Unit III — Protective Discrimination & Freedoms

“Equality of opportunity… includes the duty of the State to remove inequality.” — the spirit of Articles 15 & 16

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.

Abolition of Untouchability — Article 17

Article 17 abolishes “untouchability” and forbids its practice in any form; enforcing any disability arising out of it is an offence (the Protection of Civil Rights Act, 1955; the SC/ST (Prevention of Atrocities) Act, 1989). It is one of the few rights enforceable against private individuals, not just the State — a direct constitutional assault on a social evil.

Right to Freedom — Article 19

Article 19(1) guarantees six freedoms to citizens: (a) speech and expression, (b) assembly, (c) association, (d) movement, (e) residence, and (g) profession, trade or business. None is absolute — each is subject to reasonable restrictions in the public interest under clauses 19(2)–(6).

The recurring exam themes:

Reasonableness must be tested — a restriction must be reasonable and in the interest of a listed ground; the proportionality standard applies (a total prohibition needs the strongest justification).
Free speech (19(1)(a)) includes the freedom of the press, the right to know, commercial speech, and is restrictable only on the eight grounds in 19(2) — Romesh Thappar (1950), Shreya Singhal (2015, striking down §66A IT Act).
Trade/business (19(1)(g)) — the State may regulate or even, for a res extra commercium (e.g., liquor), prohibit; but a total ban on a lawful trade with no proportionate alternative is suspect.

✏️ Sample Solved Problem (IRAC Method)

Problem: A State reserves 68% of seats for backward classes and refuses to exclude the creamy layer, calling it greater social justice. The scheme is challenged.

I — Issue

Whether reservations totalling 68%, with no creamy-layer exclusion, are constitutionally valid under Articles 15(4)/16(4).

R — Rule

Indra Sawhney v. Union of India (1992): total reservations must not exceed 50% except in extraordinary, well-justified circumstances; and the creamy layer among the backward classes must be excluded, since the advanced among them no longer need the benefit.

A — Analysis

Two independent defects sink the scheme. First, 68% breaches the 50% ceiling — and “greater social justice,” without an extraordinary factual justification of the kind Indra Sawhney contemplates, does not license crossing it (it would otherwise swallow the rule and reduce general-category opportunity to a remnant). Second, refusing to exclude the creamy layer is directly contrary to Indra Sawhney: benefits captured by the already-advanced defeat the very purpose of the provision. The decoy — that more reservation always means more justice — confuses formal generosity with constitutionally calibrated equality.

C — Conclusion

The scheme is unconstitutional on both counts: it exceeds the 50% limit and fails to exclude the creamy layer (Indra Sawhney). It must be brought within 50% and apply the creamy-layer filter.

📄 The full bundle (₹199) has the complete Unit III — Arts. 15/16 with the full reservation jurisprudence, Art. 17, and all six freedoms under Art. 19 with blueprints — plus the Question Bank’s model answers to the reservation, trade-prohibition and film-censorship (K.A. Abbas) problems. Get Notes + Question Bank — ₹199