Critical Analysis of Article 15(3) of the Indian Constitution

Introduction:

Discrimination happens when people treat two individuals differently under the same circumstances. In other words, discrimination is an umbrella term that includes every type of biasness due to caste, religion, skin color, gender, etc.

However, India has tasted the sense of discrimination from a very early phase. In Ancient Indian text, we got to know the caste system which preserves a lot of bigotry in respect to gender and caste of the individual. Even, during the British Raj, this practice of discrimination got spread rapidly. This action is not justifiable or accepted.

Therefore, to encounter this issue, the drafting committee of the constitution of Independent India made sure that the country is free from biases so that every individual enjoys equal rights in his or her motherland. Hence, Article 14[1] and Article 15[2] of the Indian Constitution establish equal rights of every individual before the court of law and prohibits the practice of discrimination on grounds of religion, race, caste, sex, or place of birth. It also created some special provisions for the backward and minorities to help them to bounce back with dignity.

In this article, we are going to look out the Article 15 and focus on clause 3 of the Indian Constitution.

Article 15 Restricts Discrimination

• Religion: It states that no person should be judged or discriminated against on the grounds of which religion the person belongs to. India has witnessed a tremendous amount of biasness in regards to religions.
• Race: This means that people from different origins should not be compared or judged.
• Caste: Discrimination among different castes within the society is also illegal and hence prohibited according to the law.
• Sex: Biasness on the grounds of the gender is also prohibited.
• Place of birth: Bigotry on the grounds of place of birth is an illegal offense according to the law

In India, the policies which are preferred are of two types: 

• Policies which provide advantages and benefits to the people belonging to the Socially Educated Backward Classes (SEBC), Schedule Caste (SC) and Schedule Tribe (ST);
• Policies that provide advantages and benefits to the local resident of the state rather than people migrating from other states of the country.

Article 15(3)

In order to protect the interest and rights of the people belonging to vulnerable groups such as women and children, the constitution of India created Clause (3)[3] of Article 15. Through this article, the state holds power to provide special privileges only for protecting the rights and interests of women and children.

“Nothing in this article shall prevent the State from making any special provision for women and children”

One thing that should be noted here is that this classification is also known as positive discrimination in society which will help them to uplift their quality of living.

This regulation is a carte blanche. It means that the state has the whole freedom to behave as it wishes to impose differential advantages and ostensibly for the benefit of women and children. It creates a bit of discrimination, but it’s far justified because it compensates for early injustice which was faced by women and children in the male dominating society.

Several bills have been passed by the government to benefit the people of the vulnerable group such as the Right to free and compulsory education for children under the age of 14 years, section 56 of CPC[4], the Maternity Benefit (Amendment) Act 2017, etc.

Women and Sexual Harassment

Sexual harassment against women is one of the most occurring crimes in the present years. Therefore, clause 3 of Article 15 of the Indian Constitution provides power to the government to pass special laws to protect women from sexual assaults and harassment.

Sexual harassment or assaults are a clear picture of a violation of the fundamental rights of a woman under Article 14(2)[5] and Article 15(3).

Reservation

Clause 3 of Article 15 conveys that the state has the power to create special provisions to protect and support women and children belonging from Socially Educated Backward Classes (SEBC), Scheduled Castes (SC), and Scheduled Tribes (ST), creates a reservation for admission in an educational institution (both public and private institutions), and based on domicile.

The system through which this type of reservation takes place is known as Intelligible Differentia. This means that the differences or the biasness are visible through this reservation. But these advantages do not count as biasness but rather this type of discrimination is known as ‘PROTECTIVE DISCRIMINATION’ (or Positive Discrimination). These terms are often used by legislators to justify the advantages. These policies provide a platform for the people belonging to the vulnerable or underprivileged groups to lift their status in society.

However, certain sensitive fields required proper skills and knowledge. Providing reservations will disturb the balance which will lead the deserving general candidates to lose their opportunity. This practice will create a system of monopoly among the society by the people of the privileged sector.

In the case Ajay Kumar v. The State of Bihar, the issue was regarding the reservation policy under Article 15 (4)[6] in the post-graduate medical courses. The contentions raised by the appellant were that Article 15(4) neither speaks nor permits reservation in educational institutions. While certain preferences and concessions can be given, the reservation of seats is beyond the limits of clause (4) of Article 15 of the constitution of India. The appeal was rejected by the court as special provisions also include reservation provisions and not just preferences and concessions.

Reservation within Reservation

The reservation within the reservation is a situation in which a person already belonging to a reserved community enjoying another reservation or quota. This provision is generally for those communities which are already getting reservations from the government but still have not benefitted from it and hence required more recognition for improving the quality of their lifestyle.

Now the question arises is that is it fair to provide so many advantages for just a small group of people while neglecting others? Is this situation is further creating discrimination in the light of preventing biasness?

The answer is NO. The government evaluates the condition of this community before passing such reservations through various surveys and studies. These studies or research are done by various NGOs such as the “Think India Organisation” [7]who worked with the government agencies to collect data that will eventually help the tribes. Such kinds of facilities are only provided to the group of people who are in real need of these advantages.

Currently, the people belonging to the Maratha community enjoys reservation. On the other hand, they already fall under the OBC reservation. This is an example of a reservation within the reservation.

Cases Laws

In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, The government of Uttar Pradesh created a provision for reservation for the candidates applying for the BTC training program:

• 50% female candidates;
• 50% male candidates.

The dispute was raised when the format of the reservation was arbitrary in nature and it was a violation of Articles 15 of the Indian Constitution. The Hon’ble High court of Allahabad decided that the layout of the reservation which was introduced was not according to clause 3 of Article 15 in the Constitution of India for favouring the vulnerable classes.

In the case between the Union of India v. K.P. Prabhakaran, (1997), the Indian Railway passed a resolution for creating a post of Enquiry and Reservation clerk for the metropolitan cities.

The decision stated that the post would be held by women only. The court did not accept the point of view of the government urging that this provision is protected under Article 15(3). It said that Article 15(3) cannot be interpreted as an exception or as the provision to what is guaranteed under Article 16 (1) (2)[8].

This caselaw is an example of the special provisions which the government issued for women and children in respect of the reservation to education and employability.

In cases between Girdhar Gopal v. State, AIR 1953 MB 147, the petitioner was charged under Section 342 and Section 354 of the Indian Penal Code. The petitioner claimed that there is no law for protecting modesty, rights, and interest, especially for men. Therefore, Article 15 in which special protection was provided to women and children, is an act of discrimination for society.

The Hon’ble Court of Gwalior dismissed the petition by stating the law to be in consonance with Article 15(3). 

In the case between Mt. Choki v. the State of Rajasthan, AIR 1953 Raj 10, Mt. Choki along with her husband was prosecuted for bonding a conspiracy to murder their child. The accused was charged on Section 302 with Section 34 of IPC but she applied for bail on the ground that she is the only one to take care of her young son.

The judge of the Session court of Jhunjhunu did not entertain the bail plea while stating that the constitution does not hold any provision under which a prime accused can be made free on the ground of her gender.

In the case of John Vallamattom v. Union of India, AIR 2003 SC 2902, the Indian Succession Act, 1925[9] averted the petitioners from bequeathing assets in the name of religious and charitable purposes. The petitioner argued it is discriminatory against the testamentary inclinations through a Christian

The Hon’ble Supreme Court of India stated that the act was to prevent humans from practicing injudicious deathbed bequest in religious influence. However, it is valid if a person wishes to donate his or her assets to a religious concern after his or her death. Hence, the law is honestly discriminatory in nature as because the tangible assets of any Hindu, Muhammadan, Buddhist, Sikh, Jain, or Parsi have been excluded from the provisions of the Act. Further, no perfect reasoning was supplied to reveal why the provision regulates religious and charitable bequests of Christians only.

Conclusion

Clause 3 of Article 15 conveys that the state has the power to create special provisions to protect and support women and children belonging from Socially Educated Backward Classes (SEBC), Scheduled Castes (SC), and Scheduled Tribes (ST), creates a reservation for admission in an educational institution (both public and private institutions), and based on domicile.

The system through which this type of reservation takes place is known as Intelligible Differentia or Protective Discrimination.

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References:

[1] Indian Kanoon, Article 14 of the Indian Constitution, Indian Kanoon (23^th Aug, 2021, 9:00 AM) https://indiankanoon.org/doc/367586/

[2] Indian Kanoon, Article 15 of the Indian Constitution, Indian Kanoon (23^th Aug, 2021, 11:00 AM) https://indiankanoon.org/doc/609295/

[3] Indian Kanoon, Article 15 (3) in the Constitution of India, Indian Kanoon (24^th Aug, 2021, 11:00 AM) https://indiankanoon.org/doc/1603957/

[4] Law Rato, Section 56 CPC – Code of Civil Procedure – Prohibition of arrest or detention of women in execution of decree for money, Law Rato (24^th Aug, 2021, 10:00AM) https://lawrato.com/indian-kanoon/cpc/section-56

[5] Indian Kanoon, Article 14(2) in the Constitution of India, Indian Kanoon (24^th Aug, 2021, 11:00 AM) https://indiankanoon.org/doc/1091639/

[6] Indian Kanoon, Article 15 (4) in the Constitution of India, Indian Kanoon (23^rd Aug, 2021, 7:00 PM) https://indiankanoon.org/doc/251667/

[7] Think India Organization, https://www.thinkindiaorg.in/, (24^th Aug, 2021, 10:00AM)

[8] Indian Kanoon, Article 16 in the Constitution of India, Indian Kanoon (25^th Aug, 10:00AM) https://indiankanoon.org/doc/211089/

[9] Bare Acts Live, Indian Succession Act, 1925, Bare Acts Live (25^th Aug, 2021, 12:00PM) http://www.bareactslive.com/LCR/LC110.HTM