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 favoring 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. Clause (6) – discussed below
OMG Article 15 is so lengthy : What does article 15 say ? EXPLANATION IN CRUX TO ART 15
Clause (1)- No discrimination rule on specified grounds by state.
Clause (2) – No discrimination rule on specified grounds by state and private individuals.
Clause (3) – Positive discrimination for women and children – enabling provision
Clause (4)- Positive discrimination for socially and educationally backward classes
Clause (5)- Admission in Educational Institution for socially and educationally backward classes.
Clause (6) – Positive discrimination for Educationally backward classes
COMPARISON OF SCOPE OF ART: 14 AND 15:
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
Ø that create unreasonable inequality ( Art: 14 )
Ø 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):
ü This right against discrimination under Art: 15(1) is available only against state ( defined in art : 12).
ü This right is guaranteed only to the citizens.
ü 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 offenses 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.
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