Articles 15 and 16: The Prohibited Grounds

The differences between the two articles

Set them side by side, because problems turn on the differences.

Field. Article 15 is general; article 16 is confined to employment or appointment to an office under the State.

Grounds. Five against seven, as above.

Who is bound. Article 15(1) binds the State. Article 15(2) binds private persons too, and is one of the few horizontal provisions in Part III: a private hotel or restaurant may not refuse a person on a prohibited ground. Article 16 binds the State as employer.

The enabling clauses.

• Article 15(3): special provision for women and children.
• Article 15(4): special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
• Article 15(5): special provision for their advancement so far as it relates to admission to educational institutions, including private ones, aided or unaided, other than minority institutions under article 30(1).
• Article 15(6): special provision for the economically weaker sections other than those covered by (4) and (5), including reservation of up to ten per cent in admissions.
• Article 16(3): residence requirements, by a law of Parliament.
• Article 16(4): reservation in appointments for any backward class of citizens not adequately represented in the services under the State.
• Article 16(4A): reservation in promotion, with consequential seniority, for the Scheduled Castes and Scheduled Tribes.
• Article 16(4B): the carry forward of unfilled reserved vacancies, which are not to be counted against the ceiling of the year in which they are filled.
• Article 16(5): a law providing that the incumbent of an office connected with a religious institution be of a particular religion or denomination.
• Article 16(6): reservation for the economically weaker sections, up to ten per cent.

Which were original and which came later is worth knowing, because the sequence is the history of the topic. Only 15(1) to (3) and 16(1) to (5) are original. Article 15(4) came with the First Amendment 1951; 16(4A) with the Seventy-seventh 1995 and its seniority limb with the Eighty-fifth 2001; 16(4B) with the Eighty-first 2000; 15(5) with the Ninety-third 2005; and 15(6) and 16(6) with the One Hundred and Third 2019.

Each of those amendments was a response to a judgment. That pattern, court decides, Parliament amends, is the shape of the whole reservation story and should be said out loud in an essay.

Enabling, not obliging

The single most useful proposition about the reservation clauses.

Article 16(4) says the State "shall not be prevented from" making provision. Article 15(4) says "nothing in this article... shall prevent the State from making any special provision". Neither confers a right on anybody. It follows that:

• No citizen has a fundamental right to a reservation, and a writ will not issue to compel the State to make one.
• A State that chooses not to reserve is not acting unconstitutionally.
• But once the State does reserve, the exercise is subject to article 14, so the reservation itself must be reasonable and non-arbitrary, and this is where the ceiling, the creamy layer and the requirement of data come in.

The relationship between the clauses

Facts. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges. Challenges to the office memoranda implementing the Mandal Commission's recommendation of twenty-seven per cent reservation for the socially and educationally backward classes, and a further ten per cent for other economically backward sections.

Held. Among the fourteen summarised answers: clause (4) of article 16 is not an exception to clause (1) but an instance and an illustration of the classification inherent in clause (1). Article 16(4) is exhaustive of the subject of reservation in favour of a backward class, but reservations may also be provided under clause (1), adjusted so as not to exceed the level of representation prescribed for backward classes. A provision under article 16(4) need not be made by the legislature; the executive may make it, and it is enforceable the moment it is issued.

Why it matters. It settles the architecture. Because 16(4) is an instance of 16(1) and not a derogation from it, reservation is not a departure from equality requiring narrow construction; and because the same equality principle governs both, the limits the Court has read in are limits the equality guarantee itself supplies.

A worked example

A State advertises posts in its Health Department and provides that only persons who have resided in the State for at least ten years are eligible, and that within the posts so filled, twenty per cent are reserved for women. A candidate resident elsewhere, and a male candidate, both challenge it.

The residence condition. Residence is a prohibited ground under article 16(2), so the requirement is on its face bad. The saving is article 16(3), but read it precisely: it permits Parliament, not a State legislature, to make a law prescribing a residence requirement for a class of employment under a State. A condition imposed by the State's own executive order or its own legislation is not saved. So the resident-elsewhere candidate succeeds unless a Parliamentary law authorises it.

The reservation for women. Sex is a prohibited ground under article 16(2), so this too needs an enabling provision. Article 16(4) speaks of a backward class, not of women. Article 15(3) permits special provision for women, but article 15 is the general article and article 16 governs public employment. The orthodox answer is that a reservation for women in public employment is sustained by reading articles 15(3) and 16(1) together, on the footing that 16(4) is not exhaustive of every permissible measure and that reservations may be provided under clause (1), which is what Indra Sawhney says.

What the male candidate must show. Not that he was treated differently, which is admitted, but that the measure is not a permissible special provision: that women are not disadvantaged in that service, or that the extent is excessive.

The order of reasoning. Prohibited ground first, enabling provision second, and the limits on the enabling provision third.

Quick revision

• Article 15(1): five grounds, religion, race, caste, sex, place of birth. Article 16(2): those five plus descent and residence.
• "On grounds only of" does not mean the ground must be the sole reason; that reading would empty the articles.
• Article 15(2) binds private persons; article 15 is general, article 16 is confined to public employment.
• The enabling clauses: 15(3) women and children, 15(4) backward classes, 15(5) admissions including private institutions, 15(6) EWS; 16(3) residence by Parliament, 16(4) reservation, 16(4A) promotion, 16(4B) carry forward, 16(5) religious offices, 16(6) EWS.
• Only 15(1) to (3) and 16(1) to (5) are original. Every other clause is an amendment answering a judgment.
• The clauses ENABLE, they do not oblige. Nobody has a fundamental right to a reservation.
• Indra Sawhney: article 16(4) is an instance of 16(1), not an exception to it, and may be made by the executive.

Test yourself

1. List the prohibited grounds in each article and explain why article 16(2) has two the other lacks.

2. What does "on grounds only of" mean, and what would the narrow reading do to the articles?

3. Which provisions of articles 15 and 16 were in the Constitution as enacted, and which came by amendment? What does the pattern show?

4. "Nobody has a fundamental right to a reservation." Explain, and say what does control a reservation once it is made.

5. Why does it matter that article 16(4) is an instance of article 16(1) rather than an exception to it?