Article 15 of the Constitution of India

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Article 15 of the Constitution of India forbids discrimination on grounds only of religion, race, caste, sex, or place of birth. It applies Article 14's general principle of equality in specific situations by forbidding classifications made on protected grounds.^[1] While prohibiting discrimination based on prejudice, the Article is also the central issue in a large body of judicial decisions, public debate, and legislation revolving around affirmative action, reservations, and quotas. As of the 103rd Amendment of the Constitution of India, Article 15 has five clauses. Clause (1) prohibits discrimination against citizens on protected grounds.^[2] Clause (2) mandates that citizens may access various public or commercial spaces or utilities without discrimination on protected grounds.^[3] Clauses (3)-(5) create exceptions or 'special provisions' for these general prohibitions, by allowing the State to create special provisions for women, children, socially and educationally backward classes, scheduled castes and scheduled tribes.

Background[]

On 29 November 1948, the Constituent Assembly debated the first version of Article 15 as Article 9 of the revised Draft Constitution, 1948. Draft Article 9 read:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them. In particular, no citizen shall, on grounds only of religion, race, caste, sex 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, roads and places of public resort maintained wholly or partly out of the revenues of the State or dedicated to the use of the general public.

(2) Nothing in this article shall prevent the State from making any special provision for women and children.

Some members of the Assembly wanted additional protected grounds, including a prohibition on discrimination based on family and descent.^[4] Other members argued further that gardens, roads, and tramways should be included as places where denial of access is prohibited.^[4] However, B. R. Ambedkar, the chairman of the Drafting Committee, clarified that the general nature of the text was sufficient to cover a large variety of spaces not specifically included in the Article.^[4] Prof. K.T. Shah, a member of the Assembly, proposed that Clause 2 of the Draft Article be amended to provide for special provisions for 'Scheduled Castes or backward tribes for their advantage, safeguard, or betterment.' However, the proposal was rejected, with Ambedkar arguing that adopting the amendment would perpetuate the segregation of these groups.^[4] After debate and amendment, the original text remained largely intact and became Article 15 of the Constitution of India.

Clauses 1-2: Prohibition of discrimination on protected grounds[]

The first two clauses of Article 15 prohibit discrimination 'on grounds only' of religion, race, caste, sex, place of birth or any of them. In interpreting the phrase 'on grounds only', the Supreme Court has held that the effect of the statute is relevant, not the motive.^[5][6]

General prohibition against state discrimination[]

Clause 1 of the Article prohibits the State from discriminating against citizens on five protected grounds. Within three years of the adoption of the Constitution, the Supreme Court used Article 15 to invalidate a State law which provided for elections which had separate electorates for members of different religious communities.^[7][8] Courts have on various occasions struck down discriminatory legislation on the basis of race such as in the case of a law which required members of a particular community to report daily to the police,^[9] and on the basis of caste, as in the case of a notification which exempted all Harijan and Muslim residents from a compulsory levy in a locality.^[10] Similarly, the Article has been used to invalidate sex discrimination by legislation, such as prohibitions on proprietresses holding property^[11] or working in premises where liquor was served.^[12] Gay, Lesbian, Bisexual and Transgender people are also protected by Article 15, as discrimination against them is discrimination on the basis of 'sex' as interpreted by the Supreme Court.^[13]

Like the other protected grounds, 'place of birth' has also been a source of some ambiguity. In 1955, the Supreme Court distinguished between 'place of birth' and 'residence', holding that discrimination on the basis of 'residence' was not prohibited outright by Article 15.^[14] In that ruling, the Court upheld a State Medical College's decision to require a capitation fee from students residing outside the region on the grounds that the decision discriminated on the basis of residence and not on 'place of birth'.^[1] The Court diluted that decision in ,^[15] holding that residence requirements (while not prohibited outright by Article 15(1)) were inconsistent with the idea of national unity and integration, and limited residence based reservations to not more than seventy percent of total seats at the MBBS level.^[2]

For much of its history, Article 15 did not prohibit indirect discrimination. For example, in 1951, the Madras High Court held that the Evacuation Property Ordinance, 1949 did not violate clause (1), though most individuals affected by the ordinance were Muslim, as the operation of the ordinance was not restricted to Muslims alone on the ground of religion.^[16][2] However, in 2021, the Supreme Court in invalidated a facially neutral criteria for the grant of Permanent Commissions to women on the grounds that it was indirectly discriminatory.^[17]

Horizontal prohibition of denial of access[]

Unlike Clause 1 which is addressed to the State, Clause 2 creates a broader prohibition on disability, liability, restriction, or condition with regard to accessing various public spaces and commercial establishments. Sub-clause (a) uses the word 'shop' broadly, to mean premises where goods are sold in any capacity, and including everything from hairdressing saloons to educational institutions.^[18][2] Therefore, there cannot be shops, public restaurants, or spaces of public entertainment which are reserved on the basis of any of the protected grounds.^[2] Some scholarship argues that the definition of 'shop' in sub-clause (a) should extend to all private economic market transactions, including exclusionary covenants for the lease of property.^[19] Sub-clause (b) relates to the use of wells, 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. Accordingly, private wells and tanks are not regulated by sub-clause (b), unless they are dedicated to the use of the general public.^[5]

Clauses 3-6: Special provisions for disadvantaged groups[]

Article 15, in Clauses (3-6), allows for positive discrimination in favour of disadvantaged groups. These clauses exist to allow the Indian state's expansive programme of affirmative action.

Women and children[]

While Article 15 prohibits discrimination on the grounds of sex, special provisions for women and children are permissible. State institutions created exclusively for women, or special places reserved for women in public transport or places of entertainment do not violate Article 15.^[3] However, a 'special provision' does not mean that less favourable treatment may be given to women on a gender-based criterion.^[20]

Socially and educationally backward classes[]

Reservations in educational institutions[]

Economically weaker sections[]

Notes[]

References[]