Diversity often leads to differences of opinion, and those differences of opinion sometimes lead to

discrimination. A major source of discrimination in India is caste discrimination, which still occurs in
some parts of the country. Traditionally, the general divide in society was between the lower castes
and the upper castes. There had been untouchability for the lower castes. India has now outlawed
this rule because it is so unacceptable.
The stories of women being beaten up for drawing water from wells, people being harassed if their
shadow falls on other men, devotees being stopped from entering the temple, and being beaten up
for touching idols of gods have become a common affair in newspaper headlines whenever I go
through one. It seemed to me like a nightmare that has compelled me to look into the provisions in
force that prohibit such differentiation.
A discriminatory act causes emotional pain, mental distress, and social isolation. Article 15 of the
Constitution has been widely needed and has existed ever since it came into force. There are five
clauses in Article 15 that specify types of discrimination that are strictly prohibited.
This article examines the provisions of Article 15 of the Indian Constitution, which protects its
citizens from discrimination of any kind. Considering India has so many religions, beliefs, languages,
cultures, etc., and has such a diverse population, there is no doubt that discrimination can occur in
such a country. Thus, the purpose of Article 15 is to protect the rights and interests of citizens.

Clause 1 of Article 15 of the Indian Constitution

As stated in Article 15(1), there shall be no discrimination against any citizen of India on the basis of
religion, race, caste, gender, or place of birth. Despite the fact that castes are divided into
scheduled castes/tribes, backward classes, no one should be discriminated against. As a broad term,
discrimination has many aspects, and it is unjust. People of lower castes, like Dalits have been the
target of unjust treatment in numerous instances.
There are laws to protect them, including the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, but still, cruelty occurs towards the SCs/STs in certain parts of the country. In
some situations, the lower caste people face many troubles, such as women being raped and people
being killed as a result of protests and caste-related conflicts. In September 2020, a gang rape case
took place in Hathras, a district in Uttar Pradesh, in which a 19-year-old Dalit girl was raped
(Satayama Dubey & Ors v. Union of India, 2020).
The scope of this clause is very wide. It is levelled against any State action in relation to the citizens’
rights, be it political, civil or otherwise. The prohibition of discrimination on grounds such as religion
or caste identities does not deny the pluralism of Indian culture but rather preserves it.

Clause 3 of Article 15 of the Indian Constitution

Article 15(3) provides that the state may continue to make laws that provide special provisions for
women and childrenThis clause is in the nature of an exception to clause (1) and provides that
notwithstanding clause (1), it would be permissible for the State to make “special provision for
women and children”. This exception is not confined to beneficial provisions only and any special
provision that the State considers necessary in the interest of women, whatever its nature may be,
would be valid under this clause. Thus, Article 15(3) can be considered a charter for affirmative
action in favour of women and children.
In Govt. of A.P. v. P.B. Vijaykumar (1995), it was held that Article 15(3) also sustains reservation for
women because it is a special provision to support women with a view of promoting equalisation of
their status. In this case, a provision relating to the Andhra Pradesh State and Subordinate Service
Rule, 1996 was under question which provided that in cases where women and men are equally
suited, preference is to be given to the women, ‘other things being equal’ in order to select for
direct recruitment to an extent of at least 30% of certain specified posts.
In Vijay Lakshmi v. Punjab University (2003), the reservation of posts for women in women’s
colleges and hostels was held valid.

National Commission for Women – By the National Commission for Women Act 1990, the Indian
Government has set up a Commission to examine and report on “all matters relating to the
safeguards provided for women under the Constitution and other laws”, including suggestions for
improving the existing safeguards.

Special provision for Women and Children

The thought of this legislation being carte blanche (complete freedom to act as one wishes) to
impose differential benefits ostensibly to the advantage of women at the cost of burdening men
may ponder in your mind. But it is justified as it compensates for the early injustice met by women
and children at the hands of a male-dominated society. Right to free and compulsory education for
children under the age of 14 years, Section 56 of the CPC 1908, the Maternity Benefit (Amendment)
Act 2017, etc. are some of the best examples of such provisions.
In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh (2005), the U.P. government made
provision for providing a reservation BTC training programme as follows:
 50% of the candidates to be selected shall be from the Science stream,
 50% from the Arts stream,
 further 50% would be female candidates,
 And the other 50% would be male candidates.
This reservation format was contended to be arbitrary and violative of Article 15. The Apex Court
held that the reservation format introduced was not warranted by the provisions of the Indian
Constitution, being over and above the constitutional reservations in favour of backward classes.
Whereas in Union of India v. K.P. Prabhakaran (1997), the railway administration took the decision
to appoint enquiry cum reservation clerks in four metropolitan cities, i.e., Mumbai, Delhi, Kolkata,
and Chennai. The decision stated that the post would be held by women only. The court rejected
the contention of the government, urging that this provision is protected under Article 15(3). It said
that Article 15(3) cannot be read as a provision or as an exception to what is guaranteed
under Article 16(1)(2).
These cases clearly explain the applicability of the phrase ‘Special provisions for women and
children’ in matters ranging from reservation to education and employability.

Women and sexual harassment under Clause 3 of Article 15 of the Indian Constitution
 Clause 3 of Article 15 also allows the government to frame special laws regarding the
protection of women and the abolition of sexual harassment. Sexual harassment is a clear
violation of the fundamental rights of equality guaranteed under Article 14(2) and Article 15(3).
The sexual harassment of women that had become a frequent story of everyday newspapers
was dealt with by the Supreme court in the famous Vishaka & Ors v. State Of
Rajasthan (1997) and this case led to the formulation of what we call as the Vishakha
guidelines.
 It was held that sexual harassment at the workplace should be informed, produced and
circulated. Every act of harassment shall be dealt with in an appropriate manner which shall
include criminal proceedings and disciplinary action.
 For the time-bound and effective redressal of complaints, a robust mechanism should be in
place at workplaces.
 A complaints committee should be put in place which should be headed by a woman and more
than half of its members should also be women.
 In order to prevent any pressure from the higher-ups at the workplace, a third party like an
NGO should be involved.
 Moreover, concrete steps must be taken to create awareness at the workplace as to what
sexual harassment is and how to approach appropriate people if someone is harassed at the
workplace.

Clause 4 of Article 15 of the Indian Constitution

Article 15(4) stipulates that nothing in Article 15 or Article 29(2) prevents the state from creating
special provisions for socially and educationally backward classes of citizens, or the STs/SCs. There
were two major instances that motivated the inclusion of such a clause in Article 15. First, in the
State Of Madras v. Srimathi Champakam (1951), it was the government of Madras that issued an
order setting out how seats would be allocated in medical and engineering colleges based on a
student’s community and caste. Upon examination, it was determined that the order violated
Clause (1) of Article 15 which stated that seats were allotted based on castes of students and not
merit. The seven-judge bench then overturned this order that allotted seats based on caste and not
merit.
Secondly, in Jagwant Kaur v. State of Maharashtra (1952), the construction of a colony solely for
Harijans was considered to be violative of Article 15(1). Clause (4) under Article 15 was thus
introduced for the purpose of helping the socially and educationally disadvantaged citizens without
violating any other provisions.
Furthermore, Article 29(2) [which is also mentioned under Article 15(4)] indicates that no citizen of
India is discriminated against when applying for admission to a state-run educational institution or
receiving financial aid out of state funds based on their religion, caste, race, or language. Therefore,
Article 15(4) is not an exception but rather a special provision for socio-economically and
educationally backward sections of society.

Clause 5 of Article 15 of the Indian Constitution

Article 15(5) states that nothing in Article 15 or Article 19(1)(g) prevents the government from
making special legal provisions to improve the lives of socially and educationally backward citizens,
as well as those from Scheduled Castes and Scheduled Tribes. In some cases, special provisions may
apply to the admission of backward classes, SCs, and STs in educational institutions, either private or
public, with or without state funding, except for those minorities identified in Article 30(1). Under
Article 19(1)(g) of the Indian Constitution, every citizen of the country is free to follow any
profession, trade, business, or occupation of their choice. There is a provision in Article 30 that
expresses the right of every minority in India to establish and administer schools of their choice,
regardless of whether the minority is religious or linguistic. The Supreme Court decided that Article
15, Clause 5, did not violate Article 14 of the Constitution. Indian citizens are guaranteed equality
before the law and equal protection within the territory of the country under Article 14.

Clause 6 of Article 15 of the Indian Constitution

In 2019, the Parliament enacted the Constitution (One Hundred and Third Amendment) Act, which
inserted Clause 6 in Article 15, enabling the State to make special provisions for the advancement of
any economically weaker section of citizens, including reservations in educational institutions. It
states that such reservations can be made in any educational institution, including both aided and
unaided private institutions, except minority educational institutions covered under Article 30(1). It
further states that the upper limit of EWS reservations will be 10%.
In the case of Janhit Abhiyan v. Union of India (2022), the Supreme Court, with a 3-2 majority,
upheld the 103rd Constitutional Amendment providing EWS reservation. With this, the Court
extended the net of reservation benefits to include solely economic backwardness.

Affirmative action
“Affirmative Action” is a phrase that refers to attempts to bring members of underrepresented
groups, usually groups that have suffered discrimination, into a higher degree of participation in
some beneficial programme. Affirmative action includes some kind of preferential treatment. The
principle of affirmative action, also called reverse discrimination, was established and general
guidance is provided in Article 46 of the Indian Constitution under Chapter IV (Directive Principles of
State Policy). Article 46 directs the State to promote the educational and economic interests of the
weaker section of the people with special care, in particular the SC and ST. Moreover, it directs the
state to protect them from social injustice and all kinds of exploitation.
The ruling of the Hon’ble Supreme Court in the Champakam Dorairajan case (supra) as discussed
above, was reversed by the Constitutional First Amendment of 1951. Regarding ‘affirmative action’,
it was held in the case of Indira Sawhney v. Union of India (1992) that, among others, the concept of
equality before the law contemplates minimizing inequalities in income, status, facilities and
opportunities, not only amongst individuals but also amongst groups of people, securing adequate
means of livelihood for its citizens and ensuring the constitutional direction as given in Article 46.

Doctrine of Reasonable classification

under Article 14 of the Constitution of India refers to a lawful and justifiable categorisation of
individuals or groups based on intelligible differentia that distinguishes them from others. This
classification must have a rational nexus to the legislative objective it seeks to achieve.
It allows for tailored treatment, acknowledges diverse circumstances and is instrumental in
addressing social inequalities without violating fundamental rights. The doctrine ensures fairness
and prevents arbitrary discrimination, permitting the legislature to enact laws that cater to specific
needs while upholding the constitutional principles of equality and justice. Judicial scrutiny ensures
that classifications are reasonable, non-arbitrary and serve a legitimate purpose.

Reservation
On research, we find that Article 15 Clauses (3), (4), and (5) themselves stand as an exception to
Article 15 Clauses (1) and (2). Article 15 Clauses (3), (4), and (5) state that the legislature is free to
formulate special provisions:
 For women and children,
 For the advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes,
 Make provision relating to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the minority
educational institutions.
Though being the exception to the legislation that forbids discrimination on grounds of sex and
caste, this does not come under discrimination. Rather, the term ‘Protective Discrimination’ (also
known as Positive Discrimination) is used by the legislators to justify reservation and is defined as
the policy of providing an equal platform to the underprivileged and suppressed classes and to lift
their status in the society. This system of reservation works on the principles of intelligible
differentia (difference capable of being understood).

The Amendment
The Mandal Commission Report allowed half of the seats in educational and service matters to
Scheduled Tribes, Scheduled Castes, and OBCs, who together constituted around 70% of the total
Indian population. This was followed by the judgement given by the Supreme Court of India in the
case of Indra Sawhney v. Union of India (1992). As a result of this move, their status improved
significantly.
Consequently, it became incumbent upon the legislature to devise policies to improve the economic
situation of those belonging to the ‘other category’. Due to this, the legislature passed the
Constitution (103rd Amendment) Act, 2019 to give economic backward sections a 10% reservation
(as discussed above) in educational and employment institutions in the general category. This
amendment inserted Clause (6) to Article 15 and Clause (6) to Article 16 of the Constitution.
The Amendment Act was accused of violating the Indian Constitution’s basic structure. However, it
should be noted that all Constitutional provisions are essential, but all of them do not hold the same
value. A constitutional amendment may be made so long as it does not alter the basic structure and
foundation of the Constitution. In 1973, the term basic structure was first used in Sajjan Singh v.
State of Rajasthan (1964), when it was stated as follows:
It is also a matter for consideration whether making a change in a basic feature of the Constitution
can be regarded merely as an amendment or would it be, in effect, rewriting a part of the
Constitution; and if the latter, would it be within the purview of Article 368?
Only in 1973 was the concept incorporated in the text of the Supreme Court’s decision. Again, in the
case of Kesavananda Bharati v. State of Kerala (1973), Justice Sikri described the basics of the
Constitution and its structure. Thereafter, several courts examined and worked out this issue in
several cases including Indira Nehru Gandhi v. Raj Narain (1975), Minerva Mills Ltd. v. Union of
India (1980), etc.
All constitutional amendments since the Kesavananda Bharati case have been tested against this
principle and those which adversely affect or destroy the wider principles of the Constitution such
as democracy, secularism, equality, or republicanism or alter the Constitution’s identity were
considered as bad. The M. Nagaraj v. Union of India (2006) case established a twin test which
included the width test and the identity test. These tests must be satisfied in order to determine
whether an amendment is valid or not. Essentially, the width test sought to determine the impact
an amendment would have on the Constitution and, indirectly, on its core principles. Accordingly,
the scope of effect determined the legitimate scope/width of the amendment power, and it also
contemplated all of the ramifications of the amendment process to determine if the ‘basic
structure’ of the Constitution was threatened. However, the identity test asked whether the
Constitution’s identity would remain the same after the amendment.