Law and You > Constitutional Law > Provisions Against Discrimination (Article 15)

The Constitution of India provides various fundamentals rights to its citizens and no discrimination based on religion, race, caste, place of birth, or gender. This is a very important right provided under Part III of the Constitution of India under Fundamental Rights. Discrimination based on religion and caste has existed in India for a longer period of time. Be in untouchability or the division of upper castes and lower castes, discrimination was evident all over India before independence. It does exist today also, but the consequence of such discrimination today is very severe and punishable. In this article, we shall discuss Article 15 of the Constitution of India. Let us discuss provisions against discrimination on the basis of religion, race, caste, sex, place of birth or any of them.

Part III of the Constitution is said to contain the Bill of Rights available to the people of India. This chapter of the Constitution has been described as `Magna Carta’ of India. The inclusion of a Chapter of Fundamental Rights (Chapter III) in the Constitution of India is in accordance with the trend of modern democratic thoughts. Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their government.

Fundamental Rights mentioned under Article 14-35 of the Constitution of India can be categorized as follows: 

• Right to Equality (Article 14-18): Right to equality including equality before the law, the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment.
• Right to Freedom (Article 19-22):  Right to freedom of speech and expression, assembly, association or union, movement, residence, and right to practice any profession or Occupation.   Articles 20 and 21 cannot be suspended during the National Emergency.   It also recognized under the United Nations-Universal Declaration of Human Rights, and the International Covenant for Civil and Political Rights.
• Right against Exploitation (Article 23-24):  Right against exploitation prohibiting all forms of forced labour, child labour and traffic in human beings.
• Right to Freedom of Religion (Article 25-28):  Right to freedom of conscience and free profession, practise, and propagation of religion.
• Cultural and Educational Rights (Article 29-30):  Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
• Right to Constitutional Remedies (Article 32-35):  Right to Constitutional remedies for enforcement of Fundamental Rights.

Right to Equality:

Right to equality is very important in a society like ours. Right to Equality means that all citizens enjoy equal privileges and opportunities. The purpose of this right is to establish the rule of law where all the citizens should be treated equal before the law. It has five provisions (Articles 14-18) to provide for equality before law or for the equal protection of law to all the persons in India and also to prohibit discrimination on the grounds of religion, race, caste, sex or place of birth. Right to Equality includes five types of equalities.

1. Equality before law (Article 14)
2. Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15)
3. Equality of opportunities in matters of public employment (Article 16)
4. Abolition of Untouchability (Article 17)
5. Abolition of titles (Article 18)

Article 15:

No Discrimination on Grounds of Religion, Race, Caste, Sex, Place of Birth or any of them:

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.
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
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.
6. Nothing within this article, subclause (g) of article 19’s clause (1), or article 29’s clause (2) prohibits the State from creating,

(a) any specific measures for the progress of any economically underprivileged segments of citizens other than the classes indicated in clauses (4) and (5); and

(b) any special provisions for the advancement of any economically underprivileged sections of citizens, other than the classes indicated in clauses (4) and (5), insofar as such special provisions relate to their admittance to educational institutes, including private educational institutions, whether assisted or unaided by the State, aside from the minority educational institutions referred to in Article 30 (1), which, in the event of a reservation, would be in addition to the current reservations and limited to a maximum of 10% of the total seats in each group.

Important Facts About Article 15:

• Article 15 is applicable to citizens of India only.
• Article 15 says that the state shall not discriminate against only of religion, race, sex, place of birth or any of them.
• Under Article 15 (3) & (4), the government can make special provisions for women & children and for a group of citizens who are economically and socially backward.
• Originally the Article had only three clauses. Later on, clauses (4) and (5) were added by way of the First Constitutional Amendment Act, 1951 and the Ninety-Third Constitutional Amendment Act, 2005 respectively.

Sub- Clauses (1) and (2) of Article 15, essentially protect the citizens of India from being discriminated against by the State on the basis of religion, race, caste, sex, and place of birth or any of them. It is a right of social equality and equal access to public areas, prohibiting any kind of restriction on any person on the basis of any of the above and to use the public places.

India is a diverse country with multiple religions, cultural diversity, linguistic diversity and many more aspects. Even though castes are divided as scheduled castes/tribes, other backwards classes, general, etc. Clause (1) of Article 15 states that there must not be any kind of discrimination against any citizen of India based only on religion, race, caste, gender or place or birth.

In D.P. Joshi v. State of M.B., AIR 1955 SC 334 case, the Court held that a law which discriminates on the ground of residence does violate Article 15(1). In that case, a rule of the State Medical College requiring a capitation fee from non- Madhya Bharat students for the admission in the college was held valid as the ground of exemption was residence and not the place of birth. The place of birth is different from the residence.

In Mainsuphdas v. State of U.P., AIR 1953 SC 384 case, a law which provided for an election on the basis of separate electorate for members of different religious communities was held to be unconstitutional.

In Jagwant Kaur v. State of Maharashtra, AIR 1952 Bom. 461 case, where the construction of a colony only for harijans was planned which was held to be violative of Clause (1) of Article 15 as the same facilities are required by every citizen equally.

Clause (2) of Article 15 states that no citizen of India can discriminate any citizen based on the grounds as mentioned in Clause (1). Sub-clause (a) of Clause (2) states that citizens should not restrict access public places such as shops, restaurants, hotels or any other place of public access solely on the basis of religion, race, caste, gender, place of birth or any of the mentioned basis. Sub-clause (b) of Clause (2) states that no citizen can restrict any other citizen on the basis of religion, race, caste, gender, or place of birth from accessing the usage of tanks, wells, places of bathing, roads or any other public place that are maintained by the State funds or specially dedicated for the usage of the public.

Article 15(3), (4) (5) make special notable exceptions. The first exception permits the State to make special provisions for women and Children. The second and third exceptions empower the State to make special provisions for socially/ educationally backward classes of the country and Schedule castes and scheduled tribes.

Clause (3) of Article 15 states that the provisions of this article cannot prevent the State to make laws of special provision for women and children.

In Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321 case, it was said that Section 497 of the Indian Penal Code states that adultery can be committed by man only and women cannot be punished even as an abettor. This very reason led to the contradiction whether this is violation of Article 15 which includes no discrimination based on gender. But it was further stated that Clause (3) of Article 15 states that nothing given under Article 15 can prevent the State from making special provisions for women and children. It was further argued that Clause (3) of Article 15 should not save women from commission of crimes or abetment of crimes. Another issue in this case was the appellant was not a citizen of India and there are certain fundamental rights which are exclusively for the citizens of India only. Therefore, Article 14 and 15 which are available for citizens of India only cannot be invoked by the appellant. The appeal was dismissed.

In Permjit Singh v. State of Punjab, AIR 2009 P & H 7 case, where the petitioner was elected as Panch for reserved seat of Scheduled Castes (women). The petitioner challenged the election of respondent number 5 as Sarpanch on the grounds that she was not eligible for contesting for the elections of Sarpanch which is reserved for the Scheduled Castes and not Scheduled Castes (women) because respondent was elected as Panch for Gram Panchayat only against reserved seat for Scheduled Castes (women). The Court held that if the seat of Sarpanch of a village is reserved for Scheduled Castes, then both men and women belonging to the Scheduled Castes category can contest for the election for the said post as the eligibility is only being a Scheduled Caste and the nature of constituency they represent as Panches.

In Salil Bali v. Union of India, AIR 2013 SC 3743 case, the Supreme Court held that fixing 18 years of age as an upper limit for treating offenders under juvenile cases was held as constitutionally valid.

In Rajesh Kumar Gupta v. State of Uttar Pradesh AIR 2005 SC 2540 case, the Court held that the reservation of 50% of posts in favour of female candidates is not to be violative of Article 15.

In Dattatraya Motiram v. State of Bombay 55 B.L.R. 323 case, commenting on the State’s non-challengeable power to make special provisions for women and children (Article 15(3)), Chagla C. J. held that the State could discriminate in favour of women against men, but it could not discriminate in favour of men against women.

Clause (4) of Article 15 does not stand as an exception but a special provision for the socially and educationally backward classes of the society. Provisions made for aiding them does not turn into discrimination under Clause (1) Article 15. Article 15(4) may at the first sight appear to be a blanket provision, protecting any kind of beneficial discrimination in the nature of special provisions for the benefit of the classes mentioned therein. However, apart from questions as to when a particular class can be legitimately regarded as backward class, discriminatory provisions of such a nature may be struck down as unreasonable in the circumstances.

It may seem like articles 15(4) and 15(5) violate Article 14 (right to equality), but is not so, as protective discrimination is also a facet of equality. Equality being one of the basic features of the Constitution of India and any treatment of equals unequally and unequal equally would violate the basic structure of the Constitution.

In State of Rajasthan v. Pratap Singh, AIR 1960 SC 1208 case, a notification was passed under Section 15 of Police Act, 1861, an extra levy was imposed on the grounds that the inhabitants of that locality harboured dacoits and caused riots. An exemption was, however, granted to the Harijans and Muslims inhabitants of that area. The Court held that in the absence of proof that all members of the Harijan and Muslim communities were law-abiding, and there were no law-abiding persons belonging to the other communities of the locality, the notification discriminated against other communities on the ground of religion and caste, and hence the notification is violative to Article 15(1).

In State of U.P. V. Pradeep Tandon, AIR 1975 SC 563 case, the Court upheld the reservations in favour of persons from hills and Uttarakhand areas on the ground that these areas were instances of socially and educationally backward class citizens, and also opined that the place of habitation and its environment could be a determining factor in judging the social and educational backwardness.

In Balaji v. State of Mysore, AIR 1965 SC 649 the Mysore Government issued an order under Article 15(4) reserving seats in the Medical and Engineering Colleges in the State for the ‘backward classes’ and the ‘more backward classes’ in addition to the seats reserved for the SCs and STs. The government had designated the backward classes in these orders on the basis of caste and communities. One such order was challenged before the Supreme Court as being irrational and fraud on Article 15(4). The Supreme Court while quashing the impugned order observed-

• Article 15(4) is a proviso or exception to clause (2) of Article 15 and to clause (2) of Article 29.
• Further categorization of backward classes into backward and more backward classes is not envisaged by Article 15(4).
• For the purpose of Article 15 (4), backwardness must be both social and educational and caste cannot be made the sole or dominant test for determining the backwardness of a class of citizens.
• And order under Article 15(4) need not be in the form of legislation, it can also be in the form of an executive order.
• Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case.
• The court further commented that the interests of weaker sections of society, which are a first charge on the State and the Centre, have to be adjusted with the interests of the community as a whole. Regarding Article 15 (4) the court observed that it is only an enabling provision and does not impose any obligation on the State to take any special action under it.

In State of AP v. USV Balaram, AIR 1972 SC 1875 case, the Supreme Court held that caste of a person should not be the factor that decide that they are of a backward class. But if an entire caste is found out to be both socially as well as educationally backward, then that caste will fall under backward class. It is also further stated that if a particular backward class is progressing socially and educationally and reaches a point where it no longer requires special aid from the State, then the lists of backward classes will be accordingly revised.

In Dr. Neelima v. Dean of PG Studies AP Agriculture University, Hyderabad, AIR 1993 SC 229 case, the Court held that reservation is meant for socially and educationally backward class of the citizens. If a person from a high caste marries one of a Scheduled Tribe does not grant the person of high caste a reservation of the basis that they are married to a person from a backward class. In this case, a girl from a high caste (Reddy) married a boy who belongs to a backward class (Erukala, a Scheduled Tribes). After the marriage, the girl had wanted to take admission in a college for an agriculture course under reservation category. The university denied the reservation and further the Court also held that the girl is not entitled to get the seat under reservation but on regular merit basis only.

In Dr. Preeti Srivastav v State of MP 1999 AIR SC 2894 case, for super speciality courses in medical and engineering colleges, it was challenged to make the admission process completely on merit basis. The petitioners challenged the Uttar Pradesh Post Graduate Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act and the Executive order of the Madhya Pradesh Government that made provisions for lowering the minimum qualifying marks for the reserved category students. The Supreme Court held that merit alone can be the best criteria for selection of candidates for admission into super speciality courses in medical as well as technical courses. It was stated that during the admission, the students who are from the general category do not get any such special provision and are selected solely based on merit. It was further stated that the major objective behind the provision of Clause (4) of Article 15 is to uplift and advance the weaker sections of the citizens and make them equal to the other sections. But for such purpose ignoring the wider interests of the society cannot be done.

In the State of Madras v Smt. Champakam Dorairajan 1951 SCR 525 case, where the Madras Government issued an order stating the allotment of seats in the State medical and engineering colleges based on the community and caste of the students. This order was held to be violative of Clause (1) Article 15 stating that seats were allotted based on castes and religion of the students and not based on the merit.

In Guntur Medical College v. Mohan Rao, AIR 1976 SC 1904, an important question arose before the court as to whether a person belonging to Christian converts, who originally belong to Scheduled Caste, on reconversion to Hinduism can claim the benefit of reservation of seats in a Medical college under Article 15(4). The court held that a person whose parents belonged to a scheduled caste before their conversion to Christianity can, on reconversion to Hinduism be regarded as a member of the scheduled caste only if he is accepted as a member of that caste by the other members of the caste. On such acceptance, he would be eligible for the benefit of the reservation of the seats for scheduled caste in the matter of admission to the medical college.

Clause (5) of Article 15 says that no clause of Article 15 and sub-clause (g) of Clause (1) of Article 19 can prevent the government from making special legal provisions for the improvement of socially and educationally backward classes of the citizens or for the Scheduled Castes/Scheduled Tribes. The special provisions might relate to the admission of the backward classes, SCs and STs in the educational institutions, be it private or government, aided or unaided by the State, except for the minorities that are mentioned under Clause (1) of Article 30.

Sub-clause (g) of Clause (1) of Article 19 says that all citizens of India have the right to practice any profession, trade, business, or occupation of their choice. Clause (1) of Article 30 says that all the minorities in India have the right to establish and administer educational institutions of their own choice, whether their minority is based on religion or language.

In Pramati Educational and Cultural Trust v. Union of India, AIR 2014 SC 2114 case, the Apex Court held that Clause (5) of Article 15 is not violative of Article 14 of the Constitution.

In Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 22 April, 2020 case, where the Andhra Pradesh Government stated that 100% reservation is provided to Scheduled Tribes candidate for the post of government school teacher with 33.1/3% for women in the scheduled areas of the state. This was ruled as unconstitutional by a 5-bench judge of Supreme Court.

In T. M. A. Pai Foundation v State of Karnataka, (2002) 8 SCC 481 case, the Court held that the right of private unaided educational institutions to choose students of their choice. Minority educational institutions referred to in Article 30(1) are exempted from the purview of Article 15(5).

Clause (6) was inserted by the 103rd Constitutional Amendment in 2019. The provision allows for the State to provide for affirmative action including reservations for economically weaker sections (EWS). Various States have introduced schemes to implement reservations for EWS on the basis of Clause (6).

Clause (6) states that no provision of Article 15, sub-clause (g) of Clause (1) of Article 19 and Clause (2) of Article 29 can prevent the State from making special provisions for the advancement of the economically weaker sections other than those classes as mentioned under Clause (4) and (5). The Clause (6) further states that special provisions for the economically weaker sections are provided in the educational institutions in the same way as stated under Clause (5) of Article 15.

Conclusion:

India is a diverse country with multiple religions, cultural diversity, linguistic diversity and many more aspects. Even though castes are divided as scheduled castes/tribes, other backwards classes, general, etc. People getting abused verbally or physically or with other means of not allowing access, discrimination based on gender, place of birth and caste are still existing in India. Article 15 secures the citizens from every sort of discrimination by the State, on the grounds of religion, race, caste, sex or place of birth or any of them. However, this Article does not prevent the State from making any special provisions for women or children. Further, it also allows the State to extend special provisions for socially and economically backward classes for their advancement. It applies to the Scheduled Castes (SC) and Scheduled Tribes (ST) as well.

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