THE CONCEPT OF ARTICLE 15

- KARTIK TYAGI (A11911115019), 4rth SEM

Article 15 of the Constitution provides that no citizen shall be subjected to discrimination in matters of rights,
privileges and immunities pertaining to him. This Article lays down:

(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 subjected 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 Scheduled Tribes.

BENEFITS OF ARTICLE 15

The guarantee under Article 15 is available to citizens only and not to every person whether citizen or non-citizen as
applicable under Article 14 of the Constitution. Article 15 directs that the State shall not discriminate against any
citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Any law discriminating on one
or more on these grounds would be void. The word, only has been purposely used In the Article.

Discrimination based on one or more of these grounds and also on other grounds or grounds will not be affected by
Article 15 (1). It means that if one or more of the specified grounds is combined with a ground not mentioned In
Article 15 (1); the laws will be outside the prohibition contained in Article 15 (1). Article 15 (1) prohibits
discrimination on the ground of birth and not that of residence. A State can, therefore, grant concessions to its
residents in matters of fees in an educational institution.

AMENDMENTS TO ARTICLE 15

This anti-discrimination law made its first exception by including a Clause (4) during the 1st amendment in 1951.
With this amendment, the article made way for reservation for SCs and STs and other backward classes to benefit
them academically, socially and economically.

Its important to note that Clause (5) of Article 15 was originally not a part of the Constitution. It was introduced
during the Ninety-Third Amendment Act in 2005. There was widespread protest over the central governments
decision to include this clause. Even stronger opposition came from the non-OBC students, which led to the
emergence of several writ petitions challenging the Amendment.

ARTICLE 15 AND TYPOLOGIES OF DISCRIMINATION

Article 15 prohibits discrimination on grounds only of religion, race, caste, sex, place of birth or any of them It is
worth nothing, however, that the seemingly neutral word grounds itself incorporates a set of political choices that
ought to be examined and critiqued

First, in choosing the word ground, the Constitution, by exclusion, makes motive irrelevant.

In R(E) v. Governing Body of JFS, the UK Supreme Court invalidated a Jewish schools admissions policy under the
Race Relations Act, that prohibited discrimination on the grounds of race. The school argued that its policy was
actually aimed at selecting orthodox jewish students, which was a question of religion, not of race. Irrelevant, said the
Court. Whatever the motive or purpose of the admissions policy, the test that it used for selection was race-based
(orthodox jewishness was a function of ones descent along that matrilineal line). Thus, while the motive behind the
classification was arguably legitimate, the grounds on which said classification was made (in order to fulfill the
motive) was not, and that was all that mattered.

Suppose, for instance, that the Delhi Police wishes to recruit only Hindi speakers into the force (a form of linguistic
discrimination, which the Article 15 does not prohibit); in order to do so, it limits its selection only to people born in
Delhi, thinking that this is the most convenient way of making the selection without actually having to test language
skills. Such a classification would be vulnerable under Article 15 because while the Delhi Polices motive (selecting
particular language speakers) conforms with Article 15, the grounds it has chosen do not. It is obvious in addition to
the text to see why this must be so: if motive was brought into play, then the difference between Articles 14 and 15
would dissolve: in the Delhi Police example, for instance, we would be back to analyzing whether there was
intelligible differentia between Delhi-born and non-Delhi-born persons that bore a reasonable nexus to the
governmental objective of an all-Hindi-speaking police force. If that were so, then Article 15s specific selection of
particular categories would become redundant (this, as most readers would have guessed, bears a close connection
with the debate over standards of scrutiny under Article 15, a question we do not have the space to consider at this
point). The reason why Article 15 exists is because certain groups have, historically, been invidiously discrimination
against on the basis of nothing more than rank prejudice, to the extent that there now exists a near-irrebuttable
presumption that classifications targeting such groups are constitutionally suspect. By singling out those categories,
Article 15 serves a unique purpose that may not be conflated with the more abstract, formal equality guarantees of
Article 14.

Secondly, consider the problem of disparate impact.

Disparate impact occurs when facially neutral policies nevertheless cast a disproportionate burden upon specific
groups. Let us take a very simple example: promotion in a job is conditioned upon being at work for at least eighty
percent of the years designated working days. Now, the ground upon which the classification for promotion/non-
promotion is being made is facially neutral in that it relates to time spent at work; but clearly, pregnant women as a
group will be unable to meet the condition imposed. Thus, the promotions policy will have a disparate impact upon
pregnant women as a group, their chances of promotion are reduced to negligible. As is obvious, disparate impact
plays a crucial role in affirmative action controversies, labour and workplace law, sex discrimination and so on.

Disparate impact goes under the name of indirect discrimination in European jurisprudence.

Article 2(b), 2000 Council Directive states that indirect discrimination shall be taken to occur where an apparently
neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage
compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim
and the means of achieving that aim are appropriate and necessary.

Whether or not particular disadvantage occurs in a particular case is, of course, a factual enquiry, which admits of
no bright line tests. For example, assume a governmental institution has sixty percent men and forty percent women,
but in every promotion round, eighty percent of the promotees are men that is the kind of statistic that will establish
presumptive indirect discrimination, and place a high burden upon the State to argue that it is appropriately and
necessarily mandated by a legitimate governmental objective.

Disparate impact, on the other hand, was rejected by the American Supreme Court in Washington v Davis, where the
use of verbal skills as recruitment tests in the Washington Police Department was upheld despite disproportionately
affecting African-Americans, since no discriminatory purpose was demonstrated. Subsequently, Congress overturned
this decision by amending the Civil Rights Act, which in turn was the subject of a contentious Supreme Court case
in 2009, Justice Scalia arguing that a disparate impact test violated the guarantee of the equal protection of laws, and
the Constitutions aim of being color-blind.

The argument here is that by making disparate impact constitutionally relevant, you are violating the Constitutions
commitment to non-discrimination by picking out certain groups over others for favorable treatment. To go back to
our pregnancy example a Scalian would (presumably) argue that making a special exception for the promotion of
women would violate Article 15 because it placed men at a legal disadvantage by taking specific sex-based
characteristics into account, and thereby discriminating on the grounds of sex.

The contrasting approaches in the EU and the United States suggest that the relationship between disparate impact,
equality and non-dicrimination is a contested one. What does our Constitution say? There are two reasons, grounded
in text and structure, that argue against reading disparate impact into Article 15. First, the use of the word grounds,
as illustrated above, seems to limit the clause to cases where the basis of the classification is one of the prohibited
categories. And secondly, the Constitution itself seems to recognize the perils of disparate impact by enacting
affirmative action provisions for education and employment Articles 15(4) and 16(4) . In other words, by providing
the government with the tools to remedy the effects of disparate impact that would result from a technical reading of
Article 15(1) (and 16(1)), the Constitution mitigates its effect and thus, by specifically providing for those situations,
excludes all other cases by necessary implication (expressio unius)

Unfortunately, the position is complicated by the shift in the Courts jurisprudence after the 1975 case of State of
Kerala v. NM Thomas, where the Court, departing from its established position that 15(4) and 16(4)
were exceptions to the equality provisions of 15 and 16, held instead that they were emphatic expressions of the
basic idea of substantive equality already contained within 15 and 16. In other words, post-Thomas, we are to assume
for instance that the constitutional justification for affirmative action lies not in 15(4), but in 15(1), and the
conception of equality and non-discrimination it embodies. What, precisely, is the content of this concept, and does it
extend to other cases of disparate impact? We do not know.

Bombay HC Uphelds S. 20(3) of HAMA

In a brief judgement, the Bombay High Court rejected a challenge to S. 20(3) of the Hindu Adoptions and
Maintenance Act.

Under Sections 20(1) and 20(2), a Hindu is bound to maintain his children as long as they are minors. Section 20(3)
stipulates, however, that an unmarried daughter is to be maintained as long as she is unable to maintain herself out of
her own earnings or property. In other words, an unmarried son loses all claims to maintenance upon majority, while
an unmarried daughter can claim if she is unable to maintain herself.
Section 20(3) was challenged on the grounds of Article 14 (equality before laws) and Article 15 (non-discrimination
on the basis of sex). The Court rejected both arguments; unfortunately, it made no attempt to provide a reasoned
argument supporting its conclusions. On the Article 14 issue, it noted:

The class of unmarried sons who have attained majority is completely different from the class of unmarried
daughters who have attained majority. The reason being the peculiar position of a daughter and especially an
unmarried daughter in Hindu society. Therefore, the argument that two equals are being treated as unequals is not at
all acceptable and therefore, Article 14 will have no application.

The conclusion states the premise. Why are the two classes different? What is this peculiar position occupied by the
unmarried Hindu daughter? Logically, the reason for granting maintenance to one and denying it to the other can only
be that the former class is expected not to be able or willing to maintain themselves. But is that a constitutionally
legitimate assumption?

In Anuj Garg vs Hotel Association, as we have discussed previously on this blog, the Supreme Court made it clear
that stereotypical assumptions about the roles of the sexes in modern society, or about the spheres in which they
should be confined by virtue of birth, cannot be made the basis of laws that grant unequal benefits or burdens to men
or women. In fact, interestingly, the logic of Anuj Garg, which is borrowed from American sex discrimination
jurisprudence, had its inception in Frontiero vs Richardson, a case where the challenged policy was somewhat similar
to S. 20(3) of the HAMA. In Frontiero, according to the US Air Force rules for benefits for dependent spouses,
servicemen could claim their wives as dependents and get benefits for them automatically, while servicewomen had
to prove that their husbands were dependent on them for more than half their support. Holding this to be
unconstitutional (even though it ostensibly benefited women), the Supreme Court held:

[T]he sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result,
statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to
inferior legal status without regard to the actual capabilities of its individual members.
Notice, once again, that from within a tangible, purely economic framework, women were actually benefiting from the
policy. But what the American Supreme Court was concerned about was the fact that these benefits were predicated
upon an ideology that cast women as inferior, and destined to remain within the domestic sphere by virtue of their sex
a view that is now called romantic paternalism.

This brings us to the second prong upon which S. 20(3) was challenged Article 15. Here, the Court was even more
perfunctory in its dismissal:

clause (3) of Article 15 specifically provides that nothing in the Article 15 shall prevent the State from making any
special provision for women and children. Sub-section (3) of section 20 is a special provision within the meaning of
clause (3) of Article 15.

Article 15(3) of the Constitution states:

(3) Nothing in this article shall prevent the State from making any special provision for women and children.
The key question, of course, is what is legitimately covered by the phrase special provision and it speaks back to
the discussion of Anuj Garg and Frontiero. Virtually any kind of inequality can be justified as being a special
provision for women in fact, recall that in Anuj Garg that prohibition upon women from working as bartenders was
sought to be justified under Article 15(3), being a special provision for their benefit! This, of course, is the very
embodiment of romantic paternalism, and Anuj Garg makes it clear that classifications on this basis cannot be
sustained, even when the State makes a claim that the law actually benefits women, and is thereby saved by Article
15(3).

This being the case, it is unfortunate that the Bombay High Court blandly assumed that a law that seemed to provided
a benefit to women at first blush, was automatically saved by Article 15(3), without the need for a further enquiry into
its rationale and its foundations. Of course, there is a very fine line between a law that is based on impermissible
stereotypes, and a law that allocates unequal benefits and burdens in a bid to remove historical and structural
disadvantages. For instance, a law mandating reservations for women in Parliament is clearly not based on stereotypes
about the separate roles and spheres of men and women (quite the contrary!), but is meant to help women
to overcome long-standing hurdles to their full participation in politics and the public sphere. Similarly, it might well
be argued that 20(3) is simply cognisant of an unfortunate social reality, and seeks to ensure that women are put on a
secure financial footing, in order for them to truly be in a position to lead fulfilling and self-determined lives.

CRITICISM OF ARTICLE 15

The clauses (4) and (5) of Article 15 have often being criticised as a part of the vote catching mechanism. These
provisions were challenged by the petitioners, who were of the opinion that the reservation policy clearly intended in
these provisions was a measure of reparation. The clause was also challenged on the ground that identification of
OBC was made only on the basis of caste and hence its unreasonable.

The validity of this rule was challenged on the ground that it contravened Articles 14 and 15 (1) of the Constitution. It
was held that the rule was not open to attack as infringing Article 15 (1). The ground for exemption from payment of
capitation fee is bona fide residence in the State .

Residence and place of birth are two distinct conceptions with different connotations both in law and fact. Article 15
(1) prohibits discrimination on the ground of place of birth but not on the ground of residence.

Similarly, the requirement of a test in the regional languages for State employment does not contravene Article 15, as a
test in the regional language for State employment does not contravene Article 15, as the test is compulsory for all
persons seeking employment. It has been held so in P. Raghunandha Rao v. State of Orissa AIR 1955 Orissa 1131.