ARTICLE 15(4) AND

ARTICLE 16(4)
RESERVATION
 IMPORTANT TOPICS
◦ Preamble
◦ Salient Features of the Constitution – Nature
◦ Constitution and constitutionalism
◦ Article 12
◦ Article 13 and
Doctrine of severability
Doctrine of Eclipse
Doctrine of waiver
Doctrine of lifting the veil
◦ Article 14 and doctrines (reasonable classification, non-arbitrariness,
legitimate expectation, natural justice)- very important
◦ Doctrine of Basic Structure
◦ Article 15(1) and (4)
◦ Reservation – Indira Sawhney v UOI – 15(4) and 16(4)
RESERVATION
◦ Article 15(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.
◦ Article 29(2)-No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them.
◦ Article 16(4) - Nothing in this article shall prevent the State/ from making any
provision/ for the reservation of appointments or posts/ in favour of any
backward class of citizens/ which, in the opinion of the state/ is not
adequately represented in the services under the state.
State of Madras v. Champakam Dorairajan AIR 1951 SC 226

◦ Article 15(4) – added by the Constitution (First Amendment) Act, 1951 to overrule the effect
of Champakam Dorairajan.
◦ Facts-Madras Government issued a Communal G.O.
◦ Object - to help the backward classes
◦ Order fixed the proportion of students of each community that could be admitted into the
State medical & engineering colleges.
◦ Article 46- lays down that the state should promote with special care the educational &
economic interests of the weaker sections of the people & protect – them from social injustice.
◦ Court held- “DPSP have to conform to and run as subsidiary to the Chapter of F.R.”
◦ Struck down the G.O.
◦ Now Clause 4 enables the state to make special provisions.
 Historical Aspect

◦ 1850s these communities were loosely referred to as the "Depressed Classes".

◦ The Morley-Minto Reforms Report, Montagu-Chelmsford Reforms Report, and the Simon
Commission were some of the initiatives that happened in this context.
◦ Reservation of seats for the Depressed Classes was incorporated into the Government of India
Act 1935 act, which came into force in 1937.
◦ The Act brought the term "Scheduled Castes" into use, and defined the group as including
"such castes, races or tribes or parts of groups within castes, races or tribes, which appear to
His Majesty in Council to correspond to the classes of persons formerly known as the
'Depressed Classes', as His Majesty in Council may prefer."
◦ This discretionary definition was clarified in The Government of India (Scheduled Castes)
Order, 1936 which contained a list, or Schedule, of castes throughout the British administered
provinces.
◦ After independence, the Constituent Assembly continued the prevailing
definition of Scheduled Castes and Tribes, and gave (via articles 341, 342) the
President of India and Governors of states responsibility to compile a full
listing of castes and tribes, and also the power to edit it later as required.
◦ The actual complete listing of castes and tribes was made via two orders The
Constitution (Scheduled Castes) Order, 1950 , and The Constitution
(Scheduled Tribes) Order, 1950 respectively.
◦ Two contentious issues in the applications of Article 15(4) & Article 16(4)
◦ Determination of backward classes
◦ Extent or quantum of reservation
◦ Schedule Castes & Schedule Tribes –Defined in Article 366 u/clause (24) &
(25)
◦ “Schedule Castes” means such castes, races or tribes or parts of or groups
within such castes, races or tribes as are deemed under article 341 to be
Schedule Castes for the purpose of this Constitution.
◦ “Schedule Tribes” means such tribes or tribal communities or parts of or
groups within such tribes or tribal communities as are deemed under article
342 to be schedule tribes for the Purpose of this Constitution.
◦ Backward Classes- Not defined anywhere in the constitution
◦ Article 340 – Appointment of a commission to investigate the conditions of
backward classes.
◦ President exercised his power u/article 340 twice
◦ First in 1953 under the Chairmanship of Kaka kalelkar
◦ Second in 1978 u/ the Chairmanship of B.P.Mandal
◦ Both these commissions have taken caste as the dominant, if not the sole factor
in determining the backwardness – no agreed formula has yet been found.
MANDAL COMMISSION REPORT
◦ The decision to set up a second backward classes commission was made official by the
president on January 1, 1979. The commission popularly known as the Mandal
Commission, its chairman being B. P. Mandal. It submitted the report in December 1980.
◦ The recommendations of the commission were: The population of OBCs which includes
both Hindus and non-Hindus is around 52 per cent of the total population. However only
27 per cent of reservation was recommended owing to the legal constraint that the total
quantum of reservation should not exceed 50 percent.
◦ States which have already introduced reservation for OBC exceeding 27 per cent
will not be affected by this recommendation. With this general recommendation the
commission proposed the following over-all scheme of reservation for OBC:
◦ Candidates belonging to OBC recruited on the basis of merit in an open
competition should not be adjusted against their reservation quota of 27 per
cent.
◦ The above reservation should also be made applicable to promotion quota at
all levels.
◦ Reserved quota remaining unfilled should be carried forward for a period of
three years and de-reserved thereafter.
◦ Relaxation in the upper age limit for direct recruitment should be extended to
the candidates of OBC in the same manner as done in the case of SCs and STs.
◦ A roster system for each category of posts should be adopted by the concerned
authorities in the same manner as presently done in respect of SC and ST
◦ These recommendations in total are applicable to all recruitment to public
sector undertakings both under the central and state governments, as also to
nationalised banks. All private sector undertakings which have received
financial assistance from the government in one form or other should also be
obliged to recruit personnel on the aforesaid basis. All universities and affiliated
colleges should also be covered by the above scheme of reservation.
◦ It was recommended that seats should be reserved for OBC students in all
scientific, technical and professional institutions run by the central as well as
state governments. The quantum of reservation should be the same as in the
government services, i e, 27 per cent
M.R.Balaji v State of Mysore
◦ On the 31st July, 1962, the State, passed the impugned order under Art. 15(4) for
reservation of the seats in favour of the Scheduled Castes and Scheduled Tribes as
well as the Backward Classes.
◦ Under this order, the Backward Classes are divided into two categories
◦ (1) Backward Classes and (2) More Backward Classes.
◦ The effect of this order is that it has fixed 50% reservation of seats for Other
Backward Classes; 28% out of this is reserved for Backward Classes so-called
and 22% for More Backward Classes. The reservation of 15% and 3% for the
Scheduled Castes and Scheduled Tribes respectively continued to be the same.
◦ The result of this order is that 68% of the seats available for
admission to the Engineering and Medical Colleges and to other
technical institutions specified in the order passed on the 10th July,
1961, is reserved, and only 32% is available to the merit pool.
◦ The petitioners contend that the classification made by this order is
irrational and the reservation of 68% made by it is a fraud on Art.
15(4).
Supreme court held…
◦ Caste- not sole or even predominant factor though it may be a relevant test.
Backwardness u/A 15(4) must be social & educational & the social backwardness is, in
the ultimate analysis, the result of poverty. One’s occupation & place of habitation could
be other relevant factors.
◦ Sub-Classification between ‘backward classes’ and ‘more backward classes’ not justified.
◦ Reservation of 68% made by the impugned order is plainly inconsistent with the concept of
the special provision authorised by Art. 15(4) . Cl. (4) of Article 15 enables the state to make
special provision & not exclusive provisions. State would not be justified ignoring altogether
advancement of the rest of the society in its zeal to promote the welfare of backwardness
classes. National interest would suffer if qualified & competent students were excluded from
admissions in institutions of higher education.
R.Chitralekha v State of Mysore
◦ Though caste of a group of citizens might be relevant circumstances
for ascertaining their social backwardness, it could not be the sole
or dominant or even essential test in that behalf.
◦ Identification or classification of backward classes on the basis
of occupation-cum-income, without reference to caste is not bad
and would not offend Art. 15(4).
P. Rajendran v. State of Madras
◦ A caste is also a class of citizens and if the caste as a whole is socially and
educationally backward reservation can be made in favour of such a caste
on the ground that it is a socially and educationally backward class of citizens
within the meaning of Article 15 (4).
◦ S.C looked into the history as to how the list had come to be formulated. The
Court felt satisfied that caste was not taken as the sole basis of backwardness.
The main criterion for inclusion in the list was social and educational
backwardness of the castes based on their occupations.
State of A.P. v Pradeep Tandon
◦ The place of habitation and its environment could be a determining factor in
judging the social & educational backwardness.
◦ The court upheld reservations for persons from hill and Uttarakhand areas.
◦ It was found that absence of means of communication, technical processes
and educational facilities kept the poor and illiterate people in the remote
and sparsely populated areas backward. However, reservation of seats for
rural areas was invalidated because the division of the people on the ground
that the people in the rural areas were poor and those in the urban were not,
was not supported by the facts. Further, the rural population was
heterogeneous and not all of them were educationally backward.
K.S.Jayshree v State of Kerala
◦ The S.C emphasized that –
◦ Social backwardness is the result of caste and poverty. Poverty or economic
standard is a relevant factor in determining backwardness, but cannot be the sole
determining factor. Caste cannot be the sole or dominant test for the purpose.
◦ “Caste and poverty are both relevant for determining the backwardness. But
neither caste alone nor poverty alone will be the determining tests”. Both of these
factors are relevant to determine backwardness. Occupations, place of habitation
may also be relevant factors for the purpose. With the improvement in economic
position of the family, social backwardness disappears.
◦ no clear and uniform policy, guidelines or test of determining backwardness
for purposes of Articles (15(4) and 16(4) emerges.
◦ Tired with this judicial vacillation, perhaps, the State of Karnataka asked the
Supreme Court to give clear guidelines on this vexed question in K.C Vasanth
Kumar v. State of Karnataka.
K.C. Vasant v State of Karnataka
◦ Chandrachud, C.J
◦ Reservation in employment and education in favour of S.C & S.T should
continue for another period of 15 YEARS. Thereafter, the test of economic
backwardness ought to be made applicable to them.
◦ For identifying the other backward classes for the purposes of reservations,
the following TWO TESTS should be applied:
◦ They should be COMPARABLE TO THE S.C & S.T in the matter of
backwardness.
◦ They should satisfy the MEANS TEST i.e., the test of backwardness such as
the state Government may lay down in the context of prevailing economic
conditions. Policy of reservation should be reviewed EVERY FIVE years.
◦ Desai,J. - economic backwardness.
◦ Chinnappa Reddy, J.- Poverty is the primary test. But class
poverty, not individual poverty should be the real test.
◦ Sen,J. - Poverty
◦ Venkataramaiha,J. Lowest among the castes similar to SC and ST ,
means or economic condition and occupation
Indira Sawhney v UOI – The Mandal
Case
◦ One of the contention before the Supreme Court was that the first
memorandum was based on the Mandal Commission Report which took caste
as a dominant, rather sole, criterion for determining the SEBCs. Supreme
Court rejected the contention of the Petitioners
◦ Supreme Court held that Class or classes in Articles 15(4) and 16(4)
respectively are not to be construed in the Marxist sense. The constitution does
not define these classes nor does it lay down any methodology for their
determination. The court could also not devise any method for their
determination. The central idea and overall objective should be to consider
all available groups, sections and classes in the society.
◦ Since caste represented an existing, identifiable social group/class
encompassing an overwhelming majority of the country’s population, one
could well begin with it and then go to other groups, sections and classes.
◦ Caste, however, was not an essential factor for determining the social and
educational backwardness. It is also not necessary that SEBCs should be
similarly situated as SCs and STs. Within SEBCs classification between the
backward and more backward is permissible.
◦ To maintain the cohesiveness and character of a class the ‘creamy layer’ can
must be excluded from SEBCs.
◦ The economic criterion alone cannot be the basis of backwardness although it
may be a consideration along with or in addition to social backwardness.
◦ The court also suggested CREATION OF A PERMANENT BODY at the central and state
levels to look into the complaints of over and under-inclusion as well as to revise the lists of
SEBCs periodically.
◦ Following courts directions the Centre and the States have appointed backward class
commissions for constant revision of such classes and for the exclusion of creamy layer from
amongst them. Wherever any government has failed to implement the requirement of
appointing a commission and exclusion of creamy layer it has issued necessary directions
compelling them to do so.(Indra Sawhney v. UOI,(2000) 1SCC 168)
◦ With this larger Bench decision, the matter seems to have settled that caste could be an
important or ever sole factor in determining the social backwardness and that poverty
alone could not be such a criterion.