Protective Discrimination — Articles 15 & 16 — KSLU Constitutional Law Notes

Protective Discrimination — Articles 15 & 16

Formal equality (Art. 14) is not enough where centuries of disadvantage have left groups unable to compete. Articles 15 and 16 permit protective discrimination — positive measures for the backward — as a tool of substantive equality.

• Article 15 — the State shall not discriminate on grounds only of religion, race, caste, sex or place of birth; but it may make special provision for women and children (15(3)), for socially and educationally backward classes / SC / ST (15(4)), and for their admission to educational institutions including private ones (15(5)).
• Article 16 — equality of opportunity in public employment; but the State may reserve posts for backward classes not adequately represented (16(4)), and provide for reservation in promotions (16(4A)) and consequential seniority.

flowchart TD
    A["Reservation — the limits<br/>(Indra Sawhney, 1992)"]:::root
    A --> B["50% ceiling on total<br/>reservations (normally)"]:::leaf
    A --> C["Creamy layer EXCLUDED<br/>from OBC benefit"]:::leaf
    A --> D["No reservation in<br/>promotions for OBCs<br/>(later 16(4A) for SC/ST)"]:::leaf
    A --> E["Backwardness +<br/>inadequate representation"]:::leaf

    classDef root fill:#FFF8DC,stroke:#333,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

The governing authority is Indra Sawhney v. Union of India (1992) — the Mandal case: total reservations should not exceed 50% (save extraordinary circumstances), the “creamy layer” among OBCs must be excluded, and there is no reservation in promotions for OBCs (Parliament later added Art. 16(4A) for SC/ST). M. Nagaraj (2006) and Jarnail Singh (2018) refined promotion reservation; Ashoka Kumar Thakur (2008) upheld the 27% OBC educational quota with creamy-layer exclusion.