The Constitution Of India 1949

Article 15
Article 15
The Constitution Of India 1949

Article 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 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
a) access to shops, public restaurants, hotels and palaces of public
entertainment; or
b) 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 the general public
3. Nothing in this article shall prevent the State from making any
special provision for women and children
4. 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

The stories of women being beaten up
for drawing water from well, people being
harassed if their shadow falls on other
men, devotees being stopped from
entering into the temple and beaten up
for touching idols of gods has become a
common affair of newspapers headlines
whenever I go through one. It seemed to
me like a nightmare which has compelled
me to look into the provisions in force
that prohibit such differentiation.

Article 15 of the Indian constitution talks
about the prohibition of
discrimination (unreasonable
differentiation).

But questions that arose in the mind was,
what does discrimination signify?
Scope of the word ‘Discrimination’:

Discrimination occurs when you are
distinguished or treated in a less
favourable manner than another person
under similar circumstances or if you are
disadvantaged by being placed on equal
footing another under different
circumstances, for example, you being
disabled or pregnant.

This action cannot be reasonably and
objectively justified.
Article 15 restricts discrimination on
the ground of:

Religion – It means that no person should be
discriminated on the basis of religion from accessing
any public place or policy by the state or any group.

Race – Ethnic origin should not form a basis of
discrimination. For example, a citizen of Afghan origin
should not be discriminated from those of an Indian
origin.

Caste – Discrimination on the basis of caste is also
prohibited to prevent atrocities on the lower castes by
the upper caste.

Sex – Gender of an individual shall not be a valid
ground for discrimination in any matter. For example,
discriminating transgenders, females, etc.

Place of birth – A place where an individual is born
should not become a reason for discriminating among
other members of the country.

Often the word ‘Discrimination’ is
perceived to be contrary to the principles
of equality. Individuals tend to confuse
discrimination with breach of equality.

Can something that is disadvantageous
and against the general classification of
the individual be taken as discrimination?
The answer remains ‘NO’.

The Supreme Court in the following cases
has observed that every classification
does not constitute discrimination in the
first place.

In the case of Kathi Raning Rawat v. State of
Saurashtra, the state of Saurashtra set up special
courts under Saurashtra State Public Safety
Measures Ordinance 1949, to adjudicate on the
matters of section 302, section 307 and section
392 read with section 34 of the Indian Penal
Code, 1860. The contention brought before the
court was that these provisions are
discriminatory for the residents depending upon
the territory.

The court stated that all kinds of legislative
differentiation are not discriminatory. The
legislation did not refer to certain individual cases
but to offences of certain kinds committed in
certain areas and hence it is not discrimination.
John Vallamattom v. Union of India,
AIR 2003 SC 2902

In another significant case of John
Vallamattom v. Union of India, AIR 2003
SC 2902, the Indian Succession Act
1925 prevented the petitioners from
bequeathing property for religious and
charitable purposes. The petitioner
contented it to be discriminatory against
the testamentary dispositions by a
Christian.

The court stated that the Act was to prevent
people from making injudicious death-bed
bequest under religious influence, but had a
great impact on a person desiring to dispose
of his property upon his death. Hence, the
legislation is clearly discriminatory as the
properties of any Hindu, Muhammadan,
Buddhist, Sikh, Jain or Parsi were excluded
from the provisions of the Act. Further, no
acceptable reasoning was provided to show
why the provision regulates religious and
charitable bequests of Christians alone.

When the concept that a reasonable
classification can never amount to
discrimination is clear, we suddenly get stuck
by the idea of reservation. Is it not
discriminatory to differentiate between two
candidates who are appearing for the same
post or exam with the same qualifications?
What allows provisions for such
differentiation to be made?



Reservation

On research, we find that Article 15 Clause (3), (4)
and (5) itself stands as an exception to Article 15
Clause (1) and (2). Article 15 Clause (3), (4)and (5)
states that the legislature is free to formulate special
provisions:

For women and children,

For the advancement of any socially and educationally
backward classes of citizens or for the Scheduled
Castes and Scheduled Tribes,

Make provision relating to their admission to
educational institutions including private educational
institutions, whether aided or unaided by the State,
other than the minority educational institutions.

Though being the exception to the legislation that
forbids discrimination on grounds of sex and
caste, this does not come under discrimination.
Rather, the term ‘PROTECTIVE
DISCRIMINATION’ (also known as Positive
Discrimination) is used by the legislators to justify
reservation and is defined as the policy of
providing an equal platform to the
underprivileged and the suppressed classes and to
lift their status in the society. This system of
reservation works on the principles of intelligible
differentia (difference capable of being
understood).

You might think, though this theory helps
resolve problems of social inequality, what
about the sensitive jobs requiring a
greater skill set (the medical field, army,
etc)? Should the reservation be allowed in
those sectors? Isn’t it wise to keep such
fields outside the scope of reservation?



Reservation In Medical Colleges

The thought of not allowing reservations
in certain sensitive areas of practice
would cause the sector to be
monopolized by the privileged classes.
Reasoning doesn’t stand on the factor of
skills, it stands upon the factor of
circumstances.

Let us take an example, imagine Ramu to be a boy
of the underprivileged class whose ancestors and
parents have been deprived of education due to
discrimination from the upper classes. Ramu has
no one in the family to guide him but even then
he appeared in medical exams; whereas another
boy Vicky, belonging to the upper class, has
parents who are well qualified and have been in
elite professions.Vicky was constantly guided and
mentored by his parents and he also appeared in
the exam. Even in such a hypothetical story, our
conscious explains that there must be some
provisions to place Ramu on equal footing with
Vicky to allow him to compete fairly.

In Ajay Kumar v. State of Bihar, the issue was
raised regarding the permissibility of providing
reservation under Article 15(4) in postgraduate
medical courses. The contentions raised by the
appellant were that Article 15(4) neither speaks
nor permits reservation in educational
institutions. While certain preferences and
concessions can be given, reservation of seats is
beyond the limits of clause (4) of Article 15 of the
constitution of India. The appeal was rejected by
the court as special provisions also include
reservation provisions and not just preferences
and concessions.

On the Basis of Domicile

After we comprehend the above
provisions, the concept of reservation
might seem fairer but reservation on the
basis of domicile still remains as a pricking
concept. What allows the state to
formulate laws that differentiate
individuals on the basis of domicile and
what needful purpose does this kind of
reservation serve?

As we find out that in India the
preferential policy is of two types:

The first to impart special benefits to the
socially and educationally backward
classes, scheduled classes and scheduled
tribes.

The second to provide special benefits to
the local ethical groups of the state
against the migrant from the other states.

This provision does not count as
discrimination under the purview of Article
15 as reservation on the basis of domicile is
not one of the grounds of article 15. Article
15 defines “place of birth” as a ground of
discrimination but reservation based on
domicile generally comes under “place of
residence” which is outside the bounds of
“place of birth”. The place of birth and place
of residence can be different for a single
individual.

Special provision for Women and Children

Once we know that reservation arises due
to the presence of clause (3), (4) and(5). Let
us now try to examine the clauses one by
one.

Clause (3) of Article 15 of the Indian
constitution speaks about special provisions
for women and children in order to protect
them from the clutches of formal equality.

Thought of this legislation to be carte blanche
(complete freedom to act as one wishes) to
impose differential benefits and ostensibly to the
advantage of women at the cost of burdening
men may ponder in your mind. But it is justified as
it compensates for early injustice met by women
and children at the hands of a male-dominated
society. Right to free and compulsory education
for children under the age of 14 years, section 56
of CPC, the Maternity Benefit (Amendment) Act
2017, etc. are some of the best examples of such
provisions.

In the case of Rajesh Kumar Gupta v. State of
Uttar Pradesh, AIR 2005 SC 2540, U.P. govt
made provision providing reservation BTC
training programme as follows:

50% of the candidates to be selected shall be
from Science stream,

50% from the Arts stream,

further 50% would be female candidates,

And the other 50% would be male
candidates.

The contentions raised were that the
reservation format formulated was
arbitrary and violative of Articles 15. The
court held that the reservation format
introduced was not warranted by the
provisions of the Indian constitution,
being over and above the constitutional
reservations in favour of backward
classes.

Whereas In Union of India v. K.P. Prabhakaran,
(1997), the railway administration took the
decision to appoint Enquiry cum reservation
clerks in four metropolitan cities i.e. Mumbai,
Delhi, Kolkata, and Chennai. The decision stated
that the post would be held by women only. The
court rejected the contention of the government
urging that this provision is protected
under Article 15(3). It said that Article 15(3)
cannot be read as the provision or as an
exception to what is guaranteed under Article 16
(1)(2).

These cases clearly explain the
applicability of the phrase ‘Special
provisions for women and children’ in
matters of the reservation to education
and employability. But what if there are
laws which differentiate or prefer women
over men, can it be called discrimination.

In cases of Girdhar v. State, AIR 1953 MB
147 the petitioner was convicted
under Section 342 and 354 of the Indian
Penal Code. The petitioner claimed that as
there are no provisions relating to assault
against men with the intention to outrage his
modesty, hence providing such laws for
women is discriminatory. Section 354 is
contrary to Article 15(1). The petition was
dismissed stating the law to be in
consonance with Article 15(3).

In Choki v. the State of Rajasthan, AIR 1957
Raj 10, Mt. Choki and her husband conspired
and murdered their child, the application of
bail was presented on the plea that she is an
imprisoned woman, with no one to look
after her young son. The judge rejected the
application saying that there were no
extenuating circumstances and the
Constitution has no provisions under which
leniency could be shown to women on
account of her sex. The same was challenged
before the Supreme Court.

It was held that Article 15(3) talks about
special provisions for women and
children. And under the light of this
provision, Mt. Choki was granted bail as
she was a woman and there is a young
child dependent on her, thus it becomes
necessary for the state to protect the
rights of the child.
Women and Sexual Harassment

Clause 3 of Article 15 also allows the government
to frame special laws regarding the protection of
women and abolition of sexual harassment. Sexual
harassment is a clear violation of the fundamental
rights of equality guaranteed under Article
14(2) and Article 15(3). The sexual harassment of
women that had become a frequent story of
everyday newspapers was dealt with by the
supreme court in the famous Vishaka case. This
case led to the formulation of the Vishaka
guidelines.
Reservation within Reservation

The concept of reservation within the
reservation is a condition where reservation
is provided to a particular class which is
already under a reservation category. For
example, A man is belonging to a particular
community of Schedule castes is entitled to
reservation for SCs but what if the
community that he dwells from is more
underprivileged as compared to the other
communities of the SCs category.

Is it justified to make them stand at par with
others? Thus the concept of reservation
within reservation emerged to uplift those
underprivileged communities of the reserved
categories. Current examples of such
reservations are Maratha reservation in
Maharashtra who already fall under the OBC
reservation in Maharashtra, the Jat
reservation demands in Haryana, and the 7%
reservation of Madiga community under SCs
reservation.
Special Provision for the
advancement of Backward class:
Article 15(4)

Coming onto the next clause, i.e. Clause
(4) of Article 15 of the Indian constitution.
It allows the state to enact laws and
provisions relating to the advancement of
socially and educationally backward
classes and the scheduled castes and
scheduled tribes.
Socially and educationally backward
classes

The phrase “socially and educationally backward
classes” under Article 15(4) refers to
underprivileged classes of people who have faced
discrimination and prejudice from the privileged
class. This category includes the class of people
who belong to backward classes in society but
are not covered under SCs or STs. OBCs have
been included under this phrase of socially and
educationally backward classes as a category for
reservation.
The limit of reservation

The Supreme Court of India has put up a ceiling
limit to the total percentage of reservations that
can be provided by the government.

In Indira Sawhney v. Union of India, AIR 1993 SC
477, 27% reservation for the ‘Other Backward
Classes’ was introduced. Supreme Court of India
put up a limit of 50% as the total percentage of
reservation as it was reasoned that allowing the
limit to exceed will deprive others of their right
to equality. Supreme Court also provided for the
guidelines to exceed the limit of reservation
under extraordinary situations.
Reservation more than fifty percent

There is an upper limit of 50% on the total
reservation, but as it was allowed to exceed
under extraordinary circumstances. There are 4
states which have breached that limit of 50%:

Tamil Nadu has 69% reservation with 50%
reservation for OBCs;

Maharashtra has 52%;

Telangana has 62%;

Haryana has 67%;

It is done under the extraordinary need for
upliftment of certain backward classes
Relationship to Article 14

Article 15 is the weapon that breaks the wall of
discrimination between the upper caste and the lower caste.
Article 15 is an extension of Article 14 which talks about
equality among individuals and equality before the law. It
means that equals should be treated equally and unequal to
be treated unequally, the same has been reiterated in
the Indira Sawhney v. Union of India, AIR 1993 SC 477. Article
15 derives its entire power from article 14.

To maintain equality, it forbid the practice of discrimination
under clause(1).

To provide equality, it allows for special provisions relating to
women, children, SCs, STs, and socially and educationally
backward classes.

Hence, it is Article 14 whose aims Article 15 tries to achieve.
Conclusion

Article 15 has always hurdled its way out
to reach to the one really in need. The
condition of the downtrodden has highly
improved since its inception in 1949. It
provides a base to each and everything
that legislature needs to formulate
provisions to promote harmony in the
society. There is an extreme decline in the
number of cases of atrocities against the
underprivileged classes.

Article 15 truly is the guardian of
downtrodden and a shield against
discrimination, it has helped the Indian
society to stand tall and proud despite
such a huge diversity and all kinds of
sexism, racism and rigid caste system and
will continue to contribute to India’s unity
and equality, forever.