike without any discrimination 
• Article 15 provides that the State shall not discriminate against any citizen on grounds  only of religion, race, 
caste, sex or place of birth, The second  provision of Article 15 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 
o access to shops, public restaurant, hotels and places of public entertainment; or 
o the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by 
state funds or dedicated to the use of general public. 
Page 4


• There is a lot of confusion on the issue as to whether “state” includes judiciary within the meaning of Article 12. 
The Judiciary is seen as being included in the definition of ‘other authorities’ however in a  limited manner: 
o The administrative side and the quasi-legislative (rule-making) side of the judiciary are “state” within the 
meaning of Article 12 of the Constitution of India. 
o However, the judicial side of the judiciary is NOT “state” within the meaning of Article 12 of the 
Constitution. 
• To deal with the judicial aspect and ensure that fundamental rights secured utmost protection, the Supreme 
court in the Rupa Ashok Hurra v Ashok Hurra fashioned institutional remedy as a curative petition in all cases 
where the petitioner has been denied a hearing or the judge is biased.  
• The Court added that superior courts of justice fell outside the ambit of State under Article 12. The court has 
confirmed the scope of errors that could potentially violate fundamental rights while in the discharge of judicial 
functions to the two tenets of natural justice: no man shall be condemned unheard, and no man shall be a 
judge in his own cause. 
• The court has recently identified another circumstance, a scenario where public confidence in the integrity of 
administration of justice is shaken, as inviting appropriate intervention through a review petition under Article 
137 or a subsequent curative petition. 
• Unlike the American Constitution, the Indian Constitution contains an express provision conferring power on the 
court to strike down a ‘law’ inconsistent with fundamental rights as being void.  
• Article 13(3)(a) defines ‘law’ to include ‘any ordinance, order, bye-law,rule, regulation, notification, custom or 
usage having in the territory of India the force of law’.  
• As Seervai notes, this is a very broad definition that covers subordinate delegated legislation as well as law that 
has not been enacted by the legislature, that is, long- held customs. 
• Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the 
Supreme Court held in the Kesavananda Bharati case(1973) that a Constitutional amendment  can be challenged 
on the ground that it violates a fundamental right  that forms a part of the ‘basic structure’ of the Constitution 
and hence, can be declared as void. 
• Pre-constitutional enactments are also affected by the vice of unconstitutionality. Article 13(1) provides that all 
laws in force in the territory of India immediately before the commencement of the Constitution shall be void to 
the extent of their inconsistency with fundamental rights.  
• Both pre- and post- constitutional legislations are only declared void to the extent of their inconsistency with any 
of the fundamental rights. The rest of the law can be saved using the doctrine of severability.  
• It asserts that valid provision of a legislation ought to be enforced despite the finding of invalidity in respect of 
its other provisions.  
• The technique of reading down avoids unconstitutionally by internally addressing the scope and coverage of the 
statutory provision.  
• Severance, on the other hand, mitigates the effect of unconstitutionality by saving those provisions that fall 
outside its vice.  
• Therefore, sequentially, the latter follows the former, and the Court proceeds to sever only in cases where a 
reading down is not possible. 
• The Court explained that the operation of fundamental rights eclipses a law that has been validly enacted 
otherwise. As a consequence, if the constitutional bar is removed by way of a subsequent amendment, the law 
would be automatically revived without any further legislative intervention 
• This doctrine of Eclipse is of limited relevance today because the Supreme Court has categorically held it 
inapplicable to post-constitutional legislation that was invalid at the time it was passed.  
• No subsequent action can revive such legislation, except where the initial invalidity of the provision was due to a 
procedural lapse— such as failure to take prior Presidential assent –rather than a substantive bar such as Part III 
or legislative incompetence. 
• Article 14 says that the state shall not deny to any person equality before the law or the equal protection of the 
laws within the territory of India.  
• This provision confers rights on all persons whether citizens or foreigners. Moreover the word ‘person’ includes 
legal persons, viz, statutory corporation, companies, registered societies or any other type of legal person 
• The British idea of equality before law connotes: 
o the absence of any special privileges in favour of any person, 
o the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, 
and 
o no person (whether rich or poor, high or law, official or non- official) is above the law. 
• This was further derived from the concept of ‘Rule of Law’ propounded by the British Jurist A.V Dicey consisting 
of three elements or aspects: 
o Absence of arbitrary power, that is, no man can be punished except for a breach of law. 
o Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-
official) to the ordinary law of the land administered by the ordinary law courts 
o The primacy of the rights of the individual, that is, the constitution is the result of the rights of the 
individual as defined and enforced by the courts of law rather than the constitution being the source of 
the individual rights. 
• The first and the second elements are applicable to the Indian System and not the third one. In the Indian 
System, the constitution is the source of the individual rights. The Supreme court held that the ‘ Rule of Law’ as 
embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an 
amendment  
• Equal protection of Laws which is an American concept connotes: 
o the equality of treatment under equal circumstances, both in the privileges conferred and liabilities 
imposed by the laws, 
o the similar application of the same laws to all the person who are similarly situated, and 
o the like should be treated alike without any discrimination 
• Article 15 provides that the State shall not discriminate against any citizen on grounds  only of religion, race, 
caste, sex or place of birth, The second  provision of Article 15 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 
o access to shops, public restaurant, hotels and places of public entertainment; or 
o the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by 
state funds or dedicated to the use of general public. 
• This provision prohibits discrimination both by the State and private individuals, while the former provision 
prohibits discrimination only by the State. 
• There are three exceptions to this general rule of non- discrimination: 
o The state is permitted to make any special provision for women and children. 
o The state is permitted to make any special provision for the advancement of any socially and 
educationally backward classes of citizens or for the scheduled castes and scheduled tribes. 
o The state is empowered to make any special provision for the advancement of any socially and 
educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding 
their admission to educational institutions including private educational institutions, whether aided or 
unaided by the state, except the minority educational institution. 
• The 103rd Constitution Amendment Act (124th Amendment Bill) amends article 15 to add (6) which provides 
10% reservation for the economically weaker section in education institutions-aided and  unaided, except 
minority institutions. Such a reservation by the executive was struck down during the Indira Sawhney 
judgement. 
• The reservation of up to 10% for the EWS will be in addition to the existing reservation cap of 50% reservation 
for SC, ST and OBCs. 
• The central government will notify the “economically weaker sections” of citizens on the basis of family income 
and other indicators of economic disadvantage. 
• The various indicators include: 
o People who have an annual family income of less than 8 lakh. 
o People who own less than 5 acres of farm land 
o People who have a houses less than 1000 Sq.Ft. In a town or less than that 100 sq. Yards in a notified 
municipal area. 
• Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any 
office under the State. 
• No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds 
of only religion, race, caste, sex, descent, place of birth or residence. 
• The exceptions include: 
o Parliament can prescribe residence as a condition for certain employment or appointment in a state or 
union territory or local authority or other authority. 
o The State can provide for reservation of appointments or posts in favour of any backward class that is 
not adequately represented in the state services. 
o A law can provide that the incumbent of an office related to religious or denominational institution or a 
member of its governing body should belong to the particular religion or denomination. 
• Article 16(4) provides for reservation for backward classes in jobs. 
• Article 16 (4A) was added by the 77th Amendment Act, 1995 empowers the State to provide for reservation in 
promotions of any services under the State in favour of the SCs and STs that are not adequately represented in 
the state services. 
• The 85th CA Act, 2001 gave back “consequential seniority” to SC/ST promotees. 
• Article 16 (4B) was added by the 81st Amendment Act, 2000 that empowers the State to consider the unfilled 
reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years. In 
brief, it ends the 50% ceiling on reservation in backlog vacancies. 
• As per the 103rd Amendment Act, the new clause (6) of Article 16 allows reservations in appointments or posts 
under the state.  
Page 5


• There is a lot of confusion on the issue as to whether “state” includes judiciary within the meaning of Article 12. 
The Judiciary is seen as being included in the definition of ‘other authorities’ however in a  limited manner: 
o The administrative side and the quasi-legislative (rule-making) side of the judiciary are “state” within the 
meaning of Article 12 of the Constitution of India. 
o However, the judicial side of the judiciary is NOT “state” within the meaning of Article 12 of the 
Constitution. 
• To deal with the judicial aspect and ensure that fundamental rights secured utmost protection, the Supreme 
court in the Rupa Ashok Hurra v Ashok Hurra fashioned institutional remedy as a curative petition in all cases 
where the petitioner has been denied a hearing or the judge is biased.  
• The Court added that superior courts of justice fell outside the ambit of State under Article 12. The court has 
confirmed the scope of errors that could potentially violate fundamental rights while in the discharge of judicial 
functions to the two tenets of natural justice: no man shall be condemned unheard, and no man shall be a 
judge in his own cause. 
• The court has recently identified another circumstance, a scenario where public confidence in the integrity of 
administration of justice is shaken, as inviting appropriate intervention through a review petition under Article 
137 or a subsequent curative petition. 
• Unlike the American Constitution, the Indian Constitution contains an express provision conferring power on the 
court to strike down a ‘law’ inconsistent with fundamental rights as being void.  
• Article 13(3)(a) defines ‘law’ to include ‘any ordinance, order, bye-law,rule, regulation, notification, custom or 
usage having in the territory of India the force of law’.  
• As Seervai notes, this is a very broad definition that covers subordinate delegated legislation as well as law that 
has not been enacted by the legislature, that is, long- held customs. 
• Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the 
Supreme Court held in the Kesavananda Bharati case(1973) that a Constitutional amendment  can be challenged 
on the ground that it violates a fundamental right  that forms a part of the ‘basic structure’ of the Constitution 
and hence, can be declared as void. 
• Pre-constitutional enactments are also affected by the vice of unconstitutionality. Article 13(1) provides that all 
laws in force in the territory of India immediately before the commencement of the Constitution shall be void to 
the extent of their inconsistency with fundamental rights.  
• Both pre- and post- constitutional legislations are only declared void to the extent of their inconsistency with any 
of the fundamental rights. The rest of the law can be saved using the doctrine of severability.  
• It asserts that valid provision of a legislation ought to be enforced despite the finding of invalidity in respect of 
its other provisions.  
• The technique of reading down avoids unconstitutionally by internally addressing the scope and coverage of the 
statutory provision.  
• Severance, on the other hand, mitigates the effect of unconstitutionality by saving those provisions that fall 
outside its vice.  
• Therefore, sequentially, the latter follows the former, and the Court proceeds to sever only in cases where a 
reading down is not possible. 
• The Court explained that the operation of fundamental rights eclipses a law that has been validly enacted 
otherwise. As a consequence, if the constitutional bar is removed by way of a subsequent amendment, the law 
would be automatically revived without any further legislative intervention 
• This doctrine of Eclipse is of limited relevance today because the Supreme Court has categorically held it 
inapplicable to post-constitutional legislation that was invalid at the time it was passed.  
• No subsequent action can revive such legislation, except where the initial invalidity of the provision was due to a 
procedural lapse— such as failure to take prior Presidential assent –rather than a substantive bar such as Part III 
or legislative incompetence. 
• Article 14 says that the state shall not deny to any person equality before the law or the equal protection of the 
laws within the territory of India.  
• This provision confers rights on all persons whether citizens or foreigners. Moreover the word ‘person’ includes 
legal persons, viz, statutory corporation, companies, registered societies or any other type of legal person 
• The British idea of equality before law connotes: 
o the absence of any special privileges in favour of any person, 
o the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, 
and 
o no person (whether rich or poor, high or law, official or non- official) is above the law. 
• This was further derived from the concept of ‘Rule of Law’ propounded by the British Jurist A.V Dicey consisting 
of three elements or aspects: 
o Absence of arbitrary power, that is, no man can be punished except for a breach of law. 
o Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-
official) to the ordinary law of the land administered by the ordinary law courts 
o The primacy of the rights of the individual, that is, the constitution is the result of the rights of the 
individual as defined and enforced by the courts of law rather than the constitution being the source of 
the individual rights. 
• The first and the second elements are applicable to the Indian System and not the third one. In the Indian 
System, the constitution is the source of the individual rights. The Supreme court held that the ‘ Rule of Law’ as 
embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an 
amendment  
• Equal protection of Laws which is an American concept connotes: 
o the equality of treatment under equal circumstances, both in the privileges conferred and liabilities 
imposed by the laws, 
o the similar application of the same laws to all the person who are similarly situated, and 
o the like should be treated alike without any discrimination 
• Article 15 provides that the State shall not discriminate against any citizen on grounds  only of religion, race, 
caste, sex or place of birth, The second  provision of Article 15 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 
o access to shops, public restaurant, hotels and places of public entertainment; or 
o the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by 
state funds or dedicated to the use of general public. 
• This provision prohibits discrimination both by the State and private individuals, while the former provision 
prohibits discrimination only by the State. 
• There are three exceptions to this general rule of non- discrimination: 
o The state is permitted to make any special provision for women and children. 
o The state is permitted to make any special provision for the advancement of any socially and 
educationally backward classes of citizens or for the scheduled castes and scheduled tribes. 
o The state is empowered to make any special provision for the advancement of any socially and 
educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding 
their admission to educational institutions including private educational institutions, whether aided or 
unaided by the state, except the minority educational institution. 
• The 103rd Constitution Amendment Act (124th Amendment Bill) amends article 15 to add (6) which provides 
10% reservation for the economically weaker section in education institutions-aided and  unaided, except 
minority institutions. Such a reservation by the executive was struck down during the Indira Sawhney 
judgement. 
• The reservation of up to 10% for the EWS will be in addition to the existing reservation cap of 50% reservation 
for SC, ST and OBCs. 
• The central government will notify the “economically weaker sections” of citizens on the basis of family income 
and other indicators of economic disadvantage. 
• The various indicators include: 
o People who have an annual family income of less than 8 lakh. 
o People who own less than 5 acres of farm land 
o People who have a houses less than 1000 Sq.Ft. In a town or less than that 100 sq. Yards in a notified 
municipal area. 
• Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any 
office under the State. 
• No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds 
of only religion, race, caste, sex, descent, place of birth or residence. 
• The exceptions include: 
o Parliament can prescribe residence as a condition for certain employment or appointment in a state or 
union territory or local authority or other authority. 
o The State can provide for reservation of appointments or posts in favour of any backward class that is 
not adequately represented in the state services. 
o A law can provide that the incumbent of an office related to religious or denominational institution or a 
member of its governing body should belong to the particular religion or denomination. 
• Article 16(4) provides for reservation for backward classes in jobs. 
• Article 16 (4A) was added by the 77th Amendment Act, 1995 empowers the State to provide for reservation in 
promotions of any services under the State in favour of the SCs and STs that are not adequately represented in 
the state services. 
• The 85th CA Act, 2001 gave back “consequential seniority” to SC/ST promotees. 
• Article 16 (4B) was added by the 81st Amendment Act, 2000 that empowers the State to consider the unfilled 
reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years. In 
brief, it ends the 50% ceiling on reservation in backlog vacancies. 
• As per the 103rd Amendment Act, the new clause (6) of Article 16 allows reservations in appointments or posts 
under the state.  
• In five judge benches in Nagaraj Case (2006) with regard to reservation in promotions, the court upheld the 
constitutional validity of the 77th  81st, 82nd and 85th amendments. But it also said that for providing quota in 
promotions the states must provide: 
o quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST) 
o facts about their inadequate reservation 
o overall administrative efficiency 
o not breach the ceiling-limit of 50%or obliterate the creamy.  layer or extend the reservation 
indefinitely 
• First, the Supreme Court has repeatedly held that the compelling reason for making reservation in admission to 
educational institutions under Articles 15(4) and 15(5) must be that a class, apart from being “socially backward”, 
must be “educationally backward”.  
• Likewise, the compelling reason for making reservation in public employment under Articles 16(4) and 16(4A) 
must be that the class, apart from being “backward” is “not adequately represented in the services under the 
State”. 
• These compelling reasons form part of the ‘width test’ laid down by the Supreme Court in M. Nagaraj for 
determining the validity of a constitutional amendment in the light of a basic structure challenge. 
• But the new Article 15(6), providing for special provision including reservation in educational institutions for "EWS 
other than SC, ST and OBC-NCL”, is silent about the key condition of “educational backwardness”. 
• The new Article 16(6), providing for reservation in public employment for "EWS other than SC, ST and OBC-NCL", 
is also silent about the key condition of “not adequately represented in the services under the State”. 
• Secondly, the "Statement of Objects and Reasons “for the 103
rd
 Amendment avers that the EWS have "largely 
remained excluded from attending the higher educational institutions and public employment on account of 
their financial incapacity". But this averment is not backed by any empirical data or research study. 
• Thirdly, the Supreme Court ruled that “equality is the basic feature of the Constitution and any treatment of 
equals as unequals or any treatment of unequals as equals violated the basic structure of the Constitution”. -
Apply to Article 46 and taking adequate care of weaker sections, especially SCs and STs. 
• Fourthly, the income limit of Rs eight lakhs and the asset limit prescribed for determining economic 
backwardness are the same as the limits fixed for determining the ‘creamy layer’ for OBC. 
• This would mean that the 103
rd
 Amendment practically erases  the difference between the OBC-NCL( who are 
socially and educationally backward) and the "EWS other than SC, ST and OBC-NCL" (who are not socially 
backward and about whom there are no empirical data to show that they are educationally backward). 
• Lastly, Sixth, the 103rd Amendment breaches the "50 per cent ceiling" rule for total reservations that the 
Supreme Court has consistently upheld. 
Advantages 
• Economic criteria (if seen as poverty) forms the basis for differential treatment by the state in many ways. 
• Poverty inflicts serious disadvantages and the prerogative of the state to use special measures/ reservations as 
one of the means to address it. 
• The government has sought protection under Article 46 of the Directive Principles, which enjoins the State to 
promote the educational and the economic interests of the weaker sections. 
• The 50% limit has been breached by the state of Tamil Nadu as well and the Supreme Court is yet to decide the 
validity of the state’s law breaching the 50% limit on reservations.  
• The same has now happened in Maharashtra with 65% reservation after inclusion of Marathas. Moreover the 
50%limit upon reservations is a purely judicial invention with no basis in the text of the Constitution. 
• Importantly certain sections such as Muslims which remain educationally backward and under-represented as 
per the Sachar commission may benefit from the same.