ARTICLE 15
Sun, moon, earth and seas
Breeze, forests or lissome reeds
Lo ! blessed plenitude -Grace of Supreme
Bathes all alike – mighty, maimed or mean.
Nature is a Supreme force, rightly called Divine, universally engaged in the supreme task of nurturing life. It follows eternal laws of Nature (distinct from the comparatively ephemeral and man-made laws: natural law, positive law, real law or Marxian law). Nature bestows on every form of life, without any ‘individualized reward and punishment paradigm’, what is needed for its nourishment. The State, a political entity with its quintessential limitations, on the other hand, manifests essentiality of its geopolitical selfhood, through self-defined patterns of political and social processes, resting on the plank of mutuality with its citizens. The relationship of the State- citizen is often viewed as a ‘social contract’. The state is conspicuously characterized by ‘individualized reward-punishment paradigm’ of mutuality. Here lie, in the random order, multiple scattered weeds of discrimination and perpetual constitutional challenges, to liberate the mankind from these lethal weeds.
The text of Article 15 reads as under:
- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(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.
The genesis of the said Article 15 lies in revolutionary social reform movements in India to put an end to every shade of discrimination against any citizen, especially on the grounds specifically enumerated therein. The social movements of Dr. B R Ambedkar, Mahatma Gandhi and Jyoti Rai Phule are relevant in the context of revolutionary reforms to uproot the radicalized and stubborn social malpractices and deep-seated social negativity. The five specific grounds of discrimination enumerated in the text of the Article 15 are: religion, race, caste, sex and place of birth.
At the outset it is proper to clarify that the words ‘Nothing in this Article’ prefacing clauses (3), (4) and (5) of Article 15. This prefix is inserted ex majore cautela and are not be read or treated as ‘legislative device’. However, in this regard it deserves to be clarified that observations of Hon’ble Bench in Thomas case(AIR 1976 SC 490) that these prefixes: ‘Nothing in this Article’ are legislative devices were held to be erroneous. The error regarding hasty treatment of the said expression as a legislative device was noted and rectified in Akhil Bhartiya Shoshit Karamchari Sangh v Union Of India AIR 1981 SC 293.
This Article 15 prohibits the State from practicing, facilitating or approving any identity-related discrimination on the grounds (identity factors)mentioned therein, while in the same breath, issuing a clear mandate against citizens from inflicting any disability on a fellow citizen based on the identities enumerated in the Article. The article also imposes an affirmative duty on the State to implement letter and spirit of the constitutional values ingrained in the Article.
In the historical context, it may be noted that some scholars of Constitutional law in India have often rued the factum of critical absence of the term ‘revolution’ in the transformative script, voluminous and exalted script written in blood of the martyrs, of Indian independence. The multi-faceted struggle of Indian independence contemporaneously with equally energetic cathartic processes of nation building, such as, ‘defining a nation’, ‘forging a unity’, ‘inculcating values of nationalism’, collectively cherishing highest ideals of a glorious co-existence on the consecrated principles of non-violence against the fierce storms of ‘divide and rule’ policies inflicted by the foreign rulers on the soul of the nation. These critical processes of reformation to awaken the soul of the nation for raising courageous, assertive and loud voice in unison, against subjugation indeed elevates the status of triumph of Indian struggle much higher than a mere revolution. History tells that ‘revolution’ is a mob-led blood-stained mob-actions of killing the natives of their own States by frenzied citizenry of any State. Thus the triumph of Indian freedom struggle of awakening the soul of a nation and peacefully attaining independence always deserved to be recognized globally as a ‘glorious revolution’ and not just its slaughter-house format of revolutions, such as, French Revolution and Russian Revolution. The glorious moment of adoption of Constitution of India by a unified and non-exclusionary supreme force of ‘We, People of India’ on 26.01.1950 and triumphantly hoisting a tricolor of independent republic of India at Red Fort are great events in any documented civilization of human history which did not get justice at the hands of the world historians. Contrary to the saga of various States, who hysterically glorified the spirit and endeavours of their citizens, by over-use of emphatic expression ‘revolutions’ in the chronicles of their history with an object of semantically enriching their political ‘struggle’, which by any comparative standards is much feeble and much lackadaisical transformative political movement, in contrast with the socio-political accomplishments of ‘People of India’. India, a nation with multiple historical discords, divisions, contradictions and distortions, constitutionally preferred a softer and humbler expression, such as, ‘freedom movement’ and ‘struggle for independence’ and cautiously eschewed the term ‘revolution’, while chronicling the multi-faceted battles, internal as well as external, of years and years, for independence of India.
Our first Prime Minister Jawahar Lal Nehru in his celebrated speech on the auspicious moment of India’s awakening to the salubrious dawn of freedom blithely captured the mystified ‘long years’ of struggle of the ‘people of India’ through a romantic-wrapping in the ornamental phrase ‘tryst with destiny’.
K.M. Munshi focused on the spiritual aspects of the struggle of people of India for liberation by choosing an apt phrase: ‘Pilgrimage to Freedom’.
Maulana Abdul Kalam Azad highlighted the of emergence of a free ‘nation’ as a civilisational luminosity for the liberated brotherhood.
Be it as it may, Article 15 and Article 17 of the Constitution of India, indeed signify and symbolize a ‘revolution’ in the socio-cultural realities of India and these two Articles are not scripted in normal tenor and normal rhythm of socio-political movements, especially when the then prevailing socio-political realities of the India are honestly evaluated in the context of transformative effects of constitutional values adopted by independent India.
We need to examine, at the first instance, Article 15 of Constitution of India, while attempting to deconstruct the underlying philosophy of the said Articles 15 and 17.
The discrimination against any citizen on the aforesaid five grounds is prohibited by Article 15. The sub clauses (3) to (5) of the said Article lay down affirmative duty to act as well as the scope of powers which State can constitutionally exercise to introduce positive discrimination(also referred to, in specific context, as reverse discrimination ) in favour of the classes enumerated in the aforesaid sub clauses.
Thus, Article 15(4), often referred to as a constitutional mechanism for reverse discrimination, authorises the State to make any reasonable discrimination in favour of the vulnerable social segments including women and children. State can also make any reasonable discrimination to serve the cause of educationally backward classes of citizens- Scheduled Castes and Scheduled Tribes. State, by virtue of added sub clause (5), can also create preferential opportunities for the enumerated classes in educational institutions, including private educational institutions, whether aided or unaided.
The Article 15, while enjoining, inter alia, even upon its citizens a constitutional obligation, imposes a strict prohibition against creating any disability, liability, restriction or condition against any fellow citizen, on the grounds cited in Clause (1) of the Article, 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.
The judicial dicta on the reach and scope of Article 15, often employs terms and expressions, such as, ‘reverse discrimination’, ‘discrimination based on geographical classification’, ‘discrimination in favour of backward areas’, ‘protective discrimination’ and ‘institutional preference’.
‘Reverse discrimination’ in favour of members of scheduled castes and scheduled tribes is held to be justified, on the anvil of Article 15 (40 and article 16(4), not only, on the ground of their backwardness but also for parallel ground to ‘right’ a historical ‘wrong’ (Pardeep Jain v Union Of India AIR 1984 SC 1420).
‘Discrimination based on geographical classification’ Such discrimination falls outside article 15. Its justification can be evaluated on the touchstone of Article 14 (valid classification criteria).(AIR 1986 SC 1362- also called regional reservation: Nidamurthi v State of Maharashtra( AIR 1986 SC 1362 )
‘Discrimination in favour of backward areas’ Such discrimination falls outside Article 15. Its justification can be evaluated on the touchstone of Article 14 (valid classification criteria).
‘Protective discrimination’ The issue of protective discrimination came up in Jagdish Saran v Union of India 1980 AIR SC 820. Court noted that Delhi University discriminated against students of other Universities. Delhi University asserted that it was obliged to protect its students from discrimination by other universities. The question of validity of this discrimination was found unjustified on the touchstone of Articles 14 and 15.
‘Institutional preference’ The practice of preferring students from the same university for higher courses was upheld as valid (Greater Bombay Municipal corporation vs. T. Anjali, AIR 1989 SC 1194).
Before proceeding further, it would be expedient to briefly dwell on the said five ‘identity factors’ or ‘five grounds’ which form the nucleus of article 15.
Religion- Before the nineteenth century, the term “religion” was rarely used. For medieval authors, such as Aquinas, the term religio meant piety or worship, and was denied of “religious” systems outside of what he considered orthodoxy (Harrison 2015). The term “religion” obtained its considerably broader current meaning through the works of early anthropologists, such as, E.B. Tylor (1871), who systematically used the term for religions across the world. Natural philosophers, such as Isaac Newton, Johannes Kepler, Robert Hooke, and Robert Boyle, sometimes appealed to supernatural agents in their natural philosophy (which we now call “science”). Still, overall there was a tendency to favor naturalistic explanations in natural philosophy. This preference for naturalistic causes may have been encouraged by past successes of naturalistic explanations, leading authors such as Paul Draper (2005) to argue that the success of methodological naturalism could be evidence for ontological naturalism. Some studies suggest that religion draws more upon an intuitive style of thinking, distinct from the analytic reasoning style that characterizes science (Gervais and Norenzayan 2012). On the other hand, the acceptance of theological and scientific views both rely on a trust in testimony, and cognitive scientists have found similarities between the way children and adults understand testimony to invisible entities in religious and scientific domains (Harris et al. 2006). Moreover, theologians such as, the Church Fathers and Scholastics were deeply analytic in their writings, indicating that the association between intuitive and religious thinking might be a recent Western bias.
Regardless of the philosophical or metaphysical debates on aspects of religion, the Constitution of India uses the term religion in Article 25 in a pragmatic manner which even implicitly recognizes that religion may not necessarily be theistic (thus even pagan and heathens form amorphous religious identities). In A.S. Narayana v State of Andhara Pradesh AIR 1996 SC 1765(para 89), Hon’ble Supreme Court acknowledged that it is difficult to define the expression of religion and religious practices or beliefs. Thus, polytheism, henotheism, monotheism, monism, advaitism and multiple other religious classifications have been recognized by the Courts in the course of their adjudicatory function.
The complex and paradoxical concept of equality was retrieved even from the mystic world of religious texts and age-old practices in a case popularly known as Sabrimala temple case (Indian Young Lawyers Association vs. State of Kerela 2019 11 SCC 1).
In The Commissioner Hindu religious Endowments Madras v Sri Lakshmindera Thirtha swamiar Of Shri Shirur math AIR 1954 Sc 282 , it was held that “religion is certainly faith of the individuals and communities and it is necessarily not theistic. A religion has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to spiritual well being, it would not be correct to say that religion is nothing else but a doctrine or belief”.
In Most Rev.PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SC 2001, it was held: “ religion is the belief which binds spiritual nature of men to a supernatural being .”It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is civil in nature and includes right to practice it, preach it, sand profess it.
Race– Grouping of humans based on shared physical and social qualities into categories generally viewed as distinct and different from other classifications by the society is a determinant of racial identity. A race has got common phenotypical traits which are described in well documented phylogenetic trees describing folk taxonomies. The expression ‘race’ was also described as ancestrally differentiated populations which were also described as clades. Philosopher Robin Anderson used cladistics as a tool to categorize human races biologically. Race is a social construct. Max Weber describes such sociological stratification as intra-generational differentiation. Bordieu, another sociologist, explained the race by using a metaphor of social spheres. As per the said metaphor, social positions of the individuals and social lifestyles were dotted and correlated to understand the cultural and social characteristics of particular races as well as the mutual distinctions between any two races. Constitution of India does not recognize any race for a favour or disfavour.
Caste- Caste is a closed, often walled, social stratification system in which people inherit their social position/ status within a society.
In colonial Spain, the expression to define such socially stratified groups was castas. The term caste was defined to the Indian Society in 17th Century by the Portuguese. The Dutch ethnographic studies also refer to the social stratification as caste. In Latin America, caste signifies race, ethnicity as well as economic status.
In India, Caste system consisted of four categories known as Varnas. The said Varnas were Brahmins (Priests), Kshatriyas (Warriors), Vaishyas (Commerce) and Shudras (Workmen). Some people found themselves as ‘left-outs’ in the said classification of four Varnas and they came to be socially treated as outcastes or untouchables. The said classification of four Varnas has its genesis in a documented form in 200 B.C. The said document is known as Manusmriti. Caste system also gives rise to practice of endogamy which has metamorphosed over the period of time, within some echelons of Varnas, while excluding the disadvantaged castes. The Constitution of India addresses the entire issue relating to all identified classes for the purpose of special provisions in their favour and for their advancement. Article 330-342 and Article 366(24) read with Schedule V, VI of the Constitution of India elucidate the castes and tribes recognised for special favours to secures their upliftment.
Article 341 and Article 342 authorize President of India to issue a notified order in respect of each state specifying the castes races and tribes which are to be regarded as scheduled caste and mutatis mutandis scheduled tribe. President has issued Constitution(Scheduled Castes)Order 1950 and Constitution(Scheduled Castes) Union Territories Order 1951. Clause 2 of 1950 order provides for castes, races and tribes which are deemed to be scheduled castes in the states mentioned in part 1 to part 30 of the said order. Para 3 of the said order states that ‘notwithstanding anything contained in para 2, no person professing a religion other than Hindu or Sikh shall be deemed to be a member of scheduled caste’.
In B C swain v W & T department ( AIR 1974 Ori 115) it was held that although harijans do not fall within scheduled castes and scheduled tribes, the court can take judicial notice of the fact that they were socially and educationally backward.
Sex- In the context of identity perspective the expression ‘sex’ not only signifies gender recognition but also connotes and signifies all sexual orientations and proclivities.
In this regard it is relevant to refer to two recent cases decided by Supreme Court of India:
In National legal Services Authority v Union of india, (2014) 5 SCC 438, the issue of conventional binary of gender, said to be based on Corbett principle of biological test was discarded, in favour of psychological test of self identification in favour of the persons described as transgender, eunuch and hijras. Various guidelines were issued by Hon’ble Court to ensure that gender equality is practically ensured to what came to be called as the ‘third gender’, for all intents and purposes.
Dealing with another aspect of sexual orientation, in Navtej Singh Johar v Union of India (2018) 10 SCC 1. As per the judicial exposition of the right to equality laid down in the said case, the pith and substance of Section 377 of the Indian Penal Code stood deeply probed in the light of legitimate sexual orientations of humans and by well reasoned conclusions the said provision in Indian penal code stands decriminalized. The judges, in unanimity, found the said section 377 IPC to be an embodiment of cultural bias, without any valid and scientifically supported rationale and hence ‘manifestly arbitrary’. It was emphatically ruled that sexual orientation cannot be shrunken into a canonical or puritanical rhythm of life. Thus now legalized rights of non-canonical consensual sexual activities between the consenting parties are pulled out of taint of criminality or illegality. The so decriminalized activities need to be kept off from public life and to remain cleared of the patina of obscenity, if any citizen intends to resort to the same as a legally valid right. With such reasonable restrictions, the entire spectrum of non-canonical sexual orientation of human life stands legally sanctified, within the celebrated ideals of equality.
Place of birth- Place of birth of any Indian, whether in a hostile country or any other part of the world cannot be a ground for discrimination if such person claims constitutional rights out of any discriminatory action of the State. Domicile and place of birth are not synonymous. The prohibition in Article 15 is restricted to discrimination based on place of birth and cannot be extended to discrimination based on domicile (D.P Joshi vs. State of Madhya Bharat, AIR 1955 SC 334)
Socially and educationally backward classes– parameters which are taken into consideration by a state for defining such classes in the state Article 15 as originally enacted, contained only three sub-clauses. Sub Clause 4 was inserted by first constitutional amendment in the year 1951. The said amendment was necessitated as a result of decision in Madras vs Champakaun Dorairajan (AIR 1951 SC 226). The ratio of the said judgment led to quashing of a government order which was challenged as communal government order.
Another relevant aspect of this Article is that sub clause (3), (4) and (5) do not confer any right on a citizen, much less a fundamental right on the citizens. The said 3 sub-clauses of Article 15 simply empower the State to take some reasonable steps, at variance with the quintessential tenor and substance of the main Article 15.
As Article 16(4), Article 15(4) confer a discretion on the state and do not create any constitutional duty or obligation, therefore, no mandamus can be issued either to provide for reservation or for relaxation in admission in Universities (Union of India v. R. Rajeshwaran (2003) 9 SCC 294)
Discriminations evaporate from the landscapes of diverse society only in the effulgence of collaboratively-kindled frame of humanitarian values.