Why Article 15 of Constitution is More Than Just a Film Title

Article 15 prohibits discrimination against a citizen on the basis of religion, race, caste, sex or place of birth.

The Indian Constitution grants equality to all Indian citizens as a fundamental right. Article 15 of the Constitution prohibits discrimination against any citizen on the basis of religion, race, caste, sex or place of birth.

However, every so often, we are confronted with incidents of discrimination on the basis of caste, as men and women from specific communities and castes are lynched or brutally raped.

Hate crimes against religious minorities dominate the social landscape in the country.

The 2014 Badaun case, an alleged gang-rape and murder of two teenaged girls, was rife with charges of bias and discrimination on the basis of caste. With ‘Article 15’, the Ayushmann Khurrana-starrer loosely based on this case, the eponymous fundamental right and its provisions have come into focus.

So what does Article 15 of the Constitution of India say?

Protection Against Discrimination

Article 15 falls under Part III of the Constitution, which deals with the fundamental rights of the citizens of India.

The first clause of Article 15 directs the State not to discriminate against a citizen on grounds only of religion, race, caste, sex or place of birth or any of them.

The second clause, meanwhile, prohibits horizontal discrimination. This means that it’s not just the State, but other individuals too, who cannot discriminate on the basis of the those grounds.

It prevents citizens from denying others access to shops, public restaurants, hotels, places of public entertainment, public resort, wells, tanks, etc. The term place of public resort is used to cover places which are frequented by the public, such as a public park, a public road, a bus etc.

Legally speaking, discrimination refers to creating an adverse distinction or distinguishing unfavourably from others. Any law which discriminates against anyone on the grounds listed above can be declared void.

For example, in the case of Nainsukhdas vs State of UP, a law which provided for elections on the basis of separate electorates for members of different religious communities was declared unconstitutional. In another case, a notification which declared certain areas disturbed and made inhabitants of those areas, apart from Harijans and Muslims, bear the cost of additional police who had been sent there, was also declared invalid.

Special Provisions and Reservation Under Article 15

While the first two clauses of Article 15 protect against discrimination on the said grounds, clause (3) is an exception to the general rule laid down in the first two clauses of the article. This clause empowers the State to make special provisions for women and children.

For instance, maternity relief, although it ostensibly discriminates n the basis of gender, does not violate Article 15(1) because it is a special provision for their benefit.

Similarly, clause (4) is also an exception to clauses (1) and (2) – this empowers the State to make special provisions to promote the interests and ensure the welfare of socially and educationally backward classes of the society, or SCs and STs.

The background to this comes from a case where the Madras government had reserved seats on the basis of religion, race and caste. However, the Supreme Court held the law void because it discriminated on the basis of caste and religion irrespective of merit. Clause (4) was added after Article 15 was amended by the Constitution (1st Amendment) Act, 1951 to make this special provision possible.

Clause (5), which was added later, takes this a step forward, allowing the State to make special provisions with regard to admissions into educational institutions, including private educational institutions, whether aided or unaided by the State.

A sixth clause was added in 2019, which opens the road for the State to make special provisions for the Economically Weaker Sections (EWS). This clause allows the State to make special provisions for EWS other than those mentioned in clauses (4) and (5) with regard to admission into educational institutions including private educational institutions, whether aided or unaided by the State. It provides for reservation for these sections of society which will be in addition to existing reservation but capped at a maximum of ten percent.

Interpretations of Article 15 in Legal Cases

Over the years, there have been a number of cases decided by the courts interpreting Article 15. Most of these relate to interpretations of the provisions on reservations, but there have been others which are crucial to understanding the concept of reservation in India, and the future of anti-discrimination policies as well.

Here are some of those cases.

DP Joshi vs State of MB (Madhya Bharat)

In D P Joshi vs State of MB, it was held that a law that discriminates on the basis of residence does not violate Article 15(1), observing that place of birth is different from place of residence. What Article 15 provides against is discrimination on the basis of place of birth and not residence. This is a useful illustration of the kind of analysis required in such cases.

Navtej Johar vs Union of India (the Section 377 case)

In what may prove to be one of the most transformative interpretations of the Constitution, the judgment in the Section 377 case held that Article 15(1) also prohibits discrimination which indirectly discriminates against a class of persons on such a basis. There had been earlier judgments of the Supreme Court and the high courts which had made such a finding, but it was reaffirmed in the Section 377 case, where the apex court decriminalised consensual homosexual acts.

Justice DY Chandrachud’s judgment dealt with this issue in a particularly extensive way. He essentially said that when deciding whether or not a particular law discriminates against a particular class of individuals (like the LGBT community), we should not just look at the words or stated objectives of the law, but the effect the law has.

This interpretation of Article 15(1) could have far-reaching effects as many laws, much like Section 377 of the IPC, may be facially neutral, and not apply only to a specific community, but because of their effect, actually do so.

Justice Chandrachud’s judgment even went so far as to consider Section 377 as discriminatory on the basis of gender – since it reinforced heterosexual norms. This could lead to a new understanding of the way in which the Constitution protects against discrimination under Article 15.

Indira Sawhney vs Union of India (the reservation case)

The Supreme Court, in its landmark 1993 judgment in the Indira Sawhney Vs Union of India case, observed that Article 15 (4) does not mean that the percentage of reservation should be in proportion to the percentage of the population of the backward classes to the total population. It laid down that the total number of reserved seats, places or positions cannot exceed 50 percent of what is available.

The Badaun Case So Far

On 27 May 2014, two teenaged girls from a lower caste community went missing in Katra village of Badaun district in Uttar Pradesh. The next morning, their bodies were found hanging from a mango tree. According to a post mortem, the girls were raped before being hanged.

Three accused persons – Pappu Yadav, Awedesh Yadav and Urvesh Yadav – were taken into custody and two of them confessed to the rape and murder of the minor girls. Two police constables were also removed from the case and charged with criminal conspiracy.

At the same time, one of the doctors who had conducted the autopsy of the bodies, confessed that she had never done an autopsy before. Soon after, the CBI took over the case and ordered a second autopsy. However, a second autopsy could not be conducted because exhumation of the bodies was not possible, so the CBI decided to conduct a DNA analysis of the victims’ clothes.

After the results of the forensic tests and administration of polygraph tests on both the victims’ families and the accused, the investigative agency concluded that the two minors were not sexually assaulted and murdered but took their own lives.

The CBI dropped charges against the main accused in the rape case as well as constables Chhatrapal Yadav and Sarvesh Yadav, who were booked for conspiracy, saying that forensic tests ruled out the possibility of assault.

This claim was strongly contested by the families of the girls, who believed that the deaths were being covered up as suicides to shield the accused in the case. In 2015, the POCSO court rejected the CBI’s closure report.

Despite national attention, the case has been dragging on in the POCSO court. The accused meanwhile, are out on bail.

The Caste Angle in the Badaun Case

The caste angle and discrimination played a significant role in this case, with Reuters claiming that the two girls were Dalits. Other reports also said that the girls belonged to the Maurya Shakyas community, whereas the accused hail from the Yadav caste. While both are classified as OBCs, under the Samajwadi Party rule, Yadavs are seen to have more clout. They are also numerically stronger than Maurya Shakyas.

Another reason the caste card was crucial was that most of the police staff who initially probed the case were also Yadavs. According to The Indian Express, the victims’ families pointed out that most of the police staff at the village and in nearby areas are also Yadavs.

At Katra Sadatganj, inspector Sarvesh Yadav and head constable Chhatrapal, both Yadavs, were sacked after the girls’ relatives said that they had refused to register their complaint. The in-charge of the Katra Sadatganj police post, also a Yadav, was suspended after the case, the report said.

After villagers alleged that the police force was biased, data collected by district police officials showed that 11 SHOs of the 22 police stations in Badaun district were Yadavs, while senior inspectors in six other police stations also hailed from that caste.

In a 10-15 km radius around Katra Sadatganj, six of the nine police stations have SHOs from the Yadav community, The Indian Express reported.

(With inputs from Reuters and The Indian Express.)