janhit abhiyan vs union of india and ors.7 november 2022

8. The Preamble of our Constitution promises equality, which is explained in detail in Articles 14 and 15 resply as enshrined in Part III of the Constitution.

Equality, as contemplated under our constitutional system, is ‘among equal and similarly situated’. Equality in general cannot be universally applied and is subject to the condition and restriction as spelt out in the Constitution itself. The Preamble to the Constitution referred to above does not grant any power but it gives the direction and purpose to the Constitution. It outlines the objective of the whole Constitution. The Preamble contains the fundamentals of the Constitution. It serves several important purposes, as for example: –

• It contains the enacting clause which brings the

Constitution into force.

• It declares the great rights and freedoms which the People of India intended to secure to all its citizens.
• It declares the basic type of Government and polity which is sought to be established in the country.
• It throws light on the source of the Constitution, viz. the People of India.

9. Articles 14, 15 and 16 resply deal with the various facets of the right to equality. Article 14 provides for equality before law and prohibits the State from denying to any person, equality before law or equal protection of laws. Article 15 provides for prohibition of discrimination against any citizen on grounds only of religion, race, caste, sex or place of birth or any of them, but permits special provisions being made for women   and children or for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Article 16 guarantees equality of opportunity in matters of public employment to the citizens of India.
10. These three Articles form part of the same Constitutional code of guarantees and, in the sense, supplement to each Article 14 on the one hand, and Articles 15 and 16 resply on the other, have frequently been described as being the genesis and the species respectively.
11. I propose to look into the constitutional validity of the Constitution (103^rd Amendment) Act, 2019 in the first instance, as if there is nothing like Articles 15(6) and 16(6) resply in the Constitution. It would be profitable to look into the various relevant provisions (Articles) of the Constitution of India:-

“14. Equality before law.─The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

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 ground 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─

• access to shops, public restaurants, hotels and places of public entertainment; or
• 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 general public.

• Nothing in this article shall prevent the State from making any special provision for women and children.
• 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.
• Nothing in this article or in sub-clause (g) of the 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.
• 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.

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.

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.

• 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.
• Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
• 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. (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

• Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
• Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.

x                        x                            x                            x

21-A. Right to education.─The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

x                        x                            x                            x

25. Freedom of conscience and free profession, practice and propagation of religion.─(1) Subject to public order, morality and health and to the other provision of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law─

• regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
• providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.─The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.─In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to Hindu religious institutions shall be construed accordingly.

26. Freedom to manage religious affairs.─Subject to public order, morality and health, every religious denomination or any section thereof shall have the right─

• to establish and maintain institutions for religious and charitable purposes;
• to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.

x                        x                            x                            x

29. Protection of interests of minorities.─(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission 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.

30. Right of minorities to establish and administer educational institutions.─(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

x                        x                            x                            x

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.”
47. The Constitution of India was framed by the Constituent Assembly after long drawn debates. Many of the Members of the Constituent Assembly themselves were actively and directly involved in the struggle for freedom. They, therefore, brought in framing the Constitution their experience of movement for liberation from the colonial rule. The Constitution was framed at a time when the memories of violation of human and fundamental rights at the hands of colonial rulers were fresh.  So was fresh in the mind of the people the Nazi excesses during the time of Second World War. Declaration of separate chapter of   fundamental rights   with special focus on equality and personal liberties was thus inevitable. The framers of the Constitution, thus, dedicated a whole chapter (Part III) for fundamental rights. While doing so, important provisions were made in Part IV pertaining to the Directive Principles of State Policy, making detailed provisions laying down a road-map for bringing about a peaceful social revolution through Constitutional means and for the Governments to bear in mind those principles while framing future governmental policies. Article 37 contained in Part IV provides that the provisions contained in that Part shall not be enforceable by any court, but it makes it clear that the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws. Interplay of fundamental rights and directive principles of state policy has occupied the minds of this Court on several occasions.
48. Article 15, as originally framed, did not contain clauses (4) and (5). Clause (4) in fact was introduced through the First Constitution Amendment in the year 1951. This was necessitated due to a judicial pronouncement of the Supreme Court in the case of The State of Madras v. Sm. Champakam Dorairajan & Another, AIR 1951 SC 226 : (1951) SCR 525.
49. In Article 15, there are two words of very wide import – (1)

“discrimination” and (2) “only”. The expression “discriminate against”, according to the Oxford Dictionary means, “to make    an adverse distinction with regard to; to distinguish favourably from others”. The true purport of the word “discrimination” has been very well explained by this Court in a Constitution Bench decision of five Judges in Kathi Raning

Rawat v. State of Saurashtra, reported in AIR  1952 SC 123: –

“7. All   legislative  differentiation    is not necessarily discriminatory. In fact, the word “discrimination” does not occur in Art. 14. The expression “discriminate against” is used in Art. 15(1) and Art. 16(2), and it means, according to the Oxford Dictionary, “to make an adverse distinction with regard to; to distinguish unfavourably from others”. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds  mentioned in Arts. 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under

Art. 14 is different….”

15. The principle has been consistently followed in subsequent decisions. Reference may be made, in this respect, in the case of Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.
16. A very important decision on the significance of the word “only” (as used in Article 29(2) also relating to fundamental rights) is that of the Full Bench in Srimathi Champakam Dorairajan and Another v. The State of Madras, reported in AIR 1951 Madras 120. In that case the Madras Government, finding that there were not sufficient vacancies for admission of students to Medical College, issued a circular making, what it considered, an equitable division of the vacancies available among the various classes of citizens of the State. Out of every 14 seats, 6 were to be filled by non-Brahmin Hindus, 2 to backward Hindu communities, 2 to Brahmins, 2 to Harijans, 1 to Anglo-Indians and Indian Christians and 1 to Muslims. The circular was challenged by various persons on the ground that it decided admission to persons only on the ground of religion or caste. It was sought to support the circular on the ground that the denial was not only on the ground of religion or caste, but as a matter of   public policy based upon the provisions of Article 46 together with the paucity of the vacancies. It was held that much significance could not be attached to the word ‘only’ because even reading the Article without that word, the result would be the same. It was further held that the circular was bad because it infringed the clear and unambiguous terms of Article 15(1) since it discriminated against citizens only on the ground of religion, race, caste, sex, place of birth or any of them. The judgment states:-

“15…..“Discriminate against” means “make an adverse distinction with regard to”; “distinguish unfavourably from  others” (Oxford Dictionary). What the article says is that no person of a particular religion or caste shall be treated  unfavourably when compared with persons of other        religions and castes merely on the ground that they belong to a particular religion or caste. Now what does the Communal G.O. purport to do? It says that a limited    number of seats only are allotted to persons of a particular caste, namely Brahmins. The qualifications which would enable a candidate to secure one of those seats would necessarily be higher than the qualifications which would enable a person of another caste or religion, say, Harijan or Muslim to secure admission…..”

It was, therefore, held that the Communal G.O. was void.

17. This decision was upheld by the Supreme Court on appeal in The State of Madras v. Sm. Champakam Dorairajan & another

(supra). Their Lordships say:-

“11. It is argued that the petitioners are not denied admission only because they are Brahmins but for a variety of reasons, e.g. (a) they are Brahmins, (b) Brahmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G.O. is   opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29(2)…..”

18. In view of the aforesaid, the Parliament intervened & introduced clause (4) to Article 15 which provided that if any action was taken by the State to make special provisions for the advancement of the communities specified therein, that could not be challenged on the ground that it contravened Article 15(1). In other words, a specific exception was made to the provisions of Article 15(1) in regard to the backward communities mentioned in Article 15(4). This amendment also shows how a progressive democratic legislature does not hesitate even to amend the Constitution with a view to harmonise the fundamental rights of the individual citizen with the claims of social good.
19. Thus, the decisions of this Court in Champakam Dorairajan (supra) and Kathi Raning Rawat (supra) establish the proposition that, while classification is permissible, it cannot be based on any of the factors mentioned in the Articles 15 and 16 resply. So far as this proposition of law is concerned, it still holds good even after the pronouncement of this

Court in the case of Indra Sawhney and Others v. Union of India and Others reported in 1992 Supp (3) SCC 217 : AIR 1993 SC 477.

20. Article 16 of the Constitution guarantees equality of opportunity in matters of public employment to all the citizens. Article 16(1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) of Article 16 further amplifies this equality of opportunity in public employment, by providing that 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.

Clause (4) of Article 16 reads thus:

“(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.”

21. Article 21 pertains to protection of life and personal liberty and provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This important guarantee, though seemingly plain, has been interpreted by this Court as to include variety of rights which would form part of right to life and personal liberty, without enjoyment of which the rights, like the right to life and personal liberty would be meaningless and nugatory. Right to education has been recognised as one of the facets of Article 21 long before it was codified as one of the fundamental rights separately guaranteed under Article 21-A of the Constitution.
22. The Constitution of India was amended by the Eighty-sixth Amendment

Act, 2002, to include the right to education as a fundamental right under Article 21-A providing that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

23. Article 29 guarantees protection of interests of minorities and reads as under:-

“29. Protection of interests of minorities.─(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission 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.”

24. Article 30 pertains to the right of minorities to establish and administer educational institutions. Clause (1) thereof provides that all minorities, whether   based on religion or language, shall have the right to establish and administer educational institutions of their choice.
25. Article 46 contained in Part IV provides that 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.
26. The Constitution of India places immense importance on the fundamental rights for which a separate chapter was dedicated while framing the Constitution itself. The fact that Article 32 guaranteeing the right to move the Supreme Court for appropriate proceedings for the enforcement of rights conferred in Part III itself is contained in the fundamental rights and thus made a fundamental right, is a strong indication that such rights were considered sacrosanct. However, it has always been recognised while framing the Constitution as well as while interpreting the same that no right of a citizen can be absolute and every right would have reasonable restriction. Article 19, for example, while guaranteeing various individual freedoms to citizens contains various clauses limiting enjoyment of such rights under specified conditions. Likewise, though Article 14 in plain terms provides that the State shall not deny to any person equality before the law or the equal protection of the laws, since the earliest days of interpretation of the Constitution, it has been recognised that this does not imply that there shall be one law which must apply to every person and that every law framed must correspondingly cover every person. In legal terminology, it means though Article 14 prohibits class legislation, the same does not prevent   reasonable classification.   It is, of course, true that for the classification to be valid and to pass the test of reasonableness twin tests laid down by this Court, time and again, must be fulfilled.  Such tests are   that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
27. Article 14 guarantees equality in very wide terms and is worded in negative term preventing the State from denying any person equality before law or the equal protection of the laws within the territory of India. Article 15(1), on the other hand, prevents the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (2) of the Article further provides that 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 access to shops, public restaurants, use of wells, tanks, bathing ghats, etc. of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. Article 16, in turn, pertains to equality of opportunity in matters of public employment. Clause (1) of Article 16, as already noted, guarantees equality of opportunity to all citizens in matters of employment or appointment to any office under the State. Clause (2) thereof, further amplifies that 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.
28. Thus, Articles 14, 15 and 16 resply are all different facets of concept of equality. In different forms, such Articles guarantee equality of opportunity and equal treatment to all the citizens while specifically mandating that the State shall not discriminate against the citizens only on the grounds of religion, race, caste, sex, descent, place of   birth or any of them. Like Article 14, neither Article 15(1) nor Article 16(1) prohibits reasonable classification. In other words, the clauses of Articles 15 and 16 respectively guaranteeing non-discrimination on the grounds only of religion, race, caste, sex, place of birth or equality of opportunity for all citizens in matters of public employment prohibit hostile discrimination, but not reasonable classification. As in Article 14, as well in Article 15(1), if it is demonstrated that special treatment is meted out to a class of citizens, not only on the ground of religion, race, caste, sex, place of birth or any of them, but due to some special reasons and circumstances, the enquiry would be, does such a classification stand the test of reasonableness and in the process, it would be the duty of the court to examine whether such classification fulfills the above noted twin conditions, namely, it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question. (See :- Adam B. Chaki v. Government of India, Writ Petition (PIL) No. 20 of 2011 (Guj).)

29. In the case of Mohammad Shujat Ali and others v. Union of India and others, AIR 1974 SC 1631, a Constitution Bench of this Court in the context of concept of equality flowing from Articles 14 and 16 resply of the Constitution observed that Article 16 is an instance or incident of guarantee of equality enshrined in Article 14. It gives effect to the doctrine of equality in the spheres of public employment. The constitutional code of equality and equal opportunity, however, does not mean that the same laws must be applicable to all persons. It was held and observed as under:-

“23. Now we proceed to consider the challenge based on infraction of Articles 14 and 16 of the Constitution. Article 14 ensures to every person equality before law and equal protection of the laws and Article 16 lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16 is only an instance or incident of the guarantee of equality enshrined in Article 14 : It gives effect to the doctrine of equality in the spheres of public employment. The concept of equal opportunity to be found in Article 16 permeates the whole spectrum of an individual’s employment from appointment through promotion and termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which is one of the great socio-economic objectives set out in the Preamble of the Constitution. The constitutional code of equality and equal opportunity, however, does not mean that the same laws must be applicable to all persons. It does not compel the State to run “all its laws in the channels of general legislation”. It recognises that having regard to differences and disparities which exist among men and things, they cannot all be treated alike by the application of the same laws. “To recognise marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic.” Morey v. Doud, 354 U.S. 457, p. 473. The Legislature must necessarily, if it is to be effective at all in solving the manifold problems which continually come before it, enact special legislation directed towards specific ends and limited in its application to special classes of persons or things. “Indeed, the greater part of all legislation is special, either in the extent to which it operates, or the objects sought to be attained by it.” (1889) 134 US 594.

24. We thus arrive at the point at which the demand for equality confronts the right to classify. For it is the classification which determines the range of persons affected by the special burden or benefit of a law which does not apply to all persons. This brings out a paradox. The equal protection of the laws is a “pledge of the protection of equal laws.” But laws may classify. And, as pointed out by Justice Brewer, “the very idea of classification is that of inequality”. The court has tackled this paradox over the years and in doing so, it has neither abandoned the demand for equality nor denied the legislative right to classify. It has adopted a middle course of realistic reconciliation. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. This doctrine recognises that the legislature may classify for the purpose of legislation but requires that the classification must be reasonable. It should ensure that persons or things similarly situated are all similarly treated. The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated. “The Equal Protection of the Laws”, 37 California Law Review, 341.
25. But the question is : what does this ambiguous and crucial phrase “similarly situated” mean? Where are we to look for the test of similarity of situation which determines the reasonableness of a classification? The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law. There should be no discrimination between one person or thing and another, if as regards the subject-matter of the legislation their position is substantially the same. This is sometimes epigrammatically described by saying that what the constitutional code of equality and equal opportunity requires is that among equals, the law should be equal and that like should be treated alike. But the basic principle underlying the doctrine is that the legislature should have the right to classify and imposed special burdens upon or grant special benefits to persons or things grouped together under the

classification, so long as the classification is of persons or things similarly situated with respect to the purpose of the legislation, so that all persons or things similarly situated are treated alike by law. The test which has been evolved for this purpose is ─ and this test has been consistently applied by this Court in all decided cases since the commencement of the Constitution ─ that the classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation.”                    [Emphasis supplied]

30. While doing so, a note of caution was sounded that the fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by the courts to give a practical content to that guarantee by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality.
31. In the case of State of Kerala and Another v. N.M. Thomas and Others, (1976) 2 SCC 310, Mathew, J. observed that Articles 16(1) and 16(2) resply of the Constitution do not prohibit prescription of a reasonable classification for appointment or for promotion. Any provision as to qualification for employment or appointment to an office reasonably fixed and applicable to all would be consistent with the doctrine of equality of opportunity under Article 16(1). It was observed that classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law.
32. In the case of Indra Sawhney (supra), B.P. Jeevan Reddy, J. in his majority opinion, observed in para 733 that Article 16(1) is a facet of Article 14. Just as Article 14 permits reasonable classification so does Article 16(1). 33. In a judgment of the Constitution Bench of this Court, in the case of P.

Royappa v. State of Tamil Nadu and Another, AIR 1974 SC 555, Bhagwati, J. in the context of co-relation between Article 14 and Article l6 of the

Constitution observed as under: –

“85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground it is really in substance and effect merely an aspect of the second ground based on violation of Arts. 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Art. 14 is the genus while Art. 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Arts. 14 and 16.”

34. Similar observations were made also in the context of co-relation between Articles   14  and  16 resply in   the   case   of      of   Andhra Pradesh v. P.B. Vijaykumar and another, AIR 1995 SC 1648. It was observed thus:

“6. This argument ignores Article 15(3). The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Art. 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Arts. 15(1) and 15(3) go together. In addition to Art. 15(1) Art. 16(1), however, places certain additional prohibitions in respect of a specific area of State activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination of the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by clauses 3,4 and 5 of Article

16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 ─ the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State.”
17. In the case of State of Kerala   N.M. Thomas (supra), A.N. Ray, CJ also advanced this theory, observing that there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar   a reasonable classification. It was observed as under:-

“27. There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection (State of Mysore v. V. P. Narasing Rao (1968) 1 SCR 407 :  AIR 1968 SC 349 : (1968) 2 LLJ 120).

28. This equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Articles 16(1) and (2) give effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). Promotion to selection post is covered by Article 16(1) and (2). x   x   x   x
    30. Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class.

The Roadside Station Masters and Guards are recruited separately, trained separately and have separate avenues of promotion. The Station  Masters claimed equality of opportunity for promotion vis-a-vis the guards on the ground that they were entitled to equality of opportunity. It was said the concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. The Roadside Station Masters and Guards were recruited separately. Therefore, the two form distinct and separate classes and there is no scope for predicating equality or inequality of opportunity in matters of promotion. (See All India Station Masters and Assistant Station Masters’ Association v. General Manager, Central Railway (1960) 2 SCR 311 : AIR 1960 SC 384). The present case is not to create separate avenues of promotion for these persons.

31. The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The Legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.”

36. Education, by now, which is well recognised through judicial pronouncements and outside, is perhaps the most fundamental requirement of development. Without access to quality basic education, it would be impossible in the modern world to expect any individual, race, class or community to make any real advancement. While recognising the role of education to achieve development and to provide equality of opportunity, the Courts have also recognised that the State has an important role, in fact an obligation, to provide quality basic education to all the citizens. Long before the Constitution was amended by introduction of Article 21-A, providing for free and compulsory education to children between age of 6 and 14 years, this Court had been expanding this principle through purposive interpretation and meaningful construction of guarantee to life and liberty enshrined under Article 21 of the Constitution. In case of Mohini Jain (Miss) v. State of Karnataka and Others,

(1992) 3 SCC 666, this Court observed as under: –

“9. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making “right to education” under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.

   x                        x                            x                            x

12. “Right to life” is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.
13. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.
14. The “right to education”, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. Increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. The Karnataka State has permitted the opening of several new medical colleges under various private bodies and organisations. These institutions are charging capitation fee as a consideration for admission. Capitation fee is nothing but a price for selling education. The concept of ‘teaching shops’ is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage. As far back as December 1980 the Indian Medical Association in its 56th All India Medical Conference held at Cuttack on December 28-30, 1980 passed the following resolutions:

“The 56th All India Medical Conference views with great concern the attitude of State Governments particularly the State Government of Karnataka in permitting the opening of new medical colleges under various bodies and organisations in utter disregard to the recommendations of Medical Council of India and urges upon the authorities and the Government of Karnataka not to permit the opening of any new medical college, by private bodies.

It further condemns the policy of admission on the basis of capitation fees. This commercialisation of medical education endangers the lowering of standards of medical education and encourages bad practice.””                                [Emphasis supplied]

37. In the case of Unni Krishnan, J.P. and Others v. State of Andhra

Pradesh and Others, (1993) 1 SCC 645, the decision in the case of Mohini Jain (supra) came up for consideration before a larger Bench of this Court. While not approving the judgment in toto, the above concept was further expanded and refined. It was observed as under: –

“168. In Brown v. Board of Education [98 L Ed 873 : 347 US 483 (1954)] Earl Warren, C. J., speaking for the U.S. Supreme Court emphasised the right to education in the following words:

“Today, education is perhaps the most important function of State and local governments …. It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”

169. In Wisconsin v. Yoder [32 L Ed 2d 15 : 406 US 205 (1971)] the court recognised that:

“Providing public schools ranks at the very apex of the function of a State.”

The said fact has also been affirmed by eminent educationists of modern India like Dr Radhakrishnan, J. P. Naik, Dr Kothari and others.

170. It is argued by some of the counsel for the petitioners that Article 21 is negative in character and that it merely declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Since the State is not depriving the respondents’­students of their right to education, Article 21 is not attracted, it is submitted. If and when the State makes a law taking away the right to education, would Article 21 be attracted, according to them. This argument, in our opinion, is really born of confusion; at any rate, it is designed to confuse the issue. The first question is whether the right to life guaranteed by Article 21 does take in the right to education or not. It is then that the second question arises whether the State is taking away that right. The mere fact that the State is not taking away the right as at present does not mean that right to education is not included within the right to life. The content of the right is not determined by perception of threat. The content of right to life is not to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is

implicit in the right to life is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law.

171. In the above state of law, it would not be correct to contend that Mohini Jain [Mohini Jain v. State of Karnataka, (1992) 3 SCC 666] was wrong insofar as it declared that “the right to education flows directly from right to life”. But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him education of his choice? In other words, whether the citizens of this country can demand that the State provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini Jain [Mohini Jain v. State of Karnataka, (1992) 3 SCC 666] seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in Part IV of the Constitution. So far as the right to education is concerned, there are several articles in Part IV which expressly speak of it. Article 41 says that the “State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”. Article 45 says that “the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”. Article 46 commands that “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”. Education means knowledge ─ and “knowledge itself is power”. As rightly observed by John Adams, “the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country”. (Dissertation on Canon and Feudal Law, 1765) It is this concern which seems to underlie Article 46. It is the tyrants and bad rulers who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said: “Universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction.” (Rauschning, The Voice of Destruction: Hitler speaks.) A true democracy is one where education is universal, where people understand what is good for them and the nation and know how to govern themselves. The three Articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these Articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means: (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately.
172. Right to free education for all children until they complete the age of fourteen years (Art.45). It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to “endeavour to provide” the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years ─ more than four times the period stipulated in Article 45 ─ convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Article 45 does not speak of the “limits of its economic capacity and development” as does Article 41, which inter alia speaks of right to education. What has actually happened is ─ more money is spent and more attention is directed to higher education than to ─ and at the cost of ─ primary education. (By primary education, we mean the education, which a normal child receives by the time he completes 14 years of age.) Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay down the priorities for the government ─ we are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these constitutional provisions is beyond question. This inversion of priorities has been commented upon adversely by both the educationists and economists.

173. Gunnar Myrdal, the noted economist and sociologist, a recognised authority on South Asia, in his book ‘ Asian Drama’ (Abridged Edition ─ published in 1972) makes these perceptive observations at page 335:

“But there is another and more valid criticism to make. Although the declared purpose was to give priority to the increase of elementary schooling in order to raise the rate of literacy in the population, what has actually happened is that secondary schooling has been rising much faster and tertiary schooling has increased still more rapidly. There is a fairly general tendency for planned targets of increased primary schooling not to be reached, whereas targets are over-reached, sometimes substantially, as regards increases in secondary and, particularly, tertiary schooling. This has all happened in spite of the fact that secondary schooling seems to be three to five times more expensive than primary schooling, and schooling at the tertiary level five to seven times more expensive than at the secondary level. 

What we see functioning here is the distortion of development from planned targets under the influence of the pressure from parents and pupils in the upper strata who everywhere are politically powerful. Even more remarkable is the fact that this tendency to distortion from the point of view of the planning objectives is more accentuated in the poorest countries, Pakistan, India, Burma and Indonesia, which started out with far fewer children in primary schools and which should therefore have the strongest reasons to carry out the programme of giving primary schooling the highest priority. It is generally the poorest countries that are spending least, even relatively, on primary education, and that are permitting the largest distortions from the planned targets in favour of secondary and tertiary education.”

174. In his other book Challenge of World Poverty (published in

1970, Chapter 6 ‘Education’) he discusses elaborately the reasons for and the consequences of neglect of basic education in this country. He quotes J.P. Naik, (the renowned educationist, whose Report of the Education Commission, 1966 is still considered to be the most authoritative study of the education scene in India) as saying “Educational development … is benefitting the ‘haves’ more than the ‘have nots’. This is a negation of social justice and ‘planning’ proper” ─ and our Constitution speaks repeatedly of social justice [Preamble and Article 38(1)]. As late as 1985, the Ministry of Education had this to say in para 3.74 of its publication Challenge of Education ─ A Policy Perspective. It is stated there:

“3.74. Considering the constitutional imperative regarding the universalisation of elementary education it was to be expected   that the share of this sector would be protected from attribution (sic). Facts, however, point in the opposite direction. From a share of 56 per cent in the First Plan, it declined to 35 per cent in the Second Plan, to 34 per cent in the Third Plan, to 30 per cent in the Fourth Plan. It started going up again only in the Fifth Plan, when it was at the level of 32 per cent, increasing in Sixth Plan to 36 per cent, still 20 per cent below the First Plan level. On the other hand, between the First and the Sixth Five Year Plans, the share of university education went up from 9 per cent  to 16 per cent.”

175. Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality ─ at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to the age of 14 years.”

38. The decision of this Court in the case of Unni Krishnan (supra) was later on overruled in a larger Bench decision in the case of M.A. Pai Foundation and Others v. State of Karnataka and Others, (2002) 8 SCC 481, but on a different point.
39. In the case of Society for Unaided Private Schools of Rajasthan v. Union of India and Another, (2012) 6 SCC 1, this Court considered the validity of the Right of Children to Free and Compulsory Education Act, 2009 insofar as it made the provisions therein applicable to unaided nonminority schools. S.H. Kapadia, CJ, speaking for the majority, observed as under:

“27. At the outset, it may be stated, that fundamental rights have two aspects─they act as fetters on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State’s endeavour to provide free and compulsory education for all children of the specified age. To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word “for” in Article 45 is a preposition. The word “education” was read into Article 21 by the judgments of this Court. However, Article 21 merely declared “education” to fall within the contours of right to live.

28. To provide for right to access education, Article 21-A was enacted to give effect to Article 45 of the Constitution. Under Article 21-A, right is given to the State to provide by law “free and compulsory education”. Article 21-A contemplates making of a law by the State. Thus, Article 21-A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child-centric and not institution-centric. Thus, as stated, Article 21-A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is thus enacted in terms of Article 21-A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education.”