CONSTITUTIONAL LAW

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Are Articles 15(4) and 16(4) Fundamental Right?
by Mahenendra P. Singh1

Cite as : (1994) 3 SCC (Jour) 33

Articles 15(4) and 16(4), no doubt, fall within Part III of the Constitution comprising the fundamental rights. Every provision of Part III, however, does not confer a fundamental right. Some of the provisions of Part III are just definitional; others are on the effect of the fundamental rights on the existing and future laws. Still others provide for the enforcement and implementation of the fundamental rights while some others provide exceptions to the fundamental rights. Because of this variety of provisions, doubt persists whether Articles 15(4) and 16(4) confer fundamental rights. These articles fall within the rubric of the 'Right to Equality' which consists of five articles - Articles 14 to 18. While Article 14 prohibits the State from denying equality before the law or the equal protection of the laws, Article 17 abolishes untouchability and makes its practice punishable. Article 18 abolishes titles and prohibits their conferment by the State and acceptance by the individual. Articles 15 and 16, which naturally include Articles 15(4) and 16(4), read as follows:

"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- (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-

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) 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 or educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

16. Equality of opportunity in matters of public employment.-(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) . . . .

(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.

(5) . . . .

Article 29(2), which falls within the 'Cultural and Educational Rights', prohibits denial of admission to any citizen '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'."

Are Articles 15(4) and 16(4) Exceptions?

On a plain reading of Articles 15 and 16 one is likely to form the impression that clause (4) of Article 15 is an exception to the rest of the provisions of that article and to clause (2) of Article 29 and that clause (4) of Article 16 is an exception to the rest of the provisions of that article. In other words, while clause (4) of Article 15 permits what the rest of that article or clause (2) of Article 29 prohibits, clause (4) of Article 16 permits what the rest of that article prohibits. This, indeed, was the initial impression of the Supreme Court also.2 This impression continued to rule until some of the judges in State of Kerala v. N.M. Thomas3 opined that clause (4) of Article 16 was not an exception to clause (1) or (2) of that article. This view in Thomas3 was reiterated, much more emphatically by Chinnappa Reddy, J. in his concurring opinion in A.B.S.K. Sangh v. Union of India4 and it has finally been accepted by the Court in Indra Sawhney v. Union of India5 (the Mandal case). Thus clause (4) of Article 16 is not an exception to the rest of that article, but rather it is a facet of equality of opportunity guaranteed in clause (1) of that article and an effective method of realising and implementing it. Clause (4) does not derogate from anything in clauses (1) and (2) of Article 16 but rather gives them positive support and content. It serves the same function, i.e. securing of equality of opportunity, as do clauses (1) and (2). Obviously, therefore, it is as much a fundamental right as clauses (1) and (2) or any other provision of that article.

Understanding the Right to Equality

Logically the same interpretation must mutatis mutandis apply to clause (4) of Article 15 vis-a-vis the rest of the provisions of that article and clause (2) of Article 29. But doubts are likely to persist in this regard because firstly, the exception thesis was indeed propounded in a case concerning clause (4) of Article 15 and was incidentally extended to clause (4) of Article 16.6 Secondly, all the cases mentioned above in which this thesis was repudiated and finally rejected are on Article 16(4). And finally, Article 15 does not have any provision corresponding to clause (1) of Article 16 which guarantees equality of opportunity in positive terms. All these doubts may, however, be removed on the arguments taken in respect of Article 16(4). Besides, there is a more comprehensive argument which clarifies the position not only in respect of Article 15 but also removes any lingering doubts about Article 16(4).7

The argument is slightly subtle but simple. It is based on the concept of equality. Article 15, just like Article 16, is a facet of the right to equality. That right as interpreted in the context of Article 14 is not the right to uniform or identical treatment. It is a right to be treated equally among equals. Unequal treatment of equals is as much violation of that right as equal treatment of unequals. Every difference of treatment is not inconsistent with that right just as every identical treatment is not consistent with it. For determining the consistency of such treatment with the right to equality from time to time different tests such as reasonable classification, suspect classification, or classification lying in between the two, etc. have been devised and applied. But they have not always been able to provide satisfactory explanation, particularly when it comes to affirmative action or positive equality. An all comprehensive and satisfactory test in this regard has been provided by Ronald Dworkin in his distinction between the right to equal treatment and the right to treatment as an equal. According to him the latter is the fundamental right while the former is only a derivative right. The right to treatment as an equal consists in equal respect and concern while the right to equal treatment consists in identical treatment.8 But, as we have seen, identical treatment is neither possible nor consistent with the right to equality. Therefore, what the right to equality requires is equal concern. As long as that concern exists difference of treatment is consistent with the right to equality.

Not every difference of treatment is per se inconsistent with the right to equality. Only that difference of treatment which is based on lack of equal concern is inconsistent with that right. For example, different treatment on the basis of race, religion or caste is not in itself bad so long as equal concern or respect is shown to every race, religion or caste. It becomes bad only when it is based on disrespect, contempt or prejudice to a race, religion or caste. Article 15 prohibits only such and not every difference of treatment based on religion, race, caste, sex or place of birth. This is also obvious from the expression 'discriminate against' in that article. The State is not prohibited from treating people differently on the basis of religion, race, caste, sex or place of birth; it is prohibited from discriminating against them on these grounds. Discrimination results only when religion, race, caste, sex or place of birth or any of them is made the basis of disrespect, contempt or prejudice for difference in treatment. In other words, if difference in treatment on any of these grounds is not based on any disrespect, contempt or prejudice, it is not discriminatory and, therefore, not against Article 15(1). The same is true for Article 29(2).

Articles 15(1) and 29(2) while thus prohibit discrimination or prejudicial or contemptuous difference of treatment on the grounds mentioned in those articles, Article 15(4) sanctions 'special provisions for the advancement of any socially and educationally backward classes ... or for the Scheduled Castes and the Scheduled Tribes'. Definitely any provision for the advancement of any socially and educationally backward class or for SCs and STs cannot be termed or characterised as the one based on any prejudice, contempt or insult to any forward class. Therefore, the scope and function of Article 15(4) is not the same as of Articles 15(1) and 29(2). Neither it overlaps with them nor does it carve out anything from them. Article 15(4) ensures or promotes equality just as Articles 15(1) and 29(2) do. The only difference between the two is that while the latter do it by prohibiting the State from making discrimination the former does it by requiring the State to take appropriate measures for the removal of such discrimination. Thus in addition to envisaging equality to be achieved through judicial interpretation the Constitution-makers have also provided for it to be achieved by way of Article 15(4). Naturally, therefore, Article 15(4) is as much a fundamental right as are Articles 15(1) and 29(2).

In view of this cogent interpretation of Article 15(4) vis-a-vis Articles 15(1) and 29(2) one need not rely on technicalities such as its non-obstante clause for its justification. Apart from other justifications that can be adduced for the use of that clause consistent with the foregoing interpretation, it can be argued that it is only as much relevant or irrelevant in Article 15(4) with respect to SCs/STs as it is in Article 15(3) with respect to children.

What has been said above equally applies to Article 16(4) vis-a-vis Article 16(1) and (2). Therefore, in addition to what the Court has held in relation to Article 16(4), Article 16(4) is as much a fundamental right as is Article 15(4).

Constitutional Practice

In this connection we may also take note of a very well established constitutional practice from the very beginning and finally upheld beyond controversy in the Mandal case. From the very beginning the State has been performing its duties under Articles 15(4) and 16(4) through executive orders without legislation. The courts have been consistently holding that such course is perfectly constitutional. At the same time the courts have also been holding that no fundamental right, or for that matter any right, can be taken away without the authority of law. These two propositions laid down by the courts cannot stand together if Article 15(4) is read as an exception to the other provisions of that article and to Article 29(2) and Article 16(4) is read as an exception to the other provisions of that article. They can stand together only if these two clauses are not treated as exceptions to any fundamental right but are treated as an aspect of the fundamental rights. It is only on such treatment that the State action without legislation can be justified as an action in support or for the augmentation of the fundamental rights and not against them or for their curtailment. Thus this practice also indicates that our courts have right from the very beginning understood Articles 15(4) and 16(4) as fundamental rights.

Support from Directive Principles

For some time after the commencement of the Constitution, in Professor Tripathi's words, the approach of lawyers and courts towards Directive Principles of State Policy was 'parochial, injurious and unconstitutional'.9 Ever since his forceful argument to rehabilitate the directive principles in their rightful place in the constitutional scheme the balance has been continuously tilting towards their recognition by the courts. Not only the courts have held that the fundamental rights and directive principles have to be harmonised but they have also held that such harmony is a basic feature of the Constitution.10 After having made observations in some decisions that as 'the State' courts are under an obligation to implement directive principles in a few cases the courts have given effect to some of the directive principles in combination with the fundamental rights.11 They have also held that though the directive principles alone may not be justiciable, they become so if a legislation has been made in pursuance of them.12 Notwithstanding the express bar to the justiciability of the directive principles the Court has recently recognised a fundamental right to education exactly in terms of the directive principles in Articles 41, 45 and 46 read with the fundamental right to life and personal liberty in Article 21.13

If a negative and amorphous right to life and liberty in Article 21 can give birth to new and, until recently, unimaginable fundamental rights in terms of the directive principles there is a much stronger case for recognising fundamental rights for the SCs and STs under the positive and quite specific provisions of Articles 15(4) and 16(4) are read in the light of such specific directive principles as in Article 46 and also the general ones as in Article 38.14 The State's obligation under Articles 15(4) and 16(4) read with the non-discrimination and equality of opportunity provisions of Articles 15 and 16 and the command of Article 46 is far more explicit than its obligation to provide educational facilities to every citizen under Article 21 read with Articles 41, 45 and 46. If the State fails to carry out that obligation any person having sufficient interest in the matter can approach the courts to compel the State to take appropriate action under Articles 15(4) and 16(4).

Relevance of Article 335

An additional argument in respect of Article 16(4) stems from Article 335. Article 335 which finds place in Part XVI - Special Provisions Relating to Certain Classes - reads:

"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."

In no uncertain and mandatory terms this article imposes a positive obligation on the Union and the States to take into consideration the claims of SCs and STs in the making of appointments to services and posts. It recognises that SCs and STs have the claims to such services and posts. If the State fails to take these claims into consideration, action can be taken to compel the State to discharge its obligation under this article. Of course the State cannot be compelled to make appointments under this provision but it can definitely be compelled to take into consideration the claims of the SCs and STs. Taking into consideration the claims of the SCs and STs is an objective function which would require taking into account of all relevant factors and exclusion of irrelevant factors about which the State will have to satisfy the court. For the claims of the SCs and STs apart from historical, sociological and similar other factors the State will have to look into other provisions of the Constitution, particularly Articles 16(4) and 46. In that light the State cannot escape the decision to reserve appointments and posts as required by Article 16(4). Of course, the quantum of reservation will be within the discretion of the State but it will have to make such reservation.

Leaving aside the controversial question of quantum of reservation there are doubts about the reading of the words 'consistently with the maintenance of efficiency of administration' in Article 335 as the words of limitation on the claims of the SCs and STs as they have been read so far. It is felt that these words are an expression of a principle that underlies the consideration of the claims of the SCs and STs under Article 335. That principle should serve as a guideline to the State in performing its duties under Article 335 without restricting the claims of the SCs and STs. There is nothing in the Constitution or otherwise to suggest that the reservation for the SCs and STs is necessarily and always inconsistent with the maintenance of efficiency of administration.

Jurisprudential basis of the above thesis

Possibly two types of jurisprudential objections may be raised to the foregoing approach on Articles 15(4) and 16(4). Firstly, following the Hohfeldian analysis of rights, it may be said that Articles 15(4) and 16(4) do not satisfy the requirements of rights in strict or even in a liberal sense of privileges, powers or immunities. One answer to this kind of objection is that perhaps no bill of rights in any constitution or other document of rights does fully satisfy the Hohfeldian model. The other answer is that in view of our interpretation of Articles 15(4) and 16(4), these articles impose positive duty on the State and to that extent they create corresponding rights in the SCs and STs.

Secondly, following the debate on the negative and positive rights, it may be argued that rights can never be positive. This argument also does not fit exactly with practice. The fact is that since the latter half of the last century positive rights have been demanded and recognised from time to time through legislation or otherwise. The social welfare State is the manifestation of that phenomenon everywhere. Germany, for example, introduced comprehensive social security laws in 1880s. Under the Basic Law Germany is declared a social (welfare) State (Sozialstaat) which is an unamendable basic feature of the constitution.15 Commenting upon this article early in 1954 the German Federal Administrative Court held that an individual's right to State welfare assistance for the indigent could be deduced from this provision, though the legislature could regulate the circumstances under which the right could be realised.16 In the international arena the most recent example of the positive rights is the International Covenant on Economic, Social and Cultural Rights.

Coming to the Indian scene, well before the opportunity for making the present Constitution came, our leaders had been making repeated demands in no uncertain terms for the inclusion of the positive as much as for the negative rights in the Constitution. When the occasion for translating that demand into practice came, in unequivocal terms they included both the negative as well as the positive rights among the fundamental rights. It is another matter that in the course of their exercise at some point they drew a distinction between the justiciable and non-justiciable fundamental rights and finally converted the non-justiciable rights into directive principles. But at no stage they abandoned their faith in the positive rights and retained some of them among the fundamental rights. Such, for example, are the rights in Article 17: abolition of untouchability and criminalisation of its practice, Article 23(1): prohibition of traffic in human beings and forced labour, and Article 24: prohibition of employment of children in factories, mines or any other hazardous jobs. True, the enforcement of these rights has so far generally depended on State action and their judicial enforcement has almost been absent, nonetheless they are fundamental rights in the scheme of the Constitution-makers and their final product. Neither inaction on the part of the State nor lack of judicial enforcement could deny that status to them.

Justiciability of Articles 15(4) and 16(4)

Once it is established that SCs and STs have fundamental rights under Articles 15(4) and 16(4), undoubtedly they also have the right to enforce them under Articles 32 and 226. That should conclude the matter. Moreover the well recognised legal maxim ubi jus ibi remedium - whenever there is a right, there should also be an action for its enforcement - gives emphasis to the view that Articles 15(4) and 16(4) are fundamental rights. In the common law tradition, however, due to special part played by the procedures and the forms of action, this maxim got reversed to ubi remedium ibi jus - whenever there is a remedy there is a right. True to this tradition the common lawyer tends to deny the existence of substantive rights in the absence of provision for their judicial enforcement. This, for example, as we have noted above was done for quite long by the courts and legal scholars in India to undermine the position or rather pooh poohing the directive principles simply because they are non-justiciable. The common lawyer's approach is so much court-centred that to him law sans judicial enforcement is unthinkable. For that reason even in respect of Articles 15(4) and 16(4) his argument would be that what is the significance of having a right under those provisions, unless they are judicially enforceable.

So far, with very minor exceptions to be noted below, Articles 15(4) and 16(4) have been invoked before the courts only to challenge State action and not any inaction. It does not in any way mean that State inaction under these provisions is incapable of getting into the court. In fact political stimulus has kept the State so responsive towards its obligations under these provisions that the occasion to approach the courts for enforcing that obligation has not arisen. The response of the State may have not been ideal but it has left very little to be expected from the courts which are already overburdened. There is, however, no reason to doubt that in case the State fails to discharge its obligation under Articles 15(4) and 16(4) courts can be approached. Failure on the part of the State will satisfy the conditions for the issuance of the writ of mandamus under Articles 32 and 226 by the Supreme Court and the High Courts respectively. At least one of the majority judges did in fact issue directions in the Mandal case for the immediate implementation of the government notification even though the petition was against State action.17 The Constitutional position in this regard is too obvious to be pursued any further.

No instance is available where someone approached the court to enforce Articles 15(4) and 16(4) or either of them and the court declined to entertain him. On the contrary there are two marginal instances where the courts have granted relief when approached to enforce these provisions. In one of them the Supreme Court directed the Government of India to pursue the same policy of reservation for SCs and STs in the posts and telegraphs department as it pursued in other departments.18 In the other the Gauhati High Court gave relief to a member of SC which he was entitled under a government notification but was denied by the administration.19 Though the latter case was based on the interpretation of the notification, the court supported its interpretation with reference to Articles 39 and 46. In the former the Court failed to extricate itself from the exception and enabling provisions thesis of Articles 15(4) and 16(4) but granted relief under 'equality clause' (if there is any) relying at the same time on the protective provisions of the Constitution for SCs and STs such as Articles 46, 330, 332, 334 and 335.

Be that as it may, if Articles 15(4) and 16(4) confer fundamental rights, as is established above, the courts need not rely on any other provision to enforce them. They can grant the required relief under them.

1. Professor of Law, Delhi University Return to Text
2. M.R. Balaji v. State of Mysore, AIR 1963 SC 649 Return to Text
3. (1976) 2 SCC 310 Return to Text
4. (1981) 1 SCC 246 Return to Text
5. 1992 Supp (3) SCC 217 Return to Text
6. See, Supra n. 2 Return to Text
7. See e.g. Parmanand Singh, Professor Sivaramayya's Perception of Constitutional Equality, 15 Delhi L Rev. 1, 3 (1993). He says : "To say, as has been done in Mandal that Article 16(4) exhausts all employment preferences for backward classes and then to say that Article 16(4) is not an exception to Article 16(1) is nothing but a piece of intellectual confusion. If Article 16(4) exhausts all reservations and other preference including the kind of preference involved in Thomas, then Article 16(4) is surely an exception to Article 16(1) in relation to backward groups." Return to Text
8. R. Dworkin, Taking Rights Seriously, 227 (1977) Return to Text
9. 9 P.K. Tripathi: "Directive Principles of State Policy : The Lawyer's Approach to Them Hitherto, Parochial, Injurious and Unconstitutional", 1954 Supreme Court Journal 7 reprinted in P.K. Tripathi : Spotlights on Constitutional Interpretation, 291 (1972) Return to Text
10. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 Return to Text
11. See, e.g., M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544; People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; Mohini Jain v. State of Karnataka, (1992) 3 SCC 666; Unni Krishnan v. State of A.P., (1993) 1 SCC 645 Return to Text
12. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 Return to Text
13. Unni Krishnan v. State of A.P., (1993) 1 SCC 645, 733. Also Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 Return to Text
14. Articles 38 and 46 read:
    38. State to secure a social order for the promotion of welfare of the people.-(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
    
    (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
    
    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. Return to Text
15. The Basic Law, Article 30(1). It reads : 'The Federal Republic of Germany is a democratic and social federal state'. Return to Text
16. BVerwGE 1, 159, 161 Return to Text
17. See No. 5, above at 633 (Pandian, J.) Return to Text
18. P. & T. SC/ST Employees Welfare Assocn. v. Union of India, (1988) 4 SCC 147 Return to Text
19. Joy Kanta Hira v. State of Assam, AIR 1988 Gau 24 Return to Text