ARTICLE 15 OF CONSTITUTION OF INDIA
Article 15 has two major components :
Component 1 : Right against discrimination in public places
Component 2: Positive discrimination for weaker sections of society
Do you know what is positive discrimination ? Simple !!! Positive discrimination = the practice or policy of favouring individuals belonging to groups which suffered discrimination -since ancient India till now.
The following rights are guaranteed under Article 15
(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 places 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.
The following positive discrimination measures are promised under Art 15 as follows:
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
1[(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.]
2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
OMG Article 15 is so lengthy : What does article 15 say ? EXPLANATION IN CRUX TO ART 15
Clause (1) specifies the prohibited grounds in any matter in which the State has exclusive control.
Clause (2) specifies the prohibited grounds in any matter in which the State and even private individuals have exclusive control.
Clause (3) enables the government to make special provisions for the protection of women and children.
A discrimination 'only' on any of the above mentioned grounds is invalid. However, there can be a discrimination on any of the above mentioned grounds and also on other grounds not mentioned above is considered valid.
'Place of public resort' includes a public park, public road, public bus, ferry, public urinals, railways, hospital etc.
In Clause (3), provisions 'for' the women could be made and not 'against' the women. Further, provisions in favor of women and against men are valid but provisions in favor of men and against women are invalid.
Clause (4) is an enabling clause and confers discretion to the State on the use of these provisions. Hence these are not obligatory to the State to take action under it.
COMPARISON OF SCOPE OF ART: 14 AND 15:
Article 15 is just a part from Art. 14. Speaks about equality in public places alone.
Article 14 generally speaks of equality
Art 15 : Positive discrimination is allowed
Art 14 : Intelligible classification based on reasons are allowed
Art 15 : Applies only to citizens
Art 14: Applies to non-citizens also
ARTICLE 15 (1)
What does Art 15 (1) do ? Article 15(1) prohibits differentiation on certain grounds .
What are those grounds ?
Religion, race, caste, sex, place of birth or any of them.
What is SC view on purpose of Art : 15 (1) ?
Narasappa v. Shaik Hazrat : Art. 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it.
What is implication of Art: 15 and 14? COMBINED READING OF ARTICLE 15 AND 14:
The combined effect of Arts. 14 and 15 that the state cannot pass laws
that create unreasonable inequality ( Art: 14 )
that discriminates on grounds of religion, race, caste, sex, or place of birth and not sanctioned by other clauses of art. 15.
What are the ingredients of Art. 15 ?
INGREDIENTS OF ART: 15(1):
This right against discrimination under Art: 15(1) is available only against state ( defined in art : 12).
This right is guaranteed only to the citizens.
Further only on limited grounds discrimination is prohibited viz: religion, race, caste, sex place of birth or any of them.
“DISCRIMINATION” under Art. 15:
What do you mean by discrimination ?
Literal Meaning : Discrimination = the unjust or prejudicial treatment of different categories of people
Whether the term discrimination is defined in constitution ? No
Then where can we find its meaning ? Case law !
What does SC say about discrimination ?
CASE LAW 1 : Kathi Raining Rawat vs St. of Shaurashtra
Held : Crusial word ‘discrimination’ = adverse distinction with regard to ‘ or ‘distinguishing unfavourably from others’
Conclusion : The word ‘discrimination’ in Art. 15(1) involves an element of unfavourable bias.
What is the significance of the word ‘only ‘ in Art15 (1) ?
‘ONLY’ UNDER ART:15(I) : The article runs as follows:
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
SIGNIFICANCE : The importance of the word only is that if the discrimination is based on some ground not connected with the grounds set out in the article, but with some rational factor ( not hit by art: 14) then that discrimination would be valid # # Valsamma Paul v. Cochin University.
GROUNDS OF DISCRIMINATION EXPLAINED !!
DISCRIMINATION BASED ON RELIGION:
CASE LAW 1 : Pragati Varghese v. Cyril George Varghese
HELD : A rule that did not allow Christian woman to seek divorce on the grounds of cruelty and desertion while women under other systems can do so : declared invalid .
REASON : It is to be discrimination on the ground of religion and this is also violative of Arts. 14 and 15
CASE LAW 2 : Lakshmindra Swamiar v. Commissioner, H.R.E
HELD : law applicable to Hindu religious endowments only, and not to charitable and religious endowments belonging to other religions, has been upheld.
REASON : Classification of religious endowments as Hindu, Muslim or Christian for the better management of institutions. The distinction has existed for over a century and was not being made for the first time. This serve the object of the Act.
DISCRIMINATION BASED ON RACE:
CASE LAW : Bombay v Bombay Education Society
HELD : The case related to the policy of restricting admission to English speaking pupils, specifically of Anglo-Indian and European descent, in the English medium schools of Bombay. Declared to be not violative of art 15 .
DISCRIMINATION BASED ON CASTE:
CASE LAW : Bhopal Singh v. State of Rajasthan
HELD : A law providing for elections to municipalities on the basis of separate electorates for members of different religious communities delimitation of panchayat circles for purposes of election to a panchayat on the basis of castes, would offend Art. 15(1)
DISCRIMINATION BASED ON SEX:
CASE LAW : Kerala State Electricity Board , Thiruvanandapuram vs Siniya
HELD : It was held that the exclusion of women not exclusively based on sex but taking into consideration the peculiar nature of duties to be performed by the electricity workers is not violative of Art:15 .
DISCRIMINATION BASED ON PLACE OF BIRTH:
CASE LAW : Shaikh Husein Shaik Mahomed
HELD : Under the City of Bombay Police Act, while a person born outside Greater Bombay could be externed if he was convicted of any of the offences mentioned therein, no such action could be taken against a person born within Greater Bombay.
CONCLUSION : This was discrimination on the basis of ‘place of birth’ and so was invalid under Art. 15(1).
CLASSIFICATION BASED ON RESIDENCE IS NOT DISCRIMINATION BASED ON BIRTH :
CASE LAW : D.P. Joshi v. Madhya Bharat
HELD : The residents of Madhya Bharat were exempted from payment of a capitation fee for admission to the State medical college, while the non-residents were required to pay the same.
REASON : Under Art. 15(1) because the ground of exemption was ‘residence’ and not ‘place of birth’. Residence and place of birth are two distinct concepts with different connotations. Art. 15(1) prohibits discrimination on the basis of place of birth but not residence
CLASSIFICATION BASED ON RESIDENCE TO EDUCATIONAL INSTITUTION IS REASONABLE : Education is a State subject. A State spends money on the upkeep of educational institutions. There is, therefore, nothing wrong in the State if it so orders the educational system that some advantage ensures for the benefit of the State.
ARTICLE 15 (2)
What does Art: 15 (2) says ?
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 certain places.
What are those places ?
(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.
What is the speciality of this provision ?
This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State.
CASE LAW : Arumugha v. Narayana
UNDERSTANDING ON THE ARTICLE 15 (2) : On the basis of this provision, it has been held that if a section of the public puts forward a claim for an exclusive use of a public well, it must establish that the well was dedicated to the exclusive use of that particular section of the public and not to the use of the general public .
What is public place ?
NARROW VIEW : A.M. Deane v. Commr. of Police : The place is a ‘place of public resort’ only if the public have access to it as a matter of legal right
BROADER VIEW : A place of public resort as one to which members of the public are allowed access and where they habitually resortto # Liberty Cinema v. Corp. of Calcutta.
CONCLUSION : The latter view appears to be more in accord with the tenor and purpose of the constitutional provision as it would bar discrimination on a wider front.
What is the test under Art: 15 ?
TEST TO CHECK VALIDITY OF AN ACT UNDER SEC: 15 : To adjudge the validity of an Act under these Articles,
STEP : I : A distinction is to be drawn between the object underlying the impugned Act and the mode and manner adopted therein to achieve that object.
STEP : II : The object underlying the Act may be good or laudable but its validity has to be judged by the method of its operation and its effect on the fundamental right involved.
STEP :III: The crucial question to ask, therefore is whether the operation of the impugned Act results in a prohibition only on any of the grounds mentioned in Arts. 15(1) and 15(2). It is the effect of the impugned Act that is to be considered.
RESULT: If its effect is to discriminate on any of the prohibited grounds, it is bad.
POSITIVE DISCRIMANTION UNDER ART.15
ART:15(3) : POSITIVE DISCRIMNATION FOR WOMEN AND CHILDREN.
Under the Constitution the state has been given power to make laws relating to women and children but such laws shall not be violative of Article 15 of the Constitution.
Article 15(1) prohibits gender discrimination. Article 15(3) lifts that ignominy and permits the state to positively discriminate in favour of women and children to make special provisions to ameliorate their social, economic and political condition and accord them parity.
CONCLUSION : Article 15(3) is an exception to the rule against discrimination provides by Art. 15(1),15(2) or 14.
UPSC QUESTION 2001/ PART1 Ia/ 20 MARKS
What fundamental right, if any, of a person is violated if the state acts in pursuance of either Art:15(4) or 16(4) of the Constitution of India? Ans: Art: 29(2) and 19(1)(g).
UPSC QUESTION: 1998/ PART I 3a/ 30 marks
The right not to be discriminated on the ground of sex and the need for empowerment of women by making special provision for them requires the State to ensure that women have adequate representation in Parliament. Argue for and against the proposed constitutional amendment for the purpose.
ACT OF THE PARLIAMENT :
There is no comprehensive anti-discrimination code in India although there are laws that address specific aspects related to equality. For instance, ( instances of positive discrimination )
The Maternity Benefits Act, 1961,
Equal Remuneration Act, 1976
The National Rural Employment Guarantee Act, 2005
The Protection of Domestic Violence Act, 2005
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
The Sachar Committee Report in 2006 first put forth the idea of setting up a new legal framework for tackling grievances of the minority population. Following up on that, the Menon Committee Report in 2008 proposed a new framework in the form of Equal Opportunity Commission (EOC).
WHY EOC ?
The EOC has been visualized as one with extensive authority to investigate, gather data, conduct audits, advocate and render advice. However, the proposed legislation does not visualize an authority which can redress grievances and grant relief to individuals and/or groups. Amongst other things, the consultation will look at this proposed legal framework in a critical light.
To secure the constitutional promise of equality and achieve full equality of opportunity for vulnerable groups, particularly women, India needs an equality legislation that protects multiple characteristics, extends beyond the private and public divide and addresses manifest discrimination in society.
Thus, a consultation titled ‘Towards an Anti-Discrimination Law in India’ was organized on December 11-12, 2010 at India Habitat Center, New Delhi to deliberate and brainstorm over the need for an anti-discrimination legislation whose objectives and framework respond to the need of the hour.
LATEST DISCUSSIONS :-
New Sexual Assault Law (Nirbhaya Act), Workplace Harassment Law, Domestic Violence Act, Aendment to Hindu Succession Act and many other laws are passed and different reservation policies in public places (like transport, ladies special etc.), less tax for women taxpayers, Concession in House Registration, grace marks in IIM etc. are also enacted. Also provisions of Salary to the Wife, Marital Rape, Provisions under Food Security Bill etc. are discussed. Latest and the most deadly law of Marriage Law Amendment (giving 50% of husband’s inheritable, inherited and owned property to wife) is already passed in Rajya Sabha and is soon to pass in Lok Sabha.
ACT OF JUDICIARY: Judiciary is no exception for doing beneficial justice to women and children and following cases are classic examples :
CASE LAW : Gaurav Jain v Union of India
HELD : that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them.
RELATIONSHIP OF ART: 15(3) WITH ART: 16:
The scope of Article 15 (3) is wide enough to cover any special provision for women including reservation in jobs. Article 16 does not come in the way of such reservation.
The two articles must be harmoniously construed.
CASE LAW : IndraSawhney v. Union of India.
HELD : Women are a weaker section of our society for whose upliftment Article 15(3) is made which should be given widest possible interpretation and application subject to the condition that reservation should not exceed 50% limit .
BIRTH OF OF CLAUSE 15(4) and (5) :
This anti-discrimination law made its first exception by including a Clause (4) during the 1st amendment in 1951. With this amendment, the article made way for reservation for SCs and STs and other backward classes to benefit them academically, socially and economically.
It’s important to note that Clause (5) of Article 15 was originally not a part of the Constitution. It was introduced during the Ninety-Third Amendment Act in 2005.
ART: 15(4) POSITIVE DISCRIMINATION FOR SC/ST AND SOCIALLY/EDUCATIONALLY BACKWARD CLASSES:
UPSC QUESTION 2001: 3b: 30 MARKS
In order to cure the heavy under- representation of the SC/ST in ‘ the state services even after fifty years of the constitution, a state wants to make a scheme, which may remove this imbalance within a period of five years. Advise the state about the steps that it may take under the Constitution for this purpose.
What does this article do ?
This Article Enable the state to make special provisions for the advancement of any socially and educationally backward classes + Schedule Caste + Schedule Tribe.
Whether this is an exception under art 14 ?
NO ! It should be noted that this provision is proviso to Art: 15(2) and Art: 29, and not to Art: 14, thus any classification made under this provision must pass the test of reasonability under Art: 14.
CASE LAW : Chamaraja v Mysore AIR 1967 Mys 21
NOTED : Article does not compel the State Government to make any special provision for the advancement of the Classes, Castes, tribes mentioned therein. The State is empowered to make provisions in that regard. But it is not compelled to do so...''
How to identify schedule caste and schedule tribe ?
As regards the identification of the “Scheduled Castes” and “Scheduled Tribes”, reference is to be made to Arts. 341 and 342.
Is there any limitation to the scope of these articles ?
SCOPE OF ART 15(4) AND 16(4) : In Indra Shawney case it was held that the scope of Art. 15(4) is wider than Art. 16(4). Art. 15(4) covers within it several kinds of positive action programmes in addition to reservations. However, reservation of posts and appointments must be within reasonable limits,viz., 50% at the maximum. The same limit applies to Art. 15(3).
ART: 15( 5) POSITIVE DISCRIMINATION FOR SC/ST/ EDUCATIONALLY/ SOCIALLY BACKWARD CLASES IN EDUCATIONAL INSTITUTIONS:
WHY 15 (5) ?
The enabling provision given under Art: 15(4) seemed to insufficient, as there was under representation of weaker sections of society in educationally qualified people. Thus this special provision was inserted to do the needful.
What is state is empowered to do under this article ?
By this provision State is empowered to make any special laws for the advancement for
Socially and educationally backward citizens
Further such special provision can be made in relation to educational institutions including private institution regardless being aided by government but does not include minority institutions as under Art:30(1). This is exception to Art: 19(1)(g).
What is the nature of these clauses ?
NATURE OF CLAUSE (3), (4) and (5) OF ART.15 : They are merely enabling provisions. No citizen of India can claim reservation as a matter of right and accordingly no writ of mandamus can be issued # A.P. Public Service Commission v. Baloji Badhavath, (2009) 5 SCC 1 : (2009) 5 JT 563.
Peculiar case law :
CASE LAW : Miss Tumnyak Ete vs State of Arunachal Pradesh it was held that if the whole of state of Arunachal Pradesh is socially and educationally backward then whole of the state’s population becomes class in itself and no reservation in such case is possible under Art; 15 (4) or (5) .