This article is written by Devansh Sharma, 1st year Student, at Law School, Banaras Hindu University and Nikunj Arora of Amity Law School, Noida. This article deals with a detailed explanation of Article 15.
The Constitution of India guarantees various rights to its citizens, including no discrimination on account of religion, race, caste, or place of birth. Part III of the Indian Constitution establishes this right under the heading of Fundamental Rights. In India, religion and caste-based discrimination have existed for a very long time. In every part of India before independence, discrimination was evident, whether through untouchability or the division of upper and lower castes. Discrimination still exists today, however, the consequences of such discrimination are much more severe and punishable.
According to the 8th Schedule of the Constitution, India recognizes a total of 22 languages. But in reality, India has more than 1,500 languages spoken in spite of the official languages of Hindi and English. The Hindi language is spoken by roughly 44.63 per cent of the Indian population. Diversity often leads to differences of opinion, and those differences of opinion sometimes lead to discrimination. A major source of discrimination in India is caste discrimination, which still occurs in some parts of the country. Traditionally, the general divide in society was between the lower castes and the upper castes. There had been untouchability for the lower castes. India has now outlawed this rule as it is so unacceptable.
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 that has compelled me to look into the provisions in force that prohibit such differentiation.
A number of cases involving discrimination are based on a variety of variables. Caste and religion have been the major causes of discrimination in India for most of its history. The practice of discriminating on the basis of gender is not new either. This includes discriminating against women as well as LGBTIQA+ individuals. Decriminalising Section 377 of the Indian Penal Code, 1860 in 2018 marked the first step in recognising the LGBTIQA+ community. A discriminatory act causes emotional pain, mental distress, and social isolation. Article 15 of the Constitution has been widely needed and existing ever since it came into force. There are five clauses in Article 15 that specify types of discrimination that are strictly prohibited.
The article examines the provisions of Article 15 of the Indian Constitution, which protects its citizens from discrimination of any kind. Considering India has so many religions, beliefs, languages, cultures, etc., and has such a diverse population, there is no doubt that discrimination can occur in such a country. Thus, the purpose of Article 15 is to protect the rights and interests of the citizens.
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.
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?
Overview of Article 15
In India, Article 15 protects the citizens from racism, untouchability, and various forms of discrimination based on religion and gender. In India, caste discrimination is the type of discrimination that is most prevalent. Discrimination and untouchability are a result of caste division. Untouchability is now an offence in India, however in some areas due to lack of legal awareness and caste beliefs, people still face untouchability. It is assumed that those born in lower castes are considered lower than those born in higher castes, and this leads to discrimination against them. Such discrimination is described as an offence in Article 15 and those found guilty of the offence are punished and penalized. In order to facilitate the economic advancement of the socially and economically backward sections of India’s citizens, the Constitution of India provides reservation to the Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
Interestingly, in 2019, the Central Government introduced the 124th Constitution Amendment Bill in Parliament in order to provide reservations to economically weaker sections (EWS). The bill was intended to provide a 10% reservation in higher education and government employment to EWS. Consequently, the Constitution (One Hundred and Third Amendment) Act, 2019 was passed and as a result, Article 15 was amended to include clause (6). This was done to provide equal opportunity to EWS as they had been disadvantaged economically and socially due to pre-independence discrimination and difficulties.
Besides discrimination on the basis of backwardness, Article 15 also addresses gender-based discrimination. For a long time, women have been fighting for their rights and opportunities, and slowly, these provisions are gaining recognition despite the fact they have existed since the 1950s. Thus, the scope of this article extends to the women too, which provides them with special protection in order to achieve the aforementioned objective of equal rights.
Clause 1 of Article 15:
As stated in Article 15(1), there shall be no discrimination against any citizen of India on the basis of religion, race, caste, gender, or place of birth. Despite the fact that castes are divided into scheduled caste/tribes, backwards classes, and generally, no one should be discriminated against. As a broad term, discrimination has many aspects, and it is unjust. People of lower castes like Dalits have been the target of unjust treatment in numerous instances. Based on the survey by the Hindu, there has been an increase of 6% in unfavourable bias towards Dalits since 2009.
There are laws to protect them, including the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but still, cruelty occurs towards the SCs/STs in certain parts of the country. In some situations, the lower caste people face many troubles, such as women being raped and people being killed as a result of protests and caste-related conflicts. In September 2020, a gang rape case took place in Hathras, a district in Uttar Pradesh, in which a 19-year-old Dalit girl was raped (Hathras case).
Additionally, Dalits are also often targeted for atrocities for no apparent reason. For example, there was a case where the houses of 18 Dalits were set on fire in April 2010. The incident occurred because of a dog barking at a higher-class man. Several laws have been passed over the years to protect the rights of people, but discrimination still occurs. One of the major reasons for this can be a lack of appropriate punishments and an inability of people to adapt. Only when people agree completely with what is enacted in law will we be able to end discrimination against them.
Clause 2 of Article 15:
Under Article 15(2), it is prohibited for an Indian citizen to discriminate against another Indian citizen on the grounds as outlined in Clause (1). Article 15(2)(a) provides that citizens should not be prevented from accessing public places, such as shops, restaurants, hotels or any other place which is open to the general public solely because of their religion, race, caste, gender, place of birth, or any other similar basis.
Article 15(2)(b) states that no individual can restrict another individual on the basis of religion, race, caste, gender, or place of birth from using septic tanks, wells, roads, or any other public facility maintained by the state funds or specifically designated for public use. This provision explains how discrimination should be prevented instead of being practiced. Any discrimination mentioned above shall be prohibited and unlawful. It is illegal and unjust to restrict or prevent access to a public place established by the state exclusively for public use.
Clause 3 of Article 15:
Article 15(3) provides that the state may not prevent itself from making laws that provide special provisions for women and children. In Yusuf Abdul Aziz v. State of Bombay (1954), the adultery charge was filed against the appellant under Section 497 of the Indian Penal Code, 1860. In this case, the main issue was to determine whether Section 497 of the Indian Penal Code, 1860 is in contradiction with Articles 14 and 15 or not. This case presented the argument that Section 497 of the Indian Penal Code, 1860 dictates that adultery can only be committed by man and that women cannot even be punished as abettors. As a result of this argument, there was a contradiction with regard to whether this was in violation of Article 15, which prohibits discrimination based on gender. However, it was further stated that Clause (3) of Article 15 clearly states that nothing contained in Article 15 limits the state’s ability to make special provision for women and children.
Additionally, it was argued that Article 15(3) should not shield women from the threat or commission of crimes. Additionally, in this case, the appellant was not even a citizen of India. Thus, the appellant, in this case, could not invoke Articles 14 and 15, because the fundamental rights can only be granted to the Indian citizens. Therefore, the appeal was dismissed.
Further, in Paramjit Singh v. State of Punjab (2009), the petitioner was elected as a Panch for a reserved seat reserved exclusively for the women of Scheduled Castes. 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 was 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). It was ruled that, if the seat of the Sarpanch for a village was reserved for Scheduled Castes, then both men and women belonging to those categories could stand for election for the Sarpanch’s post, because the eligibility was basically being a Scheduled Caste and representing the constituency as Panche.
Clause 4 of Article 15:
Article 15(4) stipulates that nothing in Article 15 or Article 29(2) prevents the state from creating special provisions for socially and educationally backward classes of citizens, or the STs/SCs. There were two major instances that motivated the inclusion of such a clause in Article 15. First, in the State Of Madras v. Srimathi Champakam (1951), it was the government of Madras that issued an order setting out how seats would be allocated in medical and engineering colleges based on a student’s community and caste. Upon examination, it was determined that the order violated Clause (1) of Article 15 which stated that seats were allotted based on castes of students and not merit. The seven judge bench then overturned this order that allotted seats based on caste and not merit.
Secondly, in Jagwant Kaur v. State of Maharashtra (1952), the construction of a colony solely for harijans was considered to be violative of Article 15(1). Clause(4) under Article 15 was thus introduced for the purpose of helping the socially and educationally disadvantaged citizens without violating any other provisions.
Furthermore, Article 29(2) [which is also mentioned under Article 15(4)] indicates that no citizen of India is discriminated against when applying for admission to a state-run educational institution or receiving financial aid out of state funds based on their religion, caste, race, or language. Therefore, Article 15(4) is not an exception, but rather a special provision for socio-economically and educationally backward sections of society.
It was held by the Supreme Court in A. Periakaruppan v. State of Tamil Nadu (1971) that classifying socially and educationally backward classes on the basis of caste was in violation of Article 15(4). According to the Court, it was, however, necessary for the conditions of such a class of people to change as that was the main reason for providing them with a reservation. In Balaji v. State of Mysore (1963), the Mysore Government issued an order and decided to provide 68% reservation for students belonging to backward classes for their admissions in medical and engineering colleges. The government left only 32% of reservation for students getting admission on merit. Because of this reservation, students with higher marks than those in the reserved category failed to obtain a seat. In the opinion of the Court, the categorization of backward and even more backward classes was not justified under Article 15(4). In order to be considered ‘backward’, both socially and educationally backward can be included. Clause (4) of Article 15 does not talk about caste but class. Additionally, the Court stated that reserving 68% of seats in medical and engineering schools would constitute constitutional fraud, as Clause (4) of Article 15 prohibits exclusive provisions for backward classes. Therefore, reservations could not exceed 50%.
The Supreme Court in State of AP v. USV Balaram (1972) held that caste should not be a determining factor in whether a person belongs to a backward class. The backward class shall be defined as an entire caste that is both socially and academically backward. Further, the Court stated that in the event a backward class improves educationally and socially to such an extent that it no longer requires special aid from the state, the list of backward classes will automatically be updated.
In the State of UP v. Pradeep Tandon (1974), the Apex Court held that providing reserved seats to students who live in rural areas was unconstitutional. It cannot be justified under Clause (4) of Article 15. In this case the state of Uttar Pradesh was providing reservation in medical colleges to students from rural areas, the hilly regions, and students from Uttarakhand. According to the Supreme Court, reservations for students from hill regions and Uttarakhand were valid since the people from these areas are socially and educationally backward due to lack of awareness and inadequate facilities for education. The Court stated that the rural area does not represent a backward social or educational statu and poverty does not equate to backwardness in rural areas.
Clause 5 of Article 15:
Article 15(5) states that nothing in Article 15 or Article 19(1)(g) prevents the Government from making special legal provisions to improve the lives of socially and educationally backward citizens as well as those from Scheduled Castes and Scheduled Tribes. In some cases, special provisions may apply to the admission of the backward classes, SCs, and STs in educational institutions, either private or public, with or without state funding, except for those minorities identified in Article 30(1). Under Article 19(1)(g) of the Indian Constitution, every citizen of the country is free to follow any profession, trade, business, or occupation of their choice. There is a provision in Article 30 that expresses the right of every minority in India to establish and administer schools of their choice, regardless of whether the minority is religious or linguistic. The Supreme Court decided that Article 15, Clause 5, did not violate Article 14 of the Constitution. Indian citizens are guaranteed equality before the law and equal protection within the territory of the country under Article 14.
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.
Area-wise reservation: Article 371
There are also some special provisions for specific states. There are certain articles in the Constitution of India which provide for special state provisions and allow for the formulation of the area-wise reservation to provide opportunity and facilities for the local people of the state in the matters of public employment and education, and different provisions might be for different parts of the state.
Following table mentions about articles with special provisions for different states are:
|Article 371||Special provisions for the state of Maharashtra and Gujarat.|
|Article 371A||Special provisions for the state of Nagaland.|
|Article 371B||Special provisions for the state of Assam.|
|Article 371C||Special provisions for the state of Manipur.|
|Article 371D||Special provisions for the state of Andhra Pradesh.|
|Article 371F||Special provisions for the state of Sikkim.|
|Article 371G||Special provisions for the state of Mizoram.|
|Article 371H||Special provisions for the state of Arunachal Pradesh.|
|Article 371I||Special provisions for the state of Goa.|
|Article 371J||Special provisions for the state of Karnataka.|
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.
Is Article 15(4) a Fundamental Right?
There is no doubt that Article 15(4) belongs to Part III of the Constitution which contains fundamental rights. However, all of the provisions in Part III do not constitute a fundamental right. Several of the provisions of Part III are merely descriptive and the other provisions are concerned with the effects of fundamental rights on existing or future laws. There are also provisions for enforcement and implementation of the fundamental rights, in addition to those that provide exceptions to the fundamental rights. It is because of this variety of provisions that the validity of Article 15(4) continues to be questioned. This article falls under the ‘Right to Equality’ which consists of five Articles, i.e., Articles 14 to 18.
In Article 14, the state cannot deny equality to anyone or deny them equal protection of the law. On the other hand, all Indian citizens have equal access to public sector employment under Article 16 of the Indian Constitution. Article 16(1) of the Constitution states that all citizens shall be given equal opportunity to be employed or appointed to any office under the state. It only applies to the employment and offices held by the government. The state officials may still determine the requirements for the recruitment of government employees. Under Article 17, untouchability is outlawed and punitive measures are imposed. According to Article 18, titles are abolished, and their conferral and acceptance by individuals are prohibited.
By reading Article 15 in its plain form, one is almost certain to conclude that paragraph (4) constitutes an exception to all the other provisions of that article as well as to paragraph (2) of Article 29. As a result, Article 15 (4) permits what Article 29 (2) prohibits. As such, Article 15 pertains to the right to equality. This right, when viewed within the context of Article 14, is not the right to uniform or identical treatment. A person has the right to be treated equally with others. In order to determine if such discriminatory practices are compatible with the right to equality, different tests have been devised and used from time to time, such as the reasonable classification, suspicious classification, or classification that lies between the two. It appears that they have not always been able to offer adequate explanations, particularly when it comes to affirmative action or positive discrimination.
There has been provided with an all-inclusive and satisfactory test in this regard by Ronald Dworkin in his differentiation between the right to equal treatment and the right to be treated as an equal. He believes that the latter right is a fundamental right, whereas the former is merely a derivative right. Equal treatment implies equal respect and concern, while equal treatment means essentially the same treatment for all. But a right to equal treatment is neither feasible nor compatible with identical treatment. An equal concern is therefore essential to the right to equality. Insofar as that concern exists, differences in treatment are appropriate and correspond to a right to equality.
There are some instances when different treatment is compatible with the right to equality. It is only the differences in treatment that are based on differences in concern that violate this right. So, for example, separate treatment on the basis of race, religion, or caste is not inherently unethical as long as respect or concern is shown to everyone regardless of race, religion, or caste. The only time it becomes bad is when it is based on disrespect, contempt or prejudice towards a race, religion or caste. Article 15 prohibits only these kinds of treatment and not every kind of difference of treatment based on the location of birth, race, or caste. Likewise, the article explicitly mentions ‘discriminate against’. Regardless of their religion, race, caste, sex or place of birth, the state may treat them differently, but it may not discriminate against them in these ways. A discrimination is only committed when a person’s religion, race, caste, sex, or place of birth is used as a basis for disrespect, contempt, or prejudice because of a difference in treatment. The difference between treatment on any of these grounds, if not based on disrespect, contempt, or discrimination, will not be discriminatory and, therefore, will not be prohibited by Article 15(1). This rule also applies to Article 29(2).
Therefore, Articles 15(1) and 29(2) prohibit discrimination, prejudicial or condescending treatment based on the grounds mentioned therein. There are special provisions in Article 15(4) of the Constitution regarding the advancement of socially and educationally backward groups or of the Scheduled Castes and Scheduled Tribes. A provision intended to advance any socially and educationally backward class, or to advance SCs and STs, cannot be defined in terms of prejudice, contempt, or insult towards any forward-looking group.
Therefore, Article 15(4) has a distinct scope and function from Articles 15(1) and 29(2). In no way does it overlap with them or diverge from them. Article 15(4), like Articles 15(1) and 29(2), is intended to ensure or promote equality. It is only the latter that prohibits the state from making discriminatory decisions, while the former requires the state to take appropriate steps to eliminate such discrimination. As a result, the Constitution-makers not only envision equity to be achieved by judicial interpretation, but they have also provided a way to achieve it by virtue of Article 15(4) of the Constitution. Therefore, Article 15(4) is equally recognized as a fundamental right. The interpretation of Article 15(4) in relation to Articles 15(1) and 29(2) emphasises that one does not have to rely on the technicalities, including the non-obstante clause, to justify its existence.
The Mandal Commission Report allowed half of the seats in educational and service matters to Scheduled Tribes, Scheduled Castes, and OBC who together constituted around 70% of the total Indian population. This was followed by the judgement given by the Supreme Court of India in the case of Indra Sawhney v. Union of India (1992). As a result of this move, their status improved significantly.
Consequently, it became incumbent upon the legislature to devise policies to improve the economic situation of those belonging to the ‘other category’. Due to this, the legislature passed the Constitution (103rd Amendment) Act, 2019 to give economic backward sections a 10% reservation (as discussed above) in educational and employment institutions in the general category. This amendment inserted Clause (6) to Article 15 and Clause (6) to Article 16 of the Constitution.
The amendment Act was accused of violating the Indian Constitution’s basic structure. However, it should be noted that all Constitutional provisions are essential, but all of them do not hold the same value. A constitutional amendment may be made so long as it does not alter the basic structure and foundation of the Constitution. In 1973, the term basic structure was first used in Sajjan Singh v. State of Rajasthan (1964), when it was stated as follows:
It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?
Only in 1973 was the concept incorporated in the text of the Supreme Court’s decision. Again, in the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court justice Sikri described the Constitutional basics and its structure. Thereafter, several courts examined and worked out this issue in several cases including Indira Nehru Gandhi v. Raj Narain (1975), Minerva Mills Ltd. v. Union of India (1980), etc.
All constitutional amendments since the Kesavananda Bharati case had been tested against this principle and those which adversely affect or destroy the wider principles of the Constitution such as democracy, secularism, equality, or republicanism or alter the Constitution’s identity were considered as bad. The M. Nagaraj v. Union of India (2006) case established a twin test which included the width test and the identity test. These tests must be satisfied in order to determine whether an amendment was valid or not. Essentially, the width test sought to determine the impact an amendment would have on the Constitution and indirectly on its core principles. Accordingly, the scope of effect determined the legitimate scope/width of the amendment power, and it also contemplated all of the ramifications of the amendment process to determine if the ‘basic structure’ of the Constitution was threatened. However, the identity test asked whether the Constitution’s identity would remain the same after the amendment.
The Government’s viewpoint
According to Prime Minister Narendra Modi, the act was a landmark event in the history of the nation and a potent measure that ensures justice for all sections of society. Mr Arun Jaitley (Ex Minister of Finance and Corporate Affairs) explained the reasoning for the 10% quota and said that if two individuals have different backgrounds due to their birth or economic circumstances, they, therefore, could not be treated equally. Unequals cannot be treated equally, he claimed. Moreover, he stated that the Supreme Court’s reservation cap of 50% applied only to caste-based reservations, while the Economically Weaker Section reservation was not affected by it.
According to Thaawarchand Gehlot (ex Union Social Justice and Empowerment Minister), similar state laws for reservation of economically weaker sections of the community were quashed by the courts, since the Constitution did not include the concept of economic reservation. Now that the law has been brought into the Constitution by making necessary provisions, the same could not be struck down by the Supreme Court, if challenged.
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 per cent
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.
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.
It is important to note that Article 15 is very broad and states that there shall be no discrimination based on religion, race, caste, gender, or place of birth in any case. The term discrimination encompasses a wide range of issues and people have been discriminated against in many different ways throughout history. This article is intended to provide equal opportunities for citizens for the protection of their rights. Article 15 primarily seeks to ensure the social, economic, and educational advancement of the economically, socially, and educationally backward classes.
As a result of the existence of Article 15, the reservation has been the subject of the most significant disputes. There are a number of forms of reservation available to the weaker sections of society that cause distress to the general group of people. Reservations are not intended to divide the population into general and reserved categories, but rather to assist the disadvantaged populations of the country. Even during the colonial era and afterwards, untouchability and discrimination were very common in the early centuries preceding British colonialism. The introduction of laws intended to protect the disadvantaged class has, however, resulted in some reduction in inequality. While one cannot say that there has been a complete removal of discrimination, it is reducing. Equality is mentioned in India’s Constitution’s preamble. In Article 15, the term is to be implemented widely throughout the Indian subcontinent.
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