This article is written by Devansh Sharma, 1st year Student, at Law School, Banaras Hindu University. This article deals with the detailed explanation of Article 15.
The stories of women being beaten up for drawing water from well, people being harassed if their shadow falls on other men, devotees being stopped from entering into the temple and beaten up for touching idols of gods has become a common affair of newspapers headlines whenever I go through one. It seemed to me like a nightmare which has compelled me to look into the provisions in force that prohibit such differentiation.
Article 15 of the Indian constitution talks about the prohibition of discrimination (unreasonable differentiation). But questions that arose in the mind was, what does discrimination signify?
Scope of the word ‘Discrimination’:
Discrimination occurs when you are distinguished or treated in a less favourable manner than another person under similar circumstances or if you are disadvantaged by being placed on equal footing another under different circumstances, for example, you being disabled or pregnant. This action cannot be reasonably and objectively justified.
Article 15 restricts discrimination on the ground of:
- Religion – It means that no person should be discriminated on the basis of religion from accessing any public place or policy by the state or any group.
- Race – Ethnic origin should not form a basis of discrimination. For example, a citizen of Afghan origin should not be discriminated from those of an Indian origin.
- Caste – Discrimination on the basis of caste is also prohibited to prevent atrocities on the lower castes by the upper caste.
- Sex – Gender of an individual shall not be a valid ground for discrimination in any matter. For example, discriminating transgenders, females, etc.
- Place of birth – A place where an individual is born should not become a reason for discriminating among other members of the country.
Often the word ‘Discrimination’ is perceived to be contrary to the principles of equality. Individuals tend to confuse discrimination with breach of equality. Can something that is disadvantageous and against the general classification of the individual be taken as discrimination? The answer remains ‘NO’. The Supreme Court in the following cases has observed that every classification does not constitute discrimination in the first place.
In the case of Kathi Raning Rawat v. State of Saurashtra, the state of Saurashtra set up special courts under Saurashtra State Public Safety Measures Ordinance 1949, to adjudicate on the matters of section 302, section 307 and section 392 read with section 34 of the Indian Penal Code, 1860. The contention brought before the court was that these provisions are discriminatory for the residents depending upon the territory.
The court stated that all kinds of legislative differentiation are not discriminatory. The legislation did not refer to certain individual cases but to offences of certain kinds committed in certain areas and hence it is not discrimination.
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?
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:
Special provisions for the state of Maharashtra and Gujarat.
Special provisions for the state of Nagaland.
Special provisions for the state of Assam.
Special provisions for the state of Manipur.
Special provisions for the state of Andhra Pradesh.
Special provisions for the state of Sikkim.
Special provisions for the state of Mizoram.
Special provisions for the state of Arunachal Pradesh.
Special provisions for the state of Goa.
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.
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.
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