Article 15, Mandal Commission And Indra Sawhney Case

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By moderator July 13, 2019 17:37

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Read this article to know more about article 15.

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

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;

  • Nothing in this article shall prevent the State from making any special provision for women
    and children
  • 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. [Cl. 3 & 4 are an enabling provision for the State to even go beyond this article]
  • 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.

Article 19(1)(g): to practice any profession, or to carry on any occupation, trade or business
Article 30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Affirmative Action:

From article 15(3) onwards, the constitution starts protective discrimination.

Article 15(3) empowers the state to make special provisions for women and children.

Article 15(4) empowers the state to make special provisions for the advancement of socially and
educationally backward or SC/STs.

Article 15(5) goes one step further and empowers the state to make a reservation in admission
into education institutions including private schools or colleges whether or not
aided by the government.

  • Only minority educational institutions (such as Madarsas) have been left out of this provision. Thus, article 15(3) and 15(4) are the bedrock of reservation in the country.

Takeaways:

  1. Article 15 & 16 are available only to citizens and not to persons
  2. ‘Citizen’àAnother connotation is- it is an individual right.
  3. Difference between Article 15 cl. 1 and 15 cl.2

State Vs. Citizen: Article 15 cl.1 provides protection against a discriminatory action of State whereas

Anybody Vs. Citizen: Article 15 cl.2 provides protection against discriminatory action of any individual against any citizen

  1. If the State can come up with any other rational criteria, along with any of the one or more of the factors from among religion, race, caste, sex or place of birth, it is permissible. [ any other rational factor + any of RRCSP factorà Yes!]
    In other words, Discrimination on other grounds is not prohibited.
  2. In Article 15 Clause 4, the meaning of the term, Socially and economically backward classes’ is different from the meaning of the term, ‘Other Backward classes’.
    For Eg. As per Socioeconomic Caste census
    à, a new criterion could be established.

Article 15: Related articles and Constitutional Amendments

  1. Article 15(4) was added by Constitutional(1st Amendment Act, 1951)
  2. Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
  3. Article 29: Protection of interests of minorities-

Clause (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.

  1. Article 335. Claims of Scheduled Castes and Scheduled Tribes to services and posts:
    The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
  2. Constitutional (93rd)Amendment Act, 2005:
  3. It inserted clause (5) in Article 15 of the Constitution with a aim to promote the educational advancement of the socially and educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes through special provisions relating to admission of students belonging to these categories in all educational institutions, including private educational institutions, whether aided or unaided by the State.

Article 15 and jurisprudence:

This Amendment was enacted to nullify the Supreme Court judgment in the Inamdar case (2005) where the Supreme Court ruled that the state cannot impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges. The court declared that reservation in private, unaided educational institutions was unconstitutional.

Article 340. Appointment of a Commission to investigate the conditions of backward classes
(1) The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labor and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission.

Relationship between Articles 14 and 15 as per Supreme Court of India:

 Indira Sawhney Case:

  1. Right to Equality: Positive discrimination and affirmative is itself sanctioned by
    Right to equality and as it helps promote equality in true sense.

But if the Discrimination lacks reasonable grounds:
[i] Intelligible differentia
[ii] nexus between objective and statute
then Right to Equality under Article 14 would prevail.

à   Welfare and administrative efficiency have to go hand in hand [Article 335]

This is the logic behind putting a cap of maximum 50% reservation by the Supreme
Court.

à Article 16(1): There shall be equality of opportunity for all citizens in employment

Supreme Court said articles 14, 15, 16,  and 335 have to be read harmoniously.

Equal Protection of Laws in Equal circumstances: It is a Positive concept.

As a logical corollary, if circumstances are unequal, unequal treatment could be provided so as to create at least a semblance of equality.

The real justice is when statutory provisions are tilted in favor of the disadvantaged.

The Doctrine of Equal Protection of Law says
that Law has to tilt in favor of the relatively disadvantaged.

equality                                                                     

  • Mandal Commission and Indra Sawhney Case:
  • In 1979, the Government appointed the Second Backward Classes Commission under the chairmanship of BP Mandal, in terms of Article 340 of the Constitution to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement.
  • The commission submitted its report in 1980 and identified as many as 3743 castes as socially and educationally backward classes.
  • They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs).
  • The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) so that the total reservation for all ((SCs, STs, and OBCs) amounts to 50%. Note: S.C. created this 50% Reservation rule in 1963
  • In 1990, the Government declared reservation of 27% government jobs for the OBCs.
  • Then, in 1991, the Government introduced two changes:
    (i) preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of
    the economic criteria in granting reservation, and
    (ii) reservation of another 10% of jobs for poorer (economically backward) sections of
    higher castes
    who are not covered by any existing schemes of reservation.
  • Reservation and Jurisprudence[the 1980s]

In the Indra Sawhney case 1992, the scope and extent of Article 16(4), which provides for reservation of jobs in favor of backward classes, was examined by the SC.

  • Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz,
  1. The prosperous sections among the OBCs (the creamy layer) should be excluded from
    the list of beneficiaries of reservation.
  2. No reservation in promotions; reservation should be confined to initial appointments
    Any existing reservation in promotions can continue for five years only (i.e., up to 1997).
  3. The total reserved quota should not exceed 50% except in some extraordinary situations.
  4. The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not
    violate 50% rule.
  5. A permanent statutory body should be established to examine complaints of over-inclusion
    and under-inclusion in the list of OBCs. Accordingly, NCBC was estd. in 1993.

Also Read: Issue Of Reservation And Article 15 And 16 Of Constitution

Article 19 – The Protection of the Certain Rights Regarding Freedom of Speech etc.

 

moderator
By moderator July 13, 2019 17:37