PROHIBITION OF DISCRIMINATION ARTICLE 15
AUTHORED BY: SANAH SETHI
AMITY LAW SCHOOL (L.L.B 3 YEARS)
PROHIBITION OF DISCRIMINATION ARTICLE 15
Article 15 of the Indian Constitution deals with ‘Prohibition of Discrimination’ on the grounds of religion, race, sex or place of birth.
The word ‘discrimination’ means to make an adverse distinction or to distinguish unfavorable from others. If a law makes discrimination on any of the grounds of religion, caste, race, sex, etc, it can be declared invalid.
The right against the prohibition of discrimination under Article 15 is applicable in the case of citizens only. No person who is not a citizen can claim this fundamental right.
The scope of Article 15 is very wide. While the prohibition in clause (1) is leveled against State action, the prohibition in clause (2) is leveled against individuals as well as the State.
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The first clause of Article 15 directs the State not to discriminate against a citizen on grounds only of religion, race, caste, sex or place of birth or any of them. The second clause prohibits citizens as well as the States from making such discrimination with regard to access to shops, hotels etc and all places of public entertainment of public resort, wells, tanks, roads etc. The first clause of Article 15 mentions the prohibited grounds in any matter which is exclusively within the control of the State. The second clause prohibits both the State and private individual, whosoever is in control of the above mentioned places. The third clause allows the state to make special provisions for the protection of women and children. The fourth clause which was added by the Constitution (1st Amendment) Act, 1951, allows the State to make special provisions for the protection of the interest of the Backward Classes of citizens and is, therefore, an exception to Articles 15 of the Indian Constitution.
No Discrimination Against Citizens (Art. 15(1))- By clause (1) of Article 15 the state is prohibited to discriminate between citizens on grounds only of religion, caste, race, sex, place of birth or any of them. The word ‘discrimination’ means to make an adverse distinction or to distinguish unfavourable from others. If a law makes discrimination on any of the above grounds, it can be declared invalid.
In Mainsuphdas v. State of U.P (AIR 1953 SC 384)- a law which provides for election on the basis of separate electorate for members of different religious communities was held to be unconstitutional.
In Nain Sukh Das v. State of U.P (AIR 1953 SC 384)- it has been held that the mandate in Article 15(1) extends to political as well as other rights.
No Discrimination as to use or Access to Public Places (Art. 15(2))
Article 15(2) declares that, no citizen shall be subjected to any disability, restriction or condition on grounds only of religion, race, caste, place of birth or any of them with regard to access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bath ghats, roads and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of the general public. A ‘place of public resort’ means places which are frequented by the public like a public park, a public road, a public bus, ferry, a hospital.
Special Provision for women and children (Art. 15(3))
Clause (3) of Article 15 provides- “Nothing in this Article shall prevent the State from making any special provision for women and chidren.”
The word ‘for’ in Clause (3) signifies that special provisions can be made “in favour of” women and not against them. Therefore, Clauses (1) to (3) of Article 15, read together would imply that State can discriminate in favour of women against men, but it cannot discriminate in favour of men against women.
The “Special Provisions” which the State may make to improve women’s participation in all activities under the supervision and control of the State can be in the form of either affirmative action or reservation.
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In Choki v. State of Rajasthan (AIR 1957 Raj. 10)- the Court has held it valid on the ground that it makes special provision for women and therefore, it is protected under Article 15(3).
In Anjali Roy v. State of West Bengal (AIR 1952 Cal. 825)- it has been held that Article 15(3) provides for only special provisions for the benefits of women and children and does not require that absolutely identical treatment as those enjoyed by males in similar matters must be afforded to them.
Special Provision for Backward Classes (Art. 15(4))
Clause (4) of Article 15 states that “Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the improvement or development of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
This Clause was added by the Constitution (First Amendment) Act, 1951, as a consequence of the decision of the Supreme Court in State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
Clause (4) of Article 15 merely confers discretion on the State to make special provisions. It does not impose any obligation on the State to take any action under it.
The term ‘backward classes’ is not defined in the Constitution. Article 340 of the Constitution empowers the President to appoint a Commission for this purpose and on the basis of the report of the Commission the President may specify the backward classes. The President appointed the Commission in 1952 and it submitted its report in 1955. The Union Government did not accept the Report. Hence, there is no specific definition of the term ‘socially and economically backward classes’ on All India Level. At present the States specify the backward classes in their own way and on their own criterion.
‘Scheduled Castes’ are such castes, races or tribes as are deemed under Article 341 of the Indian Constitution to be Scheduled Castes for the purposes of this Constitution (Article 366(24).
‘Scheduled Tribes’ means those tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution (Article 366(25).
Reservation in private aided and unaided institutions
Clause (5) of Article 15 was inserted by the Constitution (93rd Amendment) Act, 2005 w.e.f 20.01.2006. It empowers the State to make special provision, by law, for the improvement of any socially and educationally backward classes of citizens or for Scheduled Castes or the Scheduled Tribes for the admission to educational institutions.
In Shanitha Kumar v. State of Mysore (1971 (1) Mys.L.J.21)
It has been held that an adopted son of scheduled castes is not entitled for the benefit of reservation to that class.