Discrimination- Article 15 of the Constitution of India, 1950 (Draft Article 9) was bantered on the 29th of November 1948 in the Constituent Assembly. The Assembly was consistent about the significance of Draft an Article in such a way, in combating unfair practices in Indian culture. Some contended that the Draft Article didn’t discriminate on the basis of family and descent. Others needed a particular mention of nurseries, streets and tramways as potential public spaces where individuals could be discriminated against. Because of these focuses, it was explained that while the Draft Article explicitly makes reference to certain spaces, the general idea of the language utilized in the Article was adequate to cover a wide scope of public spaces including those that were not indicated in the Article’s content.
Article 15 incorporated in our constitution with certain amendments, and it contains six clauses.
Table of Contents
Article 15
Article 15 provides prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. The significance of article 15 is for a particular application of the general rule embodied in article 14. When a law comes with the prohibition mentioned in article 15, it can not be reviewed by the virtue of article 14 by applying the principle of reasonable classification. Article 15 is available to citizens only.
Clause (1)
Clause (1) of Article 15 provides that: “the state shall not discriminate against any citizen on the ground only of religion, race, caste, sex, place of birth or any of them”.
The word discrimination means to make an adverse distinction or to distinguish unfavourable from others, more precisely if a person treated less equally and the unfavourable manner in comparison with another person on the similar circumstance the discrimination occurs, which is prohibited by the virtue of article 15 on certain grounds.
If a law makes discrimination on any of the ground mentioned, it can be declared invalid, in case of Nainsukhdas V state of U.P[1], a law provided separate electorates on the basis of different religions held to be invalid.
The word only used in Article 15 indicates that the discrimination cannot be made merely on the ground that one belongs to a particular case, sex, etc. if other qualifications are equal then cast, religion, sex or place of birth can not be ground for preference or disability. Therefore it can be concluded that discrimination on the ground other than religion, race, caste, sex or place of birth is not prohibited.
Another case of D.P Joshi V state of M.P[2], held that discrimination on the basis of residence does not violate article 15(1), in that case, there is a rule of the state medical college requiring a capitation fee from non- Madhya Bharat students for admission in the college, held valid as the ground for an exception was residence not a place of birth.
Clause (2)
Article 15 (2) provides that: “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 regards to-
Access to shop
Public restaurant
Hotels & place of public entertainment
Use of wells, tanks, bathing-ghats, roads and place of public resort, maintained wholly or partially out of the state funds or especially for the use of the general public.
‘A place of the resort means a place which is frequented by the public like, parks, public roads, public busses, public urinals or railways etc’.
The catchy point here is, while the clause (1) of Article 15 prohibits discrimination by the state, clause (2) prohibits both, the state and private individual from making any discrimination. The object behind this is to eliminate the abuse of the hind social system and to herald a united nation. No law, custom or usage authorizes any person to prevent any Harijans, depressed classes or the like from having access to the public place mentioned above.
Clause (3)
Special provision in respect of women and children: article 15 clause (3) is one of the two exceptions to the general rule laid down by clause (1) & (2) of Article 15. It says that; “Nothing in this article prevents the state from making special provision for women and children”.
Women and children require a special amount of care as by virtue of their nature, article 15 empowers the state to make provision in respect of women and children for their advancement. The reason because due to the continuous struggle for her sustenance and patriarchal function of society disgrace her condition sometimes and her physical well being becomes the subject of public interest and care in order to preserve the strength and vigour of the race.
By virtue of article 42 of Indian constitution, if a woman worker has given special maternity relief and the law to effect this will not infringe article 15(1). Similar to the case if the state formed an educational institution exclusively for women.
The provision for free education for children or measures for prevention of their exploitation, would also not come under the inhibition of article 15 (1). It has however been held that Article 15(3) provides provision in respect of women and children for their betterment and does not require absolutely identical treatment as those enjoyed by the males in similar matter afford to them.
In Salil Bali v. Union of India[3], Apex court regarding the provision of Juvenile Justice( Care and Protection of children) Act, 2000 fixing the age at eighteen years as upper age for limit for treating persons as Juvenile held it to be constitutionally valid.
Clause (4)
Special provision for the advancement of Backward classes: Article 15 (4) is another exception to the general rule laid down in article 15 (1) & (2). It was inserted by 1st Amendment Act, 1951 while deciding the case of the State Of Madras v. Champakam Dorairajan[4], in that case, madras government had a G.O reserved seat in Madras medical college for different communities in certain proportions on the basis of religion, race, caste, sex. However, the government defends it by pleasing as the motive behind is to serve social justice for all the sections of the society as required by article 46.
The Supreme Court held, G.O void as it classed on the basis of caste and religion irrespective of merit. Although the directive principle of state policy could not override fundamental rights.
In order to modify judgements coming on bove type basis, article 15 was amended and clause (4) was inserted.
The clause provides that: “Nothing in this article or 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 scheduled tribes”.
Clause (4) of Article 15 is only an enabling provision and does not impose any obligations on the state to take any special action under it. Merely confer discretion to act if necessary.
The principle behind Article 15(4) is that preferential treatment can be given validly were socially and educationally backward classes needed it. Clause 4 is not an exception but only make a special application for reasonable classification.
Two things to be determined-
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SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES
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THE LIMIT OF RESERVATION
In case A. Periakaruppan V. state of Tamil Nadu[5], Supreme court held that the classification of backward classes on the basis of caste is well within the purview of Article 15(4) provided those castes are shown to be socially and educationally backwards. But the court advises the government should not proceed on the basis that once the class is declared to be backwards will remain backward, as this will defeat the very provision of article 15(4). The government should keep watch on the question of reservation of seats and only the classes which are really socially and educationally backwards should be allowed to benefit from this.
Clause 5
The 93rd Constitutional Amendment act, 2005 inserted clause (5) in article 15 with effect from 20-1-2006. It provides:
“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 backwards classes of citizens or for the scheduled caste and scheduled tribe in so far as such special provision related to their admission to educational institutions including private institution, whether aided on unaided by the state other than the minority educational institutions referred to in clause(1) of Article 30”.
Amendment enables the state to make provision for reservation for the above categories of classes in admission to private educational institutions out of its preview. Article 15 prohibits discrimination on the grounds of religion.
In case Pramati Educational and Cultural trust v. Union of India,[6] Supreme Court held clause (5) of Article 15 is not an exception or a provision overriding article 15 of the constitution but an enabling provision to make equality of opportunity promised in the preamble.
In terms of unaided private educational institutions aided private educational institutions alike is not violative of Article 14. By excluding minority institutions referred to in clause (1) of Article 30 of the constitution, the secular character of India does not destroy, they are a separate class and exclusion of them is not a violation of Article 15 (5).
Clause 6
One hundred thirteen amendment act 2019, inserted clause (6) in article 15, which provides that:
“Nothing in this article or subclause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the state from making-
Any special provision for the advancement of an economically backwards section of citizens other than the classes mentioned in clause (4) & (5).
Any special provision for the advancement of an economically backwards section of citizen other than the classes mentioned in clause (4) & (5) in so far as such special provision related to their admission to educational institution including private institution, whether aided or unaided by the state, other than the minority institution referred to clause (1) of Article 30. Which in case of reservation, in addition to the existing reservation and subject to a maximum of ten per cent of the total seat in each category.
“Economically weaker sections shall be such as may be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage”.
Conclusion
Article 15 has consistently jumped out to reach to the one truly out of luck. The state of the discouraged has profoundly improved since its beginning in 1949. It gives a base to each and everything that the council needs to detail arrangements to advance agreement in the general public. There is an extraordinary decrease in the numbers of instances of abominations against the oppressed classes.
Article 15 genuinely is the watchman of oppressed and a shield against Discrimination, it has helped the Indian culture to stand tall and pleased regardless of such an enormous decent variety and a wide range of sexism, bigotry and inflexible rank framework and will keep on adding to India’s solidarity and balance, until the end of time.
References
1.Dr. J. N. Pandey, central law agency, 56th edition, p.149
2.AIR 1953 SC 834
3. AIR 1955 SC 334
4.AIR 2013, SC 3743
5.AIR 1951 SC 226
6.AIR 1971 SC 1875
7. AIR 2014 SC 2114
BY- Prashant Kumar
SRMU