Article 15(5), Providing Reservation To OBC, Not An Exception But Extension Of Principle Of Equality Under Article 15(1): Supreme Court In NEET-AIQ Case

A Bench comprising Justices Dr. D.Y. Chandrachud and A.S. Bopanna justified their decision, inter alia, on the ground Articles 15(4) and 15(5) of the Constitution of India are not an exception to Article 15(1), but only restatement of the principle of substantive equality set out in Article 15(1).

Article 15(5) & reservation for OBC Category

Article 15(1) prohibits the State from discriminating against its citizen only on the basis of religion, race, caste sex, place of birth or any of them. Clause (5) was inserted to Article 15 by the Constitution (Ninety-Third Amendment) Act 2005 to empower the State to make special provisions for socially and economically backward classes with respect to their admission to educational institutions. Article 15(5) reads as under -

"(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."

The Supreme Court in Abhay Nath v. University of Delhi (2009) 17 SCC 705 held that reservations for Scheduled Caste and Scheduled Tribe candidates were permissible in the AIQ seats. Consequently, the Parliament passed the Central Educational Institutions (Reservation in Admissions) Act, 2006 providing for reservation for students belonging to SC and ST communities along with 27% reservation for the OBC category in Central educational institutions. The constitutional validity of both the constitutional amendment and the 2006 Act were challenged in Ashoka Kumar Thakur v. Union of India (2007) 4 SCC 361. The Apex Court upheld their constitutional validity.

Subsequently, the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 was enacted to provide 50% reservation to OBCs in State run medical institutions. Dravida Munnetra Kazhagam (DMK) filed a Writ Petition before the Supreme Court seeking OBC reservation in AIQ. On the directions of the Supreme Court, DMK approached the Madras High Court with its plea. The High Court directed the Union Government to constitute an expert committee to implement the reservation for OBCs in the seat surrendered by the State of Tamil Nadu. It was clarified that the reservation would be implemented from the next academic year i.e. 2021-22 to avoid causing disturbance to the ongoing selection process. The State of Tamil Nadu assailed the decision of the High Court to permit the implementation of reservation from the next academic years, which was rejected by the Supreme Court. A contempt proceeding was initiated by Dravida Munnetra Kazhagam(DMK) party seeking implementation of the OBC quota in AIQ. While the contempt mater was pending, on 29.07.2021, the Directorate General of Health Services, MoHFW issued a notification to implement the 27% OBC reservation and 10% EWS reservation in the 15% UG and 50% PG AIQ seats from the academic year 2021-22. The validity of the same was challenged before the Supreme Court.

Articles 15(4) and 15(5) not an exception to Article 15(1)

The Court noted that in M.R. Balaji v. State of Mysore 1963 Supp (1) SCR 439, a Constitution Bench of the Supreme Court held Article 15(4) to be an exception to Article 15(1). It is pertinent to mention that by means of Article 15(4) reservation was introduced to promote advancement of the weaker sections of the society. It reads as under:

"(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."

In Balaji, a special provision for the weaker sections of the society was viewed as deviation from the principle of formal equality embodied in Article 15(1). In T. Devadasan v. Union of India (1964) 4 SCR 680, in his dissenting judgment Justice Subbha Rao held that Article 16(4) providing for reservation was not an exception but a facet of Article 16(1). The Apex Court in the State of Kerala v. NM Thomas (1976) 2 SCC 310 acknowledged that formal equality was insufficient to eliminate entrenched discrimination. It held that the essence of equality as provided in the Constitution of India is its ability to provide for both formal and substantive equality, therefore, recognising both as facets of equality. Substantive equality recognises the fact that there is equality only among equals and to treat unequals equally is to perpetuate inequality. If due to historic disadvantages, certain classes of people have been placed at a significant disadvantage, then in order to uphold the principles of equality the State may legitimately take positive action to remedy the situation. Therefore, Articles 15(4) and 15(5) [the provisions for reservation] through which substantive equality can be achieved, is not an exception to formal equality embodied in Article 15(1), but is an extension of it.

A nine-Judge Bench of the Supreme Court, in the context of Article 16(1) and 16(4), reiterated in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 that provisions for reservation for backward classes is not an exception to the principle of equality. Again, in Dr. Jaishri Laxmanrao Patil v. Chief Minister (2021) 8 SCC 1, the Court observed that principles applied to interpret Article 16 would also be applicable for interpretation of Article 15.

Contextualising the principles of equality in the present case, the Court observed that though competitive exam ensures formal equality, it does not ensure parity of treatment under parity of conditions. Inequalities in availability and access to educational facilities will result in deprivation of certain classes of people who would not be able to compete effectively. Considering that treating unequals equally would be a violation of the principles of equality envisaged in the Constitution, the Apex Court, held -

"Articles 15 (4) and Article 15 (5) are nothing but a restatement of the guarantee of the right to equality stipulated in Article 15 (1)."

The Court observed that though individual members of an identified group may not be backward, it would not change the underlying rationale of the reservation policy that seeks to remedy structural barriers that disadvantaged groups face in advancing in society.

Also Read : 'Merit's Definition Cannot Be Reduced To Performance In Competitive Exams' : Supreme Court Upholds OBC Reservation In NEET-AIQ

OBC Quota In PG Courses Not Prohibited; Can't Say Backwardness Will Disappear With Graduation: Supreme Court In NEET-AIQ Case

Case Title: Neil Aurelio Nunes and Ors v. Union of India & Ors| Writ Petition (C) No. 961 of 2021

Coram: Justices DY Chandrachud and AS Bopanna