Introduction
How has intersectional discrimination been omitted in the world’s largest democracy, which prides itself on its “diversity”, by the scope of Article 15 of the Indian Constitution? The purpose of this paper is to investigate this enigmatism. The goal is to see how intersectionality can get through the fundamental hurdle of seeing discrimination as being based solely on a single ground.
The present article provides a comprehensive study of the eloquent Article 15. First part provides reader with a general framework of Article 15, while the second part delve into the precise understanding of the same. Finally, it is concluded that Article 15, though written long back in 1949, still holds relevance in current society which is not yet free from the evil of discrimination.
Framework of Article 15
Art. 15(1) expressly prohibits the state from discriminating against any Indian citizen solely on the basis of religion, race, caste, sex, or place of birth, or any combination of these factors.[1]
Art. 15(2) prohibits a citizen from being subjected to any disability, liability, restriction, or condition based solely on religion, race, caste, sex, or place of birth.[2]
Art. 15(3) authorises the government to establish specific provisions for the advancement of women and children.[3] Similarly, Art. 15(4) or Art. 29(2) authorises the government to establish specific provisions for the advancement of any socially and educationally backward classes or for the Scheduled Castes and the Scheduled Tribes.[4] The provisions in Articles 15 and 16 are only enabling provisions and no citizen of India can claim reservation as a matter of right, and no writ of mandamus can be issued as a result.[5]
Article 15(5) and 15(6) were later amended and inscribed in the constitution, which are studied in the coming discussion.
Article 15(1)
Article 15(1) is a derivation of Article 14. Art. 15(1) specifies a specific application of the fundamental equality principle enshrined in Art. 14. The classification principle also applies to Art. 15(1), just as it does to Art. 14. Religion, race, caste, sex, or place of birth alone is not, and cannot be, a justifiable foundation for discrimination, according to Art. 15(1). In Art. 15(1), the word “discrimination” entails an element of unfavourable bias. The word “only” is being used in Arts. 15(1) and 15(2) to assert that what is being discounted is discrimination solely based on any of the grounds mentioned.[6] If the Legislature just considers religion, sex, caste, colour, or place of birth as one of the factors, it is not discriminatory simply because of that fact. However, if the Legislature discriminated primarily on one of these grounds and no other justification could be found, the act would undoubtedly be in violation of the Constitution’s Article 15(1).
Article 15 is a facet of Art. 14. Art. 15(1), like Art. 14, encompasses the entire range of government activities. However, in other ways, the scope of Art. 15 is narrower than that of Art. 14. The Supreme Court dismissed the non-residents’ claim of discrimination under Art. 15(1) since the ground of exemption was “residence” rather than “place of birth.” Art. 15(1) prohibits discrimination on the basis of place of birth but not residence.[7]
In N. Vasundara v. State of Mysore [8], for the purpose of admission to medical colleges, the Supreme Court upheld the constitutional legitimacy of reservation based on the need of “residence” inside the state.
A statute that establishes distinct electorates for members of different religious communities[9] or delimits panchayat circles for the purpose of caste-based panchayat elections would be in violation of Art. 15(1) of the Constitution.[10] Wherever the President of a municipality is needed to be filled by a member of a Scheduled Caste, Scheduled Tribe, or Backward Class, as the case may be, it is sufficient if the person belongs to one of those categories, regardless of whether they were elected from a general or reserved ward.[11] The number of reserved-category candidates who can be elected is unrestricted. They are eligible to run for unreserved seats and win, resulting in an increase in their representation in local government.[12]
Article 15(2)
Article 15(2), as previously indicated, contains a general restriction that is not limited to the state. On the basis of this provision, it has been determined that if a sector of the public seeks exclusive use of a public well, it must demonstrate that the well was devoted to the sole use of that section of the public rather than the general public. Because of the force of Art 15, a custom to such effect cannot be said to be reasonable or in conformity with enlightened current concepts of public well utility.[13] Because of the force of Art, a custom to such effect cannot be said to be reasonable or in conformity with enlightened current concepts of public well utility. The phrase “a place of public resort” appears in Art. 15(2). The exact meaning of this word is a point of contention among experts. According to one viewpoint, a location is only a “place of public resort” if the public has legal access to it.[14] A larger definition of a location of public resort, on the other hand, is one to which members of the public have access and to which they frequently resort.[15] The latter viewpoint appears to be more in line with the constitutional provision’s tone and aim, as it would prohibit discrimination on a broader scale. Even while analogous protections have not been provided for other groups, legislation creating provisions for Hindus explicitly on topics coming within the scope of Hindu Law has been preserved. A statute requiring Hindus to be monogamous while allowing Muslims to have unlimited number of wives was upheld against an accusation of discrimination based only on religion. The court pointed out that the Hindus have had their own indigenous system based on Hindu texts for a long time, just as the Mohammedans had their own personal law.[16]
The Supreme Court has ruled that personal laws are immune from challenge under Fundamental Rights provisions that do not apply to them. Personal laws are not covered by the Fundamental Rights Act.[17]
This appears to be a policy decision rather than a logical one, as the courts do not wish to rule on features of these legal systems that would fail to pass the Fundamental Rights test. The court believes that Parliament should deal with these issues rationally. The Hindu Succession Act’s section 15(2)(b) has been found not to be unconstitutional on the grounds of sex discrimination. The true principle, according to the Bombay High Court, is that the community governed by the given personal law forms a recognised class, and that class is itself a reasonable class of persons, for testing the given legislation, which must be examined against the centrepiece of the principles by which such a class is governed by the tenets of its personal law. If those principles are otherwise reasonable in the context of the given system of personal law’s history, the challenge is difficult to maintain. This statement was given by the court in the context of new legislation enacted to change personal laws.[18]
Article15(3)
The state is not prohibited from making any “particular provision” for women and children, according to Art. 15(3). Articles 15(1) and 15(2) forbid the state from enacting discriminatory legislation based only on gender. Gender equality is thus a feature of the Constitution. The Constitution demands equality of status and prohibits gender discrimination. Nonetheless, despite Art. 15(1), the state is authorised to make any exceptional provision for women under Art. 15(3), allowing for a lawful deviation from the rigours of Art. 15(1). Articles 15 and 16 do not prohibit women from being treated differently. Only where girls would have received the same treatment as males but for their gender is the constitutional mandate violated. The ‘but-for-sex’ test has been devised in English law to signify that no less favourable treatment is to be given to women based on gender-based criteria that favour the opposite sex, and women will not be intentionally picked for less favourable treatment because of their sex. When an affirmative action plan is properly or legally established, the Constitution does not preclude an employer from considering sex when making employment decisions.[19] Article 15(3) recognises that women in India have been socially and economically disadvantaged for generations, and as a result, they are unable to fully engage in the nation’s socio-economic activities on an equal footing. The objective of Art. 15(3) is to improve and strengthen women’s standing. Art. 15(3) thereby frees the state from the constraints of Art. 15(1), allowing it to establish additional provisions to ensure women’s socioeconomic equality. The scope of Art. 15(3) is broad enough to encompass all aspects of state action, including employment. Art. 15(3) is a particular provision in the form of a proviso that qualifies the general assurances in Art. 14, 15(1), 15(2), 16(1), and 16(2). There has been some debate as to whether Art. 15(3) saves all provisions relating to women, or merely those that are beneficial to them.[20] Reading Arts. 15(3) and 15(1) together, it appears clear that, while the state may discriminate against men in favour of women, it may not discriminate against women in favour of men. However, under Art. 15(3), only reasonable provisions in favour of women can be implemented that do not entirely erase or render illusory the constitutional guarantee specified in Art. 15(1). Art 15(2).
Article 15(4)
In 1951, the Constitution was amended to include Article 15(4). According to Article 15(4), the state is free to make specific measures for “the prosperity of any persons who are socially or educationally backward, as well as the Scheduled Castes and Scheduled Tribes.” As a result, an order purchasing land for the purpose of creating a harijan colony is now permissible under Art. 15(4) of the Constitution.[21] Art. 15(4) does not justify granting particular remission to Scheduled Castes and Scheduled Tribes inmates at the expense of others. The grant of remission to convicted inmates from these classifications can hardly be described as a move aimed at “advancing” the Scheduled Castes and Scheduled Tribes.[22] It should be emphasised that the Constitution contains a few more measures for the development and improvement of these people’s conditions, which will be discussed at the proper times. Article 15(4) bestows discretion rather than imposing any constitutional duty or obligation. As a result, no mandamus can be issued to allow for reservation or relaxation.[23] Reservations are allowed under Article 15(4) for the advancement of any backward class of citizens, as well as Scheduled Castes and Scheduled Tribes. In Indra Sawhney v. Union of India, the Supreme Court rejected the contention that Art. 15(4) envisages “positive action” whereas Art. 16(4)60 is a clause authorising “positive discrimination” programmes.[24] Reservation in educational institutions and other walks of life can be provided under Art. 15(4) and Art. 16(4), but they may not be able to fit these provisions into the context and scheme of constitutional provisions, says. Art. 15(4) has a broader reach than Art. 16(1). Art. 15(4). In addition to reservations, Article 15(4) covers a variety of positive action programmes. Reservations of jobs and appointments, on the other hand, must be kept to a minimum i.e., 50 percent. Art. 15 is subject to the same restrictions Art. 15(3). Reservation for a backward class is a state prerogative, not a constitutional mandate.[25] Since that decision specifically stated that subdivision of other backward classes does not apply to scheduled castes and scheduled tribes, the adhesion in the Indra Sawhney case for subclassification of other backward classes cannot be used as a precedent for subclassification or subgrouping Scheduled Castes in the Presidential List. This is for the apparent reason that the Constitution prohibits the State Government from interfering with the Scheduled Castes and Scheduled Tribes Lists.[26]
Article 15(5)
The state is empowered to establish arrangements that aid in the upliftment of socially and educationally disadvantaged communities, such as SCs and STs, under this article. Under this article, the state has the authority to impose laws that apply to all educational institutes, whether state-aided or not, regardless of the minority educational institutes mentioned in Art 30(1).
In the case Pramati Educational & Cultural Trust v. Union of India[27], the basic notion of this article was used. The main issue in this case was whether the Constitution’s insertion of Art 15(5) under the 93rd Amendment altered the basic framework of the Constitution or not.
The court further stated that inserting art 15(5) under the 93rd amendment solely served as an enabling section, and that it is therefore clearly deemed to be legal.
Article 15(5), which solely serves as a “enabling section,” was added to the 93rd amending act. This was decided in the case of Asoka Kumar Thakur vs. Union of India8. In the case of the “T.M.A. Pai Foundation,”9 the court held that article 15(5) of the Indian Constitution was introduced, allowing a right to establish and administer any private educational institution under Art 19(1)(g). As a result, the court explicitly stated that art 15(5) does not infringe art 19(1). (g).
It was states that inserting art 15(5) under the 93rd amendment solely served as an enabling section, and that it is therefore clearly deemed to be legal. Article 15(5), which solely serves as a “enabling section,” was added to the 93rd amending act. This was decided in the case of Asoka Kumar Thakur vs. Union of India[28]. In the case of the T.M.A. Pai Foundation,[29] the court held that article 15(5) of the Indian Constitution was introduced, allowing a right to establish and administer any private educational institution under Art 19(1)(g). As a result, the court explicitly stated that art 15(5) does not infringe art 19(1). (g).
Mandal Case
The concept of a “creamy layer” was used in this. In the case “Indira Sawheny vs Union of India,” the idea of a Creamy Layer was established. ten. The Supreme Court ruled that OBCs will be given a 27 percent preference in government positions. In this situation, it was also indicated that the reserve would only be offered for the “first phases of appointments” and not for the subsequent promotion process. The total amount of reservations must not surpass 50%. (Because 22.5 percent is already set up for SCs and STs.) Following the case of Indira Sawhney, numerous state governments and other governing organisations have endorsed the Mandal Report and declared it authentic. Art 16(4) was used in this case.
Article 15(6)
This article authorises the government to create specific measures for the improvement of “economically weaker groups” of society, which could include educational institute reservations. In 2019, the 103rd amendment was added to the Constitution. In addition, 10% of the reservation must be set aside for EWS, according to the article. This ten percent of reservations is independent of any current reservation ceilings.
The Supreme Courts have received more than 20 petitions contesting the modification. This article was claimed to be in violation of Article 14 of the Indian Constitution. The main contention was that the modification that was presented exceeded the 50 percent maximum restriction that was established in the Indra Sawhney case. After considering all of the arguments, the court concluded that, under Art 46 of the Indian constitution, the state has the jurisdiction to enact laws that promote “social equality” and defend the welfare of the poorer sectors of society. In addition, the court noted that “economic criteria” is one of the relevant factors in determining social and educational backwardness. The court also stated that the 50 percent ceiling limit established from the Indra Sawhney case would not apply to art 15. (6).
Conclusion
Article 15 has often made strenuous efforts to reach out to those who are truly in need. Since its start in 1949, the situation of the oppressed has vastly improved. It serves as a foundation for all the legislature needs to establish provisions to foster societal peace. The number of incidences of atrocities committed against the poor has drastically decreased.
Article 15 is the protector of the oppressed and a barrier against discrimination; it has enabled Indian society stand tall and proud in the face of enormous diversity, sexism, racism, and a rigid caste system, and it will continue to contribute to India’s unity and equality indefinitely.
References:
[1] INDIAN CONST. art. 15, cl. 1.
[2] Ibid. art. 15, cl. 2.
[3] Ibid. art. 15, cl. 3.
[4] M. P. Jain, Outlines of Indian Legal and Constitutional History, (6th Edition).
[5] A.P. Public Service Commission v. Baloji Badhavath, (2009) 5 SCC 1.
[6] Narasappa v. Shaik Hazrat, AIR 1960 Mys. 59.
[7] D.P. Joshi v. Madhya Bharat, AIR 1955 SC 334.
[8] N. Vasundara v. State of Mysore, AIR 1971 SC 1439.
[9] Nainsukh v. State of Uttar Pradesh, AIR 1953 SC 384.
[10] Bhopal Singh v. State of Rajasthan, AIR 1958 Raj 41.
[11] Bihari Lal Rada v. Anil Jain (Tinu), (2009) 4 SCC 1.
[12] Bihari Lal Rada v. Anil Jain (Tinu), (2009) 4 SCC 1.
[13] Arumugha v. Narayana, AIR 1958 Mad 282.
[14] A.M. Deane v. Commr. of Police, 64 CWN 348.
[15] Liberty Cinema v. Corp. of Calcutta, AIR 1959 Cal 45.
[16] Srinivasa Aiyar v. Saraswati, AIR 1952 Mad. 193.
[17] Krishna Singh v. Mathura Ahir, AIR 1980 SC 707.
[18] Sonubai v. Bala, AIR 1983 Bom. 156; Kaur Singh v. Jaggar Singh, AIR 1961 Punj. 489.
[19] Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003) 6 SCC 277.
[20] Mahadeb v. Dr. Sen, AIR 1951 Cal 563.
[21] Moosa v. State of Kerala, AIR 1960 Ker. 355.
[22] State of Madhya Pradesh v. Mohan Singh, AIR 1996 SC 2106
[23] Union of India v. R. Rajeshwaran, (2003) 9 SCC 294.
[24] Indra Sawhney v. Union of India, AIR 1993 SC 477.
[25] E. V. Chinnaiah v. State of A.P., (2005) 1 SCC 394.
[26] Ibid.
[27] Pramati Educational & Cultural Trust v. Union of India, 2014 8 SCC 1.
[28] Asoka Kumar Thakur vs. Union of India, 1996 AIR 75.
[29] T.M.A. Pai Foundation v. State Of Karnataka, 2002 8 SCC 1.
0 Comments