The rights under Part III of Indian Constitution which give right to equality, form equality code under the constitution. Articles 14, 15, 16 and 17 are part of that code.

Equality Code

Articles 14, 15, 16 and 17 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.

Article 17 abolishes ‘untouchability’.

These Articles form part of the same Constitutional code of guarantees and, in the sense, supplement to each other. 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.

Historical analysis of the Equality Code

(i) Article 15

The original draft Constitution contained a provision that comprehensively encompassed the idea of non-discrimination, in draft Article 9, which later emerged as Article 15. This article, and more specifically Article 15(2), prohibited discrimination in various spheres and commended that access be made available to a range of facilities, spaces, and resources on a non-discriminatory basis.

Motilal Nehru Report

The history and evolution of this Article as it stands today, is revealing. The Motilal Nehru Report 1928, had recommended, in the demand for self-rule a charter of governance and basic human rights. The relevant provision, Clause 4 (v), (vi), (xiii) and (xiv) read as follows:

(v) All citizens in the Commonwealth of India have the right to free elementary education without any distinction of caste or creed in the matter of admission into any educational institutions, maintained or aided by the state, and such right shall be enforceable as soon as due arrangements shall have been made by competent authority.

Provided that adequate provisions shall be made by the State for imparting public instruction in primary schools to the children of members of minorities of considerable strength in the population through the medium of their own language and in such script as in vogue among them.

(vi) All citizens are equal be for the law and possess equal civic rights.

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(xiii) No person shall by reason of his religion, caste or creed be prejudiced in any way in regard to public employment, office of power or honour and the exercise of any’ trade or calling.

(xiv) All citizens have an equal right of access to, and use of, public roads, public wells and all other places of public resort.”

Poona Act

Similarly, the historic Poona Pact contained the seeds of what are now Articles 15 and 16:

“…8. There shall be no disabilities attached to any one on the ground of his being a member of the Depressed Classes in regard to any election to local bodies or appointment to the public services. Every endeavour shall be made to secure a fair representation of the Depressed Classes in these respects, subject to such educational qualifications as may be laid down for appointment to the Public Services.

9. In every province out of the educational grant an adequate sum shall be ear-marked for providing educational facilities to the members of Depressed Classes,”

Drafts in Constituent Assembly

Dr. Ambedkar and Sh. K.M. Munshi, had drafted two versions, on similar lines. These two drafts were discussed by the Sub-Committee on Fundamental Rights and an amended form, was included in their draft report:

(1) All persons within the Union shall be equal before the law. No personal shall be denied the equal protection of the laws within the territories of the Union. There shall be no discrimination against any person on grounds of religion, race, caste, language or sex. In particular –

(a) There shall be no discrimination against any person on any of the grounds aforesaid in regard to the use of wells, tanks, roads, schools and places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public.

After discussions, the Advisory Committee recommended that the non-discrimination provision would be an independent clause protecting a ‘citizen’, and the ground of ‘language’ was dropped.

Members of the Minority Sub-Committee, then considered this clause and made further recommendations – including, that education and schools should not be within the purview of this provision. A four-member sub-committee including Dr. Ambedkar was constituted and tasked to draw a specific provision in this regard. This resulted in a general provision which reads as follows:

“the State shall make no discrimination against any citizens on grounds of religion, race, caste or sex”, but it was clarified that with regard to access to trading establishments, restaurants, etc., ‘sex’ would not be a prohibited ground. This too, did not pass muster and therefore, the re-drafted clause had a general principle prohibiting discrimination, with a separate articulation within the provision which allowed for separate amenities for the benefit of women and children.

With minor changes, this was included as clause 11 in the Draft Constitution of October 1947, and was later accepted by the Drafting Committee without change, as Article 9. The debates in the Constituent Assembly leading to the framing of Articles 15(1) and 15(2) clearly point to the overarching idea of non-discrimination as one of the basic facets of equality [which is reflected clearly in the jurisprudence of this court; elaborated more in Part III (A)].

Laws or executive action that further discrimination, directly or indirectly, on proscribed grounds, have also been recognised as violative of the right to equality, and consequently have been struck down, routinely by Supreme Court[1].

(ii) Article 16

As far as Article 16 goes, the idea behind that provision was to achieve the goal of equal opportunity (as appearing in the Preamble) in matters of public employment.

The difference between Articles 15(1) and 16(1) is that the former applies generally and prohibits the State from discriminating on enumerated grounds in diverse activities – including access to educational institutions, amenities, and other public goods, which are to be made available without regard to caste, religion, or sex, etc.

Article 16(1) is a positive right declaring that all are equal in terms of opportunity for public employment. Article 16(2) goes on to enumerate grounds such as caste, race, religion, caste, sex, descent, place of birth and residence [few of which are different from the proscribed ground under Article 15(1)] as grounds on which the state cannot discriminate. Article 16(3) empowers Parliament (to the exclusion of State legislatures) to enact law, prescribing requirements as to residence within a State or Union Territory, for a class or classes of employment or appointment to local or other authorities, within a State or Union Territory.

The Constitution makers did not wish to arm the State legislature with the power of prescribing local residential qualifications for employment within the State or local authorities and preferred to entrust that power with the Parliament which were expected to lay down principles of general application in that regard.

Article 16(4) is the only provision in the original Constitution which enabled reservation – in favour of any backward class of citizens that were not adequately represented in the services under the State.

In this context, in that part of the debate dealing with “backward classes” in draft Article 10(1)- in the Constituent Assembly Debates, Dr. Ambedkar spoke about the three points of view which recommended reconciliation to a workable proposition:

firstly, that every individual qualified for a particular post should be free to apply and compete for it;

secondly, that the fullest operation of the first rule would mean that there ought to be no reservation for any class or community at all; and

the third significant point that though theoretically, equality of opportunity should be available to all, at the same time, some provision should be made for entry of certain community “which have so far been outside the administration”[2].

Proposing Article 10(3), Dr. Ambedkar stated that Article 10(1) (precursor to Article 16(4) and 16(1) respectively) is a “generic principle”:

At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now—for historical reasons—been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services.”

Dr. Ambedkar then went on to say that reservation should operate ideally for a minority of posts and that the identifying principle for positive discrimination would be use of a “qualifying phrase such as backward” in whose favour an exception could be made without which the exception could ultimately eat up the rule.

The idea or dominant theme behind the entire scheme of Article 16, right through Article 16(4) – is equality of opportunity in matters of public employment. At the same time, the Constitution framers realised that substantive equality would not be achieved unless allowance were made through some special provision ensuring representation of the most backward class of citizens who were hitherto, on account of caste practices, or such constraints, barred from public employment.

Therefore, the idea of Section 16(4) essentially is to enable representation, the controlling factor being adequacy of representation. That apart, the other control which the Constitution envisioned was the identification of backward classes of citizens through entrenched provisions that set up institutions which were to function in an objective manner based on certain norms – Articles 340, 341 and 342, which relate to Identification of SC/ST/BC- and the newly added Article 342A.

Article 17

The anxiety of the Constitution framers in outlawing untouchability in all forms (without any reference to religion or community), resulted in its express manifestation as Article 17, wherein the expression “untouchability” was left undefined. The debates of the Assembly suggest that this was intentional.

B. Shiva Rao’s treatise[3] discloses that proceedings of the Sub-Committee on Fundamental Rights, which undertook the task of preparing the draft provisions on fundamental rights suggested a clause enabling for the abolition of “untouchability”- this was Clause 4(a) of Article III of K.M. Munshi’s draft of fundamental rights:

“Untouchability is abolished and the practice thereof is punishable by the law of the Union.”

And similarly, Article 11(1) of Dr Ambedkar’s draft provided that:

“any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom is abolished.”

Considerable deliberations took place since there was unanimity among all sections of representatives in the Constituent Assembly that the practice of untouchability (in all its forms) had to be outlawed. The Assembly bestowed its attention to the minutiae of what constitutes untouchability, whether its forms of practice in the Hindu religion alone qualified for prohibition, or also inter-communally, etc. Dr. Ambedkar, K.M. Munshi, Sardar Patel, and B.N. Rau, participated in all these deliberations.

Shiva Rao observes that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms— whether it was untouchability within a community or between various communities”

Attempts made to amend the article were deemed unnecessary due to the careful and extensive deliberations, and the unanimity amongst members; there was actually no change in the draft, which survived to become a part of the Constitution:

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law.”

The result was an all-encompassing provision which Article 17 is as it stands, outlawing untouchability in all its forms – by the State, individuals, and other entities. The reach and sweep of this provision – like Article 15(2) is wide; it is truly horizontal in its application.

Other provisions in the Constitution

The other provisions which expressly forbid and injunct the state from practising discrimination are Article 29(2) and Article 325.

Article 29 (2) enacts that,

“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.”

Article 325 reads as follows:

“325. No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex: There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.”

Content of Equality Code

The equality code (Articles 14, 15, 16, and 17), does not merely visualize a bland statement of equality before law and equal protection of law but also contains specific injunctions against state from discriminating on proscribed grounds [such as caste, race, sex, place of birth, religion, or any of them, in Article 15; and caste, sex, religion, place of residence, descent, place of birth, or any of them, in Article 16].

The engraining of these specific heads – enjoining the State not to discriminate on such specific heads, such as caste, religion or sex is therefore, as much part of equality code, as the principle of equality enacted in general terms, in Article 14. The inclusion of Article 17 – as an unequivocal injunction, against untouchability, of any form, enjoins the state to forbear caste discrimination, overtly, or through classification, and looms large as a part of the equality code and indeed the entire framework of the Constitution.

The elaborate design of the Constitution makers, who went to great lengths to carefully articulate provisions, such that all forms of discrimination were eliminated – was to ensure that there was no scope for discrimination of the kind that the society had caused in its most virulent form in the past, before the dawn of the republic. These, together with the affirmative action provisions – initially confined to Articles 15(3) and 16(4), and later expanded to Article 15(4) and 15(5) – was to guarantee that not only facial discrimination was outlawed but also that the existing inequalities were ultimately eliminated.

Equality Code is a part of the basic structure

That the principle of equality is the most important indispensable feature of the Constitution and destruction thereof will amount to changing the basic structure of the Constitution has been held in numerous cases.

That it is an inextricable part of the basic structure, is clearly enunciated in Kesavananda Bharati (para 1159, SCC), Minerva Mills (para 19), Raghunath Ganpatrao (para 142), R. C. Poudyal (para 54), Indra Sawhney (para 260-261), Indra Sawhney (2) v. Union of India (para 64-65), M. Nagaraj (para 31-32) and I.R. Coelho (para 105), among others.

In Indira Gandhi v. Rajnarayan (1975), Y.V. Chandrachud, J. identified “equality of status and opportunity” to all its citizens, as an unamendable basic feature of the Constitution.

In the same case, K. K. Mathew, J. identified specific provisions of the Constitution, relating to the equality principle, as a part of the basic structure:

“334. Equality is a multi-coloured concept incapable of a single definition. It is a notion of many shades and connotations. The preamble of the Constitution guarantees equality of status and of opportunity. They are nebulous concepts. And I am not sure whether they can provide a solid foundation to rear a basic structure.

I think the types of equality which our democratic republic guarantees are all subsumed under specific articles of the Constitution like Articles 14, 15, 16, 17, 25 etc., and there is no other principle of equality which is an essential feature of our democratic polity.”

In a five-judge bench decision, through his concurring opinion, S.B. Sinha, J stated, in Saurabh Chaudri & Ors. v. Union of India & Ors.[4] That:

“82. Article 14 of the Constitution of India prohibits discrimination in any form. Discrimination at its worst form would be violative of the basic and essential feature of the Constitution. It is trite that even the fundamental rights of a citizen must conform to the basic feature of the Constitution. Preamble of the Constitution in no uncertain terms lays emphasis on equality.”

A nine-judge bench of this court, in S.R. Bommai v. Union of India[5] , though not dealing with a constitutional amendment, opined that “these fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution….”.

Again, in M. Nagaraj, it was opined that “…the principle which emerges is that “equality” is the essence of democracy and, accordingly a basic feature of the Constitution.”

I.R. Coelho v. State of Tamil Nadu[6] is the next important decision, of note, by a nine-judge bench decision. The court, undoubtedly was not concerned with the direct impact of an amendment on Article 14 or equality, but with the effect of an overarching immunizing provision such as Article 31-B. It was unanimously held, that:

“109. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati case [(1973) 4 SCC 225] clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution.

It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it.

This is the ratio of the decision in Indira Gandhi case [1975 Supp SCC 1]. […]

141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.

142. There is also a difference between the ‘rights test’ and the ‘essence of right test’. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring limited power of amendment, an entire Chapter is made inapplicable, ‘the essence of the right’ test as applied in M. Nagaraj’s case (supra) will have no applicability. In such a situation, to judge the validity of the law, it is ‘right test’ which is more appropriate.

We may also note that in Minerva Mills and Indira Gandhi’s cases, elimination of Part III in its entirety was not in issue. We are considering the situation where entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunization at will by the Parliament which, in our view, is incompatible with the implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate and is to be applied…”

Observations in the cases referred to above, therefore, have outlined that certain provisions of the equality code – rather the ideas – and principles intrinsic to Articles 14 and 15, and the rights in Articles 19 and 21, are part of the basic structure of the Constitution.

Speaking of the general right to equality, this court in Vikas Sankhala & Ors. v. Vikas Kumar Agarwal & Ors[7] stated that,

“65. Going by the scheme of the Constitution, it is more than obvious that the framers had kept in mind social and economic conditions of the marginalized Section of the society, and in particular, those who were backward and discriminated against for centuries. Chapters on ‘Fundamental Rights’ as well as ‘Directive Principles of State Policies’ eloquently bear out the challenges of overcoming poverty, discrimination and inequality, promoting equal access to group quality education, health and housing, untouchability and exploitation of weaker section.

In making such provisions with a purpose of eradicating the aforesaid ills with which marginalized Section of Indian society was suffering (in fact, even now continue to suffer in great measure), we, the people gave us the Constitution which is transformative in nature…”

It was also held that “67. […] when our Constitution envisages equal respect and concern for each individual in the society and the attainment of the goal requires special attention to be paid to some that ought to be done. Giving of desired concessions to the reserved category persons, thus, ensures equality as a levelling process. At jurisprudential level, whether reservation policies are defended on compensatory principles, utilitarian principles or on the principle of distributive justice, fact remains that the very ethos of such policies is to bring out equality, by taking affirmative action…”

In Samatha v. State of A.P. & Ors.[8] this court underlined the unity of directive principles and fundamental rights, and the deep, intrinsic connection between equality, liberty, and fraternity: “72. […] Fundamental Rights and Directive Principles of the Constitution have fused in them as fundamental human rights as indivisible and interdependent. The Constitution has charged the State to provide facilities and opportunities among the people and groups of people to remove social and economic inequality and to improve equality of status.

Article 39(b) enjoins the State to direct its policy towards securing distribution of the ownership and control of the material resources of the community as best to subserve the common good. The founding fathers with hind sight, engrafted with prognosis, not only inalienable human rights as part of the Constitution but also charged the State as its policy to remove obstacles, disabilities and inequalities for human development and positive actions to provide opportunities and facilities to develop human dignity and equality of status and of opportunity for social and economic democracy.

Economic and social equality is a facet of liberty without which meaningful life would be hollow and mirage.”

In a similar manner, Indian Medical Association & Ors. v. Union of India & Ors. 61 underscored the centrality of equality and the egalitarian principle, of the Constitution: “165. It is now a well settled principle of our constitutional jurisprudence that Article 14 does not merely aspire to provide for our citizens mere formal equality, but also equality of status and of opportunity. The goals of the nation-state are the securing for all of its citizens a fraternity assuring the dignity of the individual and the unity of the nation.

While Justice – social, economic and political is mentioned in only Article 38, it was also recognized that there can be no justice without equality of status and of opportunity (See M. Nagaraj). As recognized by Babasaheb Ambedkar, at the moment that –ur Constitution just set sail, that while the first rule of the ship, in the form of formal equality, was guaranteed, inequality in terms of access to social and economic resources was rampant and on a massive scale, and that so long as they individually, and the social groups they were a part of, continue to not access to social and economic resources that affords them dignity, they would always be on the margins of the ship, with the ever present danger of falling off that ship and thereby never partaking of the promised goals of that ship.

Babasaheb Ambedkar with great foresight remarked that unless such more fundamental inequalities, that foster conditions of injustice, and limit liberty of thought and of conscience, are eradicated at the earliest, the ship itself would be torn apart. […]

168. An important and particular aspect of our Constitution that should always be kept in mind is that various aspects of social justice, and an egalitarian social order, were also inscribed, not as exceptions to the formal content of equality but as intrinsic, vital and necessary components of the basic equality code itself.

To the extent there was to be a conflict, on account of scarcity, it was certainly envisaged that the State would step in to ensure an equitable distribution in a manner that would be conducive to common good; nevertheless, if the state was to transgress beyond a certain limit, whereby the formal content of equality was likely to be drastically abridged or truncated, the power of judicial review was to curtail it…”

Therefore, the design of the Constitution, which by the Preamble, promises justice – social, economic, and political, liberty of thought and expression, equality, and fraternity; and the various provisions which manifest it (Articles 14-18, 19, 20-21, 23-24, 29, 38-39, 41 and 46) – articulate an organic and unbreakable bond between these concepts, which are guarantees.

The idea of the twin assurance of non-discrimination and equality of opportunity, is to oblige the state to ensure that meaningful equality is given to all. Similarly, the fraternal principle binds both the state and the citizen, as without fraternity, liberty degenerates to individualistic indulgence. Without dignity, equality and liberty, are rendered hollow.

This inviolable bond, therefore, is part of the core foundation of our republic. Freedom from colonial rule was with the agenda of creating a democratic republic, reflecting the unique genesis of its nation, holding the people with diverse languages, cultures, religions with a common bond of egalitarianism, fraternity, and liberties, assuring dignity to all – the State and the citizens were to ensure that these were preserved, at all times, for each individual.

This principle of equality – non-discrimination or non-exclusion, never had occasion to be considered in past decisions that examined amendments to the Constitution which dealt with different facets of equality – such as the ceiling on land holding (Waman Rao, Bhim Singhji v. Union of India[9]) or omission of princely privileges (Raghunath Ganpatrao). Thus the court did not adjudicate upon the non-discriminatory or non-exclusionary principle.

In each case, the facet of equality alleged to have been violated by a constitutional amendment, limited or affected property. In other words, the focus of every instance where an amendment was struck down (barring those in L. Chandra Kumar, P. Sambamurthy, Indira Gandhi, and Kihoto Hollohan) were defining of excess property in the hands of the “haves” and the more fortunate, in possession of land exceeding ceilings (agrarian or otherwise), and dismantling of princely privileges deemed antithetical to republicanism and thereby promoting republicanism and equality.

The court’s caveat – be it in Kesavananda Bharati, Waman Rao or Bhim Singhji – were only to the extent that oversight, to ensure that the contents of the laws adhered to the directive principles and were not a mask or veneer to extinguish liberties enshrined in Articles 14 and 19, and were to be retained.

The effort of the State in each of these instances, was to create new avenues by expropriation of wealth, assets, and properties from the ‘haves’ and ensure distributive justice in furtherance of the objectives under Article 38 [particularly clause (2); and also Article 39 (particularly clause (b)] – that of minimising inequalities, and distribution of ownership and control of material resources, respectively. Thus, 263 entries out of the total of 284 entries in the IXth Schedule of the Constitution, are legislations relating to land reforms, land ceilings, and other agrarian reforms acts, of the States and Union Territories.

In the other class of amendments where the constitutional ethos was promoted [introduction of Article 21A, and Article 15(5) (to facilitate Article 21A)], this court’s decisions (in Pramati and Society for Unaided Schools of Rajasthan v. Union of India63 respectively) are telling, because these provisions did not practice discrimination in the sharing of new benefits or rights, and were inclusive. The court naturally upheld them.

The only challenge dealing with equality – in M. Nagaraj, failed because the right to “catch up rule” was a derivative principle evolved by the court, in the context of the larger canvas that there was no right to promotion [Article 16(4) did not carry within it the right to promotion – a formulation in Indra Sawhney, which holds good even as on date, for all classes save the SCs and STs]. This court held that such rule did not negate the “essence” of equality or its “egalitarian” facet.

In juxtaposition to all this, for the first time, the constituent power has been invoked to practice exclusion of victims of social injustice, who are also amongst the poorest in this country, which stands in stark contradiction of the principle of egalitarianism and social justice for all. The earlier amendments were aimed at ensuring egalitarianism and social justice in an inherently unequal society, where the largest mass of people were impoverished, denied access to education, and other basic needs.

In every case, which implicates the right to equality, when the Court is asked to adjudge upon the validity of a Constitutional amendment, invariably what the Court focuses its gaze upon, is what is facet of equality. The debates which led to the framing of the Constitution, are emphatic that the equalizing principle is a foundational tenet “an article of faith” upon which our democratic republic rests.

Equality – both as a principle, an idea, and as a provision is “so mixed” as to make it impossible to extricate the form from the substance, the idea from its expression. Likewise, equality – of protection before the law, of opportunity – as a right not to be discriminated against on grounds enumerated in Articles 15(1) and 16(1) are engrained principles, nay, entrenched entitlements. The question which this court therefore addresses, in every case which complains of infractions of the essential features of the Constitution is – has that principle been undermined or the core idea (of equality) been distorted.

.The bedrock value which enlivens Articles 14, 15, 16, 17, 18, 29(2), and 325, therefore, is the principle of non-discrimination. Alongside the generic principle of equality, captured by Article 14, is the idea that certain segments of society which had been historically stigmatised and discriminated on account of the caste identity of its members, should be the beneficiaries of protective discrimination to enable them proper access to public goods, facilities, spaces, and representation in public employment. The idea of equality, therefore, is tethered to another inseparable facet, i.e., non-discrimination, that there cannot be any exclusion by the state in these vital spheres of human activity.

This principle of non-discrimination is what emerges from the history of the provisions (outlined previously), and the precedents of this court. Further, the manner in which these provisions have been interpreted reiterate that integral to that non-discriminatory facet, is the idea of positive discrimination in favour of hitherto discriminated communities (“Harijans”, as termed in N.M. Thomas, or SC/STs). Consequently, the irresistible conclusion is that non-discrimination – especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provisions in Articles 17 and 15] constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic 45 structure.


Judgment of Justice Ravindra Bhatt in Janhit Abhiyan v. Union of India (2023)

[1] Air India v. Nargesh Mirza (1981) SC 1829, 1982 SCR (1) 438; Vishaka v. State of Rajasthan (1997) 6 SCC

241: 1997 SCC (Cri) 932; Anuj Garg and Others v. Hotel Association of India and Others, (2008) 3 SCC 1; National Legal Services Authority v UOI and Others (2014) 5 SCC 438; Indian Young Lawyers Association and

Ors. v. State of Kerala and Ors. (2019) 11 SCC 1; Vineeta Sharma v. Rakesh Sharma & Others, (2020) 9 SCC 1;

Secretary, Ministry of Defence v. Babita Puniya & Others (2020) 7 SCC 469; Lt. Col. Nitisha & Others v. Union

of India & Others, 2021 SCC OnLine SC 261.

[2] Constituent Assembly Debates, Vol. 7, 30th November 1948, 7.63.205.

[3] B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration

(1968), at p. 202

[4] 6 (2003) 11 SCC 146

[5] S.R. Bommai v. Union of India, (1994) 3 SCC 1

[6] (2007) 2 SCC 1

[7] Vikas Sankhala v. Vikas Kumar Agarwal, (2017) 1 SCC 350

[8] Samatha v. State of A.P., (1997) 8 SCC 191; 1997 (Supp 2) SCR 305

[9] Bhim Singhji v. Union of India, (1981) 1 SCC 166