2. Prohibition of Discrimination on Certain Grounds

Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are 'discrimination’ and 'only’. The word 'discrimination’ means 'to make an adverse distinction with regard to’ or 'to distinguish unfavourably from others’. The use of the word 'only’ connotes that discrimination on other grounds is not prohibited.

The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State.

There are four exceptions to this general rule of non-discrimination:

(a) The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.

(b) The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes4. For example, reservation of seats or fee concessions in public educational institutions.

(c) The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including

private educational institutions, whether aided or unaided by the state, except the minority educational institutions.

(d) The state is empowered to make any special provision for the advancement of any economically weaker sections of citizens. Further, the state is allowed to make a provision for the reservation of upto 10% of seats for such sections in admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions. This reservation of upto 10% would be in addition to the existing reservations. For this purpose, the economically weaker sections would be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage.

Reservation for OBCs in Educational Institutions

The above exception(c) was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs). In April 2008, the Supreme Court upheld the validity of both, the Amendment Act and the OBC Quota Act. But, the Court directed the central government to exclude the 'creamy layer’ (advanced sections) among the OBCs while implementing the law.

The children of the following different categories of people belong

to 'creamy layer’ among OBCs and thus will not get the quota benefit :

1. Persons holding constitutional posts like President, Vice- President, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.

2. Group 'A’ / Class I and Group 'B’ / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks, Insurance Organisations, Universities etc., and also in private employment.

3. Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces.

4. Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on.

5. Persons engaged in trade, business and industry.

6. People holding agricultural land above a certain limit and vacant land or buildings in urban areas.

7. Persons having gross annual income of more than ₹8 lakh or possessing wealth above the exemption limit. In 1993, when the "creamy layer” ceiling was introduced, it was ₹1 lakh. It was subsequently revised to ₹2.5 lakh in 2004, ₹4.5 lakh in 2008, ₹6 lakh in 2013 and ₹8 lakh in 2017.

Reservation for EWSs in Educational Institutions

The above exception (d) was added by the 103rd Amendment Act of 2019. In order to give effect to this provision, the central government issued an order (in 2019) providing 10% reservation to the Economically Weaker Sections (EWSs) in admission to educational institutions. The benefit of this reservation can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservations for SCs, STs and OBCs. The eligibility criteria laid down in this regard is as follows:

1. Persons whose family has gross annual income below ₹8 lakh are to be identified as EWSs for the benefit of reservation. The income would include income from all sources i.e., salary, agriculture, business, profession etc. and it would be income for the financial year prior to the year of application.

2. Persons whose family owns or possesses any one of the following assets are to be excluded from being identified as EWSs, irrespective of the family income:

(a) 5 acres of Agricultural land and above.

(b) Residential flat of 1000 sq.ft. and above.

(c) Residential plot of 100 sq.yards and above in notified municipalities.

(d) Residential plot of 200 sq.yards and above in areas other than the notified municipalities.

3. The property held by a family in different locations or different places / cities would be clubbed while applying the land or property holding test to determine EWS status.

4. Family for this purpose would include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/ her spouse and children below the age of 18 years.