Article 15(4): A controversial piece of the Indian Constitution

Article 15(4) of the Indian constitution: A controversial piece of the Indian Constitution

The Indian constitution is divided into XXII parts. Part III provided for 6 fundamental rights that are available before a person living or residing in the territory of India. Not all Fundamental rights are made available to a person residing in India some are specifically made available to an Indian citizen only. All these rights are subsidiary to each other and every provision of the Indian constitution was drafted in cognizance to other rights, whether fundamental or constitutional. From the day the Indian Constitution was enacted, part III was continuously interpreted by the judiciary via various instances brought before it, and because of those interpretations its horizon continuously expanded, which eventually became an instance of bewilderment for the State as their authority can now be challenged on other grounds as well.

Equality before law, which is one of the 6 fundamental rights, has played a pivotal role in providing protection to the people of India from any arbitrary action of the State. This Right has 5 branches namely;

i)- Equality before law enshrined under Article 14.

ii)- Prohibition of discrimination on grounds of religion race, caste, sex, or place of birth enshrined under Article 15.

iii)- Equality of opportunity in matters of public employment enshrined under Article 16.

iv)- Abolition of Untouchability enshrined under Article 17.

v)- Abolition of titles enshrined under Article 18.  

The role judiciary played in expanding the horizon of these provisions are laudable. One such provision that went through judicial scrutiny the most is Article 15, as a consequence its horizon was expanded the most.

Article 15 prohibits discrimination on grounds only of religion, race, caste, sex, place of birth or any of them. On the day the Indian Constitution came into force the concerned Article had only 3 clauses, but soon the legislature realized that 3 clauses are not exhaustive to eradicate the practice of wide-spread detestation and discrimination against such aggrieved and backward class of people living in the territory of India, since time immemorial. Therefore, as a consequence of the judgement pronounced by the Supreme court in the case of State of Madras v. Champakam Dorairajan [1], clause (4) was inserted in a form of enabling provision for the State to take affirmative actions in order to achieve the lofty goals of formation of a welfare State and Egalitarian society.

Genesis of Article 15(4)

Article 15 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 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, —

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) 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.

As a result of the judgement pronounced in the abovementioned case, clause (4) was inserted by the 1st Constitutional Amendment Act of 1951. In the Dorairajan case, the Madras government, with the object of improving the educational and social condition of backward classes, reserved some seats in medical and engineering institutions on community basis. The Madras government drafted such legislation in conformity with Article 46, that puts a positive obligation upon the state to promote educational and economic interest of Scheduled castes, Scheduled Tribes, and other weaker sections. Court in its final judgement struck down the law and held that:

“Directive Principles of State Policy have to conform and run as subsidiary to fundamental rights”.

With the insertion of Article 15(4) the judgement of the Supreme Court was overruled. This clause authorises State to legislate any special provision for the welfare of Socially and educationally backward classes (SEBCs) of citizens or for the Scheduled Castes (SCs) and Scheduled Tribes (STs). Under this clause the State can reserve seats or provide quotas in the exercise of executive powers without any legislative backing.

Article 15(4) in many cases held to be an “enabling clause” because this provision enables the State to make special legislations for the welfare of a class of people who are altogether, socially and educationally backward but are not obliged to do so, which signifies that there is no such thing like Right to reservation, as the discretion of the State is necessary for providing special status. This provision is a revolutionary step towards laying down the principle of substantive equality in the Indian Constitution. It provided aegis to a marginalised class of people who were forced, due to historical reasons, to live in a condition that consequently, made them altogether educationally and socially backward. So far it has done its job amazingly and protected the interest of backward classes and due to this provision, they were finally be able to attain opportunity vis a vis the general class.

The intention behind the insertion of this provision was to provide more power to the State and fulfil the agenda of Justice and equality given under Preamble of the Indian Constitution. The insertion of Article 15(4) carries with it many controversies that came before the judiciary time after time, but the most contentious issues that were aroused due to the application of Article 15(4) were;

i)- Which classes shall be considered as backward and,

ii)- to what extent providing reservation should be reasonable.

These controversies were examined thoroughly by the judiciary and we will discuss them below.

Determination of Backward classes  

With the insertion of Clause (4) many controversies came into existence and the biggest impediment in the application of this clause was to laying down a standard test the determination of classes that will be ascertained as backward. The problem of ascertaining backward classes was not only limited to Article 15(4), Article 16(4) was also struggling with the same. Article 16(4) states that:

               “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”.

The qualification for backward class of citizens under Article 16(4) is not identical to Article 15(4) as the former provision qualified the impugned term with “socially and educationally”, but the problem of determining what constitutes backward classes was the same. No such predicament arose concerning the definition of SC’s and ST’s as the Indian Constitution accommodated Article 366(24) and 366(25) read with Article 341 and 342 to determine, who will fall into the category of SCs and STs.

Now, why the framers did not provide any definition of backward classes? One can conjecture upon this, but probably two conclusions can be drawn by reading the impugned provision. Firstly, the framers may have this running in their mind that the term ‘backward classes’ is a dynamic term and is not immune from the mighty blow of time. Secondly, they may had left the duty of ascertaining backward classes upon the Parliament.

These conclusions were drawn by referring to, Article 340 of the Indian Constitution which empowered the President, who will eventually act in accordance with the ministerial advice, by order to constitute a commission to scrutinise upon the condition of socially and educationally backward classes. This Article delineated explicitly that the commission will have the onus of determining as to which classes will fall into the category of backwardness. Two commissions have been constituted under this provision in the post-independence era. Firstly, in 1953 under the chairmanship of Kaka Kalelkar and after that, in 1978 under the chairmanship of B.P. Mandal .[2]

Both the commissions held a similar view that caste plays a pivotal role in the determination of backwardness, they did not come up with any substantive and cogent definitiond of “backward classes” for which most probably they were constituted, and only mentioned the factors that influenced or shall be held responsible for backwardness. The sombre report published by the commissions left the states with no other option but to adopt their own method for the determination of aggrieved or backward classes. The cumbersome on judiciary was also increased, due to the discrepancy created by the report, as to now they may have to check on every state action concerning reservation for backward classes.

In the case of M.R. Balaji v. State of Mysore,[3] the Supreme Court held that caste cannot be the sole or even pre-dominant factor for the determination of backwardness of a group of persons. However, Caste could be a relevant factor in determining backwardness but under Article 15(4) backwardness must be social and educational, and that social backwardness was the result of poverty. Therefore, the apex court invalidated the test of backwardness in which caste was taken as sole factor for its determination. The States, due to this this monumental judgment, were forbidden to consider caste as the sole basis for determination of backwardness. This stand was further upheld in various judgments.

In the case of R. Chitralekha v. State of Mysore, [4] the government of Mysore adopted a test for the determination of backwardness by contemplating the article in question, the state devised a classification of Socially and Educationally backward classes based on-

i)- Economic conditions, and

ii)- Occupation.

The Mysore government did not pay any heed to include ‘caste’ as a criterion for determining backwardness. The corollary of this, an offended citizen filed a petition in the apex court, with a prayer to declare the classification unconstitutional as it abstained from considering caste as a factor for backwardness. The Apex court dismissed the petition and held that even though Caste could be a relevant factor in determining backwardness, as caste form a specific group of people that could be socially and educationally backward, but it cannot be a sole, dominant, or even essential test for its determination.

Caste as the sole or dominant factor in the test of backwardness

The apex court in R. Chitralekha, made it implicit that caste cannot be considered as a sole factor for the purpose of providing reservation. This interpretation of the Supreme Court was not overruled but a new interpretation was adopted by the Apex court in the question of whether caste can be sole criteria for providing reservation? This new interpretation was adopted, when the State of Madras taken caste as the sole factor in the determination of backwardness and was challenged before the Apex court. In the case of P. Rajendran v. State of Madras [5], wherein reservation was provided solely on the basis of caste and the Supreme court upheld the criteria. If the reservation in question was provided to a caste without considering its social and educational backwardness then in that case the reservation is violative of Article 15(1), but one cannot forget that caste in itself is a class or group of citizens and if the caste as a whole is socially and educationally backward, privileges or reservation can be made in their favour as they qualify the prerequisites of Article 15(4). The same stand was taken in the case of A.P. v. U.S.V. Balram, [6] Where the court held:

A caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward … the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average.

Determination of backwardness by considering geographical or territorial region

As there was no cogent or definitive explanation of backward classes is available anywhere, the State, by interpreting Article 15(4), always comes up with a new way of classification. In some instances, State took the resort of geographical and territorial consideration to classify the citizen as backward and provide them with reservation. In State of Uttar Pradesh v. Pradip Tandon [7], the State government of Uttar Pradesh reserved seats in medical institutions in favour of candidates belonging to

i)- hill areas,

ii)- rural areas, and

iii)- Uttarakhand.

The classification adopted by the State was solely based on geographical and territorial consideration. The contention provided by the State government was, the citizen belonging to such areas form a class in themselves and constituted socially and educationally backward classes of citizens. The court after reviewing the earlier arguments advanced held that Article 15(4) provide aegis to socially and educationally backward homogenous class of citizens and it didn’t enable state to bring socially and educationally backward areas under its protection.

However, the court contemplated that the place of habitation and its environment could be a determining factor in judging the social and educational backwardness. A remote and sparsely populated area can be covered under Article 15(4) as the citizens living there were never provided facilities such as good communication services, electricity, educational facilities etc. vis-a-vis other part of the country. Therefore, the people living under such conditions can be classified as socially and educationally backward. The court upheld reservations for people living in Hilly areas and Uttarakhand. However, no reservation of seats was provided to people of rural areas as such areas forms a heterogenous population and not every person is socially and educationally backward there.

Exclusion of “Creamy Layer”

With the previous contentions one must had pondered that what happens to those who are better-off among the socially and educationally backward classes? Supreme court in a series of judgements considered this vexed question. While considering this question that whether a family, amongst all the socially and educationally backward classes, that exceeded the economic limit prescribed by the executive shall still be provided with the constitutional protection of reservation? [8] The court held that caste is an intrinsic part of ascertaining social and educational backwardness. A social backwardness which results from poverty can also pertain to caste or, caste could have been an aggravated element. Apparently, caste and poverty both are relevant for the consideration of social backwardness, but both these elements cannot be solely used for its determination. Therefore, upholding the order of executive to prescribe an income limit as constitutional, as the classification was not based on income rather upon social and educational backwardness.

From this and many other judgements, not one cohesive and cogent definition or test for the determination of backward classes was ascertained. The State executive were not able to devise a single common policy that can back the Impugned test. Tired of this the State government of Karnataka, approached Supreme Court to provide clear guidelines for the vexed question in K.C. Vasanth Kumar v. State of Karnataka [9], This judgement which was supposed to provide a uniform guideline for the determination of backwardness, ironically provided 5 separate opinions. Every judge in this case expressed divergent opinion. 4 out of 5 judges, with no concurring opinion, held caste as the dominant or relevant factor in the consideration of backwardness, while Desai J, held poverty as the sole factor in determining backwardness.

The vexed question was again aroused in the landmark case of Indra Sawhney v. Union of India [10], wherein the 2 memoranda of the central government was questioned. The first memoranda reserved 27% seats in civil posts and services under the government of India and the second memoranda along with the 27% reservation, reserved 10% more seats for “other economically backward sections of the people”. The court in its final verdict upheld the first memoranda and declared the second memoranda as unconstitutional. Since there is no such provision that can back a reservation solely based on poor economic condition. Economic condition could be a relevant or in some cases a dominant criterion in the determination of backwardness, but it cannot be a sole factor in the determination of backwardness. The court saw the 2nd memoranda as a redundant act as per the provisions of Indian constitution prevailing during that period.

A contention was raised before the court that the first memoranda considered caste as the dominant element in determining backwardness, as suggested by the Mandal commission report, which also took caste as the dominant factor for determining social and educational backwardness. The report of the commission bifurcated castes/classes as backward through a survey. The court contended that the term class under Article 15(4) and 16(4) is nowhere defined, and all the attempt by the executive and judiciary to devise a uniform test for the determination of backwardness has failed. The central idea in this regard was to consider all the available groups, sections and classes to provide a certain group, section or class with privileges. However, caste cannot be a sole factor and other criteria should be kept in mind while imparting reservation.

To maintain cohesiveness and integrity of the nation the exclusion of “creamy layer” from the social and educational backward classes is imperative. Later, in another instance [11], the court upheld the adoption and application of “other backward classes” to Social and educational backward classes in Article 15(5) which must naturally apply to Article 15(4) too. In the former “Mandal commission case” [12] the court also directed the executive to create a permanent body at state and central level to check the prerequisites of the reserved classes and to revise the list periodically as well. As a result of this landmark judgement the Centre and State governments devised backward commissions [13] to look into the prerequisites of backward classes and also to take into consideration of the exclusion of creamy layer amongst them.

It seems clear now that caste can be a determining or even in some instances a sole factor in the determination of backwardness only if it satisfies the prerequisites enshrined under the Constitution. The inclusion of Article 15 and 16 made it clear that the intention of our Constitution makers was to provide social and educational compensation to those who were exploited for decades or even centuries, as such privileges can be justified through Article 14 and Article 15(4) and Article 16(4) were only included to ameliorate the condition of caste who struggled for centuries due to the social-arrangements. [14], One who was born within the advantageous caste or section of society, later transplanted into a backward class through conversion, adoption, or marriage cannot be allowed to avail the benefits of Article 15(4) and Article 16(4). [15]

In a number of judgements, SCs and STs were held immune from the principle of “creamy layer”, but the immunity may be taken away, in the near future, when their social and educational condition improves but till that time their immunity cannot be disturbed without a specific order from the president. The immunity provided to the backward classes can be taken away on movement from one territory to other, only if the State or territory do not have reservation for that community. [16]

Why the principle of “creamy layer” is not extended to SCs and STs under 15(4)?

The intendment of Article 15(4) is to extend the benefit of reservation to backward classes, SCs and STs is to protect their interest and help them to overcome the stigma of subjection to gruesome discrimination for thousands of years. The citizen who belongs to a socially and educationally backward class can be excluded from such benefit if it was found that the family income is above the limit prescribed by the executive.

The principle of “creamy layer” led to the exclusion of affluent from the disadvantageous sections. It was made clear in the Mandal commission case [17], that the principle of “creamy layer” shall not be applicable to SCs and STs, the contention behind this is subtle but simple. The reservation provided to SCs and STs is not based upon the idea of uplifting those classes economically, rather to eradicate the stigma of discrimination and untouchability that they have been through for thousands of years. They were deprived from, using public places, entering temples, eating food with higher social classes, attaining good education etc.

The other backward section of classes (OBCs) and SCs both were subjected to class inferiority, that’s why they were covered under the protection of reservation. It is imperative to understand that the condition under which SCs and STs lived and the condition under which OBCs lived was not same. For OBCs it was mostly economic backwardness and social backwardness had little or no role at all. Therefore, the exclusion of creamy layer from OBCs is completely constitutional, the case is not same with SCs and STs as they have been gruesomely subjected to both economical and social backwardness.

Oxfam report on discrimination have highlighted recurrently every year, that how Dalits or SCs and STs face discrimination even after securing job through reservation, and how they weren’t paid in par with their colleagues. This report implied that the provision under Article 15(4) was not undertaken to battle against economic backwardness that Dalits are subjected to, rather it was undertaken to eradicate the stigma that comes on account of untouchable social status. Therefore, the social discrimination practiced against SCs and STs are ubiquitous even after they attain financial stability and it will be redundant to apply the principle of “creamy layer” upon them as economical backwardness has no role in it.

How much reservation is constitutional?

It has been made clear that Article 15(4) is specifically made for the upliftment of classes that were subjected to economic and social backwardness. The process of upliftment vested by the constitution is by reserving seats in the State services. Now, time after time the vexed question, how much reservation is reasonable? Was raised in the Supreme Court and recurrently the Supreme Court held that the reasonable benchmark for reservation is 50%. The issue was first raised in M.R Balaji v. State of Mysore [19], in which the Mysore government order of reserving 68% seats in engineering and medical colleges and in other institutions was impugned. In this case the court held concurrently:

            A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits…… in this matter again, we are reluctant to say what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the present prevailing circumstances in each case.

Reservation of 68% seats was held unreasonable and unconstitutional under Article 15(4). This case set a benchmark of 50% reservation to be constitutional and exceeding this will lead to invalidation of the legislation. One thing that must be kept in mind is that, in the Balaji case Article 15(4) and 16(4) are seen as exception to Article 15(1) and 16(1) The view adopted by the court in Balaji, was upheld in T. Devadasan v. Union of India [20], wherein the Central government reserved 17.5% posts in central services for the SCs and STs and the rubric of the impugned order provided for a carry forward rule. This rule states that, if the seats reserved for the SCs and STs for the said year left unfilled then those seats shall be filled within next two succeeding years. The court quashed the impugned order of the central government on the contention that, if the seats allotted for the SCs and STs left unfilled for 2 succeeding years then in the 3rd year the seats reserved will be approximately 54% and in the present case it was 64%.   

Both of the former judgements were given on the plea that Article 15(4) and 16(4) are an exception to Article 15 and 16. In T. Devadasan, the general rule adopted by the court is that the exceptions should not be construed in such a way that it will eat away the principle of merit-based admission into institutions. This interpretation adopted by the court shows that the judiciary saw these added provisions as exception to the main principle.

Whether Article 15(4) and 16(4) exceptions to Article 15(1) and 16(1)?

The question, whether Article 15(4) and 16(4) of the Indian constitution are exceptions to Article 15(1) and 16(1)? was contemplated by the Judiciary time to time. The principle laid down under Article 15(4) and 16(4) prima facie considered to be an exception to Article 15(1) and Article 16(1). The reasoning behind such interpretation was, in the Indian Constitution there are many provisions were made that act an exception to the main principle.

Earlier the court provided with a justification which seems reasonable. However, this interpretation adopted by the court was soon overruled in State of Kerala v. N.M. Thomas [21], wherein the State government of Kerala exempted SCs and STs from passing a test for a number of years for the purpose of promoting SCs and STs from Lower division clerks (LDCs) to Upper division clerks (UDCs), the step was taken in the light of uplifting these communities. In a certain year 34 out of 51 posts had gone to the candidates belonging to SCs and STs which equals to 68% of the total seats. This act of the State government negated the general rule adopted by the court in Balaji and T. Devadasan. Overruling the previous judgments, the court held that Article 16(4) and 15(4) are not exceptions to Article 16(1) and 15(1) rather they are emphatic assertions that obliged State to take affirmative actions to enforce the principle of equality as laid down in Article 14, 15 and 16.

Provisions of equality cannot be seen as an exception, if the interpretation adopted by the court in previous judgements is correct then the court shall also be allowed to throttle the welfare of women and children by considering Article 15(3) as an exception to the general rule of equality. The clause (4) of Article 15 and 16 has obligated state to provide equality of opportunity to that extent, that the marginalised communities can be equally represented, as per their share in the population, into the State services. State shall be allowed to make reservations to any extent and certainly the State is allowed to do that to provide adequate representation to the SCs and STs in Higher education as well as in State services.

In the N.M. Thomas case, the court upheld the State exemption rule as the overall representation of SCs and STs in state services was very low vis a vis their proportion of the State. The contention in N.M. Thomas was asserted more emphatically in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India [22], popularly known as ABSK Sangh case, where the court contended that the quantum of reservation was to be seen in the context of overall representation of the SCs and STs and not in a particular year.

The vexed issue was finally resolved in the Indra Sawhney case [23], where the court held that, barring an extraordinary situation the benchmark for reservation should be 50%.  Now the solution begotten a new vexed question that, what will be an extraordinary situation? It seems that the Mandal commission case acted as a landmark judgement, as it sought answers to every vexed question. Therefore, the court cited that any remote area whose population never been provided with the adequate representation in the mainstream jobs and needed special treatment in order to make them in par with the general population can be covered under extraordinary situation.  

This contention of the court seems to settle the vexed issue. One thing that need to be kept in mind is the 50% mark is for reservation only and exceptions, concession, special circumstances and relaxations are not covered under this limit. Article 15(4) and 16(4) are not exceptions, despite they were interpreted as exceptions in many previous cases, rather they are a means to achieving right to equality provided under those provisions.

New controversies

New interpretation of the provision led to new controversies, further the court expanded the horizon of the monumental Article 15(4) and in many other cases gave new interpretations to it. In one instance the court held that, the seat reserved for ST in a State services is interchangeable with SC, means if an eligible candidate is not available from an ST category, then his seat is transferrable to a suitable candidate from SC category and the said seat shall not be adjusted in the general category. [24]

It was believed that the Mandal commission case, has filled every fissure that was begotten by the impugned provision. But the case of Preeti Srivastava [25], aroused a new controversy concerning admission to postgraduate medical courses. The vexed question was, whether reservations can be allowed in super speciality programmes? Many previous judgements held that providing reservation in super speciality programmes is a direct violation of Article 335 and consequently, was declared unconstitutional [26]. The same was upheld in the Mandal commission case(27), wherein the Supreme court held that it was not advisable to provide reservation in super-speciality programmes, and admission in such programmes should be based upon merit. The judgement given by the Mandal Commission case was used vociferously in many further cases to declare every State action unconstitutional that provided reservation in super-speciality and postgraduate programmes. The Impugned Article 335 may be used to provide reservation to SCs and STs as the words “consistently with the maintenance of efficiency of administration” shows a way through which reservation can be given to SCs and STs, but the Court never adopted this interpretation and stick to the merit-based determination for super-speciality programmes. The words “consistently with the maintenance of efficiency of administration” do not limited the claims of SCs and STs in Super-speciality programmes rather guided the State to provide reservation to the depressed classes while also maintaining the efficiency of administration.

Due to the interpretation adopted by the court, State was not able to fulfil its obligation provided under Article 38, 46 and 16 of the Indian constitution. Finally, to override the judgement given in the case of Vinod Kumar v. Union of India [28], the 82nd Constitutional Amendment Act, 2000 was passed that inserted such provision under Article 335;

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”

With this the controversy pertaining to super-speciality programmes was ended.

Tussle of law-making authority concerning Article 15(4) between Judiciary, Executive and Legislature 

The judgement given in the Preeti Srivastava case, that how much reservation should be provided under post-graduate courses aroused a controversy which the constitution makers never envisaged. The principle of check and balance was made in order to properly separate powers between judiciary, legislature and executive. It seems that in the Preeti case, the apex court tried to throttle the principle of check and balance. The duty of the court is to examine, whether a state action taken on the grounds of public interest is conflicting with the rights of individual or group? Courts were only authorised to determine, whether a state action is in public interest or not, they are not authorised to determine public interest. In the present case court took the matter of public interest in their own hands and devised a qualification that should be kept in mind while forming a policy. The duty of the court is only to examine the provisions of reservation made by the executive is in violation of any of the fundamental rights or not. If the court started participating in the policy making in the name of public interest, which is a job assigned to the executive and legislature, then the controversy will keep on escalating and in such circumstances the court will stand on a weak ground.

             `

1-     AIR 1951 SC 226.

2-     3See, report, Backward Classes Commission (Delhi 1955) and Report, Backward Classes Commission (New Delhi 1981).

3-     AIR 1963 SC 649.

4-     AIR 1964 SC 1823.

5-     AIR 1968 SC 1012.

6-     (1972) 1 SCC 660.

7-     (1975) 1 SCC 267.

8-     Kumari K.S. Jayashree v. State of Kerala, (1976) 3 SCC 730.

9-     1985 Supp SCC 714.

10-  1992 Supp (3) SCC 217.

11-  Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1.

12-  1992 Supp (3) SCC 217: AIR 1993 SC 477

13-  The central commission is named National commission for backward classes

14-  See, B. Errabbi, “Protective Discrimination: Constitutional prescriptions and Judicial perception”

15-  Valsamma Paul v. Cochin University, (1996) 3 SCC 545

16-  Shubhash Chandra v. Delhi Subordinate services Selection board (2009) 15 SCC 458

17-  1992 Supp (3) SCC 217: AIR 1993 SC 477

19-  AIR 1963 SC 649

20-  AIR 1964 SC 179

21-  (1976) 2 SCC 310

22-  (1981) 1 SCC 246

23-  1992 Supp (3) SCC 217

24-  Superintending Engineer, Public health v. Kuldeep Singh, (1997) 9 SCC 199

25-  Preeti Srivastava v. State of M.P. (1999) 7 SCC 120

26-  Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401, Sadhna Devi v. State of U.P., (1997) 3 SCC 90 etc.

27-  Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217