Article 15 of the Constitution of India

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
   1. access to shops, public restaurants, hotels and places of public entertainment; or
   2. 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,
   1. any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
   2. 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 provides for a particular application of the general principle embodied under Article 14. The guarantee under Article 15 is available to citizens only. The state cannot discriminate only on the above mentioned grounds but can discriminate on grounds other than these. The rights under 15 (2) are not only available against a State but also against other citizens.

Article 15 (1) states that no citizen shall be discriminated only on the grounds of religion, race, caste, sex, place of birth or any of them. But there are special considerations for women and children, SC/ST, OBC. Exceptions for these categories are mentioned in Clause (2) and (3) of Article 15.

Article 15 (2) is a specific application of the general prohibition contained in Article 15 (1). While Clause (1) prohibits discrimination by the State; clause (2) prohibits both the State and private individuals from making any discrimination.

Women and children require special treatment on account of their very nature and therefore Article 15 (3) empowers the State to make special provisions for women and children. The reason is that “women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical well-being. Thus, under Article 42, women workers can be given special maternity relief and a law to this effect will not infringe Article 15 (1). Also, if an educational institution is established by the State exclusively for women or if reservation of seats is made for women in a college, it does not offend Article 15 (1).

Article 15 Clause (4) is another exception to clause (1) and (2) of Article 15. Article 15(4) has been inserted by the constitution ( first amendment ) Act, 1951. It was added by the Constitution (1st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam Dorairajan¹⁾. The provision made in clause (4) is only an enabling provision and does not impose any obligation on the State to take any special action under it. It merely confers discretion to act if necessary by way of making special provision for backward classes. A writ cannot be issued to the State to make reservation. The basic principle underlying this clause is that a preferential treatment can be given validly where socially and educationally backward classes need it.

Thus under Article 15 (4), two things are to be determined

1. Who are socially and educationally backward classes?
2. What is the limit of reservation?

Constitution nowhere defines ‘backward classes’. Article 340, however, empowers the President to appoint a Commission to investigate conditions of socially and educationally backward classes. On the basis of the report of the Commission the president may specify who are to be considered as ‘Backward classes’.

In the historic Mandal Commission Case³⁾ the Supreme Court by 6-3 majority has held that the sub-classification of backward classes into backward into more backward and backward classes for the purpose of Article 16(4) can be done. But as result of sub-classification, the reservation cannot exceed more than 50 percent. Creamy layer must be excluded from the backward classes.

The children of the following different categories of people belong to ‘creamy layer’ among OBCs and thus will not get the quota benefit :

1. Persons holding constitutional posts like President, Vice- President, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.
2. Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks, Insurance Organisations, Universities etc., and also in private employment.
3. Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces.
4. Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on.
5. Persons engaged in trade, business and industry.
6. People holding agricultural land above a certain limit and vacant land or buildings in urban areas.
7. Persons having gross annual income of more than ₹8 lakh or possessing wealth above the exemption limit. In 1993, when the “creamy layer” ceiling was introduced, it was ₹1 lakh. It was subsequently revised to ₹2.5 lakh in 2004, ₹4.5 lakh in 2008, ₹6 lakh in 2013 and ₹8 lakh in 2017.

In order to serve the educationally and socially backward classes, the State asked the private education institutions also to reserve seats for the backward classes. Private institutions objected to it, stating it would amount to violation of right under Article 19 (1) (g). The Parliament, by amending the Constitution in 2005, added Clause (5) to Article 15. According to this, it is mandatory to reserve seats for backward classes also even in private institutions whether aided or unaided, by the State. The only exception is educational institutions run by minority communities. A law was enacted in this effect called Central Educational Institutions Reservation in Admission Act, 2006. This Act was challenged in the Supreme Court, but the Supreme Court upheld the validity of this law.

Landmark cases on Clause (5)

• T.M. Pai Foundation v. State of Karnataka⁴⁾
• Islamic Academy v. State of Karnataka⁵⁾
• P. A. Inamdar v. State of Maharashtra⁶⁾

Article 15 (6) was added by the 103^rd constitutional amendment 2018 to provide reservations to economically weaker sections for 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. The amendment aims to provide reservation to those who do not fall in 15(5) and 15(4). So those who are already covered under caste reservation cannot make use of economic reservation. The eligibility criteria laid down in this regard is as follows:

1. Persons whose family has gross annual income below ₹8 lakh are to be identified as EWSs for the benefit of reservation. The income would include income from all sources i.e., salary, agriculture, business, profession etc. and it would be income for the financial year prior to the year of application.
2. Persons whose family owns or possesses any one of the following assets are to be excluded from being identified as EWSs, irrespective of the family income:
   1. 5 acres of Agricultural land and above.
   2. Residential flat of 1000 sq.ft. and above.
   3. Residential plot of 100 sq.yards and above in notified municipalities.
   4. Residential plot of 200 sq.yards and above in areas other than the notified municipalities.
3. The property held by a family in different locations or different places / cities would be clubbed while applying the land or property holding test to determine EWS status.
4. Family for this purpose would include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/ her spouse and children below the age of 18 years.