Protective Discrimination and Social Justice: Article 15 and 16 | Constitutional Law - CLAT PG PDF Download

Protective Discrimination and Social Justice under Articles 15 and 16

Social justice is about ensuring equal social opportunities for everyone to develop their personality, regardless of differences like caste, sex, or race. It means that no one should be denied the social conditions necessary for their development because of these differences. Social justice is closely linked to social equality, social rights, and economic equality. It can only exist in a system where people are not exploited, and where the privileges of a few are not built on the suffering of many.

The Role of the Constitution in Promoting Social Justice 

 Articles 14, 15, and 16: Ensuring Equality and Prohibiting Discrimination 

• Article 14:  Guarantees equality before the law or equal protection of the laws to every person in India.
• Article 15(1):  Prohibits discrimination against any citizen on grounds of religion, race, caste, sex, place of birth, or any of them.
• Article 15(2):  Prohibits subjecting a citizen to any disability, liability, restriction, or condition on grounds of religion, race, caste, sex, or place of birth concerning access to shops, public restaurants, hotels, and places of entertainment, as well as the use of wells, tanks, bathing ghats, roads, and places of public resort maintained out of state funds.
• Article 15(3):  Allows the state to make special provisions for women and children.
• Article 16(1):  Provides for equality of opportunity for all citizens in matters related to employment or appointment to any office under the state.
• Article 17:  Abolishes "untouchability" and all its manifestations.

 Judicial Trends and Interpretation 

•  Article 15(1) vs. Article 14:  Article 15(1) is narrower than Article 14. While Article 14 applies to both citizens and non-citizens, Article 15(1) applies only to Indian citizens. Non-citizens cannot claim rights under Article 15 but can under Article 14. Additionally, Article 15(1) prohibits discrimination based on specific grounds, whereas Article 14 allows reasonable classification on any rational criterion.
•  Residence vs. Place of Birth:  The Supreme Court clarified that residence and place of birth are distinct concepts. In a case involving medical college admissions, the Court upheld the classification based on residence as reasonable, distinguishing it from discrimination based on place of birth.
•  Article 15(3):  Articles 15(3) and 15(4) provide exceptions to Articles 15(1) and 15(2). Article 15(3) allows the state to make special provisions for women and children, despite the prohibition on discriminatory laws based on gender alone. This reflects the Constitution's commitment to gender equality while permitting special treatment for women when necessary.

In summary, Articles 15 and 16 of the Indian Constitution aim to promote social justice by ensuring equality and prohibiting discrimination. Judicial interpretations have clarified the scope and application of these articles, emphasizing the distinction between residence and place of birth, and allowing for special provisions for women and children.

Socially and Educationally Backward Classes

Definition and Criteria 

• Article 15(4) of the Indian Constitution addresses the identification of  'socially and educationally backward classes'  , but does not provide specific criteria for this determination.
• The responsibility to specify backward classes is left to the states, while the courts have the authority to review the relevance of the criteria used by the state.

Judicial Considerations 

• The Supreme Court has dealt with the definition of backward classes in various cases, emphasizing the need for balance between  group protection  and  individual rights  .
• The Court aims to prevent the  perpetuation of the caste system  and the inclusion of  advanced classes  within backward classes.
• Backwardness, as per Article 15(4), must be both  social and educational  , not just one or the other.

Case Examples 

• In the  Balaji case  , the Court linked  social and educational backwardness  to the conditions of  Scheduled Castes and Scheduled Tribes  . It acknowledged that there are other classes that are  equally or slightly less backward  and deserve special provisions.
• Poverty alone is not a sufficient measure of backwardness, as it could lead to an overwhelming number of people being classified as backward, undermining the purpose of reservations.

 Case Study: Narayan Sharma v. Pankaj Kumar Lehkar 

• The Supreme Court evaluated a  reservation scheme  by the  Assam Government  for postgraduate medical courses.
• The scheme included categories such as  All India quota  ,  North Eastern Council  ,  teachers in medical colleges  ,  doctors working in rural areas  ,  Scheduled Castes  , and  Other Backward Classes (OBC)  .
• The Court upheld certain reservations, like  North Eastern Council seats  , as they addressed a specific  educational disadvantage  . However, it rejected arbitrary exemptions from  entrance examinations  for certain categories.
• Reservation for  teachers in medical colleges  was validated based on their need for postgraduate degrees and their continuous engagement with medical education.

Equality of Status and Opportunity in Public Employment

 Article 16(1) and Article 14 

• Article 16(1) is connected to Article 14, with Article 16(1) specifying "equality of opportunity" in public employment for citizens.
• While Article 14 applies to all individuals, Article 16 is exclusive to citizens.

 Article 16(1) and Article 16(2) 

• Article 16(1) ensures equality of opportunity for citizens in state employment.
• Article 16(2) prohibits discrimination based on factors like religion, race, caste, sex, and place of birth in public employment.

 Article 16(2) and Public Employment 

• Article 16(2) emphasizes the universality of Indian citizenship, allowing citizens from any state to apply for public employment.
• The state, as an employer, must create recruitment rules to provide equal opportunities to all eligible citizens.

 Scope of Article 16 

• Article 16(1) is broader than Article 16(2), which focuses on specific grounds of discrimination.
• Article 16(2) reinforces the fundamental right guaranteed in Article 16(1).

 Educational Qualifications and Public Employment 

• Educational qualifications can be used to differentiate employees in terms of pay scales and promotions.
• Higher pay scales and promotion eligibility can be based on educational qualifications.

 Government Cadres and Categories 

• The government can create different cadres or categories of posts with varying emoluments.
• The decision to have multiple cadres or a single integrated cadre is a matter of state policy and does not violate the equality clause.

 Equal Pay for Equal Work 

• The principle of "equal pay for equal work" is derived from Articles 14, 16, and 39(d) and is considered a fundamental right.
• This principle emphasizes that individuals performing the same work should receive the same remuneration.

 Implementation of Pay Scales 

• Discrimination in implementing revised pay scales based on Pay Commission recommendations for different categories of employees violates Articles 14 and 16.
• If the government accepts recommendations for all employees, it must implement them uniformly.

 Exceptions to Articles 16(1) and 16(2) 

Articles 16(1) and 16(2) have certain exceptions that allow for specific qualifications and criteria in public employment.

• Article 16(3)  : Parliament can set residency requirements for specific appointments within a State or Union Territory.
• Article 16(5)  : Laws may require that certain offices in religious or denominational institutions be filled by individuals of a specific religion or denomination.
• Article 16(4)  : Allows for reservations in public employment for backward classes, with the Supreme Court suggesting that reservations should generally be less than 50% but can vary based on circumstances.

Judicial Interpretation and Reservation in Employment 

In the  Balaji case  , the Supreme Court emphasized the need for a balanced approach to reservations in education and employment, suggesting that special provisions should typically be less than 50% to avoid excessive reservation.

• In  Devadasan case  , the Court evaluated the 'carry forward' rule for reserved posts. The rule allowed unfilled reserved posts to be carried forward to subsequent years, impacting the overall percentage of reservations.
• State of Kerala v. N.M. Thomas  : The Supreme Court upheld preferential treatment for Scheduled Castes and Scheduled Tribes under Article 16(1) outside the scope of Article 16(4).
• G Indra Sawhney v. Union of India  : This landmark case addressed the reservation of posts for backward classes. The Mandal Commission, established in 1979, recommended reserving 27% of government jobs for Other Backward Classes (OBCs) in addition to reservations for Scheduled Castes (SCs) and Scheduled Tribes (STs).

The  Supreme Court  examined the recommendations of the Mandal Commission, which included:

• Identification of OBCs:  The Commission aimed to identify socially and educationally backward classes for affirmative action.
• Reservation Quota:  27% reservation for OBCs, alongside existing reservations for SCs and STs, totaling around 50%.
• Implementation Delay:  The government's delay in acting on the Mandal Report led to widespread protests.

The constitutional validity of the government's memorandum on reservations was challenged in the Supreme Court, leading to a significant judgment by a bench of nine judges.

 Key Points from the Judgment  :

• Art. 16(4) Interpretation:  Measures under Article 16(4) can be implemented by Parliament, legislatures, and executive bodies (including local authorities).
• Executive Authority:  Executive provisions under Article 16(4) are self-executing and do not require legislative enactment.
• Classification and Reservation:  Article 16(1) allows classification to ensure equality of opportunity, permitting reservation of seats or vacancies.
• Article 16(4) as a Legislative Device:  Reservation for backward classes is a legislative device, not an exception to Article 16(1).
• Backward Classes Definition:  Backward classes are defined by social backwardness, with caste being a criterion but not the sole factor.
• Exclusion of Creamy Layer:  The "creamy layer" (socially advanced members of a backward class) should be excluded from reservation benefits.
• Representation Requirement:  Backward classes must be inadequately represented in state services to merit reservations.
• Reservation Ceiling:  Total reservation should not exceed 50% in any year, with "vertical" and "horizontal" reservations differentiated.
• Extraordinary Situations:  In exceptional cases, reservations exceeding 50% may be justified, particularly in remote areas.
• Promotion Reservations:  Reservations are permissible only at the entry level, not during promotions.
• Minimum Standards:  Minimum standards can be prescribed for reserved categories, consistent with administrative efficiency.
• Exclusions from Reservation:  Certain posts, where merit is paramount, may be exempt from reservation rules.
• Regional Considerations:  Regional variations in social and economic conditions may warrant different approaches to reservation.

In the context of Indra Sawhney case, the Court reiterated that the identification of backward classes should not rely solely on caste, while acknowledging the complexity of social dynamics in India.

• Implementation of Mandal Commission Recommendations:  Following the Indra Sawhney judgment, the constitutional amendments in Article 16(4) aimed to clarify the scope of reservations.
• Article 16(4A)  :This amendment allowed for the reservation of posts in promotions, aligning with earlier Supreme Court interpretations.
• Article 16(4B)  :Introduced to address unfilled reserved vacancies, allowing them to be considered as separate classes for future years without affecting the overall reservation ceiling.

The amendments aimed to balance the principles of equality and social justice in public employment, reflecting the evolving legal and social landscape in India.