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case study on article 15 of indian constitution

  • Constitution
  • Constitutional law

Article 15 of the Indian Constitution

case study on article 15 of indian constitution

This article is written by Devansh Sharma , Nikunj Arora and has been updated by Naincy Mishra . This article deals with a detailed explanation of Article 15 of the Constitution, its various aspects, evolution and related judicial pronouncements. 

It has been published by Rachit Garg.

Table of Contents

Introduction

The Constitution of India guarantees various rights to its citizens, including no discrimination on account of religion, race, caste, or place of birth. Part III of the Indian Constitution establishes this right under the heading of Fundamental Rights. In India, religion and caste-based discrimination have existed for a very long time. In every part of India before independence, discrimination was evident, whether through untouchability or the division of upper and lower castes. Discrimination still exists today; however, the consequences of such discrimination are much more severe and punishable. 

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According to the 8th Schedule of the Constitution, India recognises a total of 22 languages. But in reality, there are more than 1,500 languages spoken in India other than the official languages of Hindi and English. The Hindi language is spoken by roughly 44.63 percent of the Indian population. 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 number of cases involving discrimination are based on a variety of variables. Caste and religion have been the major causes of discrimination in India for most of its history. The practice of discriminating on the basis of gender is not new either. This includes discriminating against women as well as LGBTIQA+ individuals. Decriminalising Section 377 of the Indian Penal Code, 1860 , in 2018 marked the first step in recognising the LGBTIQA+ community. 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.  

Scope of the word ‘discrimination’

Discrimination occurs when you are distinguished or treated in a less favourable manner than another person under similar circumstances, or if you are disadvantaged by being placed on equal footing with another under different circumstances, for example, because you are disabled or pregnant. This action cannot be reasonably and objectively justified.

Article 15 restricts discrimination on the grounds of:

  • Religion – It means that a state or any group cannot discriminate against a person on the basis of religion from accessing any public place or policy.
  • Race – A person should not be discriminated against on the basis of his/her ethnic origin. For example, a citizen of Afghan origin should not be discriminated against by those of Indian origin.
  • Caste – It prohibits the discrimination on the basis of caste. Generally, it is to prevent atrocities committed by the upper caste.
  • Sex – No individual should be discriminated against on the basis of their gender. For example, discriminating against females, transgenders, etc.
  • Place of birth – The place where an individual is born should not become a reason for discrimination.

Often, the word ‘Discrimination’ is perceived to be contrary to the principles of equality. Individuals tend to confuse discrimination with a breach of equality. Can something that is disadvantageous and against the general classification of the individual be taken as discrimination? The answer remains ‘NO’. The Supreme Court has observed in the following cases that every classification does not constitute discrimination in the first place. 

In the case of Kathi Raning Rawat v. State of Saurashtra (1952) , special courts under the Saurashtra State Public Safety Measures Ordinance 1949 were set up by the state of Saurashtra to adjudicate on the matters of Section 302 , Section 307 and S ection 392 read with S ection 34 of the Indian Penal Code (IPC), 1860. The contention brought before the court was that these provisions are discriminatory for the residents depending upon the territory.

The court stated that all kinds of legislative differentiation are not discriminatory. The legislation did not refer to certain individual cases but to offences of certain kinds committed in certain areas, and hence it is not discrimination.

In another significant case of John Vallamattom v. Union of India, (2003 ) , the petitioners were prevented from bequeathing property for religious and charitable purposes by the Indian Succession Act 1925 . The petitioner contended it to be discriminatory against the testamentary dispositions by a Christian.

The Supreme Court stated that the Act was to prevent people from making injudicious death-bed bequests under religious influence but had a great impact on a person desiring to dispose of his property upon his death. Hence, the legislation is clearly discriminatory, as the properties of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi were excluded from the provisions of the Act. Further, the respondents could not provide any acceptable reasoning as to show why the provision regulates religious and charitable bequests of Christians alone.

When the concept that a reasonable classification can never amount to discrimination is clear, we suddenly get stuck by the idea of reservation. Is it not discriminatory to differentiate between two candidates who are appearing for the same post or exam with the same qualifications? What allows provisions for such differentiation to be made?

Overview of Article 15 of the Indian Constitution

case study on article 15 of indian constitution

In India, Article 15 protects citizens from racism, untouchability, and various forms of discrimination based on religion and gender. In India, caste discrimination is the type of discrimination that is most prevalent. Discrimination and untouchability are a result of caste division. Untouchability is now an offence in India; however, in some areas due to a lack of legal awareness and caste beliefs, people still face untouchability. It is assumed that those born in lower castes are considered lower than those born in higher castes, and this leads to discrimination against them. Such discrimination is described as an offence in Article 15 and those found guilty of the offence are punished. In order to facilitate the economic advancement of the socially and economically backward sections of India’s citizens, the Constitution of India provides reservations to the Scheduled Castes, Scheduled Tribes, and Other Backward Classes. 

Interestingly, in 2019, the Central Government introduced the 124th Constitution Amendment Bill (2019) in Parliament in order to provide reservations to economically weaker sections (EWS). The bill was intended to provide a 10% reservation in higher education and government employment to EWS. Consequently, the Constitution (One Hundred and Third Amendment) Act, 2019 was passed and thus, Article 15 was amended to include clause (6). This was done to provide equal opportunity to EWS, as they had been disadvantaged economically and socially due to pre-independence discrimination and difficulties. 

Besides discrimination on the basis of backwardness, Article 15 also addresses gender-based discrimination. For a long time, women have been fighting for their rights and opportunities, and slowly, these provisions are gaining recognition despite the fact they have existed since the 1950s. Thus, the scope of this article extends to women too, which provides them with special protection in order to achieve the aforementioned objective of equal rights. 

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. Based on the survey by the Hindu, there has been an increase of 6% in unfavourable bias towards Dalits since 2009. 

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 ). 

Additionally, Dalits are also often targeted for atrocities for no apparent reason. For example, there was a case where the houses of 18 Dalits were set on fire in April 2010. The incident occurred because of a dog barking at a higher-class man. Several laws have been passed over the years to protect the rights of people, but discrimination still exists. One of the major reasons for this can be a lack of appropriate punishments and an inability of people to adapt. Only when people agree completely with what is enacted in law will we be able to end discrimination against them.  

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.

Article 15(1) ensures that religion shall not be the ground for any disqualification or discrimination in any public matter. In State of Rajasthan v. Pratap Singh (1960) , an order under Section 15 of the Police Act 1861 was under question, which declared certain areas as ‘disturbed areas’ and made the inhabitants of those areas bear the cost of posting additional police. It was held that the provision violates Article 15(1) insofar as it exempts the ‘Harijan’ and ‘Muslim’ inhabitants of those areas from such liability, without assigning any reason for the exemption. 

In Danial Latifi v. Union of India (2001) , the Apex court upheld the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 , holding that the liability of the husband to provide “reasonable and fair provision and maintenance” under Section 3(1)(a) of the Act is not limited to the exact period. If it is permitted to be so limited, then the Act would violate Article 15 as it excludes the Muslim women alone on the basis of their religion from getting maintenance in reasonable provision from their divorced husband. 

Due to the vast geographical diversity in India from north to south and from east to west, certain regions of the country face discrimination based on their race or ethnicity. The first step towards abolishing racial discrimination was taken by the passing of the Criminal Law (Removal of Racial Discrimination) Act 1949 on the eve of the commencement of the Constitution. By this Act, the privileges which were enjoyed by the Europeans and Americans under the British regime, relating to matters of criminal law and procedure, were taken away. 

In Sanghar Umar Ramval v. State of Saurashtra (1952) , a law of Saurashtra was under consideration which restricted the movement of certain communities by insisting on their reporting to the police daily. It was held to be invalid because it was a discrimination based on race. 

The word ‘caste’ is not an indigenous Indian term. It comes from the Portuguese word ‘casta’ which has various meanings. In the Indian context, it may be taken to mean a ‘Jati’ i.e., a group having a common name, common origin, hereditary membership and which is linked to one or more traditional occupations. It imposes certain obligations and restrictions on its members in matters of social intercourse and demonstrates having a more or less determinate position in a hierarchical scale of ranks. In Ashok Kumar Thakur v. Union of India (2008) , it was held that ‘caste’ is often used interchangeably with the term ‘class’ and it can be called one of the basic units in the social stratification. 

In Balaji v. State of Mysore (1963) , it was held that where the persons in whose favour a discrimination is made as to belonging to the backward classes under clause 4 of Article 15, the discrimination will be void if it is solely based on caste consideration and not on economic or social backwardness. Moreover, in Rajendran v. State of Madras (1968) , it was held that if the members of the caste as a whole were socially and educationally backward, then the reservation in favour of a caste under Article 15(4) would not be unconstitutional. 

Gender 

The Article guarantees that the State shall not discriminate between citizens only on the grounds of sex while simultaneously retaining an exception in Article 15(3) to enable the State to make ‘special provisions’ for women. It is important to note that neither a male nor a female can be discriminated against, as per the general law under Article 15(1). In the case of Rani Raj Rajeshwari v. State of UP (1954) , a provision under the UP Courts of Wards Act (1879) was under question wherein, a male proprietor could be declared incapable of managing the property on five grounds mentioned therein. Moreover, he was also given an opportunity of showing cause as to why such a declaration should not be made, while a female proprietor could be declared incapable of managing her property on any ground, and there was no opportunity to even show cause. This provision was held to be discriminatory.  

In Navtej Singh Johar v. Union of India (2018 ) , Justice DY Chandrachud noted that Article 15 prohibits discrimination, direct as well as indirect, which is founded on a stereotypical understanding of the role of sex. It was observed that the usage of the word ‘sex’ in Article 15(1) encapsulates stereotypes that are based on gender. It was observed that sexual orientation is also covered within the meaning of ‘sex’ in Article 15(1) because (i) non-heterosexual relationships question the male-female binary and gendered roles that are attached to them; and (ii) discrimination based on sexual orientation indirectly discriminates based on gender stereotypes, which are prohibited by Article 15. Therefore, a law that directly or indirectly discriminates against an individual based on sexual orientation is constitutionally suspect. It was also pointed out that the common thread that runs through the grounds mentioned in Article 15 is that they impact the personal autonomy of an individual. 

Place of birth 

This ground in effect declares ‘provincialism’ to be unlawful. It says that in no public matter, there can be discrimination by any authority against a citizen of India on grounds of his birth in any particular part of India. In State v. Husein (1951) , Section 27(2A) of The Bombay Police Act (1951) was held to be violative of Article 15(1) and thus void on the ground that it discriminates between persons born in Greater Bombay and those born outside Greater Bombay.

Clause 2 of Article 15 of the Indian Constitution

Under Article 15(2) , it is prohibited for an Indian citizen to discriminate against another Indian citizen on the grounds outlined in Clause (1). Article 15(2)(a) provides that citizens should not be prevented from accessing public places, such as shops, restaurants, hotels or any other place which is open to the general public solely because of their religion, race, caste, gender, place of birth, or any other similar basis. 

Article 15(2)(b) states that no individual can restrict another individual on the basis of religion, race, caste, gender, or place of birth from using septic tanks, wells, roads, or any other public facility maintained by the state funds or specifically designated for public use. This provision explains how discrimination should be prevented instead of being practiced. Any discrimination mentioned above shall be prohibited and unlawful. It is illegal and unjust to restrict or prevent access to a public place established by the state exclusively for public use.  

Clause (2) of the present Article is levelled not only against the State but also against the private individuals who may be in control of the public places mentioned in the clause. It is worth noting that Article 15(2) is not self-executing, i.e., the provision will remain nugatory unless legislation is made in order to make it operative. Importantly, the Protection of Civil Rights Act 1955 has made a violation of Article 15(2) punishable only if exclusion from such places by a private individual is committed on the ground of untouchability. Thus, it is unknown what will happen if a citizen is excluded on the grounds of his race, caste or sex from using a well dedicated to the public by another private person. Moreover, an action under Article 32 is also difficult to succeed because the Apex Court has held that remedy is only against State action and not against private individuals.  

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 children. In Yusuf Abdul Aziz v. State of Bombay (1954) , an adultery charge was filed against the appellant under Section 497 of the Indian Penal Code, 1860. In this case, the main issue was to determine whether Section 497 of the Indian Penal Code, 1860, is in contradiction with Articles 14 and 15 or not. This case presented the argument that Section 497 of the Indian Penal Code, 1860, dictates that adultery can only be committed by men and that women cannot even be punished as abettors. As a result of this argument, there was a contradiction with regard to whether this was in violation of Article 15, which prohibits discrimination based on gender. However, it was further stated that Clause (3) of Article 15 clearly states that nothing contained in Article 15 limits the state’s ability to make special provisions for women and children.

Additionally, it was argued that Article 15(3) should not shield women from the threat or commission of crimes. Additionally, in this case, the appellant was not even a citizen of India. Thus, the appellant, in this case, could not invoke Articles 14 and 15 because the fundamental rights can only be granted to Indian citizens. Therefore, the appeal was dismissed. 

Further, in Paramjit Singh v. State of Punjab (2009) , the petitioner was elected as a Panch for a seat that was reserved exclusively for the women of Scheduled Castes. The petitioner challenged the election of respondent number 5 as Sarpanch, on the grounds that she was not eligible to contest for the elections of Sarpanch which were reserved for the SCs and not SCs (women), because the respondent was elected as Panch for Gram Panchayat only against the reserved seat for SCs (women). It was ruled that, if the seat of the Sarpanch for a village was reserved for Scheduled Castes, then both men and women belonging to those categories could stand for election for the Sarpanch’s post because the eligibility was basically being a Scheduled Caste and representing the constituency as Panch. 

This 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 V ijay 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. But what if there are laws that differentiate or prefer women over men? Can it be called discrimination?  

In the case of Girdhar v. State (1953 ), the petitioner was convicted under Sections 342 and 354 of the Indian Penal Code. The petitioner claimed that, as there are no provisions relating to assault against men with the intention to outrage his modesty, providing such laws for women is discriminatory. Section 354 is contrary to Article 15(1) . The petition was dismissed, stating that the law was in consonance with Article 15(3) .  

In Choki v. The State of Rajasthan (1957 ) , Mt. Choki and her husband conspired and murdered their child, the application for bail was presented on the plea that she was an imprisoned woman, with no one to look after her young son. The judge rejected the application saying that there were no extenuating circumstances and the Constitution has no provisions under which leniency could be shown to women on account of their sex. The same was challenged before the Supreme Court.

It was held that Article 15(3) talks about special provisions for women and children. And under the light of this provision, Mt. Choki was granted bail as she was a woman and there is a young child dependent on her; thus, it became necessary for the state to protect the rights of the child.

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.

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.  

It was held by the Supreme Court in A. Periakaruppan v. State of Tamil Nadu (1971) that classifying socially and educationally backward classes on the basis of caste was in violation of Article 15(4). According to the Court, it was, however, necessary for the conditions of such a class of people to change, as that was the main reason for providing them with a reservation. In Balaji v. State of Mysore (1963) , the Mysore Government issued an order and decided to provide 68% reservation for students belonging to backward classes for their admissions in medical and engineering colleges. The government left only 32% of reservations for students getting admission on merit. Because of this reservation, students with higher marks than those in the reserved category failed to obtain a seat. In the opinion of the Court, the categorisation of backward and even more backward classes was not justified under Article 15(4). In order to be considered ‘backward’, both socially and educationally backward can be included. Clause (4) of Article 15 does not talk about caste but class. Additionally, the Court stated that reserving 68% of seats in medical and engineering schools would constitute constitutional fraud, as Clause (4) of Article 15 prohibits exclusive provisions for backward classes. Therefore, reservations could not exceed 50%. 

The Supreme Court in State of AP v. USV Balaram (1972) held that caste should not be a determining factor in whether a person belongs to a backward class. The backward class shall be defined as an entire caste that is both socially and academically backward. Further, the Supreme Court stated that in the event a backward class improves educationally and socially to such an extent that it no longer requires special aid from the state, the list of backward classes will automatically be updated.

In the State of UP v. Pradeep Tandon (1974) , the Apex Court held that providing reserved seats to students who live in rural areas was unconstitutional. It cannot be justified under Clause (4) of Article 15. In this case, the state of Uttar Pradesh was providing reservations in medical colleges to students from rural areas, hilly regions, and students from Uttarakhand. According to the Supreme Court, reservations for students from hill regions and Uttarakhand were valid since the people from these areas are socially and educationally backwards due to a lack of awareness and inadequate facilities for education. The Court stated that the rural area does not represent a backward social or educational status, and poverty does not equate to backwardness in rural areas.   

Clause (4) provides for ‘special  provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes’. Article 15(4) was inserted by the Constitution (First Amendment) Act in the year 1951. The amendment was introduced in order to enable the government to make special provisions for backward classes. The special provision may be by way of reservation of seats in public educational institutions. This amendment brings Article 15 and Article 29 in line with Articles 16(4) , 46 and 340 . 

This clause strengthens the concept of promoting the socio-economic empowerment of the disadvantaged. Social equality is realised through the facilities and opportunities given to them to live with dignity and equal status in society. Economic equality also gives empowerment as a measure to improve excellence in every walk of life. This being the objective, what is required to be kept in mind while adjudging the constitutionality of the scheme/rule of reservation is the equality and adequacy of representations as per the percentage prescribed by the rules or administrative instructions. 

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.

This clause was inserted by virtue of the Constitution (Ninety-Third Amendment) Act 2005 . The constitutionality of this amendment was challenged in the Ashok Kumar Thakur case (supra), and the Apex Court upheld the amendment so far as it relates to the State maintained institution and aided educational institutions. It was further declared that backward classes falling under the “creamy layer” would not benefit under the amendment, and the state was directed to remove the “creamy layer” backward classes from the ambit of Article 15(5). 

It was also observed that the classification on the basis of caste in the long run has the tendency of inherently becoming pernicious, and hence the test of reasonableness has to be applied. It was held that when the object is the elimination of castes and a society free from discrimination based on caste, judicial review within permissible limits can’t be ruled out.   

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 

Criminal litigation

“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. Another term often associated with affirmative action is “reverse discrimination” which means “a difference in treatment that reverses the pattern of earlier discrimination”. 

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. Thus, to bring about equality among the unequal, it is necessary to adopt positive measures to abolish inequality. The equalising measures will have to be the same tools by which inequality was introduced and perpetuated. Otherwise, equalisation will not be for the unequal. It was further held that the very concept of equality implies recourse to valid classification for preferences in favour of the disadvantaged classes of citizens to improve their condition, so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens.  

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). 

You might think that, though this theory helps resolve problems of social inequality, what about the sensitive jobs requiring a greater skill set (the medical field, the army, etc.)? Should reservations be allowed in those sectors? Isn’t it wise to keep such fields outside the scope of reservation?

Reservation in Medical Colleges

The thought of not allowing reservations in certain sensitive areas of practice would cause the sector to be monopolized by the privileged classes. Reasoning doesn’t stand on the factor of skills, it stands on the factor of circumstances.

Let us take an example, imagine Ramu is a boy of the underprivileged class whose ancestors and parents have been deprived of education due to discrimination from the upper classes. Ramu has no one in the family to guide him, even then he appeared in medical exams; whereas another boy Vicky, belonging to the upper class, has parents who are well qualified and have been in elite professions. Vicky was constantly guided and mentored by his parents and he also appeared in the exam. Even in such a hypothetical story, our conscience explains that there must be some provisions to place Ramu on equal footing with Vicky to allow him to compete fairly. 

In Ajay Kumar v. State of Bihar (2019) , the issue was raised regarding the permissibility of providing reservation under Article 15(4) in postgraduate 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, 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.

On the basis of domicile

After we comprehend the above provisions, the concept of reservation might seem fairer but reservation on the basis of domicile still remains as a pricking concept. What allows the state to formulate laws that differentiate individuals on the basis of domicile, and what needful purpose does this kind of reservation serve?

As we find out, in India the preferential policy is of two types: 

  • The first is to impart special benefits to the socially and educationally backward classes, scheduled classes and scheduled tribes.
  • The second is to provide special benefits to the local ethical groups of the state against the migrants from the other states.

This provision does not count as discrimination under the purview of Article 15 as reservation on the basis of domicile is not one of the grounds of Article 15. Article 15 defines “place of birth” as a ground of discrimination but reservations based on domicile generally fall under “place of residence” which is outside the bounds of “place of birth”. The place of birth and place of residence can be different for a single individual.

Reservation within Reservation

The concept of reservation within the reservation is a condition where reservation is provided to a particular class which is already under a reservation category. For example, A man belonging to a particular community of Schedule castes is entitled to reservation for SCs but what if the community that he dwells from is more underprivileged as compared to the other communities of the SCs category?

Is it justified to make them stand on par with others? Thus the concept of reservation within reservation emerged to uplift those underprivileged communities of the reserved categories. Current examples of such reservations are the Maratha reservation in Maharashtra which already falls under the OBC reservation in Maharashtra, the Jat reservation demands in Haryana, and the 7% reservation of Madiga community under SCs reservation .

Area-wise reservation : Article 371

There are also some special provisions for specific states. There are certain articles in the Constitution of India which provide for special state provisions and allow for the formulation of the area-wise reservation to provide opportunities and facilities for the local people of the state in the matters of public employment and education, and different provisions might be for different parts of the state.

The following table mentions Articles of the Constitution which favour for ‘special provisions’ for different states:

Special provisions for the states of Maharashtra and Gujarat.

Special provisions for the state of Nagaland.

Special provisions for the state of Assam.

Special provisions for the state of Manipur.

Special provisions for the state of Andhra Pradesh.

Special provisions for the state of Sikkim.

Special provisions for the state of Mizoram.

Special provisions for the state of Arunachal Pradesh.

Special provisions for the state of Goa.

Special provisions for the state of Karnataka.

Special provision for the advancement of backward class : Article 15(4) of the Indian Constitution

Coming onto the next clause, i.e. Clause (4) of Article 15 of the Indian Constitution. It allows the state to enact laws and provisions relating to the advancement of socially and educationally backward classes and the scheduled castes and scheduled tribes.

Is Article 15(4) a Fundamental Right

There is no doubt that Article 15(4) belongs to Part III of the Constitution, which contains fundamental rights. However, all of the provisions in Part III do not constitute a fundamental right. Some provisions are merely descriptive and the other provisions are concerned with the effects of fundamental rights on the existing or future laws. There are also provisions for enforcement and implementation of the fundamental rights, in addition to those that provide exceptions to the fundamental rights. It is because of this variety of provisions that the validity of Article 15(4) continues to be questioned. This article falls under the ‘Right to Equality’ which consists of five Articles, i.e., Articles 14 to 18. 

In Article 14, the state cannot deny equality to anyone or deny them equal protection of the law. On the other hand, all Indian citizens have equal access to public sector employment under Article 16 of the Indian Constitution. Article 16(1) of the Constitution states that all citizens shall be given equal opportunity to be employed or appointed to any office under the state. It only applies to employment and offices held by the government. State officials may still determine the requirements for the recruitment of government employees. Under Article 17 , untouchability is outlawed and punitive measures are imposed. According to Article 18 , titles are abolished, and their conferral and acceptance by individuals are prohibited. 

On a plain reading of Article 15, one is almost certain to conclude that paragraph (4) constitutes an exception to all the other provisions of that article as well as to paragraph (2) of Article 29. As a result, Article 15(4) permits what Article 29(2) prohibits. As such, Article 15 pertains to the right to equality. This right, when viewed within the context of Article 14, is not the right to uniform or identical treatment. A person has the right to be treated equally with others.  In order to determine if such discriminatory practices are compatible with the right to equality, different tests have been devised and used from time to time, such as the reasonable classification, suspicious classification, or classification that lies between the two. It appears that they have not always been able to offer adequate explanations, particularly when it comes to affirmative action or positive discrimination. 

Ronald Dworkin has provided an all-inclusive and satisfactory test in this regard in his differentiation between the right to equal treatment and the right to be treated as equal. He believes that the latter right is a fundamental right, whereas the former is merely a derivative right. Equal treatment implies equal respect and concern, while equal treatment means essentially the same treatment for all. But a right to equal treatment is neither feasible nor compatible with identical treatment. An equal concern is therefore essential to the right to equality. Insofar as that concern exists, differences in treatment are appropriate and correspond to a right to equality.

There are some instances when different treatment is compatible with the right to equality. It is only the differences in treatment that are based on differences in concern that violate this right. So, for example, separate treatment on the basis of race, religion, or caste is not inherently unethical as long as respect or concern is shown to everyone regardless of race, religion, or caste. The only time it becomes bad is when it is based on disrespect, contempt or prejudice towards a race, religion or caste. Article 15 prohibits only these kinds of treatment and not every kind of difference of treatment based on the location of birth, race, or caste. Likewise, the article explicitly mentions ‘discriminate against’. Regardless of their religion, race, caste, sex or place of birth, the state may treat them differently, but it may not discriminate against them in these ways. Discrimination is only committed when a person’s religion, race, caste, sex, or place of birth is used as a basis for disrespect, contempt, or prejudice because of a difference in treatment. The difference between treatment on any of these grounds, if not based on disrespect, contempt, or discrimination, will not be discriminatory and, therefore, will not be prohibited by Article 15(1). This rule also applies to Article 29(2).

Therefore, Articles 15(1) and 29(2) prohibit discrimination, prejudicial or condescending treatment based on the grounds mentioned therein. There are special provisions in Article 15(4) of the Constitution regarding the advancement of socially and educationally backward groups or of the Scheduled Castes and Scheduled Tribes. A provision intended to advance any socially and educationally backward class, or to advance SCs and STs, cannot be defined in terms of prejudice, contempt, or insult towards any forward-looking group. 

Therefore, Article 15(4) has a distinct scope and function from Articles 15(1) and 29(2). In no way does it overlap with them or diverge from them. Article 15(4), like Articles 15(1) and 29(2), is intended to ensure or promote equality. It is only the latter that prohibits the state from making discriminatory decisions, while the former requires the state to take appropriate steps to eliminate such discrimination. As a result, the Constitution-makers not only envision equity to be achieved by judicial interpretation, but they have also provided a way to achieve it by virtue of Article 15(4) of the Constitution. Therefore, Article 15(4) is equally recognised as a fundamental right. The interpretation of Article 15(4) in relation to Articles 15(1) and 29(2) emphasizes that one does not have to rely on the technicalities, including the non-obstante clause, to justify its existence.

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.

The Government’s viewpoint

According to Prime Minister Narendra Modi, the act was a landmark event in the history of the nation and a potent measure that ensures justice for all sections of society. Mr Arun Jaitley (Ex-Minister of Finance and Corporate Affairs) explained the reasoning for the 10% quota and said that if two individuals have different backgrounds due to their birth or economic circumstances, they, therefore, could not be treated equally. Unequals cannot be treated equally, he claimed . Moreover, he stated that the Supreme Court’s reservation cap of 50% applied only to caste-based reservations, while the Economically Weaker Section reservation was not affected by it.

According to Thaawarchand Gehlot (Ex-Union Social Justice and Empowerment Minister), similar state laws for the reservation of economically weaker sections of the community were quashed by the courts since the Constitution did not include the concept of economic reservation. Now that the law has been brought into the Constitution by making necessary provisions, the same could not be struck down by the Supreme Court if challenged.

  • Socially and educationally backward classes

The phrase “socially and educationally backward classes” under Article 15(4)   refers to underprivileged classes of people who have faced discrimination and prejudice from the privileged class. This category includes the class of people who belong to backward classes in society but are not covered under SCs or STs. OBCs have been included under this phrase of socially and educationally backward classes as a category for reservation.

  • The limit of reservation

The Supreme Court of India has put up a ceiling limit to the total percentage of  reservations that can be provided by the government in Indira Sawhney v. Union of India (1993) . In this case, 27% reservation for the ‘Other Backward Classes’ was introduced. The Supreme Court of India put up a limit of 50% as the total percentage of reservations as it was reasoned that allowing the limit to exceed would deprive others of their right to equality. The Apex Court also provided guidelines for exceeding the limit of reservation under extraordinary situations.

  • Reservation of more than fifty per cent 

There is an upper limit of 50% on the total reservation, but as it was allowed to exceed under extraordinary circumstances. There are 4 states which have breached that limit of 50%:

  • Tamil Nadu has 69% reservation with 50% reservation for OBCs;
  • Maharashtra has 52%;
  • Telangana has 62%;
  • Haryana has 67%;

It is done under the extraordinary need for upliftment of certain backward classes.

Recent same-sex marriage judgement 

In the recent case of Supriyo@Supriya Chakraborty & Anr. v. Union of India (2023) , t he petitioners sought that the Special Marriage Act, 1954 , which provides for a civil marriage of couples who cannot marry under their personal laws, should be interpreted as gender-neutral so that the same-sex couples can be allowed to marry under it. They argued that the 1954 Act violated Articles 14, 15, 19, 21 and 25 by not allowing a marriage between the same-sex or LBGTQIA+ couples, and sought the words “husband” and “wife” as well as other gender-specific terms to be substituted by the word “party” or “spouse”. 

The case was heard by a constitutional bench wherein all the five judges accepted that the time has come to end discrimination against the same-sex couples, however, they could not reach a consensus for giving the queer couples the status of a legally recognised “civil union”. The majority of three judges held that any legal status for such a union can only be facilitated through a law enacted by the Legislature itself. 

Referring to the rights of LGBTQ+ persons, the rights unequivocally recognised by the Court are the right to gender identity, sexual orientation, the right to choose a partner, cohabit and to enjoy physical and mental intimacy. However, there is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom.

Interestingly, CJI DY Chandrachud, while referring to Article 15 in this judgement pointed out that Article 15 identifies the grounds on the basis of which a person shall not be discriminated against, and those grounds are markers of an individual’s identity. He further said that these identities must be read in their historical as well as social context instead of reading them through the narrow lens of ascription. Nevertheless, the marriage rights of the queer persons could be consented upon by the judges.  

Interplay of Articles 14, 15 and 16 of the Indian Constitution

The three Articles together form part of the same constitutional guarantee of equality and thus, supplement each other. While Article 14 is available to all persons, Article 15 is available to citizens only. Moreover, Article 14 guarantees the general right of equality, while Article 15 and Article 16 are instances of the same right in favour of citizens in some special circumstances. 

Further, Article 15 is more general in terms than Article 16, the latter being confined to matters relating to employment or appointment to an office under the State. It is also worth noting that Article 16 mentions ‘descent’ and ‘residence’ as additional prohibited grounds of discrimination. 

Importantly, Article 14, which guarantees equality before the law would by itself, without any provision in the Constitution, be enough to validate equalising measures. However, to bring about equality among the unequal, it is necessary to adopt positive measures to abolish inequality. The Founders of the Constitution thought it advisable to incorporate other provisions to provide for the amelioration of all aspects of the problem. In Sourabh Choudri v. Union of India (2005) , the Hon’ble Supreme Court held that Article 14 is the genus in the sense that Articles 15 and 16 provide for an exception to the equality clause.  

Article 15 has always hurdled its way in reaching out to the ones really in need. The condition of the downtrodden has greatly improved since its inception in 1949. It provides a base for each and everything that the legislature needs to formulate provisions to promote harmony in the society. There is an extreme decline in the number of cases of atrocities against the underprivileged classes.  Article 15 truly is the guardian of the downtrodden and a shield against discrimination, it has helped the Indian society to stand tall and proud despite such a huge diversity and all kinds of sexism, racism and rigid caste system and will continue to contribute to India’s unity and equality, forever.

It is important to note that Article 15 is very broad and states that there shall be no discrimination based on religion, race, caste, gender, or place of birth in any case. The term discrimination encompasses a wide range of issues and people have been discriminated against in many different ways throughout history. This article is intended to provide equal opportunities for citizens for the protection of their rights. Article 15 primarily seeks to ensure the social, economic, and educational advancement of the economically, socially, and educationally backward classes. 

As a result of the existence of Article 15, the reservation has been the subject of the most significant disputes. There are a number of forms of reservation available to the weaker sections of society that cause distress to the general group of people. Reservations are not intended to divide the population into general and reserved categories, but rather to assist the disadvantaged populations of the country. Even during the colonial era and afterwards, untouchability and discrimination were very common in the early centuries preceding British colonialism. The introduction of laws intended to protect the disadvantaged class has, however, resulted in some reduction in inequality. While one cannot say that there has been a complete removal of discrimination, it is reduced. Equality is mentioned in India’s Constitution’s preamble. In Article 15, the term is to be implemented widely throughout the Indian subcontinent.

References:

  • Durga Das Basu, Commentary on the Constitution of India, Volume 3, 9th ed. 
  • https://www.livelaw.in/top-stories/marriage-equality-case-conclusions-directions-of-supreme-court-judgments-240529  

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Article 15 of the Constitution of India

  • Constitutional Law Subject-wise Law Notes
  • March 26, 2023

Law

Article 15 of the Indian Constitution prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. This article ensures equality before the law and prohibits any form of discrimination in public access to shops, public restaurants, hotels, and places of public entertainment. It also prohibits any form of discrimination in employment or the use of public resources.

In this article, we will delve into the various subclauses of Article 15 and the landmark judgments passed by the Supreme Court of India to understand the scope and impact of this fundamental right.

What is Article 15 of the Constitution of India?

Article 15 of the Constitution of India prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, or place of birth. The article states that the State shall not discriminate against any citizen on these grounds and also empowers the State to make special provisions for women and children and for the advancement of socially and educationally backward classes, Scheduled Castes and Scheduled Tribes.

The article prohibits discrimination in matters related to access to public places such as shops, restaurants, hotels, and places of public entertainment. It also prohibits discrimination in matters related to employment, education, and the use of public utilities such as wells, tanks, and bathing ghats.

The objective of Article 15 of the Constitution of India

The objective of Article 15 is to promote equality and eliminate discrimination on the basis of various factors that historically have been the basis of social inequality and injustice in India.

Provisions of Article 15 Indian Constitution

“(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth 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, 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.

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

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

     (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

     (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

     Explanation.—For the purposes of this article and article 16 , “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.”

Article 15 (1) of the Constitution

Article 15(1) of the Constitution of India states that the State, which includes the government and its institutions, shall not discriminate against any citizen based solely on religion, race, caste, sex, place of birth or any of them.

This means that the State cannot treat individuals or groups differently or unfairly based on these grounds. For example, the State cannot deny an individual a job, admission to an educational institution, or access to public services, solely based on their religion, race, caste, sex, or place of birth.

DP Joshi v. State of Madhya Bharat 

DP Joshi v. State of Madhya Bharat is a landmark case in Indian constitutional law that deals with the interpretation of Article 15(1) of the Indian Constitution.

In this case, the petitioner challenged the constitutional validity of an order issued by the State of Madhya Bharat, which provided for the reservation of seats in medical and engineering colleges for candidates from backward classes. The petitioner argued that the order violated Article 15(1) of the Indian Constitution, which prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.

The Supreme Court, in its judgment, upheld the constitutional validity of the reservation order. The Court held that Article 15(1) prohibits discrimination on the grounds mentioned above, but it does not prohibit the State from making special provisions for the advancement of socially and educationally backward classes of citizens. The Court further held that the reservation order was a special provision aimed at promoting the educational advancement of the backward classes and was, therefore, valid under Article 15(1).

The Court also observed that the classification of backward classes for the purpose of reservation must be based on objective criteria such as social and educational backwardness, and not solely on the basis of caste. Additionally, the Court held that the reservation policy must be based on the needs of the society and should be flexible enough to accommodate changing social and economic conditions.

State of Rajasthan v. Pratap Singh

In the case of State of Rajasthan v. Pratap Singh (1969) , the Supreme Court dealt with the issue of discrimination based on residence. The case involved a rule made by the Rajasthan government that only the candidates who had been residents of the state for a certain period of time would be eligible for admission to medical colleges in the state.

The court held that the government’s rule violated Article 15(1) of the Constitution, which prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. The court held that the rule was discriminatory as it excluded non-resident candidates from consideration, irrespective of their merit. 

The court further held that the rule was not covered under the exception provided in Article 15(3), which allows the state to make special provisions for women and children.

The court held that the right to equal opportunity in the matter of education cannot be limited by any discrimination based on residence. The court observed that the purpose of education is to create a pool of skilled individuals who can serve society and the nation as a whole. The court held that it is in the larger interest of society and the nation to admit the best candidates, irrespective of their residence.

Article 15 (2) of the Constitution

Article 15(2) of the Constitution of India is a fundamental right that prohibits discrimination against any citizen of India solely based on religion, race, caste, sex, place of birth, or any of them. The provision prohibits any citizen from being subjected to any disability, liability, restriction, or condition on these grounds.

Clause (a) of Article 15(2) specifically prohibits discrimination in access to shops, public restaurants, hotels, and places of public entertainment. This means that no citizen can be denied entry or services at these establishments on the basis of their religion, race, caste, sex, place of birth or any of them.

Clause (b) of Article 15(2) prohibits discrimination in the use of public facilities such as wells, tanks, bathing ghats, roads, and places of the public resort that are maintained either wholly or partly out of State funds or dedicated to the use of the general public. 

This means that no citizen can be denied access to these public facilities on the basis of their religion, race, caste, sex, place of birth or any of them.

Article 15 (3): Special Provisions for women and children

Article 15(3) of the Constitution of India is a provision that allows the State to make special provisions for women and children, despite the general prohibition on discrimination on the basis of religion, race, caste, sex, place of birth or any of them under Article 15(1).

The provision recognizes that women and children have historically been disadvantaged and marginalized due to various social and economic factors, and hence, require special provisions to promote their welfare and advancement.

Article 15(3) permits the State to make such special provisions without violating the fundamental right to equality guaranteed to all citizens. 

These special provisions may include policies and programs that aim to uplift women and children, such as reservations in educational institutions, employment opportunities, and healthcare facilities, as well as protection against various forms of discrimination and violence.

Yusuf Abdul Aziz v. State of Bombay

In Yusuf Abdul Aziz v. State of Bombay (1954) , the appellant was charged with adultery under Section 497 of the Indian Penal Code, 1860. The case raised the issue of whether Section 497 was in contradiction with Articles 14 and 15 of the Indian Constitution.

 The argument was made that Section 497 stated that only men could commit adultery and that women could not be punished as abettors, which raised questions of discrimination based on gender.

However, it was noted that Clause (3) of Article 15 allows the state to make special provisions for women and children, indicating that the provision was not intended to prevent such provisions. It was also argued that Article 15(3) should not be interpreted as shielding women from crimes.

Moreover, the appellant was not an Indian citizen, and only Indian citizens can invoke fundamental rights under Articles 14 and 15. As a result, the appeal was dismissed.

Paramjit Singh v. State of Punjab

In the case of Paramjit Singh v. State of Punjab (2009) , the petitioner was elected as a Panch for a reserved seat for women of Scheduled Castes. The petitioner challenged the election of respondent number 5 as Sarpanch, claiming that she was not eligible to contest for the reserved seat for Scheduled Castes (women) as she was elected only as a Panch for a reserved seat for Scheduled Castes (women).

The court held that if the seat of the Sarpanch for a village was reserved for Scheduled Castes, then both men and women belonging to those categories could stand for election for the Sarpanch’s post. The eligibility criterion was being a Scheduled Caste and representing the constituency as Panch. Therefore, the election of respondent number 5 as Sarpanch was held valid.

Article 15 (4): Special provision for SEBCs, or SCs & STs

Article 15(4) of the Indian Constitution allows the State to make special provisions for the advancement of socially and educationally backward classes of citizens, Scheduled Castes, and Scheduled Tribes. This provision overrules any potential conflict between the fundamental right against discrimination and any affirmative action programs implemented by the government to address historical social and educational disadvantages.

This means that the State can implement programs, policies, and laws that provide preferential treatment to disadvantaged communities based on their caste, tribe, or economic status, without violating the anti-discrimination provisions of Article 15(2) or Article 29(2). 

These provisions can include reservations in education, employment, and political representation, as well as other programs aimed at addressing social and educational inequalities faced by these groups. 

The aim of such special provisions is to help these communities to have access to opportunities and resources that were denied to them in the past, and to bring them to par with the rest of society.

The reason for adding this clause is linked to two significant instances.

Firstly, in the case of the State Of Madras v. Srimathi Champakam (1951) , the government of Madras issued an order that allocated seats in medical and engineering colleges based on the caste and community of the students. 

However, the seven-judge bench declared that the order was against Clause (1) of Article 15 of the Constitution of India, which provides that no citizen shall be discriminated against on grounds of religion, race, caste, sex, place of birth or any of them, in access to educational institutions maintained by the State or receiving aid out of State funds.

Secondly, in Jagwant Kaur v. State of Maharashtra (1952) , the construction of a colony solely for Harijans was found to be violative of Article 15(1). To help the socially and educationally disadvantaged citizens without violating the provisions of Article 15, Clause(4) was added to the article.

Additionally, Article 29(2) is mentioned in Article 15(4), and it prohibits discrimination against any citizen on grounds of religion, race, caste, language, or any of them concerning admission to any educational institution maintained by the state or receiving aid out of state funds. 

Thus, Article 15(4) is not an exception to the principle of non-discrimination but rather a special provision to promote the advancement of socially and educationally backward sections of society.

A. Periakaruppan v. State of Tamil Nadu 

In A. Periakaruppan v. State of Tamil Nadu (1971) , the Supreme Court held that classifying socially and educationally backward classes based on caste was in violation of Article 15(4), and that reservations were necessary for improving the conditions of such classes. 

Balaji v. State of Mysore

In Balaji v. State of Mysore (1963) , the Court held that categorizing backwards and more backward classes was not justified under Article 15(4), and that reservations could not exceed 50%. 

State of AP v. USV Balaram

The Court also held in State of AP v. USV Balaram (1972) that caste should not be the determining factor for belonging to a backward class and that the list of backward classes would automatically be updated if they no longer require special aid from the state. 

State of UP v. Pradeep Tandon

In State of UP v. Pradeep Tandon (1974) , the Court held that providing reserved seats to students from rural areas was unconstitutional, as poverty in rural areas does not equate to backwardness, and reservations could only be provided to socially and educationally backward classes.

Article 15(5) of the Constitution

Article 15(5) is a clause under the Indian Constitution that permits the government to make special provisions for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes with regard to their admission to educational institutions, including private educational institutions, aided or unaided by the State. This clause was added by the Constitution (First Amendment) Act, 1951.

The clause specifies that nothing in Article 15 or sub-clause (g) of clause (1) of Article 19 shall prevent the State from making such special provisions by law. Article 19(1)(g) grants citizens the right to practice any profession or to carry on any occupation, trade, or business. However, it is subject to reasonable restrictions imposed by the State in the interest of the general public.

The clause also makes an exception for minority educational institutions referred to in clause (1) of Article 30. Article 30(1) guarantees the right of minorities, whether based on religion or language, to establish and administer educational institutions of their choice.

In essence, Article 15(5) allows the State to provide affirmative action or reservations for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes in educational institutions. 

This provision was introduced to ensure that these marginalized sections of society have access to education and to promote equality of opportunity. However, it does not apply to minority educational institutions that have the constitutional right to establish and administer educational institutions of their choice.

Article 15(6) of the Constitution

Article 15(6) allows the state to make special provisions for the advancement of economically weaker sections of citizens, other than the socially and educationally backward classes of citizens, Scheduled Castes, and Scheduled Tribes, which are already covered under clauses (4) and (5) of Article 15 of the Constitution of India.

Clause (a) of Article 15(6) allows the state to make special provisions for the advancement of EWS of citizens other than those covered under clauses (4) and (5). This means that the state can make provisions for the economic betterment of any citizen who falls below a certain income level, regardless of their caste or community.

Clause (b) of Article 15(6) allows the state to make special provisions for the admission of economically weaker sections of citizens, other than those covered under clauses (4) and (5), to educational institutions, including private educational institutions, whether aided or unaided by the state. However, such provisions for admission would be in addition to existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Janhit Abhiyan v Union of India

On 16th January 2023, in a 3-2 majority, the Supreme Court upheld the 103rd Constitutional Amendment providing EWS reservation. With this, the Court extended the net of reservation benefits to include solely economic backwardness.

In conclusion, Article 15 of the Indian Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. The interpretation of this article by the judiciary has evolved over the years and expanded its scope to include indirect discrimination and positive discrimination in favour of historically disadvantaged groups. 

The Supreme Court has also clarified that economic backwardness can be a basis for affirmative action under Article 15(6) but not under Article 15(4) and (5) which are specifically limited to socially and educationally backward classes and Scheduled Castes and Tribes.

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Constitution of India

Constitution of India

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth 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, 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.

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

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Explanation .— For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

case study on article 15 of indian constitution

Article 9, Draft Constitution of India 1948

(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 3, 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.

Article 15, Constitution of India 1950

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth 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

Draft Article 9 (Article 15) was debated on 29 November 1948 . It prohibited discrimination on five grounds: religion, race, caste, sex or place of birth.

Some members argued that the Draft Article did not engage with discrimination based on family or descent. Others wanted a specific mention of gardens, roads and tramways as potential public spaces where people should not face discrimination. In response to these points, it was clarified that while the Draft Article specifically mentions some spaces, the general nature of the language used in the Article was sufficient to cover a wide range of public spaces including those that were not specified in the Article’s text.

To the clause which permitted special provisions for women and children, a member proposed to add other vulnerable groups, namely Scheduled Castes and Scheduled Tribes. The Chairman of the Drafting Committee dismissed the need for this addition, arguing that such a provision could allow for the lawful segregation of these groups. Therefore, this amendment was rejected by the Assembly.

The Draft Article was adopted with some amendments on the same day, that is 29 November 1948.

Compass by Rau's IAS

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

The word ‘ discrimination ’ means to make an adverse distinction or to distinguish unfavourable from others. For example, In Nainsukhdas vs State of U.P . a law which provided for elections on the basis of separate electorates for members of different religious communities was held to be unconstitutional.

 The word ‘ only ’ used in Article 15(1) indicates that discrimination cannot be made merely on the grounds that one belongs to a particular caste, sex, etc. It follows from this that discrimination on grounds other than religion, race, caste, sex or place of birth is not prohibited. It means that discrimination based on any of these grounds and also on other grounds is not hit by Article 15(1). In D.P. Joshi vs State of M.B. , a rule of the State Medical College requiring a capitation fee from non-Madhya Bharat Students for admission in the college was held valid as the ground of exemption was residence and not place of birth. 

Inter-Relation of Articles 14 and 15

Articles 14 and 15 are all different facets of the concept of equality. These Articles guarantee equality of opportunity and of treatment to all the citizens in different forms, while specifically mandating that the State shall not discriminate against the citizens only on the grounds of religion, race, etc.However, while prohibiting discrimination against citizens, neither of these Articles, prohibit reasonable classification, an essential content of equality.

Thus, as in Article 14, as well in Article 15(1), if it is demonstrated that special treatment is meted out to a class of citizens, not only on the ground of religion, etc., but due to some special reasons and circumstances, the enquiry would be “does such a classification stand the test of reasonableness.”

So, Gujarat High Court in Adam Chaki v. Government of India, upheld the pre-matric Scholarship Scheme, made by the Government for students of minority community as not violative of Article 15. The Scheme involved grant of scholarship to class of citizens found to be socially, educationally, and economically disadvantaged on account of their minority status.

The Court said that even if constitutionality of the Scheme could not be upheld on the anvil of Article 15(4), the same satisfied the test of reasonable classification.

 It is a specific application of the general prohibition contained in Clause (1). It says that no citizen shall be subjected to any disability, liability, restriction, or condition on grounds only of religion, race, caste, sex, or place of birth with regard to 

  • Access to shops, public restaurants, hotels, and places of public entertainment; and
  • The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly by State funds or dedicated to the use of the public.

While clause (1) of Article 15 prohibits discrimination by the State but clause (2) prohibits both the State and private individuals from making any discrimination.

There are three exceptions to this general rule of non-discrimination which are discussed in the upcoming clauses.

 It says, ‘Nothing in this article shall prevent the State from making any special provision for women and children’. For example, women workers can be given special maternity relief and free education for children .

 In Joseph Shine vs Union of India, 2018 case, the Supreme Court in a five Judge Bench held Section 497 of I.P.C. penalising the adultery violative of Articles 14, 15(1) and 21 of the Constitution of India and not a beneficial legislation covered by Article 15(3) of the Constitution. Adultery can be grounds for civil issues including dissolution of marriage , but it cannot be a criminal offence. The Bench had also held that Section 198 (2) of the CrPC, which gave the cuckolded husband the exclusive right to prosecute his wife’s lover, was manifestly Section 198 (2) of the CrPC arbitrary.

It says that ‘Nothing in this article or clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes . Article 15(4) is another exception to clauses (1), (2) of Article 15, which was inserted by the constitution (First Amendment) Act, 1951, due to the decision in State of Madras vs Champakam Dorairajan, 1951 . 

Article 15(4) an enabling provision

 In M.R. Balaji vs State of Mysore, 1963 the Supreme Court held that the provisions made in clause (4) of Article 15 is only an enabling provision and does not impose any obligation on the State to take any special action under it. It merely confers a discretion to act if necessary, by way of making special provision for backward classes.

Article 15(4) and reservation

 In Gulson Prakash vs State of Haryana, 2010 , the Supreme Court held that a writ cannot be issued to the State to make reservation. The principle behind Article 15(4) is that a preferential treatment can be given validly where socially, and educationally backward classes need it. It is not an exception but only makes a special application of the principle of reasonable classification. The class contemplated under the clause must be both socially and educationally backward. Thus, under clause (4) of Article 15, two things are to be determined:

  • Socially and educationally backward classes. 
  • The limit of reservation

  Determining Socially and Educationally Backward class:

  • P Rajendran vs State of Madras: Backwardness based on Caste solely.
  • KC Vasanth Kumar vs State of Karnataka: Both caste and Poverty is a relevant criterion in determining the backwardness of citizens. Occupations and place of habitation may be counted.
  • Indira Sawhney vs UOI : Caste can be important and sole factor in determining the backwardness.
  • National legal service authority vs UOI: In case of Jat Reservation, The Division Bench of the Court strongly advised the Government to gradually discard “the caste-centric definition of backward” and evolve new practices, methods and yardsticks to discover and address emerging forms of backwardness.

Define the limit of reservation:

Indra Sawhney vs Union of India

  • Barring the extraordinary circumstances, the maximum limit can’t be more than 50%.
  • The classification of Backward Classes into “Backward” and More Backward” not only permissible but essential. The Court while discharging explained that the object of the special provision contained in the Constitution was not to uplift a few individuals and families in the Backward Classes, but to ensure the advancement of the Backward Classes as a whole. In this respect, Balaji decision” stands overruled.

Later, the Apex Court in A.P.B.C. Sangh v. J.S.V. Federation , held the amalgamation of extremely Backward Classes and Backward into one group as tantamount to treating categories unequal as equals and hence violative of Article 14.

The Constitution (93rd Amendment) Act, 2005, inserted clause (5) in Article 15 with effect from 2006 to nullify the effect of the judgments of the Supreme Court on the point of admission in educational institutions. It provides that, “ Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30”.

Pramati Educational and Cultural Trust vs Union of India

This case deals with the constitutional validity of clause (5) of Article 15. The Supreme Court held that None of the rights under Articles 14, 19(1)(g) and 21 of the Constitution had been abrogated by Clause (5) of Article 15 of the Constitution and the view taken by Bhandari, J. in Ashok Kumar Thakur v. Union of India that the imposition of reservation on unaided institutions by the Ninety third Amendment has abrogated Article 19(1)(g), a basic feature of the Constitution is not correct. Instead, the Court held that the (Ninety-third Amendment) Act, 2005 of the Constitution inserting Clause (5) of Article 15 of the Constitution was valid.

The Constitution (One Hundred and third Amendment) Act, 2019 has inserted clause (6) in Article 15 which is as follows: Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making:

  • Any special provision for the advancement of any economically weaker sections of citizens other than the class mentioned in clauses (4) and (5); and
  • Any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clause (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten percent of the total seats in each category.

Note : For the purposes of this article and Article 16 , “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. 

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Article 15 of the Indian Constitution Explained

Right to Equality Article 15 of the Indian Constitution Explained

The Constitution of India consists of numerous fundamental rights available to citizens and some to non-citizens as well. One of them is the right to equality which is provided under Articles 14-18 of the Constitution of India. Article 14 contains the general principles of equality before the law. And Articles 15, 16, 17 and 18 include the detailed application of the general rules given under Article 14 of the Indian Constitution.

This law note discusses Article 15 of the Indian Constitution in detail. It is related to the prohibition of discrimination based on religion, race, caste, sex, etc. The provisions under Article 15 is available only to the citizens and not to the non-citizens.

  • Article 15(1)
  • Article 15(2)
  • Article 15(3)
  • Article 15(4)
  • Article 15(5)
  • Article 15(6)

Article 15 of the Indian Constitution

Article 15(1) of the Constitution of India says that there should be no discrimination on the grounds of only religion, race, caste, sex and place of birth or any of them. Article 15(2) further provides that the citizens, as well as the states, should not make such discrimination concerning access to shops, hotels, etc. and also to all places of public entertainment, wells, tanks, and more.

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Article 15(3) and 15(4) are the restrictions to the provisions given under Article 15(1) and (2) of the Indian Constitution. Article 15(5) and 15(6) provide provisions related to the advancement of socially and educationally backward classes and weaker sections of the society as well.

Article 15(1) of the Indian Constitution

Clause (1) of Article 15 prohibits the State from discriminating between the citizens of India on any of the following grounds: (a) religion, (b) race, (c) caste, (d) sex, (e) place of birth.

The word discrimination  here means to make an adverse or unfavourable distinction between the persons.

In Nain Sukh Das vs State of UP (1953) , the Court held unconstitutional a law that provided elections based on separate electorates for members of different religious communities.

Furthermore, the word only  in clause (1) of Article 15 indicates that the prohibition is imposed for the discrimination merely on the particular grounds that are caste, sex, religion, place of birth, race. In other words, discrimination on grounds other than given under Article 15(1) of the Indian Constitution is not prohibited.

In DP Joshi vs State of Madhya Bharat (1955) , the Court has held valid a rule of the State Medical College whereby the non-Madhya Bharat students required a capitation fee for admission in the college. It was held in the case that a law that discriminates on the ground of residence does not violate Article 15(1).

Article 15(2) of the Indian Constitution

It states that citizens of India should not be subjected to any such discrimination explained above concerning access to shops, restaurants and hotels and places of public entertainment or the use of wells, roads, etc.

Clause (1) of Article 15 prohibits discrimination by the State, whereas clause (2) of Article 15 prohibits both the State and citizens from making such discrimination.

Article 15(3) of the Indian Constitution

Clause (3) of Article 15 contains an exception to the rule given under clauses (1) and (2) of Article 15. It empowers the State to make special provisions for women and children. It states that nothing in Article 15 should prevent the State from formulating any special provision for women and children. As an example, the reservation of seats for women does not violate Article 15(1).

Article 15(4) of the Indian Constitution

Clause (4) of Article 15 is another exception to clauses (1) and (2) of Article 15. It was inserted into the Indian Constitution by the Constitution (1st Amendment) Act, 1951. It was the result of the judgment given in State of Madras vs Champakam Dorairajan (1951) .

In this case, the Madras Government had reserved seats in medical and engineering colleges through government order for different communities in certain proportions based on religion, race and caste. The Supreme Court held the government order void as it classified the students based on caste, religion and race irrespective of merits.

The Article declares that the State should not be prevented by anything in Article 15 as well as Article 29(2) from making any special or particular provision for the betterment of socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.

The socially and educationally backward classes refer to underprivileged classes of people that have faced discrimination or bias from the privileged classes. This class may not necessarily fall under the category of the Scheduled Castes or Scheduled Tribes.

Note : A writ cannot be issued to the State to make reservations.

Article 15(4) Case Law: Dr Neelima vs Dean of P.G. studies A.P. Agriculture University, Hyderabad (1993)

In this case, it was held that a girl of a high caste who married a boy belonging to Scheduled Tribes is not eligible for the privilege of reservation available to Schedules Tribes as the girl originally belonged to a high caste. Merely marrying a boy of Scheduled Tribes will not make her eligible for the benefits reserved for them.

Article 15(5) of the Indian Constitution

Clause (5) was inserted in Article 15 by the Constitution (93rd Amendment) Act, 2005. It facilitates the State to make provision for reservation of the socially and educationally backward classes of citizens, Scheduled Castes and Scheduled Tribes in admission to private educational institutions.

Article 15(5) Case Law: Ashok Kumar Thakur vs Union of India (2008)

In this case, the Supreme Court has held that Article 15(5) is constitutional. It held that providing a 27 per cent reservation to OBC candidates for admissions in higher educational institutions like IITs and IIMs is constitutional and not violative of Articles 14 and 15.

Article 15(6) of the Indian Constitution

Clause (6) of Article 15 of the Indian Constitution is related to economically weaker sections of the society. It was added in 2019 by the Constitution (103rd Amendment) Act. This clause empowers the State to make special provisions for the betterment and development of the economically weaker sections of the society. And, this also includes reservations in educational institutes.

Read Next: 1 . Right to Information as a Fundamental Right 2 . Fundamental Duties Explained – Indian Constitution 3 . Important Articles of Constitution of India 4 . Why 42nd Amendment Is Called the “Mini Constitution of India”

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Home / clat pg / Article 15 under the Indian Constitution

Article 15 under the indian constitution.

TABLE OF CONTENTS
Landmark Cases under Article 15

Introduction to Article 15

Article 15 of the Indian Constitution prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, or place of birth. Article 15 states that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

In this article, we will discuss the various aspects of Article 15 and the landmark cases related to it.

Scope of Article 15

Article 15 prohibits discrimination not only by the State but also private organizations. It extends to education, employment as well as access to public areas.

The first two clauses of Article 15 prohibit discrimination based on grounds provided in the provision like- religion, race, caste, sex, place of birth or any of them. Article 15 has, however, received broader interpretation from the judiciary. In two landmark cases, the Supreme Court has interpreted ‘sex’ as including both ‘sexual orientation’ and ‘gender identity’ which has extended the protection of Article 15 to gay, lesbian, bisexual and transgender persons as well. The next 3 clauses of Article 15 provide positive discrimination in favour of disadvantaged groups thus fulfilling state’s agenda of affirmative action.

Exceptions to Article 15

Exceptions to Article 15 comprise reservations for socially and educationally backward classes as provided under Article 15(4). The objective of this exception/reservation is to provide equal opportunities to the historically disadvantaged people by virtue of their social and economic background.

To further aid socially and educationally backward classes as well as Scheduled Castes and Scheduled Tribes, there is another provision to provide aids, awards, scholarships, admission etc. under Article 15(5).

Landmark cases related to Article 15

These landmark cases have played a significant role in shaping the interpretation and implementation of Article 15 of the Indian Constitution, which is a crucial provision that prohibits discrimination on various grounds. The cases have also helped in defining the scope and limitations of the provision and in ensuring that reservations are provided only to those who are socially and educationally backward.

State of Madras v. Champakam Dorairajan 

This was the first case related to Article 15 to come before the Supreme Court of India. In this case, the State of Madras had issued an order reserving seats in medical and engineering colleges for different communities based on their population. The Supreme Court held that such a policy violated Article 15(1) as it discriminated against certain communities on the grounds of their caste. The court also held that the State could not provide reservations solely on the basis of religion or caste.

Indra Sawhney v. Union of India

This case, also known as the Mandal Commission case, dealt with the reservation policy for the socially and educationally backward classes (SEBCs) in public employment and education. The Supreme Court upheld the validity of Article 15(4) and held that reservations could be provided only for those classes of citizens who were socially and educationally backward and not for any particular caste or community. The court also set a cap of 50% for reservations in public employment and education.

Ashok Kumar Thakur v. Union of India

This case dealt with the constitutional validity of 27% reservations for Other Backward Classes (OBCs) in institutions of higher education. The Supreme Court held that the 27% quota was not based on any proper identification of socially and educationally backward classes and that the State could not rely solely on caste as a criterion for identifying backwardness.

Jarnail Singh v. Lachhmi Narain Gupta

This case dealt with the interpretation of the creamy layer concept in reservations. The Supreme Court held that the creamy layer concept would be applicable to reservations for SCs and STs as well as OBCs. The court clarified that the creamy layer would be determined based on the economic status of the individual rather than their social status.

Maratha Reservation Case

This case dealt with the constitutional validity of the Maratha Reservation Act, which provided reservations for Marathas in education and employment. The Supreme Court held that the 2018 law providing reservations for Marathas was not valid as it breached the 50% ceiling on reservations set by the court in the Indra Sawhney case.

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Gautam Badlani

Gautam Badlani

Article 15 And 16 Of The Indian Constitution - An Analysis

CCI Online Learning

KEY TAKEAWAYS

  • Articles 15 and 16 of the Indian Constitution are based upon the concept of equality, social justice and social harmony.
  • Article 15(4) and 16(4) are not exceptions to their respective provisions. They provide positive and affirmative support to the objective of the provisions.
  • These Articles are aimed at promoting real equality in the society and to ensure such real equality, some degree of reasonable classification is essential.

INTRODUCTION

The primary purpose and aim of the Indian Constitution is to ensure and promote social justice in the society. The makers of the Constitution intended to provide every citizen of the country, irrespective of his/her caste, colour, religion, region, etc., the fundamental right to equal opportunity. They envisaged the creation of a nation where every person would be provided with an opportunity to fulfil his or her dreams and aspirations.

The makers were also aware of the discriminatory practices prevalent in the society and recognised the need to provide preferential treatment to certain backward and oppressed sections. The basic underlying theme of both Article 15 and Section 16 of the Indian Constitution is the guarantee of social and equitable justice.

ARTICLE 15 OF THE INDIAN CONSTITUTION

Article 15 provides that discrimination on the basis of race, caste, religion etc., shall be prohibited. The State is restrained from discriminating among its citizens on the basis of these factors. However, Article 15(3) and 15(4) provides that the State is permitted to make special provisions in the favour of women and children and in favour of other minority and backward or oppressed communities. Educationally and socially backward communities are provided an exemption under this Statute.

The 93rd Constitutional Amendment introduced Article 15(5) to the Constitution. This is an enabling provision.The Right to education and several maternity schemes are based upon the concept of Article 15.

ARTICLE 16 OF THE INDIAN CONSTITUTION

Similarly, Article 16 of the Constitution provides that every citizen is entitled to equal opportunity and the State shall not discriminate when dealing with the matters of public employment. Here too, the State is entitled to make special provisions in favour of the backward communities provided the State believes that these communities are not adequately represented in the public offices.

Even though the Article provides that every citizen shall have an equal opportunity when it comes to matters of public employment, this does not mean that the State cannot lay down certain educational qualifications or required skill set as a prerequisite for appointment. This view was upheld in the case of State of J. & K. v. K.V.N.T. Kholo, AIR 1974 S.C.

Since the adoption of the Constitution, several amendments and additions have been made to this Article. Article 16(4a) was added by the 77th Constitutional Amendment and Article 16(4b) was added by the 81st Constitutional Amendment.

Article 16 uses the expression "nothing in this article". This shows that the intention of the Legislature was to ensure that there are no inconsistencies or contradictions among the provisions of the Article.

LANDMARK JUDGEMENTS

Several landmark judgments have been passed with respect to the scope as well as interpretation of Section 15 and 16 of the Indian Constitution.

In the case of G.M. Southern Railways v. Rangachari, AIR 1962 SC 36, the Court had categorically stated that Section 15(4) constitutes an exception to Section 15(1). Several subsequent judgments too upheld this view and held that Section 15(4) is a proviso of Section 15(1).

However, this view changed in the case of Indra Sawhney v. Union of India, 1992 (Supp) 3 SCC 217, where the Court firstly emphasised on the intention of the Constitution makers behind the drafting of Articles 15 and 16 of the Constitution. The Court held that these Articles are aimed at promoting real equality in the society and to ensure such real equality, some degree of reasonable classification is essential. Thus, it was held that Articles 15(1) and 16(1) are not exceptions but are rather aimed at fulfilling the objective of the provisions. This judgement also set a ceiling or 50% on reservation policies.

In the case of K.C. Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495, the Court held that economic backwardness formed the primary indicator of backwardness. The Court made this observation while interpreting Article 15(4) of the Indian Constitution. In this case the Court also held that the concept of reservation is aimed at upliftment of the weaker sections and hence the reservation policies need to be regularly reviewed in order to ensure that once a class of people are uplifted, they are deleted from the list of beneficiaries in order to ensure that the benefits of the legislation reached to those who need it the most. This would ensure that the weaker among the weak are also uplifted and the benefits are not only enjoyed by a section of the people.

In the landmark case of State of Madras v. Champakam Dorairajan AIR 1951 SC 226, the decision of the State Government of Madras reserving seats in medical and Engineer educational institutions on the basis of religion, caste and race of students was found to be violative of Article 15.

Another landmark judgment on the issue of reservation was the case of M.R. Balaji and Ors. v. State of Mysore AIR 1963 SC 649. In this case, the Government reserved 68% of the seats in technical education institutions such as medical and engineering colleges for Scheduled Caste and Tribes and for the socially and educationally weaker sections. The Court held that reservation should be aimed at promoting social justice but must also ensure that deserving candidates are not excluded from getting admissions into technical higher education institutions.

In the case of State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, the Court held that Section 14 to 16 are equality sections which are aimed at ensuring real equality.

In Saurabh Yadav v. State of UP (M.A. No. 26141 of 2019 of SLP (Civil) No. 23223 of 2018), the Court held that if candidates belong to the reserved category are able to qualify under the general category on their merit, then they will be appointed under the open category. Thus, the Court rejected the assumption that open category is reserved for those who are not eligible for any sort of reservation.

In the landmark judgement of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, the Court held that a reservation scheme which provided reservation on the basis of education stream (that is, science and arts) was beyond the scope of Article 15 and hence was not Constitutional.

In the case of T. Devadasan v. the Union of India & Anr. AIR 1964 SC 179, the validity of the carry forward rule was challenged on the grounds that it is violative of Articles 14, 16 and 335 of the Indian Constitution. As a result of this rule, members of the Scheduled Caste and Scheduled Tribes could get more than 50% reservation. The Court held that the carry forward rule is unconstitutional. The Court stated that reservation with respect to a certain proportion of appointments in order to provide the weaker sections an equal opportunity is justified but the reservation should not be of such a magnitude so as to deny a deserving candidate the opportunity for appointment.

In the case of M. Nagaraj v. Union of India (2006) 8 SCC 212, the Court held that a Legislative Scheme granting reservation to SC/STs in promotion is reasonable if it fulfils three conditions. Firstly, the State must be able to establish the backwardness of the beneficiaries. Secondly, the State must be able to establish the underrepresentation of the beneficiaries in the subject appointments and thirdly, it must be able to establish that such reservations would benefit administrative efficiency.

In the case of Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1, the Court had deliberated upon the question of determining the criterion for determining educationally backward category. The Court had held that the threshold for determining the educational status of any person would be graduation. If a person has completed graduation, he cannot be considered to be educationally backward.

It becomes essential to understand the criterion on the basis of which welfare schemes and special provisions providing for reservations can be framed by the government under the ambit of Article 15 and 16. Policies have been framed in the basis of domicile, economic status, etc.

Domicile based reservation

In today's times, several governments have come up with schemes of reservation of jobs for domicile residents. Several beneficiary schemes have also been initiated exclusively for domiciles. In order to understand the legal relevance of such policies with reference to Article 15(1) of the Constitution, it is essential to analyse the case of DP Joshi v/s State of Madhya Bharat1955 SCR (1)1215 where the Madhya Pradesh State Government had exempted those students of a medical College who had their domicile in Madhya Pradesh from paying the capitation fees. However, students not having the domicile were required to pay the fees. This decision of the Madhya Pradesh Government was alleged to be violative of Article 15(1) of the Indian Constitution.

However, the Court held that Article 15(1) prohibited discrimination on the basis of place of birth and place of birth is distinct from the expression place of residence. Discrimination on the basis of place of birth has been prohibited by Article 15. However, it is not essential that the place of birth be the same as the place of residence of an individual. Domicile reservation is based upon the concept of providing opportunities to the local residents of any place.

Hence, the policy of the Government was held not to be in violation of Section 15(1) of the Act.

Reservations for Economically Weaker Sections and Article 15(6)

In the recent years, the issue of reservation on the basis of economic status or reservation for Economically Weaker Sections (EWS) has been a part of discussion among the legal circles. The concept of reservation based on economic background finds its root in Article 15(6) of the Indian Constitution which provides that the State shall make reservations, including reservations in educational institutions, for the "economically weaker sections".

Article 15(6) was introduced by the 103rd Constitutional Amendment. Several petitions have been filed challenging the validity of such reservation. This Amendment provided for 10% reservations to the EWS sections in regards to jobs and educational institutions. The 103rd Amendment also amended Article 16 of the Constitution and added Article 16(6).

However, the Supreme Court is yet to deliver a concrete and conclusive judgment on the Constitutionality of EWS reservation.

Those opposing the reservation based on economic status, claim that it violates the ceiling of 50%. However, several reservation schemes have crossed the 50% ceiling. Tamil Nadu, Telangana, Maharashtra and Haryana have crossed the ceiling limit based on the special circumstances prevailing in these states. The 50% upper limit has been set but the Courts have time and again reiterated that it is the rationality behind the scheme which forms the final basis of Constitutionality.

Recently, when appeals were filed before the Supreme Court against reservation policies in NEET, the Court upheld reservation for OBCs. but is yet to decide on the issue of EWS quota.

Thus, both Articles 15 and 16 permit positive or affirmative action by the government in favour of women and backward communities. These Articles enable the government to come up with welfare measures which reduce the degree of inequality in the society and promote justice, liberty and social harmony.

These Sections shield the weaker sections of the society and enable the State to ensure social harmony in the society. They ensure that the concept of equality is not merely an utopian dream but transforms into a practical reality.

Furthermore, after a careful analysis of several judicial pronouncements, it can be concluded that Articles 15(4) and 16(4) are not exceptions to Articles 15 and 16 respectively. Rather they are aimed at ensuring that the purpose of the provisions is fulfilled.

The schemes which used reservation as a tool for social welfare are based on the concept of intelligible differentia. The 103rd Constitutional Amendment was certainly the need of the hour as it provides some sort of social security to those who were left without any socio-economic welfare cover.

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Prohibition of discrimination – Article 15 of Constitution of India

Prohibition of discrimination - Article 15 of Constitution of India

Table of Contents

Prohibition of discrimination under Article 15 of Constitution of India

Introduction :-, prohibition of discrimination on certain grounds:-.

  • Religion – Religion plays a major part in society, India us a secular country and every religion are treated equally under the eyes of the law. So, in India, no individual can be discriminated on the ground of religion.
  • Caste – the caste system is terrible in India. Much caste-based corruption happened in India. So to abolish the caste system no one must not be segregated on the ground of caste.
  • Race – In ancient times race plays a vital role in Indian society but today’s era it is abolished in many parts of the country. No individual can be discriminate on the ground of race.
  • Sex – Gender discrimination is a disastrous thing in the world. No person can be judged on their gender.
  • Place of Birth – Any individual birth in any part or domain of India is the citizen of India. He or she is not discriminated on the ground of the place of birth.

If any person is discriminated on the above-mentioned grounds, he can appeal to the courts of India for infringed their fundamental right. The discrimination on other grounds is not restricted under Article 15.

  • Article 15(1)  guarantees to all citizens that the state can not discriminate any citizen on grounds of religion, race, gender and place of birth.
  • Article 15(2) restricts subjection of a citizen to any disability, liability, condition on grounds of religion, race, gender and place of birth.
  • Article 15(3) upholds that the state can make any special provision for women and children.
  • Article 15(4) provides that the state can make any special provision for socially, Prohibition of discrimination under Article 15 of Constitution of India
  • Article 15(5) uphold that the State can make special provision for educationally and socially backwards classes for the admission to educational institutions.

Article 15(1)

Article 15(2), article 15(3), article 15(4), article 15(5), conclusion:-.

Author: Shreeparna Goswami, 2nd year B.A.LL.B of Shyambazar Law College

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Article 15 Of The Indian Constitution: An Insight

Introduction to article 15(1), nainsukhdas v. state of uttar pradesh , air 1953[1], introduction to article 15(2), introduction to article 15 (3), introduction to article 15(4), case law- champakam dorai ranjan v. state of madras, air 1951[2], 1st amendment of the indian constitution, m.r balaji v. state of mysore, air 1962[3], introduction to article 15(5).

  • https://indiankanoon.org/doc/1101047/
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Women’s Empowerment (Article 15)

  • Post author By Hemant More
  • Post date January 16, 2021
  • No Comments on Women’s Empowerment (Article 15)

Women's Empowerment

The Universal Declaration of Human Rights, 1948 affirms the ideal of equal rights of men and women. The U.N. Convention on the Elimination of All Forms of Discrimination against Women, 1979 observes that discrimination against women violates the principles of equality of rights and respect for human dignity. Similarly, social justice is the keystone of the Indian Constitution. One facet of it is gender justice. The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles. In this article, we shall study Constitutional provisions for women’s empowerment.

Womens Empowerment

Constitutional Provisions:

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education, and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of the law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex, or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Gender equality includes protection from sexual harassment, the right to work with· dignity, and the right to education which is a universally recognized basic human rights. Important Constitutional Provisions are Articles 14, 15, 16, 21, 21A, 23, 24, 38, 39, 42, 44, and 55(e). In this article, we shall study Article 15 of the Constitution of India and its interpretation with respect to women’s empowerment.

Right to Equality:

Right to Equality means that all citizens enjoy equal privileges and opportunities. It protects the citizens against any discrimination by the State on the basis of religion, caste, race, sex, or place of birth. Right to Equality includes five types of equalities.

  • Equality before law (Article 14)
  • Prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth (Article 15)
  • Equality of opportunities in matters of public employment (Article 16)
  • Abolition of Untouchability (Article 17)
  • Abolition of titles (Article 18)

Bare Act Provisions of Article 15 in

The Constitution of India: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth:

  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them
  • No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels, and palaces of public entertainment; or (b) the use of wells, tanks, 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
  • Nothing in this article shall prevent the State from making any special provision for women and children
  • Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
  • Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
  •  Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making, (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Explanation: For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

Article 15 is an extension of Article 14. Originally the Article had only three clauses. Later on, clauses (4) and (5) were added by way of the First Constitutional Amendment Act, 1951 and the Ninety-Third Constitutional Amendment Act, 2005 respectively. The insertion of clause (3) in Article 15 in relation to women is the recognition of the fact that for centuries, women of this country have been socially and economically backward. In order to eliminate the socio-economic backwardness of the women and to empower them in a manner that would bring about effective equality between men and women Clause (3) is inserted in Article 15.

Article 15 says that the state shall not discriminate against only of religion, race, sex, place of birth, or any of them. Under Article 15 (3) & (4), the government can make special provisions for women & children and for a group of citizens who are economically and socially backward. The ‘special provisions’, which the State may make to improve women’s participation in all activities under the supervision and control of the State, can be in the form of either affirmative action or reservation. The State can reserve seats for these categories in educational institutions, grant fee concessions, or arrange special coaching classes.

In Anjali Roy v. State of West Bengal, AIR 1952 Cal 825 case, the Court observed that Article 15(3) is an exception to Article 15(1) and enables the state to discriminate against males by making a special provision in favour of females.

In Dattatreya Motiram More v. State of Bombay AIR 1953 Bom 311 case, the Bombay High Court looked to the social, historic, and economic inequality of women and upheld the reservation of seats for women in municipalities as a special provision to raise the position of women to that of men.

Under Article 15(4) State can make special provisions and arrangements for socially and economically backward citizens and backward classes of society. Using this provision for women’s empowerment there are exclusive Women’s colleges, reservation of seats for women in trains, buses, panchayats, Municipalities. There are certain legislations like Maternity Benefits Act, Medical Termination of Pregnancy Act in favour of women. Women cannot be arrested or called to the police stations between the period from sunset to sunrise. Summons under CrPC cannot be served to a female members of the family.

In Air India v. Nergesh Meerza AIR 1981 SC 1829 case, where Regulations 46 and 47 of the Air India Employees Service Regulations had discriminatory provisions for male (Flight Pursers) and female (Air hostesses). These provisions and discretionary powers of the Managing Director in this regard were challenged as a violation of Article 14 of the Constitution. The apex court after hearing arguments from both the parties ruled that the clauses regarding retirement and pregnancy are unconstitutional and held that these provisions are arbitrary, selfish, and cruel, and are in violation of Article 14 of the Constitution. Court ordered to be struck down the provisions with immediate effect. Similarly, the apex court termed the discretionary powers of the Managing Director as the excessive delegation of powers without any reasonable guidelines to police the same.

In Charu Khurana vs. Union of India, 2015 1 SCC 192 case, where the petitioner, a Hollywood make-up artist, and hairdresser submitted an application to R-5 association to issue her a membership card to work there as a make-up artist and hairdresser. The association refused the application submitted by the petitioner as they were not giving membership to the female worker as a make-up artist and hairdresser. The court held that there can be no discrimination solely on the basis of gender. Equality cannot be achieved in any field if women will not be given equal opportunities. It was also stated that the registrar of the Trade Union should not allow or see that no other trade union should make any such provision which is inconsistent with the constitutional provisions. This was the writ petition was filed by the     respondent under Article 32 of the Constitution of India.

In C.B. Muthamma v. Union of India, AIR 1979 SC 1868 case, the court considered the provision in IFS rules which stipulated that a woman would have to resign if she gets married after joining the foreign service as clearly against ‘gender justice’ (violation of Articles 14 and 15) and in defiance of Article 16 of the Constitution.

In Vijay Lakshmi vs. Punjab University and Others, AIR 2003 SC 3331 case, on the issue as to whether the state could establish separate colleges and schools for girls and appoint only lady principals and lady teachers to these schools. The Supreme Court held the provision valid and not violative of Article 14 of the Constitution. If we study the classification on the merit and its relationship with the objects of such rule, we can confirm that the classification is reasonable.

Conclusion:

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education, and political disadvantages faced by them. Article 15 is an extension of Article 14. When studying the Constitutional provisions for women’s empowerment, we shall study its use with all the fundamental rights granted by the Constitution simultaneously. Fundamental Rights, among others, ensure equality before the law and equal protection of the law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex, or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment.

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case study on article 15 of indian constitution

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case study on article 15 of indian constitution

Article contents

Horizontal discrimination and article 15(2) of the indian constitution: a transformative approach.

Published online by Cambridge University Press:  25 May 2016

This article explores horizontal non-discrimination rights under the Constitution of India (Indian Constitution). The Indian Constitution is unique in that it expressly prohibits private discrimination on the grounds of sex, race, caste, religion, etc. for the purpose of, inter alia , “access to … shops” (Article 15(2)). The article argues that a historically grounded understanding of the word “shops”, in the context of the transformative purposes of the Indian Constitution, necessitates a broad reading that covers all private economic transactions where goods and services are offered to the public at large. Furthermore, seemingly contrary Supreme Court precedent, if it is constitutionally justifiable, must be restricted to its own facts. In sum, Article 15(2) of the Indian Constitution provides a radical constitutional remedy that is directly horizontally applicable to private conduct, and goes far beyond remedies developed in other jurisdictions, which have often needed to turn to legislation in order to adequately combat private discrimination in the economic and social sphere.

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BCL, MPhil (University of Oxford), LLM (Yale Law School). Visiting Faculty, West Bengal National University of Juridical Sciences, Kolkata, India. I thank Tarunabh Khaitan, Jawahar Raja, Krishnaprasad KV, V Niranjan, Christopher McConnachie, Malavika Prasad, and Shreya Atrey, for helpful discussions on various aspects of this article. I am also grateful to the organizers and participants at the Discrimination Workshop at the National Law School of India University in December 2014, and the organizers and participants of the Public Law Conference at the National Law University, Delhi in April 2015, where earlier drafts of this paper were presented and discussed. Lastly, thanks are due to two anonymous peer reviewers, whose acute comments greatly helped in sharpening the arguments of this article.

1. Press Trust of India, “Govt to Set Up Equal Opportunities Commission for Minorities” The Times of India (20 February 2014) and The Hindu (20 February 2014); Express News Service, “Cabinet Clears Equal Opportunities Panel” The Indian Express (21 February 2014).

2. E.g., the United States Equal Employment Opportunity Commission and United Kingdom Equality and Human Rights Commission.

3. Prime Minister’s High Level Committee , Social, Educational and Economic Status of the Muslim Community of India: A Report ( New Delhi : Ministry of Human Resource Development , 2006 ), online: Ministry of Human Resource Development < http://mhrd.gov.in/sites/upload_files/mhrd/files/sachar_comm.pdf > >Google Scholar .

4. Fair Housing Act , 42 USC ss 3601 – 3619 (1968) (United States).

5. For example, Article 19(1)(c) of the Constitution of India expressly guarantees the freedom of association.

6. CHEMERINSKY , Erwin , “ Rethinking State Action ” ( 1985 ) 80 ( 3 ) Northwestern University Law Review 503 at 536 Google Scholar .

7. KOPPIKAR , Smruti , “How Bias Against Muslim Flat Seekers Came to Be Entrenched in India’s Most Cosmopolitan City” Scroll (28 May 2015), online: Scroll < http://scroll.in/article/730409/how-bias-against-muslim-flat-seekers-came-to-be-entrenched-in-indias-most-cosmopolitan-city > >Google Scholar .

8. Constitution of India 1949 , art 14.

9. Ibid, art 15(1).

10. For a guide to the debate, see SAJO , Andras and UITZ , Renata , eds, The Constitution in Private Relations: Expanding Constitutionalism ( The Hague : Eleven International Publishing , 2005 ) Google Scholar .

11. For a recent, comparative study of transformative constitutionalism, see VILHENA , Oscar , BAXI , Upendra , and VILJOEN , Frans , eds, Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa ( Pretoria : Pretoria University Law Press , 2013 ) Google Scholar .

12. See generally BROOKS , Richard RW and ROSE , Carol M , Saving the Neighbourhood: Racially Restrictive Covenants, Law, and Social Norms ( Cambridge : Harvard University Press , 2013 ) CrossRef Google Scholar .

13. Cases dealing with restrictive covenants, as we shall see below, have involved blacks in the United States and South Africa, and Jews in Canada and the United Kingdom.

14. GARDBAUM , Stephen , “ The “Horizontal Effect ” of Constitutional Rights” ( 2003 ) 102 ( 3 ) The Michigan Law Review 387 at 417 Google Scholar .

15. See e.g. GARDBAUM , Stephen , “ Where the (State) Action Is ” ( 2006 ) 4 ( 4 ) International Journal of Constitutional Law 760 CrossRef Google Scholar .

16. Shelley v Kraemer 334 US 1 (1948).

17. US Constitution , amend XIV.

18. Shelley v Kraemer, supra note 16 at 13.

19. Under the US Constitution’s Supremacy Clause, the Constitution binds State courts. US Constitution, art VI S 1, cl 2.

20. Shelley v Kraemer , supra note 16 at 19.

21. See e.g. KENNEDY , Duncan , “ The Stages of Decline of the Public/Private Distinction ” ( 1982 ) 130 University of Pennsylvania Law Review 1349 at 1352 CrossRef Google Scholar .

22. TRIBE , Laurence , Constitutional Choices ( Cambridge : Harvard University Press , 1985 ) at 259 - 260 Google Scholar .

23. Re Drummond Wren [1945] OR 778 (Ont HC).

24. Ibid at para 20.

25. Ibid at para 30.

26. Ibid at para 31.

27. Noble v Alley [1951] SCR 64.

28. Ibid at 70, following Clayton v Ramsden [1943] 1 All ER 16.

29. Curators v The University of Kwa-Zulu Natal [2011] 1 B Const LR 40 (SCA) [ Curators ].

30. Ibid at para 35.

31. Ibid at para 36.

32. Ibid at para 38 (quoting Napier v Barkhuizen [2006] 4 S Afr LR 1 (SCA), para 7 [ Napier ]).

33. See BRINKTINE , Ralf , “ The Horizontal Effect of Human Rights in German Constitutional Law ” ( 2001 ) European Human Rights Law Review 421 Google Scholar .

34. BVerfGE 7 198.

35. Curators , supra note 29 at para 38(quoting Napier , supra note 32, para 7).

36. Vishaka v State of Rajasthan JT 1997 (7) SC 384.

37. See infra s II.

38. R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.

39. Zoroastrian Cooperative Housing Society Limited v District Registrar Cooperative Societies (Urban) (2005) 5 SCC 632 [ Zoroastrian Cooperative ].

40. Constitution of India 1949 , art 19(1)(c).

41. Ibid , art 29.

42. Zoroastrian Cooperative , supra note 39 at para 9.

43. Ibid at para 10.

44. Article 15(1) of the Constitution prohibits the State from discriminating against citizens on grounds of, inter alia , caste. The framers’ preoccupation with caste is reflected in other parts of the Constitution as well. Article 17 prohibits “untouchability”, the most invidious avatar of caste-based discrimination. Article 25(2)(b) carves out an exception to the principle of religious freedom by allowing the State to make laws that compel Hindu temples to admit entry to all “sections” of Hindus.

45. Zoroastrian Cooperative, supra note 39 at para 13.

46. Indian Contract Act 1872 , s 23.

47. See the observations in Sargunam Ammal v Jayarama Padayachi (1994) 1 LW 139, following Gobindaswami Dasi v Radha Ballabha Dasi (1910) 15 CMN 205.

48. Held as early as Bani Muncharam v Regina Stanger ILR 32 Bom 581.

49. Delhi Transport Corporation v DTC Mazdoor Congress AIR 1991 SC 101.

50. Ibid at para 15.

51. Ibid at para 19.

52. Ibid at para 33.

53. Ibid at para 29.

54. These limits are restricted to the sovereignty and integrity of India, public order, and morality. Constitution of India 1949 , art 19(4).

55. See e.g. Parliament of India, The Constituent Assembly Debates – Vol II (22 January 1947), online: Parliament of India < http://parliamentofindia.nic.in/ls/debates/vol2p3.htm >.

56. See e.g. NAACP v Patterson 357 US 449 (1958).

57. See e.g. State of Madras v VG Row AIR 1952 SC 196.

58. Zoroastrian Cooperative , supra note 39 at para 29.

59. Zoroastrian Cooperative, supra note 39 at para 33.

60. Constitution of India 1949 , art 29.

61. Parliament of India, Constituent Assembly Debates – Vol VII ( 8 December 1948), online: Parliament of India < http://parliamentofindia.nic.in/ls/debates/vol7p22.htm >.

63. See e.g. Ahmedabad St Xavier’s College v State of Gujarat AIR 1974 SC 1389.

64. See KYMLICKA , Will , “ The Rights of Minority Cultures: Reply to Kukathas ” ( 1992 ) 20 ( 1 ) Political Theory 140 at 140 CrossRef Google Scholar .

65. Constitution of India 1949 , Schedules V & VI.

66. Samatha v State of Andhra Pradesh (1997) 8 SCC 191 at para 12.

67. Admittedly, by virtue of the 97 th Amendment to the Constitution, passed in 2012, the term “cooperative societies” has been added to Article 19(1)(c) of the Constitution. This does amount to a post facto validation of the Court’s holding that membership in a Cooperative Society is protected by Article 19(1)(c). It does not, however, affect my argument: a fundamental right to the freedom to form cooperative societies does not necessarily imply that every act carried out by a Cooperative Society – including acts that exclude persons from arm’s length economic transactions on the basis of prohibited markers under Article 15(1) (as was the case in Zoroastrian Cooperative ) – are ipso facto valid.

68. Constitution of India 1949 art 15(2).

69. Indian Medical Association v Union of India (2011) 7 SCC 179.

70. Ibid at para 113.

71. All these definitions may be found in the Merriam-Webster Dictionary, online: Merriam-Webster < http://www.merriam-webster.com/dictionary/shop >.

72. I thank Krishnaprasad KV for pushing me to ensure greater clarity on this point.

73. Boy Scouts of America v Dale 530 US 640 (2000); Gould v Yukon Order of Pioneers [1996] 1 SCR 571.

74. See KHAITAN , Tarunabh , A Theory of Discrimination Law ( Oxford : Oxford University Press , 2015 ) CrossRef Google Scholar .

75. Ibid at 203-209.

76. Constitutional interpretation often requires attempting to decipher whether a generally worded term covers a concrete situation (e.g., does the “equal protection clause” of the American Constitution mandate desegregation?), and – as in this case – vice versa . An interesting way of understanding such situations is provided by Professor Jed Rubenfeld in his book, Revolution by Judiciary . Rubenfeld proposes the following hypothetical: Odette is married to Swann, and cheats on him with Duke. Ashamed, she vows that she will never deceive Swann again. This vow – or “commitment” – is generally worded. Rubenfeld then argues that the context in which this commitment was made implies that not-sleeping-with-someone-else is the paradigmatic case of deception – i.e., no interpretation of “deception” can fail to take into account the central act that led Odette to make this vow. This makes sense, because ultimately, what Odette agonized about was not sleeping with Duke in itself, but that in doing so, she betrayed Swann’s trust. This explains why she framed her vow in general terms. RUBENFELD , Jed , Revolution by Judiciary ( Cambridge : Harvard University Press ) at 104 – 121 Google Scholar .

Let us now reverse the hypothetical. Ashamed and mortified by her act, Odette is asked by a friend, “what did you do last night?”, to which she replies: “I slept with Duke. I’m utterly ashamed. I vow I’ll never do that again.” Now, a few months later, Swann is away, and at a house-warming, Odette finds herself attracted to Marcel. She says to herself, “Well, all I did was vow never to sleep with Duke again. But this is Marcel. So my vow remains unbroken.” Nobody will accept this reasoning. This is because if Odette’s vow is to make any sense, it must be understood as expressing some kind of principle. Odette made her promise because she saw something wrong in what she had done, and the wrongness of the act – sleeping with Duke – lay not in it being Duke, or a man with blue eyes, but her breach of Swann’s trust. Thus, although her vow was framed in specific language, as an immediate response to a situation, its reach was not so. Again, the core idea is that we take Odette’s vow to be grounded in reason – and embodying a principle. And to understand what the principle is, we must study the context and circumstances in which her vow, or commitment, was made. This shows that in certain situations, history tells us that a principle framed in concrete terms nonetheless has broader applications that go beyond the specific context in which it was framed.

77. Parliament of India, Constituent Assembly Debates – Vol VII (29 November 1948), online: Parliament of India < http://parliamentofindia.nic.in/ls/debates/vol7p15.htm >.

79. Ibid [ emphasis added ].

82. Parliament of India, Constituent Assembly Debates – Vol XI (22 November 1949), online: Parliament of India < http://parliamentofindia.nic.in/ls/debates/v11p8m.htm >.

83. See TUSHNET , Mark , “ The Issue of State Action/Horizontal Effect in Comparative Constitutional Law ” ( 2003 ) 1 ( 1 ) International Journal of Constitutional Law 79 CrossRef Google Scholar .

84. Constitution of India 1949 , Preamble.

85. I develop this idea in much greater detail in BHATIA , Gautam , “ Comprehensive Transformative Amendments ” ( 2015 ) 13 ( 1 ) Dartmouth Law Journal 1 Google Scholar .

86. ARENDT , Hannah , The Human Condition, Part II ( Chicago : University of Chicago Press , 1985 ) Google Scholar PubMed .

87. Madras Bar Association v Union of India (2014) 10 SCC 1.

88. Ibid at para 85.

89. Virendra Singh v State of Uttar Pradesh [1955] 1 SCR 415.

90. Ibid at para 43.

91. RAWLS , John , Political Liberalism ( New York : Columbia University Press , 1993 ) at 65 Google Scholar .

92. Bhatia, supra note 85.

93. See SIEGEL , Reva , “ She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family ” ( 2002 ) 115 ( 4 ) Harvard Law Review 948 CrossRef Google Scholar .

94. Frontiero v Richardson 411 US 677 (1973); US v Virginia 518 US 515 (1996).

95. This schema was originally proposed by Habermas. See FRASER , Nancy , “ What’s Critical About Critical Theory? The Case of Habermas and Gender ” ( 1985 ) 35 New German Critique 97 at 112 Google Scholar .

96. See e.g. BENHABIB , Seyla , Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics ( New York : Routledge , 1992 ) Google Scholar .

97. And thus also, a central tenet of contemporary feminism has been a challenge to the very concept of “privacy”. Feminists have argued that privacy rights serve to mask and legitimize violence and oppression within the family.

98. See e.g. HOBBES , Thomas , Leviathan (1651), online: Gutenberg Project < http://www.gutenberg.org/files/3207/3207-h/3207-h.htm > >Google Scholar ; BODIN , Jean , Six Books of the Commonwealth , trans by MJ TOOLEY ( Oxford : Basil Blackwell , 1955 ), online: < http://www.constitution.org/bodin/bodin_.htm > Google Scholar . MARITAIN , Jacques , “ The Concept of Sovereignty ” ( 1950 ) 44 ( 2 ) The American Political Science Review 343 at 345 - 346 Google Scholar .

99. See e.g. WOOD , Gordon , The Creation of the American Republic, 1776-1787 ( Chapel Hill : University of North Carolina Press , 1969 ) Google Scholar .

100. KAVIRAJ , Sudipta , Trajectories of the Indian State: Politics and Ideas ( Ranikhet : Permanent Black , 2010 ) Google Scholar .

102. Borrowing from Gramsci, Partha Chatterjee calls this a “passive revolution”. See e.g. CHATTERJEE , Partha , Nationalist Thought and the Colonial World ( Minneapolis : University of Minnesota Press , 1986 ) Google Scholar .

103. SARKAR , Tanika , “ A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal ” ( 2000 ) 26 ( 3 ) Feminist Studies 601 at 606 CrossRef Google Scholar . See also SARKAR , Tanika , “ Something Like Rights? Faith, Law and Widow Immolation Debates in Colonial Bengal ” ( 2012 ) 49 Indian Economic and Social History Review 295 CrossRef Google Scholar .

104. “The Constitution of India Bill, 1895”, cf B Shiva RAO, The Framing of India’s Constitution: Select Documents, vol 1 (Delhi: Universal Law Publishing Co, 1967) at 5; “Congress Resolution on Self-Determination”, 1918, cf B Shiva Rao, ibid at 31; “The Nehru Report”, 1928, cf B Shiva Rao, ibid at 58.

105. VERMA , Vidhu , “ Colonialism and Liberation: Ambedkar’s Quest for Distributive Justice ” ( 1999 ) 34 ( 39 ) Economic and Political Weekly 2804 at 2806 Google Scholar .

106. See e.g. SINHA , Mrinalini , Spectres of Mother India: The Global Restructuring of an Empire ( Durham : Duke University Press , 2006 ) CrossRef Google Scholar .

107. Constitution of India 1949 , art 17.

108. Ibid , art 23.

109. Ibid , art 25(2)(b).

110. PUDR v Union of India AIR 1982 SC 1473.

111. Ibid at para 20.

112. Constitution of India 1949, art 15(2)(a).

113. Ibid , art 15(2)(b).

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  • DOI: https://doi.org/10.1017/asjcl.2016.5

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case study on article 15 of indian constitution

Article 15 of The Constitution of India and Important Case Laws

Article 15 in the constitution of india 1949.

Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them
  • No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to a) .access to shops, public restaurants, hotels and palaces of public entertainment; or b) the use of wells, tanks, 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.
  • Nothing in this article shall prevent the State from making any special provision for women and children.
  • Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Explanation-

Article 14 to 18 of The Constitution of India 1949 deals with the Right to Equality. Right to Equality is a fundamental right guaranteed by The Constitution of India to an individual to live life with dignity without any discrimination. Article 14 of The Constitution of India deals with equality before the law and equal protection of the law.

Article 15 of The Constitution of India prohibits any discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(3) The Constitution of India is a special provision for women and children. The state can make any special provision for women and children. Example- Reservation for women in local self-government and free education to children.

The basic object of Article 15 of The Constitution of India prohibits the discrimination on grounds of religion, race, caste, sex or place of birth and making special provisions to the weaker section of the society. Article 15(1) and 15(2) prohibits the discrimination whereas Article 15(3) and Article 15(4) are an exception to Article 15(1) and 15(2).

Article 15(4) is a special provision for the SC and STs where a State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Dr. Ambedkar, in his general reply to the debate on the point, stated thus:

If honorable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as ‘backward’ the exception made in favor of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain….

IMPORTANT CASE LAWS

M.r. balaji and ors. v. state of mysore [1963].

Gajendragadkar, J. observed, “Though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be the sole or the dominant test in that behalf.”

Indra Sawhney v. Union of India  ( AIR 1993 )

K.c. vasanth kumar & another vs state of karnataka, ashoka kumar thakur vs union of india & ors, leave a comment cancel reply.

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Article 15 of Indian Constitution, Explanation, Provisions_1.1

Article 15 of Indian Constitution, Provisions, Explanation

Article 15 of Indian Constitution protects its citizens from discrimination of any kind. know more about its Provisions, Exceptions & Amendments in this article for the UPSC exam.

Article 15 of Indian Constitution

Table of Contents

Article 15 of Indian Constitution

Article 15 of the Indian Constitution prohibits discrimination on grounds only of religion, race, caste, sex, or place of birth. India recognises a total of 22 languages, as stated in the 8th Schedule of the Constitution. Despite Hindi and English being the country’s official languages, more than 1,500 other languages are spoken there. About 44.63 per cent of Indians speak Hindi as their first language. Diverse viewpoints frequently lead to conflicts, and such conflicts may lead to prejudice.

One of the main reasons for discrimination in India is caste prejudice, which is still prevalent in some areas. Caste systems, both lower and higher, used to be the predominant method of dividing society. There had been untouchability for the lower classes. India recently made this law illegal due to how terrible it is.

Read More: Article 14 of Indian Constitution

Article 15 of Indian Constitution Provisions

Article 15 has been desperately needed since the Constitution’s adoption and is still in place. Six clauses in Article 15 of Indian Constitution list the many forms of discrimination that are categorically prohibited.

Article 15(1) It provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
Article 15(2) It states that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to:

Access to shops, public restaurants, hotels and places of public entertainment venues;

The usage of wells, tanks, bathing ghats, highways, and public resort locations that are totally or partially supported by state funding or intended for wide public use.

Read More:  Articles 12 and 13

Article 15 of Indian Constitution Exceptions

Article 15 (3): The state may provide any particular provisions for women and children. For instance, giving children free education or reserving seats for women in local councils. The Supreme Court  held in Revathi v. Union of India, AIR 1998, that the word “for” used in this clause indicated that states can provide women and children special preference while not discriminating against them.

Click here to Know about 6 Fundamental Rights of Indian Constitution

Article 15 (4): The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. For instance, public educational institutions may offer fee discounts or seat reservations. This provision was added by the first Amendment Act, of 1951.

Article 15 (5): The state has the authority to make any special arrangements for the advancement of any socially and educationally disadvantaged classes of citizens, as well as for the scheduled castes and scheduled tribes, regarding their admission to educational institutions, including private educational institutions, whether state aid it or not, minority educational institutions are an exception of it.

The 93 rd Constitutional Amendment Act of 2005 added it. The 93 rd Constitutional Amendment Act of 2005 was upheld as legitimate by the Supreme Court in the case of Ashok Kumar Thakur v. Union of India, 2008.

Article 15 (6): The state is empowered to make any special provision for the advancement of any economically weaker sections of citizens. Additionally, the state is permitted to make a provision for the reservation of up to 10% of seats for these sections when it comes to admission to educational institutions, including private educational institutions, whether aided or unaided by the state, with the exception of minority educational institutions.

In addition to the current reservations, this reservation of up to 10% would be made. According to family income and other indices of economic disadvantage, the state would periodically notify the economically weaker sectors for this reason. The 103rd Amendment Act of 2019 adds it.

Read More: Right to Equality

Article 15 of Indian Constitution Reservation for OBC

In order to give effect to Article. 15 (5), The Centre passed the Central Educational Institutions (Reservation in Admission) Act, 2006, which established a 27% quota for applicants from Other Backward Classes (OBCs) in all central higher educational institutions, including the IITs and IIMs.

Here it should be noted that the children of the following different categories of people belong to the ‘creamy layer’ among OBCs and thus will not get the quota benefit:

  • Constitutional Posts: Persons holding constitutional posts like President, Vice-president, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.
  • Officers: Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks etc., and also in private employment.
  • Top-ranked army officers: Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force, and the Paramilitary Forces.
  • Other Professions: Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on. Persons engaged in trade, business and industry.
  • Agricultural land: People holding agricultural land above a certain limit and vacant land or buildings in urban areas.
  • Annual Income: Persons having a gross annual income of more than ₹8 lahks or possessing wealth above the exemption limit. It was Rs. 1 lakh when the “creamy layer” ceiling was first introduced in 1993. Later, it was changed to Rs. 2.5 lakh in 2004, Rs. 4.5 lakh in 2008, Rs. 6 lahks in 2013, and Rs. 8 lahks in 2017.

Read about:  Important Articles of Indian Constitution

Article 15 of Indian Constitution Reservation for EWS

In order to give effect to Article 15 (6), the central government issued an order in 2019, to provide 10% reservation to the Economically Weaker Sections (EWSs) in admission to educational institutions. The benefit of this reservation is available to EWS members who are not covered by any of the SC, ST, or OBC reservation programmes currently in place. The following are the requirements for eligibility set forth in this regard:

  • Annual Income: Persons whose family has a gross annual income below ₹8 lahks are to be identified as EWSs for the benefit of reservation. The income would be for the financial year prior to the year of application and would comprise income from all sources, such as salaries, businesses, professions, and agriculture.
  • Possession of Asset: Persons whose family owns or possesses any one of the following assets are to be excluded from being identified as EWSs, irrespective of the family income; first, Agricultural land of 5 acres and above; second, residential flat of 1000 sq. ft. and above; third, Residential plots of 100 sq. yards and above in notified municipalities.
  • Determination of Property: The property held by a family in different locations or different places/cities would be clubbed while applying the land or property holding test to determine EWS status.
  • Definition of Family: For this purpose, the individual requesting the benefit of the reservation, his or her parents, siblings, and children under the age of 18 are all considered members of the individual’s immediate family.

Read More:   Salient Features of Constitution of India

Article 15 of Indian Constitution UPSC

Article 15 has helped Indian society to stand tall and proud despite such great diversity and all forms of sexism, racism, and rigid caste system, and it will continue to do so forever. It is truly the protector of the oppressed and a shield against prejudice.

It is significant to note that Article 15 prohibits discrimination on the grounds of religion, race, caste, gender, or place of birth in all circumstances. People have been discriminated against in several ways throughout history, and the term discrimination covers a broad variety of topics.

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Is Article 15 part if Fundamental Rights?

Yes, Part III of the constitution which is Fundamental rights have article from 12 to 35.

What is Article 15 (1)?

It provides that the State shall not discriminate any citizen on grounds only of religion, race, caste, sex or place of birth.

What is Article 15 (3)?

The state may provide any particular provisions for women and children.

The 93rd Constitutional Amendment Act of 2005 added which provision?

It added Article 15(5) according to which the state has the authority to make any special arrangements for the advancement of any socially and educationally disadvantaged classes

The 103rd Constitutional Amendment Act of 2019 added which provision?

It added Article 15(6) according to which the state is empowered to make any special provision for the advancement of any economically weaker sections of citizens.

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President’s Address to Parliament and Motion of Thanks

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8 Landmark Judgments on Article 15 of the Indian Constitution

The article '8 landmark judgments on article 15 of the indian constitution' collectively affirms the principles of non-discrimination and social justice embedded in article 15..

8 Landmark Judgments on Article 15 of the Indian Constitution

The article '8 Landmark Judgments on Article 15 of the Indian Constitution' collectively affirms the principles of non-discrimination and social justice embedded in Article 15 of the Indian Constitution, progressively expanding its scope to encompass various facets of societal inequalities.Introduction Article 15 forbids discrimination based only on religion, race, caste, sex, place of birth or any of them. The Constitution of India prohibits any type of constraint, disability, or...

The article '8 Landmark Judgments on Article 15 of the Indian Constitution' collectively affirms the principles of non-discrimination and social justice embedded in Article 15 of the Indian Constitution, progressively expanding its scope to encompass various facets of societal inequalities.

Introduction

Article 15 forbids discrimination based only on religion, race, caste, sex, place of birth or any of them. The Constitution of India prohibits any type of constraint, disability, or conditions from obtaining entry to public parks, commerce, hotels, and restaurants.

In the face of immense variety, sexism, and racism, Article 15 has permitted Indian society to stand high and proud. It is a defender of the oppressed and a barrier against discrimination. Despite a rigorous caste structure, it has historically influenced India’s cohesiveness and equality and will continue to do so. Article 15 was constantly going above and beyond to help individuals in genuine need. 

Click Here to Take a Closer Look at the Judgments Regarding Reservations in India

1. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226 | Validation of Reservation in Educational Institution

The major constitutional decision in this case opened the path for the Indian Constitution’s first amendment. By adding clause 4 under Article 15 to the Constitution, the Constitution’s First Amendment provides for the insertion of a reservation policy. Clause 4 under Article 15 of the Constitution, as it currently stands, provides the state with the power to advocate for Scheduled Castes and Scheduled Tribe via educational and other socially beneficial initiatives. 

It was the first choice to resolve the mismatch between fundamental rights & governing principles. The Supreme Court held in this landmark decision that the government’s edict reserving seats in schooling institutions solely based on caste and religion is unconstitutional. The decision established the idea of “reasonable classification,” highlighting that affirming measures and reservation must be determined by valid standards to redress social and educational disadvantage instead of religious or caste reasons.

Click Here to Read the Official Judgment

2. Yusuf Abdul Aziz v. State of Bombay, AIR 321 SC 930 | Does Section 497 of the IPC contradict Articles 14 and 15?

The fundamental issue in the present case was is section 497 of the Indian Penal Code, 1860 conflicts with Articles 14 and 15. The argument in this case was that Section 497 of the I.P.C, 1860, states that adultery can only be committed by men and that women cannot even be prosecuted as abettors. As a result of this debate, there was some disagreement about whether this was in breach of Article 15, which limits gender discrimination. However, Clause (3) of Article 15 explicitly indicates that nothing in Article 15 restricts the state’s right to establish specific provisions for women and children. The Court said,

“We are not unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a license to commit the offence of which punishment has been prohibited”.

3. Paramjit Singh v. State of Punjab, (2009) 1 P&H 355 |  Reservation for SC and ST in Election

The Petitioner was appointed to serve as Panch for a special seat reserved solely for Scheduled Caste women. The petitioner objected to respondent no. 5’s election as Sarpanch because she was ineligible to run for Sarpanch, which was reserved for Scheduled Castes and not Scheduled Castes (Women), as the respondent was appointed as Panch for Gram Panchayat only, and this was a reserved seat for Scheduled Castes (Women). It was decided that if the village’s Sarpanch seat had been reserved for those from Scheduled Castes, subsequently both men and women associated with these categories were eligible to compete for the Sarpanch’s post because their qualifications were belonging to a Scheduled Caste and expressing the region as Panch.

4. DP Joshi v. State of Madhya Bharat, 1955 SCR (1)1215 | Article 15(1) prohibits discrimination based on place of birth but not residence

The rule of State Medical College permitted only non-residents to pay a capitation fee for admission to medical college while residents of MP were exempted.

The constitutionality of the reservation order offering seats at medical for applicants from backward classes was argued against in the landmark case of DP Joshi v. State of Madhya Bharat under Article 15(1) of the Indian Constitution, which restricts prejudice on different grounds. The reservation decision was maintained by the Supreme Court, which stated that Article 15(1) does not prohibit the state from creating specific arrangements for the improvement of backwards in terms of education and society sections.

The Court stated that such provisions must promote educational advancement and be based on objective factors such as social and educational backwardness, instead of simply caste considerations. Furthermore, the Court emphasized the significance of a flexible reservation system that responds to altering economic and social circumstances in society.

The Court pointed out that residence and place of birth are "two distinct conceptions with different connotations both in law and in fact".
Click Here to Read (Bottom of P.g. 2) the Official Judgement 

5. Janhit Abhiyan v. Union of India, Writ Petition (Civil) 55 Of 2019 | Reservation for Economically Weaker Sections

This case has had a significant impact since it has ensured that individuals who live in economically disadvantaged sectors of society are provided with equal opportunities in their educational and professional lives. The EWS reservation is an empowering clause that allows the state to offer special accommodations in educational institutions and career prospects for economically disadvantaged sections of society. The Supreme Court of India upheld the Constitution (103rd Amendment) Act , 2019 , and the reservation for economically weaker sections (EWS) in this case.

Because of the EWS reservation, people from economically disadvantaged families now have new opportunities to obtain excellent educations and stable employment. Concerns have been expressed about the potential impact of reservations for Economically Weaker Sections (EWS) on current reservations for SCs, STs, and OBCs. It is critical to avoid dilution of current reservations and to keep the total reservation rate under 50%. Despite these reservations, the case’s total effect has been favourable, as it strives to uplift economically disadvantaged sectors of India and encourage social and economic equality.

However, careful tracking of the EWS reservation’s execution will be required to verify that it achieves its intended goal while not negatively impacting existing reservations.

6. State of Madhya Pradesh v. Nivedita Jain, AIR 1981 SC 2045 | Right to make Special Provisions for SCs and STs

The Supreme Court stated the constitutionality of a Madhya Pradesh government executive order that entirely relaxed the standard of minimum scores for applicants from Scheduled Castes and Scheduled Tribes in Pre-Medical Exams.

The court ruled that, in the absence of legislation to the contrary, the government can impose conditions that would make the reservation meaningful for the development of applicants from such classes. The court determined that the presidential order completely reducing the minimum qualifying marks did not violate the Regulation or Article 15 (4) of the Constitution.

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7. State of UP v. Pradeep Tondon, 1975 AIR 563 | Reservation of Seats for the Students of Rural Areas

In this case, the Supreme Court ruled that giving reserved places to students from rural areas is unconstitutional. It cannot be supported by Article 15 Clause (4). In this case, the state of Uttar Pradesh was giving students from rural areas, mountainous regions, and Uttarakhand preference in medical colleges. Reservations for students from hilly areas and Uttarakhand are valid, as determined by the Supreme Court because those who live in these regions are educationally and socially backwards due to a lack of knowledge and insufficient educational facilities. The Court declared that being rural is not indicative of a backward socioeconomic or educational status and that poverty in rural areas does not correspond to backwardness.

8. M.R. Balaji v. State of Mysore, AIR 1963 S.C. 649 | Special Provisions to Make Rules for Backward Classes

In this case, the government reserved seats in the state’s medical and engineering institutions. It was presented that further clarification for the backward class is as follows backward castes had 28%; other backward groups had 22%; and Scheduled Castes and Tribes had 18%. According to the court, the sub-grouping of backward classes had no justification under Article 15 (4). Backwardness is determined by more than just caste. Reservation of up to 68% is a “constitutional fraud.” Article 15 (4) only authorizes the state to make exceptional provisions for backward castes, not exclusive provisions .

Article 15 has made a big difference in the lives of the oppressed in India by advocating harmony and minimizing atrocities against the impoverished classes. It forbids discrimination based on religion, race, socioeconomic status, gender or place of birth, to ensure equal opportunity and growth for socially disadvantaged groups.

While reservations have caused controversy, its objective is to help the underprivileged rather than to divide society. The landmark Article 15 cases have played a critical role in establishing equality and social justice in India. The judiciary has established a compromise between the promotion of equal opportunity and the preservation of merit through these verdicts. Article 15 remains a potent tool in the battle against prejudice, and such decisions have considerably aided the country’s development toward a society that is more equitable and inclusive.

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28 Constitutional provision relating to rights of children

Varalaxmi Moganty

Table of Contents

  • Learning Outcomes
  • Introduction: Preamble of Constitution

Right to Citizenship

  • Fundamental Rights of the Child
  • Obligation of State for provisions for Child
  • Fundamental Duties
  • Summary& suggestions

Learning Objectives:

  • This chapter helps the reader initially how to read the constitutional provisions and also make aware of the significant Articles in the Constitution to claim as Fundamental rights under the definition of citizenship to any person and where the child is no exception under such definition. It also provides for the obligation of the states for the protection and welfare and certain measures under Directive Principles of the Constitution.
  • By doing this chapter a person will be certainly very well aware that one has to have knowledge of these constitutional provisions primarily and also be aware of certain case laws that guide a person to file a suit in case of violation of rights conferred by constitution or to make negotiation for introduction of new laws by looking into the certain amendments acts for children.

Introduction

A child is a citizen of India due to his birth in the Indian Territory as per Article 5 of the Constitution. We can deduce that child is also a citizen of India and all the provisions of the Constitution apply to child also. While reading the constitutional provisions, one should look into all the aspects that Constitution covered for the comprehensive development of the child. We only look for such provisions where the child is given a special mention. We can say for example Article 24 that protects the child and Prohibits employment of children below the age of 14 years in any factory, mine or in any other hazardous place. But, we should read the thoroughly Indian constitution that provides for many provisions for the child under the citizenship. As for example Article 38 obligates states to provide for a “secure a social order for the promotion of the welfare of the people”. Hence a child is one among the “people” under the Constitution, and a child can claim for his/her a right to welfare through a “secure social order” in that particular state. In this back droplets, us look into the constitutional provisions for the child.

The Constitution of India which came into effect from 26.1.1950 in its preamble itself held:

We, the people of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

True to its nature Indian constitution aimed at these goals through various legislations apart from its constitutional provisions for the rights and duties of citizens. And a child is not an exception for any legislative measures in this way.

Indian constitution is divided into 22 parts. Part II of Constitution provides for citizenship, and Part III of the Constitution deals with Fundamental Rights and Part IV with the Directive Principles of State Policy and Part IVA with Fundamental duties. Now let us look into the legal provisions in these major parts of the Constitution along with other provisions of the Constitution.

Part II of Constitution throu gh Article 5 provides for citizenship for (a) who was born in the territory of India; (b) either of whose parents was born in the territory of India or(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement.

Further Article 10 provides for the continuance of the rights of Citizenship. Accordingly, every person who is deemed to be a citizen of India under any of the foregoing provisions of this part shall, subject to the provisions of any law that may be made by Parliament, continue to be a citizen.

Fundamental Rights of the Child:

As said above Part – III of the Constitution provides for the Fundamental Rights of the citizens. The Fundamental rights are inclusive Articles from 14 to Articles 35. Fundamental Rights include:

  • Right to equality
  • Right to freedom;
  • Right against exploitation
  • Right to freedom of religion and
  • Right to cultural and educational rights
  • Right to Constitutional Remedies

Article 12 defines the “State ”. It includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Article 14 states that the State shall not deny any person before the law or e qual protection of the laws within the territory of India. Further two case laws are provided here:

  • A blind employee can offer to retire and request employment to his dependent. Bhagawan Dass & Co., v. Punjab State Electricity Board, AIR 2008 SC 990=2008(1) SCC 579
  • Employment of young tribals as police officers to fight Naxals is not permitted. In case of Nandini  Sundar and others v. State of Chattisgarh, AIR 2011 SC 2839= 201 (7) SCC 547

Article 15 deals with Prohibition of discrimination against any citizen on the grounds, only of, religion, race caste, sex, place of birth or any of them- Provision for equal opportunity on the matter of public employment. Accordingly,

  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  • Access to shops, public restaurants, hotels and places of public entertainment; or
  • The use of wells, tanks, 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.
  • Nothing in this article shall prevent the State from making any special provision for women and children.
  • Nothing in this Article prevents the state from making special provisions for the advancement of socially or educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes

Case laws under this study on Article 15(4): Forward class woman marrying the Scheduled case husband is not entitled to Scheduled Caste status. Sobha Hymavathi Devi v. Setti Gangadhara, 2005 AIR SCW 715 + AIR 2005 SC 800=2005 (2) SCC 244

Another case: Scheduled Tribe Woman marrying forward caste man. The children born to them shall be treated as forward class persons subject however to the condition under which they are brought up. If they are brought up as Scheduled Caste Tribes, they take their mother’s caste. Ramesh Bhai Dabhai Naika v. State of Gujarat 2012 (3) SCC 400 = 2012 (1) SCC (L&S)624 = 2012 (2) SCC (cri.). 190.

Article 16 provides for equal opportunities in matters of public employment . Though this article is not directly related to children, children are benefitted due to the parental status of employment in this regard.

Article 17 deals with the Abolition of untouchability. According to this Article 17, untouchability is abolished, and it’s in practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law.

4.2. Right to Freedom

Article 19 of the Constitution provides for protection where

(1) All citizens shall have the right—

( a ) to freedom of speech and expression;

( b ) to assemble peaceably and without arms;

( c ) to form associations or unions;

( d ) to move freely throughout the territory of India;

( e ) to reside and settle in any part of the territory of India;

( g ) to practice any profession, or to carry on any occupation, trade or business.

Case law: Education is an occupation. It is not the same as business or trade. P.A. Inamdar and others v. State of Maharashtra and others, AIR 2005 SC 3226 = 2005 AIR SCW 3923= 2005 (6) SCC 537.

Right to life and personal liberty

Article 21 Provides for this. This is another right under the category of Right to freedom under Part III of Fundamental Rights. Accordingly, no person shall be deprived of his life or personal liberty except according to procedure established by law.

Case laws: Sexual harassment violates human rights. Visakha v. State of Rajasthan, AIR 1997 SC 3011 = 19C Another Case: Child offenders are entitled to special facilities. Sheela Barse v. Union of India, AIR 1986 SC 1773=1986 (3) SCC 596

Children of a woman prisoner shall be allowed to remain with her, and they shall be given all facilities for their maintenance.

Right to education

Article 21 –A states that the State shall provide free and compulsory Education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. This came after 86th amendment Act, 2002, dt, 12-12-2002 w.e.f. 1-4-2010. Some case laws:

Differential fee structure between Kendriya Vidyalaya and project schools is justified. P. Ravindran V. Union of India &Ors. AIR, 2011 SC 3361 = 2011 (5) SCC 1 = 2011 (2) SCC (cri.)504

Another case: In case of shifting a school from one village to another, the Government shall establish another school at the village of which the school is shifted. Ng. Komon v. State of Manipur and others, AIR 2010 Gau.102/.

4. 3 Right against Exploitation

As per Article 23 (1), Traffic in human beings and begar and other similar forms of forced labour are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law.

Article 24 deals with Prohibition of employment of children below the age of 14 years in any factory, mine or in any other hazardous place- Article 24.

4.4. Right to freedom of Religion

Article 25 d eals with Freedom of Conscience and free profession, practice and propagation of religion subject to public order and morality and health to other provisions all are equally treated for this provision.

Article 28 deals with freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 28(1) states that no religious instruction shall be provided in any educational institution which wholly maintained out of state funds. But (2) of the Article state clause.

(1) of this Article is not applicable when the educational institution was administered by State but has been established under any endowment or trust. Clause (3) makes provision for such attendance when the person is minor; his guardian has given consent thereto.

4.5. Cultural and Educational Rights

Article29 (1) provides for protection of interests of minorities. Article 29(i) of the part III that deals fundamental rights thus states that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same (For example rights of the tribal people in the development/industrial projects; see below rights in question against Vedanta project) .

Article 29(2 ) states that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them .

Article30 provides for Rights of minorities to establish and administer educational institutions. Tribes and other Weaker Sections . As per Article 30(1) all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

4.6. Right to Constitutional Remedies :

The Part III of the constitution of fundamental rights also provides certain articles that stand for the certain law (from Article 31-A to 31D) and right to constitutional remedies through Articles 32-35.

Article 32 of the Indian Constitution provides for remedies for the enforcement of rights conferred by this Part on Fundamental Rights. Article 32(1) (1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part.

Case law: Police attack on sleeping people condemned by the Supreme Court. Ramlila Maidan incident , In re, 2012 (5) SCC 1 = 2012 Cr LJ 3516 = 2002 (2) SCC (Cri.) 241.

5. Obligation of State for provisions for Child

Part-IV of the Constitution that provides for the Directive Principles of State Policy is inclusive of certain special provisions for children and certain other provisions along with other.

Right to welfare where the state is obligated to secure social order for the promotion of welfare of the people is provided through Article 38(1 ). This reads that state shall strive to promote the welfare of the people to strive to promote by securing and protecting effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Article 38 (2) insist state shall strive to minimize the inequalities in income and endeavour facilities and opportunities, not only among individuals but also amongst groups of people residing in different areas engaged in different vocations.

Article 39 deals with certain principles of policy to be followed by the State in particular: The State shall, in particular, direct its policy towards securing—

  • That the citizens, men and women equally, have the right to an adequate means of livelihood;
  • That the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
  • That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
  • That there is equal pay for equal work for both men and women
  • That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
  • That children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.(after 42nd amendment act, 1976, sec. 7 with effect from 3-1-1977 Case law: 1.The object of this Article is the creation of welfare State. Kesavananda Bharathi v. State of Kerala, AIR 1973 SC 1461=1973 (4) SCC

Case law 2 . Foreign adoptions are recommended by the Supreme Court. Prime Consideration is the welfare of the child. Lakshmikant Pandey v. Union of India, AIR 1984 SC 469.

Case law 3. Compensation for the death of a child died in a motor accident outside the school while she was proceeding to quench a thirst due to non-availability of water in the school is maintainable. All India Lawyers Union (Delhi-Unit) v. Union of India and others. AIR 1999 Del. 120.

Article 39A provides for equal justice and legal aid and to ensure opportunities for securing justice that are not denied to any citizen.

Article 41 provides for the right to work, education and public assistance . This Article obligates the state to provide for within the limits of economic capacity and development to make effective provisions for securing the right to work, to education, and to public assistance in cases of unemployment and old age, sickness and disablement and in other cases of undeserved want.

Obligation the state to provide for just and humane conditions of work and maternity relief is found in the Article 42.

There is a case law which provides for maternity benefit for casual employees also: Municipal corporation of Delhi v. Female Workers (Muster Roll) AIR 2000 SC 1274 = 2000(3) SCC 224

Article 43 holds that State shall endeavour to secure a living wage; conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities by suitable legislation or economic organization to all workers. These workers are agricultural; industrial workers or otherwise according to this Article 43. Further, this Article in this reference obligates a State to promote cottage industries on an individual co-operative basis in rural areas. Article 4 4 insists on Uniform Civil Code for the citizens throughout the territory of India.

Article 45 provides for early childhood care and education to children below the age of six years. This provision is inserted due to 86th Amendment Act 2002 dated 12-12-2002 with effect from 1-4-2010.

Article 46 deals with Promotion of educational and economic interests of Scheduled Castes, Tribes and other weaker Section. Article 46 states that  Right to nutrition and standard of living is another right where the state is obligated to improve public health.

Article 47 deals with the o bligation of the state to regard the raising of the level of nutrition and the standard of living of its people, raise of the nutritional level. For the Article 47 reads, “the state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public Health as among its primary duties and, in particular the state shall endeavor to bring about prohibition of consumption, except for medical purposes of intoxicating drinks and of drugs which are injurious to health”.

Fundamental Duties:

Part IVA prescribes fundamental duties of citizens. In this, there is a provision for parental responsibility to provide opportunities for education

Article 51-A reads:

It shall be the duty of every citizen of India.

  • To abide by the Constitution and respect its ideals and its and institutions, the National Flag and the National Anthem;
  • To cherish and follow the noble ideals which inspired our national struggle for freedom;
  • To uphold and protect the sovereignty; unity and integrity of India;
  • To defend the country and render national service when calling upon to do so;
  • To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
  • To value and preserve the rich heritage of our composite culture;
  • To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;
  • To develop the scientific temper, humanism and the spirit of inquiry and reform;
  • To safeguard public property and to abjure violence;
  • To strive towards excellence in all spheres of individual and collective activity so that nation constantly rises to higher levels of endeavour and achievement;
  • Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years1?

One has to appreciate the highly democratic nature of Indian constitution and its flexibility and scope for expansions of rights in general and child in particular. It is through many rights vested as Fundamental rights. And, we also may appreciate the various ways it obligates its states to provide for child welfare, family welfare which in turn helps for child development; and protection of the child in dangerous situations anywhere in factory or school etc., the child is provided with many rights. Further, it is through its democratic and socialistic and flexible nature it has a scope for Public Interest Litigation where the public can speak and file a suit on behalf of a child and suggest for even an introduction of new laws and amendment provisions for the child. That is how Right to education became a fundamental right; for free and compulsory education to all children of the age of six to fourteen years through a lot of conscious efforts and consensus of the public. Yet by looking at the still existing worst forms of child labour and many issues due to child’s living in poor socio and economic conditions, there is still need to look for the welfare and protection of children through law and public action.

This chapter dealt is with elaborate provisions of the child in the constitution. In fact rights of citizens need to be considered as rights of a child too. Hence it is to be understood of the various provisions bestowed on the child as a citizen of India under Fundamental rights. For example, Article 38 that provides for secure social order and promotion of welfare; Article 41 that provides for the right to work, education and public assistance and Article 42 that insists on the states for the provision of humane conditions of work and maternity benefit are indirectly meant for the welfare and protection of children. In a family, if the members of the family are employed, and mother is healthy the child will obviously have a healthy life. Hence one must understand the provisions for citizen in general and child in particular in relation to other provisions but not in isolation. Thus this study becomes fruitful and makes the persons to introspect on their role for improvement of a child who needs support not alone from parents but everybody in the civil society and state.

  • N. K. Acharya (2014, 5th Edition). The Constitution of India , Hyderabad: Asia Law House.
  • Madabhushi Sridhar (nd.) Discussion Paper on Legal Provisions Regarding Age of Child To protect the Rights of Children; NALSAR University of Law, Hyderabad
  • PIL pdf http://www.mcrg.ac.in/PP47.pdf
  • Savitha Bhakry (2006), Children in India and their rights , New Delhi: National Human Rights Commission
  • Chinmayee Satpathy, Child Welfare Policies and Programmes in India, in Yojana November, 2012 pp.23-27
  • India.gov.in. national portal of, Constitution of India indiahttps://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

LAWS STUDY

Article 15 of the Indian constitution

Adv. Pooja Gupta

Updated on: September 20, 2023

About Indian Constitution

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Article 15 specifies a specific application of the general principle enshrined/expressed in Article 14 . The same classification approach applies to Art.14 as it does to Art.15(1). The inherent consequence of Art.14 & is not that the state cannot pass unequal laws, but that it can, and that the inequality must be justified

Article 15 of the Indian constitution

Art. 15(ii) No one has the authority to restrict the public space under Art.15 (1). Art.15(iii) Nothing in this article precludes the government from establishing specific provisions for women & children.

Article 15(iv): Nothing in this article prevents the State from providing specific provisions for citizens of different educational and social backgrounds, as well as for SC/STs. (It was added in 1951 by the 1st Constitutional Amendment.)

Article 15(v) gives the state the power to enact legislation relating to educational and socially backward groups, Scheduled castes, and Scheduled Tribes in educational institutions, both aided and unassisted, but not in minority institutions (Art.30 (1)). (Added by the 93rd Amendment to the Constitution in 2005)

Table of Contents

Exception to Article 15(1) and 15(2)

Art. 5(3), 15(4), and 15(5) create exceptions to Articles 15(1) and 15. (2). These Exceptions are clarified further below under the following headings: Special provisions for women and children [Article 15(3)].

According to Article 15(3), nothing in Article 15 prevents the state from taking specific measures for women and children. As a result, Art. 15 does not prohibit the government from excluding special provisions for women & children.

The court upheld it in Choki vs. State of Rajasthan on the grounds that it makes specific provisions for women and thus falls under Article 15 protection (3). The constitution (1st Amendment) Act of 1951 added Art. 15(4).

As a result of S.C.’s judgment in the State of Madras vs. Champakam Dorairajan , this change was necessary. On the other hand, the government of Madras had allocated seats in medical and engineering colleges in particular proportions for distinct communities based on religion and race.

“Article 46 of the D.P.S.P . requires the state to implement legislation that promotes social justice for all groups in society.” S.C held that the law was unconstitutional because it classified students based on caste and religion. Fundamental Rights cannot be overruled by D.P.S.P. As a result of this decision, the 1st Amendment has been added to Art.15.

Special provisions are made

The improvement of socially and educationally backward classes, as well as for Scheduled Castes (SCs) and Scheduled Tribes (STs) [Article15(4)].

Balaji v. State of Mysore (AIR 1963)

The Supreme Court ruled in this case that the order’s sub-classification of “backward classes” and “more backward classes” was unjustified under Art.15(4) because it was based solely on caste without due consideration for other factors.

Balaji was the first case heard by the Supreme Court following the adoption of the first constitutional amendment in 1951.

How far “backward” and “more backward” classification is valid?

Article 15 of the Constitution does not allow for the differentiation between backward and more backward classes as was found in the case of Balaji vs. State of Mysore (4) .

As a result, “ Creamy Layer ” was accepted. In the case “ Indira Sawheny v/s Union of India,” the idea of a “ creamy layer ” was established. The number 10 is the most significant. The Supreme Court ruled that 27 percent of government jobs will be designated for people of color. According to the terms, in this case, reservations were made for “ first stages of appointments ” only, and not for subsequent promotions. No more than 50% of the entire amount of the reservation is permitted. This is because already 22,5 % is allocated for SCs and STs’. The Indira Sawheny case led to Mandal Report being supported by several state governments and other government organizations. Article 16 was cited in this case (4)

Supreme Court of India ruled in Indira Sawhney vs. Union of India that backward and more backward classes can be classified & it is constitutionally acceptable.

This interpretation applies equally to clause (4) of Article 15 because the term “ backward classes ” in Article 16 (4) includes the SCs, STs, and other socially and educationally backward classes.

As a result, the viewpoint expressed in the case of Balaji vs. State of Mysore has been rejected.

Cases related Article 15 very important to understand

Nainsuphdas vs. state of u.p. (air-1953).

A law prohibiting members of various faith communities from voting in distinct electorates was held to be unconstitutional .

Shamsher Singh vs. U.O.I (AIR-1970)

In this decision, the court decided that only reasonable accommodations in favour of women can be made under Article 15(3) and that the constitutional guarantee enshrined in Art-16 (2)cannot be entirely obliterated or rendered illusory.

D.P Joshi vs. State of M.P.

It was said that place of residence is a valid criteria for classification and if some college charges less fee to locally domiciled students and more fee to students coming from outside, it would be valid.

Valsamma Paul vs. Coachin Univerity (AIR-1996)

The court ruled in this case that a girl from a high caste marrying a boy from an SC/ST family is not eligible for the reservation benefits available to SC/STs.

The Constitution (93 rd Amendment) Act, 2005

The Constitution (93 rd Amendment) Act of 2005 modified Article 15, adding a new clause (5). Insofar as such legislation relates to their admission to educational institutions or sub-clause (g) of clause (1) of Art. 19, the State is prohibited from enacting special legislation for the development and betterment of any backward classes of citizens, or for SCs or STs.

Other than the minority institutions referred to in clause (1) of Art. 30, whether assisted or unassisted by the State.

Conclusion of the Article 15

In order to reach those in need, Article 15 has always had to go through a lot of hoops. Since its commencement in 1949, the oppressed situation has vastly improved. In addition, it provides a solid foundation on which the legislature can build policies to encourage peace in society.

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Article 15 of Constitution of India

article 15

The  Constitution of India, which speaks to national targets like Democracy, Socialism, Secularism and National Integration, was penned by the representatives of Indians after a broad stretch of dialogues, discussions, and deliberations. The Constitution is the supreme law of the country.

Read Also:   Debit Note vs Credit note in GST – Difference, Meaning and Uses

Article 15 of the Constitution of India states: “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

Article 15  of the Constitution of India is accessible to citizens of India only.

Article 15 directs that the State will not oppress any subject on grounds only of religion, race, caste, sex, and place of birth or any of them. Any law separating or discriminating on at least one on these grounds would be void.

Segregation dependent on at least one of these grounds and furthermore on different grounds or grounds won't be influenced by Article 15 (1). It implies that in the event that at least one of the predefined grounds is joined with a ground not referenced In Article 15 (1); the laws will be outside the restriction contained in Article 15 (1). Article 15 (1) denies segregation or discrimination on the ground of birth and not that of residence. A State can, in this manner, grant concessions to its residents in issues of fees in an educational institution.

In D.P. Joshi v. State of Madhya Bharat, AIR 1955 S.C. 334 , a rule of medical universities stated that for all students who are bona fide residents of Madhya Bharat, no capitation fee ought to be charged yet for non-resident students, capitation fee ought to be charged.

The validity of this rule was challenged on the ground that it negated Articles 14 and 15 (1) of the Constitution. It was held that the rule was not open to attack as infringing Article 15 (1). The ground for exemption from payment of capitation fee is bona fide residence in the State.

Residence and place of birth are two different concepts with various meanings both in law and fact. Article 15 (1) forbids separation/discrimination on the ground of place of birth yet not on the ground of residence.

Also, the necessity of a test in the regional languages for State employment does not contravene Article 15, as a test in the regional language for State employment is mandatory for all people looking for employment. It has been held so in P. Raghunandha Rao v. State of Orissa AIR 1955 Orissa 1131.

In Air India v. Nargesh Miija , AIR 1981 S.C. 1829, the Supreme Court struck down Regulations 46 and 47 of the Air India and Indian Airlines. Regulation 46 gave that an air-hostess will resign from the service of the organization after attaining the age of 35 years or on marriage on the off chance that it happens within 4 years or on first pregnancy whichever is prior.

Under Regulation 47, Managing Director had the discretion to extend the age of retirement by one year at the time up to the age of 45 years, if the air-hostess is found medically fit. The court held that termination of service based on pregnancy is unfair and clearly violates Article 14. The power of managing director for the extension of the age of retirement is likewise unconstitutional.

Article 15 (2) applies to States and in addition private actions while Article 15(1) alludes to the obligation of the States only.

Clauses (3) and (4) of Article 15 embodies special case or exemption to the general standard articulated above. They enable the State to make special provisions for ladies and kids and for the advancement of any socially and educationally backward castes of citizens for the Scheduled Castes and Scheduled Tribes.

In M.R. Balaji v. State of Mysore , AIR 1963 S.C. 649, the government reserved seats in the Medical and Engineering schools in the State as below:

In backward castes 28%; more backward classes 22%; Scheduled Castes and Tribes 18%. The court held that the sub-grouping made between backward castes was not justified under Article 15 (4). Caste isn't the sole criteria for deciding backwardness. Reservation up to 68% is a "fraud on the Constitution". Article 15 (4) just empowers the State to make special provision and not exclusive provision for the backward castes.

In-State of Madhya Pradesh v. Nivedita Jain, AIR 1981 S.C. 2045 , the Supreme Court upheld the validity of an executive order of the Government of Madhya Pradesh by completely relaxing the requirement of qualifying marks for the applicants of Scheduled Castes and Scheduled Tribes in Pre-Medical Tests.

The court saw that without any law to the contrary, it is open to the government to force such conditions which would make the reservation effective for the advancement of candidates of such classes.

The court held that the executive order totally relaxing the minimum qualifying marks was not a violation of the Regulation and Article 15 (4) of the Constitution.

In Mandal Commission case, the Supreme Court by a majority of 6-3 has held that the sub-grouping of backward castes into more backward castes and backward castes for the reasons of Article 16(4) can be made. Yet, because of sub-order, the reservation can't surpass over 50%. The distinction ought to be based on degrees of social backwardness.

This piece aims to inform the readers about the meaning of article 15, the purpose of Article 15 and also state the various landmark judgments related to article 15.

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Article Contents

I competing constitutionalism, ii constitution-making and judicial expectations, iii tribals and the making of the constitution, iv assembling india’s constitution-making.

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Assembling India’s Constitution: Towards a New History *

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Rohit De, Ornit Shani, Assembling India’s Constitution: Towards a New History, Past & Present , Volume 263, Issue 1, May 2024, Pages 205–248, https://doi.org/10.1093/pastj/gtad009

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The framing of India’s constitution was a critical event in the global history of both constitution-making and democracy. Conventionally it has been analysed as a founding moment. Its success against multiple odds has been explained as resulting from a vision and consensus among the elite over what would become a pedagogical text for an ‘ignorant’ and undemocratic public. This focus among academics on political elites, and an underlying assumption that constitutional details were beyond the public’s imagination, limited the scope of investigations largely to the Constituent Assembly debates. By directing the inquiry away from these debates towards hitherto unstudied documents, this article offers a paradigm shift in the method of research and understanding of India’s constitution-making. It explores the constitution as it emerged from beyond the Constituent Assembly through engagement with its making among diverse publics. In doing so, it shows that the Indian constitution was not simply founded and granted from above, but came about through many smaller acts of assembly away from the Constitution Hall. It was the public who set normative expectations and tried to educate the members of the Constituent Assembly, and this was critical for the constitution’s future reception and endurance.

As the clock struck eleven on 9 December 1946, the Constituent Assembly convened for the first time in the Constitution Hall, New Delhi, to begin its prodigious task of framing a constitution for the soon-to-be-independent India. It was far from inevitable that the 205 Assembly members, among them ten women, who met that morning in what was described as ‘an atmosphere charged on the one hand, with enthusiasm, and on the other, with uncertainty’, would ultimately succeed in producing a constitution for India. 1

The legitimacy of the Constituent Assembly was not unquestioned at that point, and neither was the underlying scheme for its establishment and terms of reference, which had been set a few months earlier by the British Cabinet Mission. 2 The legislative assemblies of the provinces of British India chose the members of the Indian Constituent Assembly. These had themselves been voted into office in the 1946 elections on a very limited franchise that was structured along religious, community and professional lines according to the Government of India Act 1935, the last colonial constitutional framework for India, to which Indian leaders and political parties were fiercely resistant.

In the face of the imminent transfer of power, the political future of India, its people and territory remained uncertain. The partition of the subcontinent would be declared only six months later, when grievous violence between Hindus and Muslims was already on the rise across the country and even outside the Constitution Hall itself. Wide-scale illiteracy and poverty, and profound social divisions, made the task of framing a constitution for a democratic state in India whose authority would reside in the people all the more complicated.

The making of the Indian constitution was a critical event and a unique experience in the global history of constitution-makingand democracy. 3 Unlike in so many other Asian and African countries, where constitutions at the time of decolonization were largely a ‘parting gift’ of the colonial rulers, Indians wrote their constitution for themselves. 4 Most postcolonial democracies and their constitutions were short-lived, but while the Indian constitution failed to live up to many of its promises, over seventy years and against many odds it has played a key role in sustaining the biggest democracy in the world. Moreover, India set itself apart from Western democracies by writing its constitution on a grand scale, unprecedented in terms of its territory, population size, demographic complexity and the number of autonomous political units it sought to integrate into a single federal structure; and it enfranchised all its adults at a stroke. India’s constitution-making was not limited to shaping a new political structure, but was intended to transform the social and economic life of the people.

The conventional understanding has been that the Indian constitution was a product of elite consensual decision-making, and that India’s constitution-makers endowed it from above; it has been described as ‘a gift of a small set of India’s elites’. 5 In line with this view, studies of the making of the Indian constitution, both older and more recent, have focused their investigations on the three years of the Constituent Assembly debates in the Constitution Hall, between December 1946 and November 1949. These voluminous debates, spread over 5,546 pages in a set of five books, have formed their principal source for understanding the constitution-making process and its implications for India’s democracy. In the main, these studies have examined the transformative power of the ideas that were being advocated, and the politics of crafting an elite consensus around the constitution. 6 They have understood the document as a pedagogical text aiming to educate an ‘ignorant’ and undemocratic public. Indeed, scholars have largely assumed that constitutional politics and its details were beyond the imagination, interest or capacity of the Indian people, and that the constitution-making process did not occupy their concerns. 7 As a leading work on Indian democracy put it, ‘Most people in India had no idea of what exactly they had been given’. 8

Thus, most scholars have continued to work, albeit implicitly, on the assumption that the participation of the Indian public during the process of constitution-making was limited. 9 It is not surprising, therefore, that the Indian experience is seen as having little relevance for recent debates about the centrality of public participation in constitution-making. Reviewing recent scholarship on India’s constitution, Cheryl Saunders concludes that ‘there does not appear to have been any systematic attempt to engage the public directly with the process, which might, in any event, have been both difficult and tokenistic in the conditions of the time’. 10

Focusing primarily on the Constituent Assembly debates as it does, scholarship on the Indian constitution has relied substantially on the materials and terms of debate set by Granville Austin’s seminal book The Indian Constitution: Cornerstone of a Nation (1966). Drawing on this imagery of a cornerstone, scholars have conceived the writing of the constitution as a founding moment. 11 Thinking through this notion of a founding moment has meant that scholars examined what they saw as a moment of origin, aiming to build something new, based on a common purpose. The result is often viewed as monumental, and, like monuments, it was also fixed, or associated with a single place and moment. This has further contributed to a focus on the Constituent Assembly debates, narrowing the gaze to the Constitution Hall in New Delhi, often with the assumption that the key to understanding India’s constitution-making can be sought in the thoughts and actions of a small group as they finalized the text. 12

It is noteworthy that Austin also conducted extensive interviews with surviving members of the Constituent Assembly and consulted their private papers, although, perhaps relying on a statement made by the secretary of the Assembly, H. V. R. Iyengar, he observed that much of the work of constitution-makinghappened outside the Assembly, in informal conversations and private chats. 13 However, as Vikram Raghavan has pointed out, despite this insight Austin’s text itself ‘is a lot more dependent on [the Assembly debates] rather than his piercing into so-called informal spaces of Indian Constitution making’. 14

Furthermore, there were other formal and critical spaces of constitution-making at the time which remained obscured by scholars’ focus on the notion of founding and on the Constituent Assembly debates. When the Assembly embarked on theconstitution-making process, two-thirds of India’s future territory lay outside its legal jurisdiction. At that time, spread throughout the subcontinent were more than 550 princely states that covered about 45 per cent of its territory, with a population of nearly ninety-three million. Many of the states were in the process of framing their own constitutions, and the Assembly had no powers of framing any constitution for this territory. The making of the Indian constitution thus entailed assembling the constitutions of each of the princely states into a future constitutional order. In fact, diverse publics across the country read and deliberated on the anticipated constitution in a range of sites, including durbars (princely courts), in judges’ chambers and in tribal villages in deep forests. These facets of India’sconstitution-making have been ignored.

By turning the focus of inquiry away from the Constituent Assembly debates, this article offers a paradigm shift in the method of research and understanding of the making of India’s constitution. On the basis of a new and broad range of archival and other materials, the article offers the first historical inquiry into the making of the Indian constitution as it emerged beyond the Constitution Hall, through ceaseless dialogues and disparate interactions between princes and subjects, important representatives of state institutions and members of the public, many from the social margins, and the Constituent Assembly. This article suggests that the storeyed halls of the Assembly were only one of multiple spaces where the Indian constitution was being engaged with, debated, contested and produced. The members of the Assembly, it shows, were not the sole participants in the constitution-making process. The embryonic constitution had vibrant life outside formal legal chambers, which was critical for its future reception and legitimacy. The 5,546 pages of the Assembly debates represent a tiny sample compared with the thousands of pages of wide-ranging deliberations around the making of the constitution outside the Assembly.

It is suggested in this article that the making of the Indian constitution entailed a process of fitting together (‘assembling’) disparate but simultaneous constitution-making efforts across the country. The Indian constitution emerged from competing constitutionalisms at different places and orders of power that involved large and distinct publics. It was not, as we have been accustomed to think, simply or exclusively the product of the Constituent Assembly. The notion of assembling better represents the making of the Indian constitution, driven by contestations rather than consensus. 15 Various social groups and state officials reconstituted themselves as constitutional actors, seeking, in many ways, to make their history anew. This process created a surge in democratic aspirations and a politics of hope; it generated a sense of ownership in the constitution and thus decolonized it; and it created an order of expectation from it which meant that the process of its making and the political energies it unleashed did not conclude with its mere formal adoption. The resilience of the Indian constitution grew out of the fever of expectations for it from across the subcontinent.

To clarify, this article is not suggesting that the making of the constitution simply engendered public interest, or that it led to a proliferation of engagements with constitutionalism well beyond the Constituent Assembly in anticipation of the new constitution. Instead, it offers a fundamentally new perspective which inverts the perceived sequence of events, arguing that it was the proactive engagement with the issue among diverse publics from mid 1946 onwards that led to the burgeoning of constitutionalism and turned the making of the constitution into an open site of politics.

It was the public who set the normative expectations for the constitution, and who tried to engage and educate the members of the Constituent Assembly regarding their aspirations for it. Even though many of their ambitions for the constitution failed, this process prevailed in significant ways over the text and was key to its success. Exploring how diverse publics made purposeful efforts to insert themselves into the making of the constitution, and sometimes even to take charge of it, helps us to understand the constitution’s socio-political and cultural meaning, its early acceptance and use, and its endurance. Abstract constitutional ideas could not in themselves have guaranteed a successful transition into a new constitutional structure, which the notion of founding, focusing on the making of the text, cannot capture.

While the public’s initial engagement with the Constituent Assembly contributed in some instances to the shaping of the text before its enactment in January 1950, a focus on these early influences obscures the significance of their efforts. The public deliberations on the constitution created a sense of ownership of it by the people, and legitimized it. The constitution-making thus did not end at the moment of its founding, but remained an active site of public assembling in pursuit of their claims and aspirations. Prioritizing these processes of public engagement over those of the production of the constitutional text, this article explores how three sets of actors beyond the Constituent Assembly, among many others, engaged with it at the time of its making.

Section I explores constitution-making in the princely states. The princely (or Indian) states, which were not part of British India, retained varying degrees of sovereignty under the paramountcy of the British Crown. But with the imminent attainment of independence, all the rights that had been surrendered by the states to the British Crown were to return to them. At the beginning of the Constituent Assembly debates, the princes declared that ‘The entry of the States into the Union of India . . . shall be on no other basis than that of negotiation, and the final decision shall rest with each State’, and that the ‘Constitution of each State, its territorial integrity, and the succession of its reigning dynasty in accordance with the custom, law and usage of the State, shall not be interfered with by the Union’. 16 Thus, constitutionalism in the princely states posed a challenge to the making of the Indian Union, and these processes within the states often outpaced the making of the constitution in Delhi.

Section II focuses on the engagement of judges with the draft constitution as they were reimagining and attempting to shape an independent postcolonial judiciary. The success of the future constitution demanded a smooth transition of the organs of the colonial state to the postcolonial order. The state apparatus had to begin this transition even before the constitution was finalized, in the interim between independence and becoming a republic (1946–50), when much of the administration was in flux. Colonial state officials, many of whom were Indian, had in the past resisted reforms and held onto autocratic power. 17 Moreover, state organs like the judiciary had developed over time a strong sense of professional collective identity and acted on occasion to advance their own interest. 18 For them, transferring their loyalty to the new state and its constitutional order was not an obvious outcome.

Section III examines how people from the margins of Indian society and territory, the so-called ‘backward tribes’ (Adivasi), wrote themselves as constitutional actors. Converting the diverse peoples of India into a single ‘We, the people’ in whose name the constitution was to be enacted could not have come about simply through published pronouncement. Tribal people, like other groups of people across India, had their own imaginings and expectations of what the constitution and their relationship to it should be. Numerous tribal groups comprising at least 14 per cent of the population now put forward their own constitutional visions, for example asking for tribal-majority provinces where their ‘customary law [would be] supreme’ or demanding ‘rights of territorial unity and solidarity and self-determination’ within a province. 19 Uncovering the active and reflective engagement among people from the farthest social and territorial margins of India with making the constitution throws new light on this process and its trajectory in succeeding decades.

On 14 August 1947, while the ‘Entire Delhi [was] kept awake to witness the historic event of ushering in the freedom of India at the hour of midnight’ and ‘wild scenes of jubilation’ were witnessed across the city, His Highness the Rajadhiraj Sahib, ruler of Shahpura state, located in what is now Rajasthan, gave assent to his state’s new constitution. 20 The twenty-four-page constitution granted the people of Shahpura full responsible government based on universal franchise. It declared the ruling prince as constitutional head of state, with all his executive, legislative and judicial powers to be exercised through the State Council, its Assembly and the courts respectively. It contained a section entitled ‘Fundamental Rights including General Directions of State Policy’, which specified in its general preface that ‘Citizens of the State have the right to all these opportunities and conditions of life and work which are essential for a fuller and richer development of human personality’. 21 The jubilant people of Delhi, only 410 kilometres away, were yet to be the bearers of such rights. However, the inauguration of the Shahpura constitution did not prevent the prince from signing, the next day, the instrument of accession to the Dominion of India in the three areas of defence, external affairs and communications, as many other princely states did at the same time. The following month, the state’s reforms towards responsible government gathered further momentum as the post of dewan (chief administrator) was abolished and an interim government headed by a prime minister was formed. 22

Shahpura was a very small state almost 320 years old, with an area of 405 square miles and a population of only 61,173. Thus, in the annals of India’s constitutionalism, its efforts to establish a constitution might not seem significant. But it was just one among numerous princely states that were engaged with constitutional reforms and constitution-making processes which challenged India’s constitution-making and the endeavour to create a single union. Manipur, in the north-east, adopted a constitution which, on 26 July 1947, provided for fundamental rights and separation of powers, and recognized the maharaja as its constitutional head. 23 The maharaja of Patna declared the setting up of a representative constitution-making body on 24 October 1947, just at the moment when the first draft of the Indian constitution was ready. That same month, M. R. Jayakar, until the previous May a member of the Constituent Assembly, advised the Gwalior state Constitutional Reforms Committee not to depart, in their proposed constitution, ‘from the model now in vogue, for instance, at Mysore’. 24 This pattern, of general steps towards constitutions based on the principle of representative government, was repeated in numerous other princely states. These included Aundh, Banswara, Baoni, Baria, Baroda, Barwani, Benares, Berar, Bhavnagar, Bhopal, Bhor, Bikaner, Bilaspur, Cochin, Dhami, Dhenkanal, Gondwana, Gwalior, Hyderabad, Idar, Indore, Jaipur, Jammu and Kashmir, Jaora, Jhabua, Khairagarh, Kolhapur, Kotda, Kutch, Mayurbhanj, Miraj, Morvi, Mysore, Nagod, Narsingpur, Orchha, Palitara, Pallahara, Panna, Porbundar, Pudukkottai, Raigarh, Rajkot, Rampur, Ranpur, Ratlam, Rewa, Sailana, Sangani, Sangli, Sarangarh, Seraikella, Sitamau, Sohawal, Tehri-Garhwal, Theog, Travancore, Udaipur and Vadia. 25 Thus, by the mid 1940s, constitution-making processes had become the norm and occupied much of the political agenda in the princely states. So far we have traced sixty-two states that framed their own constitution, and 286 others that were involved in making constitutions for unions of states, which shaped the new constitutional landscape. This fact has gone largely unnoticed in the study of India’s constitutionalism. 26

These constitution-making processes within the states were driven by movements for popular government among local peoples. 27 From 1946 these processes became increasingly interlinked with India’s constitution-making. In the face of the imminent ending of paramountcy, both rulers and the people acted out of a sense of urgency and self-interest to frame their own constitutions: princely rulers were looking for ways to ensure the survival of their states, and the people were eager to secure popular government and democratic rights. In many states the constitution-making processes outpaced the work of the Constituent Assembly or progressed in parallel with it. The people of many princely states thus became the legal bearers of freedom of speech, for example, as well as freedom of religion and equality of opportunity irrespective of sex or community, two years before Indians across the subcontinent were granted such fundamental rights with the enactment of the constitution. By the mid 1940s, constitution-making within the princely states became the norm and occupied much of the political agenda. This article argues that these multiple constitution-making processes gradually transformed the nature of princely sovereignty and the aspirations of subjects. These developments within the princely states gave rise to widespread constitutional dialogue between rulers and constitution-makers within the states, and their engaged public. Constitutionalism in the princely states was like an insistent refrain to India’s constitution-making. In this iterative process, constitutionalism became the standard discourse through which to think about and act on political aspirations for democratic government. Moreover, driven by similar popular expectations, the numerous parallelconstitution-making processes in the states produced comparable constitutional templates that could ultimately be assembled into the new Indian constitutional fold.

The case of the rather autocratic and underdeveloped Rewa state, which was ‘bigger than Belgium and Holland’ and was the largest of the Central India states in both territory and population, provides evidence for this dynamic. 28 On 16 October 1945, on the first day of the Hindu holiday of Dussehra, Maharaja Gulab Singh of Rewa announced his intention to grant responsible government to the people of the state. He pledged to bring in a system of administration based on ‘adult franchise, common electorates and no weightage or special representation’ that would ‘provide for the protection of every religion and civilization’. 29 In the presence of 130,000 people, he stated that the viceroy of British India

gave out that a constitution-making body should be formed for the establishment of self-government in India, which body should include representatives of the States . . . It is very essential that the Rewa people should be able to take part in the work of constitution-making for all-India. It is therefore proper that the people of Rewa should be granted responsible government. 30

The maharaja explained that this would enable Rewa, ‘according to its tradition, to take a share in the future development of India maintaining at the same time the freedom of the Bandhavas [members of the clan of Rewa]’. ‘Rewa’, he concluded, ‘belongs to the Rewa people’, and a government for them and by them was their birthright. 31 Although some states had previously initiated political reforms, such proclamations and the subsequent appointment of constitutional committees were introduced and perceived to be linked to the impending setting up of the Indian Constituent Assembly.

Soon afterwards, the Crown representative deposed the maharaja. 32 However, the outgoing maharaja’s stated intentions were respected. His son, the new maharaja, was enthroned on 6 February 1946, and the same month the state issued a press communiqué announcing the appointment of a committee to frame a constitution for Rewa. 33

The search for a chairman for the Rewa Constitutional Reforms Committee was initially undertaken by the Crown representative’s office in New Delhi and the resident for Central India. Sir Tej Bahadur Sapru, Dr M. R. Jayakar and Sir Gopalaswami Ayyangar, all of them towering legal figures, were approached in turn, but none accepted the position. 34 Then Sir Alladi Krishnaswamy Ayyar, formerly an advocate-general of Madras, and Sir C. B. Mangaonkar, a former Bombay High Court judge, were invited. Sir Alladi agreed on the condition that, among other things, it would not preclude him from giving advice if consulted by a British Indian politician in connection with the forthcoming constitutional discussions. 35

The new Rewa government agreed to Alladi’s appointment, and on 1 April 1946 the new maharaja announced a Constitutional Reforms Committee for the establishment of popular government in the state. 36 But things changed soon after Sir Alladi delivered his plan for the process of framing a constitution for the state. He suggested that prior to convening the committee, its secretary should collect all the available reports, books, papers and information that might be useful to the committee, meet the state’s ministers and heads of department and gather their suggestions. He arranged to conduct the committee’s first meeting in either Madras or Bangalore, his places of residence. At this meeting, the committee was to set its programme and procedures, and compose a questionnaire to be issued and translated into Hindi. Sir Alladi intended to distribute the questionnaire ‘only to representative institutions and . . . only to such persons as by reason of their outstanding experience or position, may be expected really to give helpful information or suggestions to the Committee’. He also contemplated the setting up of subcommittees ‘for special purposes, such as Franchise, Finance and Taxation’. These subcommittees were to have the power to grant personal interviews to whoever wished to offer their opinion; however, he noted, ‘such interviews will have reference only to the points raised in the questionnaire’. Finally, he set his terms of employment, asking not to be required to proceed to Rewa until the cold weather season, and therefore to conduct the work of the committee and hold meetings at one of his homes. He also submitted a proposal for his remuneration, which was seen by the British resident to be ‘outlandish’. 37

Sir Alladi’s plan followed the blueprint of colonial reforms committees led by external experts who were to decide on future legislation and who invited the views of specified groups and leading individuals on the basis of limited terms of reference. It was perhaps not surprising, therefore, that his plan for the Constitutional Reforms Committee aroused objections, even resentment, among the people of Rewa and its government. The pawaidars (landlords) protested that ‘We do not need a constitution drawn out of one’s bookish knowledge alone. We want a practical constitution that may suit us according to our needs and conditions. These cannot be ascribed from outside’. The members of the District Congress Committee, Baghelkhand, lodged a similar complaint and warned that they would not co-operate with the committee if it held its sittings outside the state. 38

The Rewa government also found Sir Alladi’s proposal ‘not altogether suitable’ and ‘most unsatisfactory’ on similar grounds. 39 Attuned to public opinion, it proposed an alternative plan for adoption by the Constitutional Reforms Committee: the committee was to hold all its meetings in Rewa state, and its headquarters were to be in Rewa town so as to make it accessible ‘to anyone in the State who desires to obtain information or put in statements, or other papers before the Committee’. 40 The Rewa government suggested that the chairman should

make a brief tour of the State with different members of the Committee or with officials in order to gain an overall idea of the accurate administration in the rural areas of the State, degree of development of the people, institutions and other matters relevant to this enquiry. He could also be brought in touch with the people in the different tracts of the State during his tour. 41

The prime minister of Rewa, moreover, was concerned that ‘the complete lack of knowledge of Hindi both of Sir Alladi and [of] his secretary’ would be a hindrance for non-English-speaking witnesses before the committee, and might prejudice its work. 42

In the face of public pressure to deliver on the maharaja’s promise to appoint a Constitutional Reforms Committee, and anxious that the committee should begin its work as early as possible, the Rewa government suggested an alternative chairman, Sir Hari Singh Gour. 43 He knew Hindi, and was familiar with local conditions. The election of Sir Alladi to the Constituent Assembly soon after provided a pretext for his dignified resignation as chairman of the committee before it had even been officially set up, and Sir Hari accepted the chairmanship on 26 August 1946. 44 A month later, the Rewa government appointed the Constitutional Reforms Committee, which was to recommend ‘the form of constitution most suited to the needs of the Rewa State’. 45 It began its work on 2 October 1946, and concluded its sittings after nearly eight months, on 25 May 1947. 46

The committee contacted the people of the state for their views on a future constitution, and, on 12 November 1946, published a questionnaire addressed to the public in the Rewa Gazette and in the weekly Prakash , both in Hindi and in English. 47 The committee ‘received 79 written replies bearing signatures of hundreds of persons. Printed replies were received through the Praja Mandal Offices [People’s Association] numbering 2,945 over the signatures or thumb impressions of different individuals’. 48 The chairman of the committee, Sir Hari, reported that many people had

expressed a desire to interview the Committee and place their views before it. To meet their desire and also to make an intimate study of the conditions prevailing in the State, the Committee undertook an extensive tour.

It interviewed 333 witnesses, although

many persons, sometimes the numbers running into thousands, used to be present at the meetings of the Committee held for the examination of the witnesses . . . Hindus, Muslims, Pawaidars and tenants, businessmen and labourers, backward classes and tribal people, have all placed their respective points of view before the Committee.

The chairman noted, moreover, that the committee was

received with great enthusiasm and courtesy from the people wherever we went. Their statements were characterised with utmost frankness which enabled us to appraise the true political situation in the State. 49

The questionnaire the committee designed, and the way it addressed the responses, represented a form of participatory constitution-making. It was composed of fifty-three questions, seeking feedback on issues such as whether a popular government should be established in stages, and what the status of the maharaja and the nature of his power should be. Some questions went into detail, such as how many members should compose the legislature; what the minimum age of a member of the legislature should be; and whether there should be reserved seats, for whom, and how candidates to these seats should be elected. One question asked what matters the legislature should not be authorized to consider; and the final, open question left space for additional comments. 50 The respondents were also requested to give details about themselves or the organization they represented.

Almost all the associations that submitted their views had already been formed in anticipation of the setting up of the Constitutional Reforms Committee. 51 The demands of marginal groups, such as Muslims, Scheduled Tribes and Scheduled Castes (formerly known as untouchables), are particularly telling. Rewa’s Muslim Association objected that as a minority they would ‘not gain anything by the immediate introduction of full responsible government. Their fate [would] be sealed, and their miseries . . . perpetuated’. 52 They thus preferred the gradual implementation of a popular form of government in stages, and requested that the maharaja should remain as ‘constitutional sovereign’ because they were ‘more secure and safe in the hands of the Ruler[s] . . . who have, without exception, invariably followed the long established tradition of protecting . . . their Muslim subjects’. 53 They also asked for 25 per cent of seats in the future legislature to be reserved for them.

The Raj Gonds tribal group was also sceptical about a full responsible government, describing their exploitation by the people of the northern districts of Rewa who were educationally advanced and dominated the state’s services. They stated that ‘a Constitution affecting His Highness’s powers will not be acceptable to us’. They demanded reserved seats in the legislature, and that ‘Special steps should be taken to educate us to the level of other castes before we are asked to march along with them’. They noted that the committee’s questionnaire was not ‘intelligible’ to them, but they replied to the parts which they ‘have been able to understand’. Representatives of Scheduled Castes and ‘Depressed and Backward classes’ expressed similar concerns about a ‘party Government’ under which, in their view, the ‘socially and economically superior classes’ would have the advantage and their position would worsen. They therefore also favoured retaining the rule of the maharaja. In fact, maintaining the maharaja as a constitutional head was the one thing the diverse people of Rewa agreed upon. Even the Praja Mandal, which demanded full responsible government, stated that the ‘Maharaja is the living embodiment of the individuality and of the unity of the people of Rewa’. 54

In addition to the replies to the questionnaire, the committee was also in possession of copies of at least ten constitutions and constitutional acts that had already been framed by other princely states. 55 In its recommendations, the committee addressed the particular concerns of groups from the social margins of Rewa. ‘Any constitution which we frame’, stated the chairman, Sir Hari, ‘must not only meet the aspirations of the intelligentsia but also make due allowance for the objections of the less enlightened. A constitution is a political arrangement not an exercise in logic’. The committee recommended the establishment of a representative legislature and the introduction of a popular element in the executive; it suggested enfranchising in stages, with at first only 150,000 people, establishing local government institutions, and declaring fundamental rights. The maharaja was to remain as constitutional head. The committee saw these as ‘the first step on the democratic path’. 56

Upon the Constitutional Reforms Committee submitting its report on 27 May 1947, the Rewa government published it widely, inviting comments and suggestions from individuals and associations for consideration in the State Council before the maharaja announced his final decision. In the interim, elections to an Advisory Council with a majority of elected members took place in June 1947 on a franchise based on property and educational qualifications. The State Council was reconstituted ‘so as to find room for two non-Illakadar [landlord] Ministers’, though it had yet to be given statutory powers. 57 Groups among the illakadars and pawaidars expressed dissatisfaction with the Constitutional Reforms Committee and unsuccessfully demanded a round-table conference to devise a different scheme for an interim government. But the prime minister decisively rejected these demands.

It is not clear from the archival trail whether the new constitution for Rewa was inaugurated before the state became part of the United State of Vindhya Pradesh, which was composed of thirty-five covenanting princely states, on 4 April 1948. 58 At that point, a new process had begun, setting up a body to frame a constitution for Vindhya Pradesh. Framing its own constitution was often a precondition for a state to enter into a union, as well as a basic demand of its people. The Indian government, through the Ministry of States, facilitated the formation of unions of states out of contiguous princely states, seeing these new sovereign entities as stages in the process towards their ultimate merger with the Indian Union. The draft constitutions of covenanting states defined more clearly the relations between the unions of states and the Indian Union and dealt with the potential constitutional discrepancies between the two.

Rewa’s constitution-making story was one example of similar processes that took place at the time across the subcontinent. Although many of the newly produced state constitutions were short-lived, it was through these multiple overlapping processes of constitution-making that princely polities and people adopted constitutional language and used it to imagine their political future. Their assembling was an essential part of the making of the Indian Union. Moreover, the making of the Union hinged on the state apparatuses of the nascent Indian state, aligning with and transitioning into the new constitutional order. The judiciary, for example, which in anticipation of democracy was to become a separate, independent branch of the state, had a particular stake in the making of the constitution. Thus, judges across India, both as individuals and as a collective, engaged in an unprecedented manner with the constitution-making process and with the Constituent Assembly.

In June 1948, Sir Harilal Kania, the chief justice of the Federal Court of India, presided over the inauguration of the Guwahati High Court in the province of Assam and delivered a widely circulated public address. 59 This little-studied speech was highly unusual. Firstly, it marked the beginning of the practice whereby the chief justice of an appellate court in Delhi would inaugurate high courts in other parts of India, signalling its superior status. The Federal Court of India, over which Chief Justice Kania presided, was only a decade old and had a narrow appellate jurisdiction, and the judges of the high courts across India resented and actively contested its authority. 60 However, by early 1948, with the circulation of the draft constitution, it was clear that the Federal Court would be elevated to a Supreme Court, exercising wide jurisdiction over all courts in India, and its chief justice would become the face of judicial leadership. 61

Secondly, Chief Justice Kania’s speech broke a tradition of judicial reticence. In it, he offered a critique of the new nationalist governments, and made a case for judicial independence, aligning the goals of the judiciary with that of the national movement led by Gandhi. Observing that the country was in a ‘transitional phase’, he noted that the composition and powers of the legislatures had changed, and with the absence of a political opposition, laws were being approved at speed: often ‘more than half a dozen bills were approved in the course of an hour’. The decision to set up a high court in Guwahati had been taken in just a few weeks with little consultation. Kania famously noted, ‘in view of the fact that the opposition at present is negligible, the role of the judiciary . . . [is] all the more important’. 62 Describing the new powers of the high courts to issue writs as ‘the most powerful weapons which a citizen could claim for redress against . . . the executive’, he made the case for a judiciary that would be independent and free from executive control. The colonial judiciary, of which Chief Justice Kania had been a member since 1930, had rarely advocated for itself or criticized the government in public, other than in written judgments. 63

Finally, and perhaps most strikingly, Chief Justice Kania addressed his expectations and apprehensions about the future constitution of India. On the basis of his year-long experience of working with the post-independent government, he recommended certain provisions to be written into the new constitution. Noting with dismay the growing tendency to ‘communalize judicial appointments’, or to privilege jobs for ‘persons belonging to the party in power’, he argued for judges to be appointed by the judiciary on ‘merit’ and experience. Since the high court was responsible for the administration of justice in the ‘public eye’, it needed to be the controlling voice in the selection of judges. 64

The Indian judiciary has been seen largely as a creation of the constitution, engaging with it after its promulgation. 65 However, as this section will demonstrate, Chief Justice Kania’s speech was one of several public and private initiatives by the Indian judiciary to shape the constitution from outside the Constituent Assembly while it was still being written. Indeed, newly discovered archival materials show that the experience of working with the postcolonial governments prompted almost all sitting judges from across the high courts and the Federal Court to push actively for changes in the draft constitution. In consideration of the anticipated effects of the proposed constitution on both the citizenry and the judiciary, and in the face of problems they encountered during the daily routine of the courts, they sought to ensure an autonomous judiciary in the future. The sparse scholarship on the drafting of the provisions regarding the judiciary pays no attention to this. Despite their sweeping impact, the Constituent Assembly debates on the judiciary have generally been described as brief, meriting little public attention, and as being a consensual technical exercise. 66 Indeed, at the time Assembly member N. G. Ayyangar expressed surprise during the debates that ‘so important an issue as the constitution and the functioning of the Supreme Court’ could take up so little time in the Assembly. 67 Reading only these debates leaves the impression that the Assembly simply accepted the recommendations made by the Ad Hoc Committee on the Supreme Court. 68

This view of the judges as passive actors in the constitution-drafting process was heightened by the Federal Court’s reluctance to take on a publicly political role as an arbitrator for the Constituent Assembly. In June 1946, the British Cabinet Mission had recommended that the Assembly should consult the Federal Court on matters of constitutional importance. The chief justice of the Federal Court, Sir Patrick Spens, expressed ‘considerable doubt’ about the validity of such a consultation. He declared that the Federal Court, as a statutory body with limited powers, would not entertain any referrals from the Assembly unless its recommendations were binding; otherwise, it would be ‘useless and derogatory to the prestige of the Court’. 69

The judges were acutely conscious that the basis of their authority and legitimacy was about to be changed, and intervened in an attempt to influence the draft constitution, for which initially there had been little or no input from them. Upon reading instalments of the draft published in newspapers in February 1948, Chief Justice Ram Lall of the East Punjab High Court wrote directly to Jawaharlal Nehru, noting with concern that there were ‘glaring defects which had the potential of incalculable mischief’. Nehru forwarded Chief Justice Lall’s concerns to the Constituent Assembly Secretariat on 1 March 1948. The very next day, perhaps anticipating a flood of outraged correspondence, the Secretariat dispatched an official letter to all the high courts asking the judges for their comments on the draft constitution. 70

Close to a hundred high court judges offered individual feedback in addition to the collective statement from each high court. The comments ranged from terse paragraphs on a specific provision, to line-by-line commentary on the draft constitution taking issue with ‘clerical errors’ and defective wording, and extensive memorandums offering radically distinct visions for the constitution. 71

Chief Justice Bidhubhushan Malik of the Allahabad High Court offered the most extensive memorandum, emphasizing ways in which the postcolonial constitution needed to make a break from the past. His first priority was a new provision to restrict the practice of setting up special tribunals, which removed jurisdiction from the courts, particularly in political cases. These special tribunals were not to be bound by the procedural safeguards and rules of evidence that governed ordinary courts. Chief Justice Malik quoted Article 70 of the Irish Free State constitution, which stipulated that ‘No one shall be tried save in due course of law and extraordinary courts shall not be established’. He argued that the constitution should provide that ‘extraordinary courts’ should be convened only for the duration of a presidentially proclaimed emergency. 72 He criticized the continuation of the colonial practice of special legislation and ordinances that allowed for arrest or detention without trial, and demanded that the constitution should guarantee all accused the right to counsel. 73

While Chief Justice Malik offered a vision of a new constitutional order built on a break from the repressive legal practices of the colonial era, his colleague Justice P. N. Sapru imagined a new judicial architecture with a single supreme court divided into a court of appeal and a high court which could sit on benches across India. The provincial high courts would be abolished and the higher judiciary would be transformed into a single unified body supported by revenue from the Union government. Justice Sapru argued that such a scheme would provide a unified system of law and justice, avoid conflicts of law, protect the judicial administration from ‘provincial influences’, and evolve a uniform civil code. 74

However, the overwhelming majority of judges viewed the draft constitution as an attempt to restrict judicial powers and make them subservient to an elected government. The Calcutta High Court stated that the ‘most striking features of the draft constitution are the omission of any provisions to secure independence of the judiciary’. 75 The Allahabad High Court saw the draft as an ‘attempt to reduce the High Court to the position of a department in the provincial government’. 76

The judges almost unanimously protested that the subordinate judiciary, district and local courts, with which the majority of citizens interacted, remained under the supervision of the executive. Even the minimal protections under the Government of India Act 1935 that required the provincial governments to consult with the high courts over administering the subordinate judiciary had been removed. The Allahabad High Court wrote that it would be ‘suicidal’ to allow the provincial governments to have complete control over the subordinate judiciary, which included all civil, criminal and revenue courts in the provinces. 77 The Madras High Court also pointed out that the Government of India Act 1935 had gone further than the draft constitution in giving the high courts power to appoint their own staff and formulate their own conditions of service free from interference from the provincial government. The Madras High Court also recommended that no legislation affecting the judiciary should be introduced in the parliament or state legislatures without the prior approval of a body comprising the president, the chief justice of India and the chief justice of the province. 78

The opinions of judges were not confined to their chambers but echoed throughout the legal profession. The Calcutta Weekly Notes , a leading law reporter for the province of Bengal, was unequivocal in condemning the draft constitution for giving the ‘complete go-by to judicial independence’. As the editors remarked in the words of the fable, ‘we asked for a king and we got a stork’. 79

The bulk of the criticism focused on what appeared to be minor provisions regulating the conditions of service of judges, which they argued had implications for their independence. Chief Justice Lall noted that, unlike the Government of India Act 1935, which laid down the age of retirement as 60, the draft constitution left the power to raise the retirement age to the provincial legislature through ordinary legislation. While seemingly innocuous, this could incentivize judges desiring an extension to their service to canvass politicians and ‘strike at . . . the dignity and independence of the court’. Similarly, provincial ministers could weaponize the raising and lowering of the retirement age for judges, effectively giving them the power to dismiss ‘inconvenient and independent judges’. 80 The judges also painstakingly pointed out the implications for the independence of the judiciary of some of the provisions on qualifications, salaries and limitations on post-retirement practice. 81

Through sometimes caustic commentary, the judges offered an expansive vision of judicial autonomy which should not be compromised by a popularly elected executive. Justice T. I. Sheode of the Nagpur High Court elaborated this distinction lyrically, noting that the executive in a democratic state was bound to be a fluctuating body, ‘like the clouds it may come and go’, and therefore should not be allowed to exert its influence over the judiciary by arrogating to itself the power to control it. 82 Justice R. S. Pollock, also of the Nagpur High Court, expressed a fear that there was ‘little enthusiasm’ for a strong and independent judiciary within political circles in India. 83

With the formal circulation of printed copies of the draft constitution to the Federal Court and the high courts, the judges convened a conference of the Federal Court and the chief justices of all the high courts in Delhi, on 27 and 28 March 1948, to formulate a ‘collective opinion’ on the draft. This was the first gathering where judges across India presented themselves as a united front, authorizing Chief Justice Kania to convey their unanimity to the Constituent Assembly. 84 Both the organization of the conference in itself, and the memorandum they produced, showed that the judiciary viewed itself as a unified national entity, distinct from both central and provincial governments.

The memorandum reflected an awareness of the changed polity with a ‘democratic government’ in which the independence and integrity of the judiciary was of the highest importance to citizens who sought redress against ‘illegal acts and [the] high-handed power of the executive’. 85 The judges presented themselves as a body that had until now played an independent role in protecting the rights of individual citizens. They expressed concern over ‘a tendency . . . [to] detract from the status and dignity of the judiciary and to whittle down their powers, rights and authority’, which would only intensify as more power was devolved into the hands of political parties. 86

At the time of independence, the higher judiciary was the most Indianized branch of the administration, but with the coming of the universal franchise, the executive could claim greater representative legitimacy than the judiciary. What then would be the basis for judicial authority?

The joint memorandum expressed concern that since independence judicial appointments were being made according to ‘political, communal and party considerations’ and rarely on merit. When the chief justice of a high court proposed the names of judges to the premier and home minister of a province, his recommendations were not being forwarded to the Union government. 87 Instead, politicians were asking judges to be nominated who were expected to co-operate with the government, and, conversely, the judiciary was being used as a dumping ground for inconvenient politicians. The chief justices were aghast at being reduced to corresponding with junior bureaucrats on appointments, and felt that they were being treated as a minor government department. Thus, they unanimously recommended that the draft constitution be amended to allow the chief justice of a high court to forward recommendations directly to the president, who would appoint the judge in concurrence with the chief justice of India. This would allow a high court to avoid having to justify its recommendations to the provincial government in question, and would immunize it from local party and political considerations, giving the judiciary the final say on its own composition.

These recommendations arose from the judges’ own experiences with judicial appointments after independence. Under the Government of India Act 1935, an elected provincial premier had no say in judicial appointments; judges were appointed by the secretary of state for India. However, on the eve of independence the Home Ministry issued a memorandum of procedure that required the provincial chief minister, the provincial home minister and the Union home minister to be involved in the selection of judges. 88

The judges’ memorandum also offered a road map for insulating the judiciary from both the executive and the legislature by asking for a provision in the draft constitution according to which no former minister could be appointed a judge. It also suggested that members of the Indian Civil Service (ICS) should be barred from becoming permanent judges. This was a particularly audacious recommendation, given that a third of all high court judges had been recruited from the ICS and selected through the same appointment process as other high-ranking bureaucrats. The cadre of ICS judges included B. N. Rau, the adviser to the Constituent Assembly. By opposing the recruitment of judges from the ICS, the higher judiciary was strengthening the perception that ICS judges tended to favour the executive and that an independent judiciary should be drawn from the Bar. In a separate memorandum, Justice Sheode elaborated further, arguing that recruitment of the judiciary from the Bar provided both legal expertise and a spirit of independence. 89 The Congress had long demanded separation of the executive from the judiciary, but after assuming power had suddenly dropped their objections to ICS judges. 90

Judges felt that it was necessary to have uniformity of position, status and privileges across the high courts. Conditions of service had varied greatly in colonial India, with judges in smaller high courts like Nagpur and the Oudh Special Court receiving considerably lower salaries than their counterparts in Bombay or Allahabad. 91 The judges therefore demanded that the right to fix the jurisdiction of high courts, salary conditions, leave and pensions should be entrusted to the Union government and removed from the provincial executive. Their memorandum also required a constitutional guarantee against the reduction of judicial salaries, arguing that judges appointed before independence were entitled to the conditions of service they had been promised in the Indian Independence Act 1947. A reduction in salary would not only compromise the independence of the judiciary but make it harder for them to persuade distinguished lawyers to give up legal practice to become a judge.

The Constituent Assembly received thousands of submissions, but a unanimously endorsed memorandum from the entire judicial establishment had to be considered seriously by the drafters. The memorandum was circulated across the Home Ministry, the Law Ministry and the office of the constitutional adviser, B. N. Rau, and the consolidated comments were discussed in four cabinet meetings. The home minister, Sardar Patel, rejected the judges’ critique of judicial appointments, stating that it was not based on facts and that the new procedure was better in screening out ‘favouritism and communal considerations’. He noted that he had personally stepped in several times to check these tendencies, and asserted that by allowing for conversations between the political class and the judiciary, the new procedure eliminated the possibility of conflict and ‘bad blood’ between the executive and the judiciary, and attempts by the high court to circumvent provincial appointments. He opposed granting the chief justice power of veto over appointments. Patel’s comments in themselves gave ample evidence of the mistrust between the two branches as he attacked the judiciary for the ‘fundamental misconception [that] they seem to think that they alone are the custodians of what is right, what is just’. 92 While the judiciary made the case for checking political self-interest, Patel was calling for safeguards against the prejudices of a chief justice.

Unsurprisingly, the one suggestion with which Patel was in ‘entire sympathy’ was the recommendation that judges’ conditions of service should be regulated by central government to create uniformity. Unlike colonial India, where each high court was a largely autonomous entity, the political class envisaged the transfer of judges between provinces, with some politicians arguing for it to be the norm that judges should be appointed from outside the province. 93 While the Constituent Assembly had emphasized centralized authority shaping provisions for emergency powers, taxes, planning and federalism, it was the judges who pushed for the centralization of the judiciary.

Generally, the drafting of a constitution is understood as a linear process, with a draft being circulated for comments, suggestions being incorporated and the revised draft being debated and eventually promulgated by the constitution-making body. However, the Indian judiciary was able to draw upon its embeddedness within the state structure and personal connections with politicians to make repeated interventions for changes in the draft constitution. Even a year after the Constituent Assembly had debated constitutional provisions regarding the judiciary, judges across the various high courts were writing to the home minister demanding adjustments to salaries, the retirement age and the right to practise after retirement. 94 These repeated interventions, which included telephone conversations and lunches with judges, led to new amendments being forwarded to the Assembly for consideration. 95 At length, an exasperated B. R. Ambedkar, chair of the Constitution Drafting Committee, noted that all these points had been raised repeatedly through multiple memorandums, and that the provisions relating to the judiciary were among those ‘that [had] received the greatest and most serious consideration’ from the committee. For instance, he himself had withdrawn from discussion the clauses on judicial privileges originally scheduled for debate on 27 May 1949, to be enacted two months later incorporating changes based on suggestions made by several high court judges. 96

The judges used their physical and social proximity to the Constituent Assembly to intervene at multiple points in the making of the constitution to shape the Indian judiciary and its independence. But it was not only agents of the state apparatus who sought to have a say about the future constitution and their place in it. Even people who were distant from the Assembly geographically, politically and socially, from the so-called ‘backward, excluded and partially excluded areas’, made efforts to insert themselves into the process, and some even embarked on constitution-making of their own.

On 20 February 1947, three weeks after the Constituent Assembly had set up the Advisory Committee that was to report to it on fundamental rights, the protection of minorities, and a scheme for the administration of the tribal and excluded areas, a letter addressed to the committee arrived from the remote and sparsely populated ‘excluded area’ of Lahaul (Lahoul) and Spiti in the Kangra district of Punjab. The ‘petitioners’, it seems, were not even sure that the members of the Advisory Committee were aware of their existence. ‘The present petitioners’, they wrote, describing in detail their location,

belong to Lahoul, a tract of area bounded on the North by Chamba State, South Rohtang Pass and Kulu Sub Division, East Kashmir and Jammu State and Tibet and West Chamba State and Bhangal . . . it is situated at an elevation of 10 thousand feet above sea level.

They estimated that the combined population of Lahaul and Spiti was at most eighteen thousand, and noted that there was ‘no medical aid of any sort’, ‘no telegraph office in the area’ and ‘no veterinary hospital’. They demanded that ‘they should at once cease to remain as excluded areas, should have a special representation in the local bodies as well as provincial and central legislatures’, and that a ‘Special development department for these areas with the object of bettering economic, cultural, educational and political status should be created’. 97

The letter was timely. A week later, on 27 February, the Advisory Committee set up three subcommittees to make recommendations on the future administration of the tribal and excluded areas. Historically, the Government of India Act 1919 had made provision for the notification of areas that were excluded from the authority of the reformed provincial governments, which at that point afforded very restricted representation to Indians in the legislatures on the grounds that in these ‘backward areas’ the people were ‘primitive and there is as yet no material on which to found political institutions’. 98 The ensuing Government of India Act 1935 defined excluded and partially excluded areas to which no act of the federal or provincial legislatures applied unless the governor so directed. Again, the exclusion of these areas from the democratic reforms was based on the view that the state of development of the inhabitants ‘prevents the possibility of applying to them methods of representation adopted elsewhere’. 99 The three subcommittees were assigned to report, respectively, on the North-East Frontier (Assam) tribal and excluded areas, on the excluded and partially excluded areas other than Assam, to which Lahaul and Spiti belonged, and on the North-West Frontier Province and Baluchistan. 100

The general note that was prepared for the meeting before the subcommittees commenced their work had presumed that ‘Areas where no system of representation is practicable must remain unenfranchised and the question arises as to the best way of administering the area’. Similarly, a few provincial governments, for example in the memorandum from Assam, advised that it was ‘too premature’ to think of a system of representative Government for some of the tribes of the excluded areas. The Punjab memorandum suggested that, ‘On account of its inaccessibility’, Spiti should not be brought ‘under the normal system of administration’, whereas the Lahaul area should no longer be considered an excluded area because ‘it is now reported to be well developed and suitable for inclusion in the general administration’. 101

The subcommittees toured the excluded and partially excluded areas, hearing from witnesses and representatives of many of the tribes, some of whom also submitted written memorandums. They also co-opted tribals from these areas as members of the subcommittees. The subcommittees submitted their separate and joint reports by 25 September 1947, and their recommendations were incorporated into the draft constitution of February 1948 but not discussed by the Constituent Assembly until September 1949.

A close reading of the subcommittees’ reports and recommendations, and of the Constituent Assembly debates, leaves the impression that the tribal people of India, especially those from the excluded and partially excluded areas, were almost oblivious to their future administration and constitutional position; their views and wishes are absent from these records. Moreover, the provisions for the administration of tribal areas, which were set out in the Fifth and Sixth schedules of the constitution, ultimately instituted new forms of exclusion of the tribal people from India’s democratic transition. In a departure from the original draft, the final provisions granted the governors, as the direct administrators of these areas, increased powers. The authority of the state legislatures, the tribe advisory councils that were to be formed in defined ‘Scheduled Areas’, and the district and regional councils in Assam was restricted. Assembly member Gopinath Bardoloi, who chaired the subcommittee on the North-East Frontier (Assam) tribal and excluded areas, explained to the Assembly that ‘the time may come when they may become fit to govern themselves’. 102 The press was broadly in agreement with the final provisions, suggesting that ‘there was danger, particularly in some Scheduled Areas, of the initiative allowed under the original Draft being misused . . . Moreover, elected tribal representatives are likely to be of the sophisticated type, out of touch with their more primitive fellows and susceptible to political influences from outside’. 103

Scholarship on the current dire conditions of India’s tribal people and on the complications of administering the tribal areas after independence largely traces the roots of the trouble to the constitutional arrangements made in 1947. Nandini Sundar, for example, argues that ‘many of today’s problems may be traced back to the anti-democratic and authoritarian impulses of some of the Constitution’s makers’, and also notes the racist nature of the Assembly debates, especially in relation to the Sixth Schedule, which lays down structures of governance for India’s north-eastern tribal regions. 104 In exploring how ‘past injustices were being written into the Constitution’, scholars have analysed the constitutional debates, and the politics that surrounded them, specifically relating to the Congress Party and its dynamics of marginalizing tribal leaders such as Assembly member Jaipal Singh Munda. 105 Shaunna Rodrigues has suggested that the Assembly’s ‘formulation and application of murky boundaries to demarcate among and across tribal communities within its territory deliberately avoided the pursuit of detailed knowledge and routinised administration of its subjects in these areas’. 106 This happened, as Rodrigues recognizes, despite members of the Assembly having at their disposal ample evidence and detailed knowledge about tribal views and expectations of the constitution.

The subcommittee on the North-East Frontier (Assam) tribal and excluded areas produced a volume in two parts containing 557 pages of evidence and memorandums submitted by a large number of tribal organizations. These were made available to the members of the Constituent Assembly. Moreover, we have thus far traced eleven folders from the archive of the Assembly containing close to fifteen hundred pages of memorandums from other tribal groups, and of correspondence between them and the Assembly, on the position of the tribal and excluded areas in the future constitution. We also found such documents in the private papers of Assembly members. These materials are clear evidence that tribal groups across India sought to make themselves legible to the Assembly, asserting their identities and fighting to include themselves in the constitution on their own terms. 107

On 10 December 1946, a day after the Constituent Assembly began its proceedings in Delhi, the Chittagong Hill Tracts (CHT) People’s Association met in picturesque Rangamati, in eastern India, to discuss their concerns about the proposed constitutional changes. They had been ‘taken aback’ a day earlier when the colonial district commissioner and the raja of the Chakma tribes addressed a festival gathering on the subject of their plans for the constitutional changes but invited only the village headmen to attend a subsequent meeting at the raja’s palace to discuss these provisions. Many people who ‘were willing to give expression to their own opinions’ were left disappointed, and protested against the district commissioner’s limited attempts to gather public opinion, seeing the privileging of clan and village headmen as a ‘sinister attempt to suppress popular opinion’. 108 The district commissioner was following a long-established practice of soliciting the opinion of tribes through traditional authorities like chiefs and headmen, but by 1946 it was increasingly clear that the assumption that these traditional tribal authorities could speak for the people would be strongly contested and that the dominant discourse was one of democracy and popular representation.

Indeed, so powerful was the language of popular representation that traditional chiefs sought to co-opt it. Within a month, the Chakma raja’s relatives had formed the Chittagong Hill Tracts Hillsmen Association and had begun to make representations to the Constituent Assembly. The CHT People’s Association, which had been established six years earlier, pointed out that the Hillsmen Association consisted of merely twenty-one people and had been created to suppress public opinion and to elevate the raja’s authority in the future constitution. 109 The CHT People’s Association sent their own delegation to the Assembly, asserting that the people of the region wanted democratic self-government and not the autocratic form preferred by the Chakma raja. 110

Similar demands were echoed in the Khasi Hills, which were governed by twenty-five syiems (male chiefs of Khasi clans), whose positions had been recognized by the British through treaties. In August 1946, Constituent Assembly member and Khasi leader the Reverend J. J. Nichols Roy had drafted a constitution for the Khasi and Jaintia Hills that sought to introduce democracy progressively by co-opting the syiems and preserving some elements of traditional government. In stark contrast, the Myliem Khasi clan delegation told the Assembly subcommittee for the North-East Frontier (Assam) tribal and excluded areas that they did not want to engage with their syiem. They asserted that the syiems of the Khasi and Jaintia Hills had never held ‘sovereign powers’ over either the people or the land, that ‘The soil belonged to the people’, and that the syiems had to consult the people before they could speak for them. They argued that ‘independence comes to all, not only to the Syiems’. 111

In some places, tribes also contested the authority of the subcommittee and its procedures. A mass gathering of the Naga National Council in Kohima passed a resolution on 19 February 1947, just ahead of the appointment of the subcommittee, stating that a ‘constitution drawn [up] by people who have no knowledge of the Naga Hills and the Naga People [would] be unsuitable and unacceptable’. 112 They declared that they spoke on behalf of all Naga people and that the different tribes would not give evidence separately. 113 Arguing that ‘thrown among [four hundred million] Indian people, the one million Nagas and their unique system of life [would] be wiped out of existence’, the Naga National Council demanded an interim government similar to that headed by Nehru in Delhi, with a separate constitution and the option of revisiting their relationship with the Indian Union after ten years. Thus, tribal groups across the country, including the Lushai Hills, the Chittagong Hill Tracts and the Chotanagpur areas, pressed for territorial autonomy.

Tribal women also demanded rights in the future constitution and in contesting traditional tribal authorities. A thirty-member women’s delegation led by Bonily Khongmen and L. Shullai met the subcommittee in Shillong, protesting against the exclusion of women from political life by the Khasi syiems on the grounds of custom. They insisted that unless they were included, ‘there [would] be a rebellion from among women’. They demanded adult franchise and the right of women to vote for clan heads and syiems. They also asked for reserved positions for women in legislatures and in government employment, differentiating themselves from national women’s organizations, who had rejected affirmative action. 114

Similarly, while demanding universal franchise, the Mizo Mcheichhe Tangrual (Mizo Women’s Union), in its meeting with the subcommittee in Aizawl in the Lushai Hills, claimed that mere elections would be insufficient to achieve equality. While male Mizo leaders demanded that customary laws should be preserved, Kwatin Khuma, the president of the Women’s Union, argued that these laws should be radically changed, giving rights of inheritance to widows and daughters. She stated that the Women’s Union was placing itself ‘in line with other bodies who are struggling for liberty and freedom in its widest sense’. 115

Some tribal groups also worked at the national level to advance their views on the constitution by setting up an office next to the Constituent Assembly. Taking the lead, the All-India Excluded Areas and Tribal Peoples Association opened an office in the residence of Assembly member Professor N. G. Ranga during the first week of the Assembly debates. Their aim was to advance the ‘political rights and Constitutional Status’ of tribal people and all other people in these areas. The association followed the Assembly proceedings, appealing to central and provincial governments to set up special departments for tribal welfare and to elect Assembly representatives from the excluded areas. Their office was inaugurated by no less than Rajendra Prasad, the Assembly president. The introductory note in the Excluded Areas Bulletin , which the association published a fortnight later, stated: ‘The Problem of the Excluded Areas and the Tribal people has now become a burning topic . . . The constitution making body therefore requires at this juncture the voice and the advice of experts who have studied the problem with a political and humanitarian outlook’. 116 While the association had its roots within the Congress Party, it sought to build a tribal consensus by including tribal leaders from outside the Congress, including Jaipal Singh Munda, the CHT People’s Association and the Gurkha League. The association held many meetings in the Constitution House, where the Assembly and its committees sat, following the work of the committees and offering their expertise. 117 They demanded that the excluded areas and their people be integrated into the political mainstream, defying the decisions of the Congress leadership in the Assembly.

Tribal people were not waiting for a constitution to arrive: they were busy working out a constitutional framework for themselves. They did not passively respond to a process initiated from Delhi, but set their agenda at their own pace. Masses of tribal people, women among them, were involved in this process. Months before the Constituent Assembly convened, on 24 August 1946 over twenty thousand people from the Khasi and Jaintia Hills had gathered in the Students’ Field in Shillong to listen to the Reverend J. J. M. Nichols Roy presenting a plan for changes in the administration of the district. What was described as ‘the biggest political gathering in the Khasi and Jaintia Hills’ witnessed active debates that led to many alterations and additions to the plan. 118 This event was followed by public meetings in villages across the hills to consolidate demands, so that by the time the subcommittee came to visit the area the following year, most major political parties, chiefs and civil society groups had arrived at a common set of claims for the future of the state.

The constitution-making process was far more iterative and reflective than what is captured by the 5,546 pages of the Constituent Assembly debates. It was transformed by a mass of inputs and revisions which provided a training and testing ground for the constitution-making in Delhi. By the time the Assembly published the draft constitution in February 1948 and invited comments, the people in many princely states had already been consulted and expressed their views on the constitution. Concerned by their experiences of working with the post-independence government, the Indian judiciary had circumvented the standard processes of consultation on the draft to secure stronger constitutional guarantees of judicial independence. Reading the Constituent Assembly debates, it appears as if a handful of tribal representatives struggled to make their voices heard. But looking beyond the Assembly, as this article has shown, thousands of tribals, both women and men, were able to speak out, loudly making demands and requiring guarantees from the future constitution.

Indians at different sites and in different positions of power were thinking about the constitution, framing their claims within this language and transforming what constitutionalism would mean in independent India. The three sets of actors chosen as examples in this article, the rulers and people of Rewa, judges across India, and the thousands of tribal people in India’s north-east, represent a range of social and economic classes, though they form only a fraction of a far larger, and even more diverse, public who engaged with the making of the constitution. Focusing on the relationship between the public and the Constituent Assembly, and grounding the research in archival records from beyond the formal constitutional debates, this article shows that ordinary people understood very well the potential implications of the constitution for their lives, and as a result of their ongoing engagement, the constitution-making process itself became public. Constitution-making in the princely states in many cases preceded India’s constitution-making, the judges inserted themselves as commentators and critics of the constitution, and tribal groups contested the terms of their participation as dictated by the assembly.

However, scholars of India’s constitution have overlooked these public voices, mainly under the assumption that the constitution was beyond people’s imagination and that the key to understanding it lies in the making of the text. In contrast, if we draw into the foreground the constitutional engagements that took place away from the debates in the Constitution Hall, a new picture emerges. It renders somewhat redundant, for example, the question of either continuity with, or a break from, the colonial constitutional order. While diverse groups had indeed petitioned and made constitutional demands during colonial times, in 1946 new kinds of claims and involvements, on a far greater scale, turned the constitution-making process into a public experience, with the public beginning to own the constitution as a political practice, as a means of asserting themselves.

These constitutional demands from the public were not simply resolved through consensus or even by force; sometimes they were not resolved at all. But they remained the basis of agitation and mobilization, even after the promulgation of the Indian constitution, and continued to transform India’s constitutional text up to the present day. For example, while the Nagas’ demand for their own constitution was dismissed in 1950, it remained a basis of political struggle until the Indian government was forced to consider it as part of a peace agreement with Naga groups in August 2015. 119 Moreover, although the final provisions of the constitution disregarded the judges’ views on appointments, by the 1980s, through judicial interpretation, the judiciary was able to gain control over appointments, as they had pushed for in 1948. 120

Listening to voices from outside the Constituent Assembly it becomes clear that the constitution was not a textbook for educating the people into democracy, as it has been interpreted by scholars. Princes and people in states such as Rewa were already engaged in writing their own constitutions, and insisted that they did not need a constitution drawn out of ‘bookish knowledge’ and demanded a practical constitution. 121 Moreover, by looking at involvement in constitution-making at different sites and scales, such as the debates over minority claims and representation in the princely states, we may see how different outcomes were made possible by their involvement that are erased by an exclusive focus on the Assembly debates. Constitutionalism within the princely states, although it did not produce lasting constitutions within the states, generated a language and practices that a constitutional text constructed from the centre could not have created on its own. Viewed from the outside, judges saw the constitution as a document that could be constantly revised and improved through both public and informal processes. For tribals, constitution-making was about educating Assembly members in Delhi about their lives, conditions and requirements, and their older traditions of democracy.

Recovering this understanding of India’s constitution-making for this article entailed a work of assembly. Like an archaeological excavation of a mosaic, pieces of constitution-making were unearthed and fitted together to create a new pattern from the diverse elements, revealing a more comprehensive story of India’s constitution-making. The new picture no longer looks like a top-down endeavour driven by elite consensual decision-making produced for India’s ‘soil, which is essentially undemocratic’. 122 The new constitution came into being and was legitimized through many acts of assembling among people from diverse places and positions of power across India who, through engagement with the making of India’s constitution, reinvented themselves as constitutional actors and gained ownership over it.

For research assistance we thank Juhi Mendiratta. We are grateful to the Israel Science Foundation (grant no. 1575/22), the MacMillan Center for International and Area Studies at Yale University, and Sidney Sussex College, University of Cambridge, for their support. We have presented versions of this article at the ‘Constitutions and Crises’ conference held at the University of Cambridge, March 2022; the NALSAR Lecture Series on Constitutionalism, March 2022; the ‘Democracy, Violence, and Constitutional Order in South Asia and Beyond’ conference held at Yale University, April 2022; ‘Beyond the Pale: Legal Histories on the Edges of Empires’, the Third Legal Histories of Empire Conference, held at Maynooth University, June–July 2022; and ‘Rebuilding: Tradition and Innovation’, the Fiftieth Annual Conference on South Asia, held at the University of Wisconsin, Madison, October 2022. We thank the organizers and participants for their engagement. We would particularly like to thank Stephen Legg, Karuna Mantena, Vatsal Naresh and Nandini Ramachandran.

‘Framers of India’s Constitution Meet: Proceedings Suffer from Lack of Realism’, Times of India , 9 Dec. 1946. The number of Constituent Assembly members who attended the first session is based on counting those who signed the register on that day: see Constituent Assembly of India Debates (Proceedings) (hereafter CAD ), 9 Dec. 1946, < https://loksabha.nic.in/writereaddata/cadebatefiles/C09121946.html > (accessed 4 Mar. 2023).

‘India: Statement by the Cabinet Mission’, Hansard , 5th ser. (Lords), cxli, cols. 271–87 (16 May 1946), < https://api.parliament.uk/historic-hansard/lords/1946/may/16/india-statement-by-the-cabinet-mission > (accessed 4 Mar. 2023).

The recent focus on global histories of constitutions has largely neglected India’s postcolonial constitution-making: see, for example, Linda Colley, The Gun, the Ship and the Pen: Warfare, Constitutions and the Making of the Modern World (London, 2021); Christopher Thornhill, ‘The Sociology of Constitutions’, Annual Review of Law and Social Science , xiii (2017).

H. Kumarasingham (ed.), Constitution-Making in Asia: Decolonisation and State-Building in the Aftermath of the British Empire (London, 2016); Charles O. H. Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford, 2007).

Sunil Khilnani, Arguing Democracy: Intellectuals and Politics in Modern India , Center for the Advanced Study of India Working Paper Series, no. 09-02 (Philadelphia, 2009). See also Sunil Khilnani, The Idea of India (London, 1997), 34–5.

On the elite consensus perspective, see, for example, Granville Austin, The Indian Constitution: Cornerstone of a Nation , 1st edn (New Delhi, 1966); Madhav Khosla, India’s Founding Moment: The Constitution of a Most Surprising Democracy (Cambridge, MA, 2020); Tarunabh Khaitan, ‘Directive Principles and the Expressive Accommodation of Ideological Dissenters’, International Journal of Constitutional Law , xvi, 2 (2018); Sarbani Sen, The Constitution of India: Popular Sovereignty and Democratic Transformations , paperback edn (New Delhi, 2010). On the constitution’s underlying ideas, see, for example, Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (Delhi, 2009); Rochana Bajpai, ‘The Conceptual Vocabularies of Secularism and Minority Rights in India’, Journal of Political Ideologies , vii, 2 (2002); Uday S. Mehta, ‘Indian Constitutionalism: Crisis, Unity, and History’, in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution (Oxford, 2016). For scholarship on methods of reading the Constituent Assembly debates, see Aditya Nigam, ‘A Text without Author: Locating Constituent Assembly as Event’, Economic and Political Weekly , xxxix, 21 (2004); Kalyani Ramnath, ‘ “We the People”: Seamless Webs and Social Revolution in India’s Constituent Assembly Debates’, South Asia Research , xxxii, 1 (2012); Vatsal Naresh, ‘Pride and Prejudice in Austin’s Cornerstone: Passions in the Constituent Assembly of India’, in Udit Bhatia (ed.), The Indian Constituent Assembly: Deliberations on Democracy (London, 2017). An exception to these is Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (New Delhi, 2019), which draws on a wide range of sources and materials from the nineteenth century onwards, arguing for a need to move away from the narrow frame of the formal constitution-making process.

This focus on elites and a corresponding absence of the general public in constitution-making was in conformity with the historiographical and legal view of this subject until the 1970s: see, for example, Todd A. Eisenstadt, A. Carl LeVan and Tofigh Maboudi, Constituents before Assembly: Participation, Deliberation, and Representation in the Crafting of New Constitutions (Cambridge, 2017).

Khilnani, Idea of India , 34.

For a few exceptions, see Ornit Shani, How India Became Democratic: Citizenship and the Making of the Universal Franchise (Cambridge, 2018), which examines public engagement with the draft constitution in the context of the preparation of the electoral rolls on the basis of universal franchise; Ornit Shani, ‘The People and the Making of India’s Constitution’, Historical Journal , lxv, 4 (2022), Saagar Tewari, ‘Framing the Fifth Schedule: Tribal Agency and the Making of the Indian Constitution (1937–1950)’, Modern Asian Studies , lvi, 5 (2022). A few scholars have noted that there were numerous responses from the public to the drafting of the constitution, but have not explored them: see Austin, Indian Constitution , 324; Ramachandra Guha, India after Gandhi: A History of the World’s Largest Democracy (London, 2007), 105, 789 n. 5; Rohit De, A People’s Constitution: The Everyday Life of Law in the Indian Republic (Princeton, 2018), 2, 235 n. 5; Arvind Elangovan, ‘The Making of the Indian Constitution: A Case for a Non-Nationalist Approach’, History Compass , xii, 1 (2014).

Saunders infers this from Khosla, India’s Founding Moment : Cheryl Saunders, ‘Democracy, Constitutionalism, Modernity, Globalisation’, Jus Cogens , iv, 1 (2022), 15. See also Donald L. Horowitz, Constitutional Processes and Democratic Commitment (New Haven, 2021), 181–2.

For the most recent study, see Khosla, India’s Founding Moment . Consequently, several recent studies on comparative constitutional law situate the Indian constitution as part of a global conversation on the founding of constitutions.

See, for example, Rajeev Dhavan and Thomas Paul (eds.), Nehru and the Constitution (Bombay, 1992); Aakash Singh Rathore, Ambedkar’s Preamble: A Secret History of the Constitution of India (Gurgaon, 2020); Arvind Elangovan, Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935–50 (Oxford, 2019); Achyut Chetan, Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution (Cambridge, 2022); Shaunna Rodrigues, ‘Abul Kalam Azad and the Right to an Islamic Justification of the Indian Constitution’, in Anupama Roy and Michael Becker (eds.), Dimensions of Constitutional Democracy: India and Germany (Singapore, 2020); Pooja Parmar, ‘Undoing Historical Wrongs: Law and Indigeneity in India’, Osgoode Hall Law Journal , xlix, 3 (2012).

Nehru Memorial Museum and Library, New Delhi (hereafter NMML), H. V. R. Iyengar Oral History Transcript, no. 303, 129.

Vikram Raghavan, ‘Granville Austin and the Making of India’s Constitution’, Centre for Law and Policy Research Occasional Talks, no. 11, 7 Aug. 2015, < https://www.youtube.com/watch?v=GHPf6NIz60M > (accessed 4 Mar. 2023).

In thinking through the notion of assembling, we are drawing on Stephen Legg’s analysis of assemblage: in particular, Stephen Legg, Prostitution and the Ends of Empire: Scale, Governmentalities, and Interwar India (Durham, NC, 2014), 5–6; Stephen Legg, ‘Assemblage/Apparatus: Using Deleuze and Foucault’, Area , xliii, 2 (2011).

‘Text of Resolution Passed at Princes Meeting Held on 29 January 1947’, CAD , 28 Apr. 1947, < https://loksabha.nic.in/Debates/cadebatefiles/C28041947.html > (accessed 8 Mar. 2023). Earlier attempts to bring the princely states into an Indian federal structure under the Government of India Act 1935, the last colonial constitutional framework, ultimately failed.

Arthur Berriedale Keith, A Constitutional History of India, 1600–1935 (London, 1937).

See George H. Gadbois Jr, ‘The Federal Court of India, 1937–1950’, Journal of the Indian Law Institute , vi, 2–3 (1964). On other state organs, see, for example, on the army, Steven I. Wilkinson, Army and Nation: The Military and Indian Democracy since Independence (Cambridge, MA, 2015); on the bureaucracy, William Gould, Bureaucracy, Community and Influence in India: Society and the State, 1930s–1960s (London, 2010); Arudra Burra, ‘The Indian Civil Service and the Nationalist Movement: Neutrality, Politics and Continuity’, Commonwealth and Comparative Politics , xlviii, 4 (2010).

‘Memorandum on the Adibasis of Jharkhand, Demanding Separation from Bihar on a Constitutional Basis, Requesting Final Decision before June 1948’; ‘Memorandum on the Case of the Mizo’: both NMML, C. Rajagopalachari Papers, V th Instalment, F.37/2, 422–31 and 415–21.

‘Birth of India’s Freedom’, Times of India , 15 Aug. 1947, 1; Shahpura State Constitution Act 1947: National Archives of India (hereafter NAI), Ministry of States, F.13/4/PR/1947 (copies were sold for Re 1 each).

Shahpura State Constitution Act 1947, 1.

Ibid .; secretary to the prime minister, Shahpura state, to deputy secretary, State Department, New Delhi, 12 Nov. 1947.

Manipur State Constitution Act 1947, < https://www.satp.org/document/paper-acts-and-oridinances/manipur-state-constitution-act-1947 > (accessed 7 Mar. 2023).

M. R. Jayakar, ‘Gwalior Note’, 29 Oct. 1947: NAI, M. R. Jayakar Private Papers, F.896.

On the Travancore constitution, see Sarath Pillai, ‘Fragmenting the Nation: Divisible Sovereignty and Travancore’s Quest for Federal Independence’, Law and History Review , xxxiv, 3 (2016).

Scholars mainly explored the constitutions of Travancore and of Jammu and Kashmir in the context of India’s transition to independence, and largely saw these two states as exceptions: see ibid ., 771. For a recent discussion of Kashmir’s constitution, see Shahla Hussain, Kashmir in the Aftermath of Partition (Cambridge, 2021), 41–65. Moreover, the question of constitutions and the princely states has largely been seen as an inter-war phenomenon which became irrelevant with independence.

See, for example, Robin Jeffrey (ed.), People, Princes and Paramount Power: Society and Politics in the Indian Princely States (Delhi, 1978).

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 9: NMML, All India States Peoples’ Conference Papers, F.151, 1947.

‘Rough Translation of His Highness the Maharaja of Rewa’s Proclamation on Dasera Day’, 1 Jan. 1946: British Library (hereafter BL), IOR/R/1/1/4236.

Ibid . In January 1945 the Rewa State Council had set up a committee under the chairmanship of the chief justice of Rewa High Court, Rai Bahdur P. C. Mogha, to make recommendations on making the state’s Raj Parishad (People’s Representative Assembly) more responsible and representative: Council Resolution no. 336, 23 Jan. 1945: BL, IOR/R/1/1/4236.

Until shortly before this pronouncement, Maharaja Gulab Singh had been in exile. According to the Crown representative, who stated that he knew nothing about the maharaja’s ‘desire for responsible government to be given to his people’, the maharaja was deposed because he breached one of the conditions he had accepted before returning to the state on 25 July 1944, according to which ‘all state business should be initiated in council and concurred by the British Resident’: Crown representative, New Delhi, to secretary of state for India, London, 1 Jan. 1946: BL, IOR/R/1/1/4236. On the maharaja’s exile, see, for example, Fiona Groenhout, ‘Loyal Feudatories or Depraved Despots? The Deposition of Princes in the Central India Agency, c. 1880–1947’, in Waltraud Ernst and Biswamoy Pati (eds.), India’s Princely States: People, Princes and Colonialism (London, 2007), 105–11.

Colonel W. F. Campbell, resident for Central India, Central Agency, Indore, to C. G. Herbert, secretary to His Excellency the Crown Representative, New Delhi, 27 Feb. 1946: BL, IOR/R/1/1/4236.

Ibid. ; Herbert to Campbell, 15 Mar. 1946: BL, IOR/R/2/442/161. It is noteworthy that in other states, such as Ratlam, none of the members of the Constitutional Committee were known legal figures.

Herbert to C. E. B. Abell, private secretary to the viceroy, 5 Mar. 1946: BL, IOR/R/1/1/4236.

‘A Draft Rewa Government Notification’, 25 Apr. 1946: BL, IOR/R/1/1/4236.

Sir Alladi Krishnaswamy Ayyar to Sir Conrad Corfield, political adviser to H.E. the Crown representative, New Delhi, 11 May 1946: BL, IOR/R/1/1/4236. Besides a study fee, Sir Alladi asked for a ‘reduced fee’ of Rs 1,000 a day when he was absent from Madras or Bangalore on committee business; provision for ‘taking a cook and another personal attendant’; and Rs 750 a day spent substantially on the committee’s work while in his place of residence: ibid .

Harol Lal Narmada Prasad Singh, president, Pawaidar Association, Rewa, to T. C. S. Jayaratnam, prime minister, Rewa state, 27 June 1946 (copy); Shambhu Nath Shukla, president, District Congress Committee, Baghelkhand, Rewa, to Jayaratnam, 27 June 1946 (copy): both BL, IOR/R/1/1/4236.

Jayaratnam, memorandum, 28 June 1946 (copy); Jayaratnam to Campbell, 6 July 1946: both BL, IOR/R/1/1/4236.

Jayaratnam, memorandum, 28 June 1946 (copy).

Jayaratnam to Campbell, 6 July 1946.

Ayyar to Corfield, New Delhi, 26 July 1946; Corfield to Ayyar, 19 July 1946: both BL, IOR/R/2/442/161.

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 2.

Ibid . The committee met on twenty-three days in all.

The weekly Prakash was published between 1932 and 1949. Maharaja Gulab Singh sanctioned a grant of Rs 4,000 a year for its publication. It was a literary newspaper, but also covered news on policies of Rewa state. See A. U. Siddiqui, Indian Freedom Movement in Princely States of Vindhya Pradesh (New Delhi, 2004), 60.

Chairman of the Constitutional Reforms Committee, Rewa, to maharaja of Rewa, covering letter to ‘Report of the Rewa Constitutional Reforms Committee’. The printed submissions bore hundreds of signatures.

Ibid ., 1–2, 4.

President, State’s Muslim Association, Rewa, to the Honourable President, Reforms Committee, Rewa, with two attached documents: ‘Memorandum of Behalf of Muslims’ and ‘Caution in Goodfaith [ sic ]’, 30 May 1947: BL, IOR/R/2/442/161.

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 18.

President, State’s Muslim Association, Rewa, to the Honourable President, Reforms Committee, Rewa, 30 May 1947. The association was established in September 1946.

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 32–6.

Among these were copies of the constitutions of Barwani, Hyderabad, Indore, Jaipur, Jhabua, Orchha, Panna, Sailana, Sitamau and Udaipur.

‘Report of the Rewa Constitutional Reforms Committee’, May 1947, 39, 4, 42. It is noteworthy that there was disagreement among the committee’s members: some wanted fuller democratic reforms; one didn’t want democratic reforms at all.

Maharaja of Rewa to H. M. Poulton, resident for Central India, 15 July 1947: BL, IOR/R/2/442/161.

Government of India, White Paper on Indian States (New Delhi, 1948), 99. The rulers signed the covenanting agreement on 18 Mar. 1948. By an agreement dated 26 Dec. 1949, the rulers of the covenanting states of the United State of Vindhya Pradesh ceded to India with effect from 1 Jan. 1950.

Sir Harilal Kania, speech, All India Reporter (1948), 13–16.

George H. Gadbois Jr, Supreme Court of India: The Beginnings (New Delhi, 2018); Rohit De, ‘Emasculating the Executive: The Federal Court and Civil Liberties in Late Colonial India, 1942–1944’, in Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley (eds.), Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (Cambridge, 2012).

Draft Constitution of India 1948, Art. 308.

Kania, speech, 13.

Abhinav Chandrachud, An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862–1947 (New Delhi, 2015); De, ‘Emasculating the Executive’.

Kania, speech, 16.

See Alice Jacob, ‘Nehru and the Judiciary’, Journal of the Indian Law Institute , xix, 2 (1977); Lloyd I. Rudolph and Susanne Hoeber Rudolph, In Pursuit of Lakshmi: The Political Economy of the Indian State (Chicago, 1987), ch. 3.

Arghya Sengupta, Independence and Accountability of the Higher Indian Judiciary (Cambridge, 2019), 14–18.

CAD , 29 July 1947, < https://loksabha.nic.in/writereaddata/cadebatefiles/C29071947.html > (accessed 8 Mar. 2023).

The Ad Hoc Committee was headed by Justice S. Varadachariar (retired from the Federal Court), Alladi Krishnaswamy Ayyar, B. L. Mitter, K. M. Munshi and B. N. Rau: The Framing of India’s Constitution: A Study , ii (Bombay, 1967), appendix, ‘Report of the Ad Hoc Committee on Supreme Court’, 21 May 1947’, 587–91.

Chief Justice Sir Patrick Spens to Sir John Colville, 10 Dec. 1946: BL, IOR/R/3/1/33.

Chief Justice Ram Lall to Jawaharlal Nehru, 1 Mar. 1948; Nehru to B. N. Rau, 1 Mar. 1948: both NAI, CA/21/Cons/48 I.

‘Note on the Draft Constitution of India, Chief Justice and Judges of the Patna HC’, 16 Mar. 1948: NAI, CA/21/Cons/48 I.

Chief Justice Bidhubhushan Malik, Allahabad High Court, ‘Comments on the Draft Constitution’, 24 Mar. 1948: NAI, CA/21/Cons/48 I.

The retention of preventive detention after independence despite having been opposed by the nationalist parties for decades was the subject of both public criticism and litigation: Charles Henry Alexandrowicz, ‘Personal Liberty and Preventive Detention’, Journal of the Indian Law Institute , iii, 4 (1961).

Justice P. N. Sapru, memorandum, 21 Mar. 1948: NAI, CA/21/Cons/48 I.

Chief justice and judges, Calcutta High Court, memorandum, 19 Mar. 1948: NAI, CA/21/Cons/48 I.

D. S. Mathur, registrar, Allahabad High Court, note, 23 Mar. 1948: NAI, CA/21/Cons/48 I.

Registrar, Madras High Court, to constitutional adviser, 23 Mar. 1948: NAI, CA/21/Cons/48 I.

Extract from Calcutta Weekly Notes , liii, 18 (22 Mar. 1948): NAI, CA/21/Cons/48 I.

Lall to Nehru, 1 Mar. 1948.

‘Comments of the Chief Justice and the Honourable Judges of the Nagpur HC’, 17 Mar. 1948: NAI, CA/21/Cons/48 I.

Justice T. I. Sheode, Nagpur High Court, memorandum, 11 Mar. 1948: NAI, CA/21/Cons/48 I.

Justice R. S. Pollock, Nagpur High Court, ‘Memorandum on the Draft Constitution’, 15 Mar. 1948: NAI, CA/21/Cons/48 I.

‘Memorandum Representing the Views of the Federal Court and the Chief Justices Representing All the Provincial High Courts in the Union of India’, Comments on the Provisions of the Draft Constitution of India (New Delhi, 1948), 20–8.

Ibid ., 21.

Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India, 1980–1989 (Delhi, 2018).

Justice Sheode, memorandum, 11 Mar. 1948.

Kailash Nath Katju, ‘Separation of the Executive and Judicial Functions’, Address to the Bengal Chamber of Commerce, Calcutta, 12 Sept. 1948, Indian Law Review , ii, 3–4 (1949).

Chief Justice Malik, ‘Comments on the Draft Constitution’, 24 Mar. 1948.

NAI, Ministry of Home Affairs, F.11/3/48, 1948.

V. Shankar, memorandum, 24 Apr. 1948: NAI, Ministry of Home Affairs, F.11/3/48, 1948.

Chief justice and judges of Allahabad High Court, memorandum, 18 July 1949; ‘Report of the Committee Appointed by the Judges of Calcutta HC, 1948’: both NAI, Sardar Patel Papers, F.2/308.

Chief Justice Malik to Shankar, 13 Nov. 1948: NAI, Sardar Patel Papers, F.2/308.

B. R. Ambedkar to Sardar Patel, 24 Nov. 1948; Sir Trevor Harries to Patel, 7 July 1949: both NAI, Sardar Patel Papers, F.2/308; CAD , 27 May 1949, < https://loksabha.nic.in/Debates/cadebatefiles/C27051949.html >; 30 July 1949, < https://loksabha.nic.in/Debates/cadebatefiles/C30071949.html > (both accessed 8 Mar. 2023).

Sri Swedev, Bazar Akhara Kallu, district of Kangra, to members of the Advisory Committee of the Constituent Assembly, 14 Feb. 1947: NAI, CA/27/COM/47 I.

Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas: Excluded and Partially Excluded Areas (New Delhi, 1947), 2, quoted from the Report on Indian Constitutional Reforms of 1918 . For an analysis of excluded areas under the Government of India Act 1919, see Stephen Legg, ‘Dyarchy: Democracy, Autocracy, and the Scalar Sovereignty of Interwar India’, Comparative Studies of South Asia, Africa and the Middle East , xxxvi, 1 (2016).

Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas: Excluded and Partially Excluded Areas , 3. The partially excluded areas, however, were generally included in the electoral constituencies, and by independence had representation in the provincial legislatures: ibid ., 1.

Ultimately, the subcommittee for the North-West Frontier Province and Baluchistan never functioned as these areas became part of Pakistan.

Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas: Excluded and Partially Excluded Areas , 9, 69, 14.

CAD , 6 Sept. 1949, < https://loksabha.nic.in/Debates/cadebatefiles/C06091949.html > (accessed 8 Mar. 2023).

‘Tribesmen in the Republic’, 12 Sept. 1949, newspaper cutting: NAI, Rajendra Prasad Papers, F.10; ‘Tribal Areas’, Hindustan Times , 7 Sept. 1949, 2.

Nandini Sundar, Subalterns and Sovereigns: An Anthropological History of Bastar (1854–2006) , 2nd edn (New Delhi, 2008), 183–90; here, 188. See also, for example, Ramachandra Guha, Savaging the Civilized: Verrier Elwin, his Tribals, and India (1999), in The Ramachandra Guha Omnibus (New Delhi, 2005); Sanjib Baruah, In the Name of the Nation: India and its Northeast (Palo Alto, 2020); Sangeeta Dasgupta, ‘Adivasi Studies: From a Historian’s Perspective’, History Compass , xvi, 10 (2018).

Parmar, ‘Undoing Historical Wrongs’, 491. For studies that focus on tribal engagement with the making of the constitution, see Ornit Shani, ‘We the People’, in Ravinder Kaur and Nayanika Mathur (eds.), The People of India: New Indian Politics in the 21st Century (Delhi, 2022); Tewari, ‘Framing the Fifth Schedule’; Nandini Sundar, ‘The Making of the Indian Constitution and Indigenous Rights’, unpubd MS. In addition to Munda, scholars have also paid particular attention to Assembly member J. J. M. Nichols Roy: P. R. Kyndiah, Rev. J. J. M. Nichols Roy: Architect of District Council Autonomy (New Delhi, 2013).

Shaunna Rodrigues, ‘Excluded Areas as the Limit of the Political: The Murky Boundaries of Scheduled Areas in India’, International Journal of Human Rights , xxv, 7 (2021), 1129, our emphasis.

This important facet of India’s constitution-making has barely been studied. For a few exceptions, see Shani, How India Became Democratic , 212–21; Shani, ‘People and the Making of India’s Constitution’; Sundar, ‘Making of the Indian Constitution and Indigenous Rights’; J. Zahluna, ‘Constituent Assembly and the Sixth Schedule: With Special Reference to Mizoram’, Indian Journal of Political Science , lxxi, 4 (2010), 1236–8; Rodrigues, ‘Excluded Areas as the Limit of the Political’; Tewari, ‘Framing the Fifth Schedule’.

‘Resolutions Adopted at the Annual Meeting of the CHT People’s Association at Rangamati on 10th December, 1946’: NAI, CA/27/COM/47/I.

‘Resolution Adopted by Executive Meeting of CHT People’s Association at Rangamati on 9th Feb. 1947’: NAI, CA/27/COM/47/I.

‘Delegation from CHT to Mr R. K. Ramdhyani, 27th February 1947’: NAI, CA/27/COM/47/I.

‘Proposed Draft Constitution of the Khasi and Jaintia Hills by Hon’ble Rev. J. J. M. Nichols Roy’, in Constituent Assembly of India, North-East Frontier (Assam) Tribal and Excluded Areas Sub-Committee , 2 vols. (Delhi, 1947), ii, Evidence , pt ii , 183–90, 160, 162.

‘Memorandum on the Case of the Naga People for Selfdetermination and an Appeal to H.M.G. and the Government of India’, in Constituent Assembly of India, Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee , ii, Evidence , pt i , 248.

Meeting in the School Hall, Kohima, 19 May 1947, in Constituent Assembly of India, Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee , ii, Evidence , pt i , 181.

‘Witnesses Examined: Mrs B. Khongmen and 15 Others, Mrs L. Shullai and 15 Ladies’, Shillong, 12 June 1947, in Constituent Assembly of India: Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee , ii, Evidence , pt ii , 145, 146. Among the other women’s organizations that met the subcommittee were the Adibasi Mahila Sangh (Hazaribagh), the Mizo Women’s Union (Aizawl) and the Khasi Women’s Association (Shillong), and independent women representatives such as Miss Hansda (Santhal Parganas), Mavis Dunn Lyngdoh (Shillong) and Lalziki Sailo (Aizawl).

‘The Aim and Object of “Mizo Hmeichhe Tangrual” ’, 18 Apr. 1947, in Constituent Assembly of India: Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee , ii, Evidence , pt i , 66.

Office of the All-India Excluded Areas and Tribal Peoples Association, New Delhi, Excluded Areas Bulletin , no. 2, 30 Dec. 1946, 2: NAI, CA/27/COM/1947 I.

Working president of the All-India Excluded Areas and Tribal Peoples Association to secretary of the Constituent Assembly, 5 Mar. 1947: NAI, CA/27/COM/1947 I.

Constituent Assembly of India: Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee , ii, Evidence , pt ii , 191.

Jimmy Leivon, ‘Manipur: Nagas Endorse Demand for Separate “National” Flag and Constitution’, Indian Express , 10 Sept. 2019, < https://indianexpress.com/article/north-east-india/manipur/manipur-nagas-endorse-demand-for-separate-national-flag-and-constitution-5983840 > (accessed 7 Mar. 2023).

Sengupta, Independence and Accountability of the Higher Indian Judiciary , ch. 2.

Harol Lal Narmada Prasad Singh to Jayaratnam, 27 June 1946 (copy): BL, IOR/R/1/1/4236.

CAD , 4 Nov. 1948, < https://loksabha.nic.in/Debates/cadebatefiles/C04111948.html > (accessed 8 Mar. 2023).

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  1. Article 15 of the Indian Constitution

    Special provision for the advancement of backward class : Article 15(4) of the Indian Constitution. Coming onto the next clause, i.e. Clause (4) of Article 15 of the Indian Constitution. It allows the state to enact laws and provisions relating to the advancement of socially and educationally backward classes and the scheduled castes and scheduled tribes.

  2. EXPLAIN OF ARTICLE 15 WITH THE Case laws on Various Provisions ...

    Case laws on Various Provisions Of Article 15 of Constitution Of India: Case Law On Article 15(1) : In the case "DP Joshi v/s State of Madhya Bharat" 1, there was a medical college that was established in Indore and it was under the control of the Madhya Pradesh Government. The govt had made a rule which stated that all the Domicile ...

  3. Landmark Judgements on Article 15

    In the landmark case of DP Joshi v. State of Madhya Bharat, the constitutional validity of a reservation order providing seats in medical and engineering colleges for candidates from backward classes was challenged under Article 15 (1) of the Indian Constitution, which prohibits discrimination based on various grounds.

  4. 8 Landmark Judgments on Article 15 of the Indian Constitution

    Article 15 forbids discrimination based only on religion, race, caste, sex, place of birth or any of them. The Constitution of India prohibits any type of constraint, disability, or conditions from obtaining entry to public parks, commerce, hotels, and restaurants. In the face of immense variety, sexism, and racism, Article 15 has permitted ...

  5. Article 15 of the Constitution of India

    The case raised the issue of whether Section 497 was in contradiction with Articles 14 and 15 of the Indian Constitution. The argument was made that Section 497 stated that only men could commit adultery and that women could not be punished as abettors, which raised questions of discrimination based on gender.

  6. Article 15: Prohibition of discrimination on ...

    Article 15 was debated in the Constituent Assembly on 29 November 1948. It prohibits discrimination on five grounds: religion, race, caste, sex or place of birth. ... of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category ...

  7. PDF Through the Looking Glass of Intersectionality: Making Sense of Indian

    of the Indian Constitution. The article thus seeks to present a prelude to reading in intersec-tionality in Article 15(1) by expanding its scope from single to multi-ground discrimination. There are two caveats as to the scope of this article. First, the survey is confined to consti-tutional jurisprudence in relation to Article 15, especially ...

  8. Article 15 ~ UPSC Polity Notes

    This case deals with the constitutional validity of clause (5) of Article 15. The Supreme Court held that None of the rights under Articles 14, 19(1)(g) and 21 of the Constitution had been abrogated by Clause (5) of Article 15 of the Constitution and the view taken by Bhandari, J. in Ashok Kumar Thakur v.

  9. Article 15 in Constitution of India

    Article 15 in Constitution of India. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (b) the use of wells, tanks, bathing ghats, roads and places of public resort ...

  10. Article 15 of the Indian Constitution Explained

    In DP Joshi vs State of Madhya Bharat (1955), the Court has held valid a rule of the State Medical College whereby the non-Madhya Bharat students required a capitation fee for admission in the college.It was held in the case that a law that discriminates on the ground of residence does not violate Article 15(1). Article 15(2) of the Indian Constitution

  11. Article 15 of the Constitution of India

    Article 15 of the Constitution of India forbids discrimination on grounds only of religion , race, caste, gender, or place of birth or any of them.It applies Article 14's general principle of equality in specific situations by forbidding classifications made on protected grounds. While prohibiting discrimination based on prejudice, the Article is also the central issue in a large body of ...

  12. Article 15 under the Indian Constitution

    Introduction to Article 15. Article 15 of the Indian Constitution prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, or place of birth. Article 15 states that "the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.".

  13. Article 15 And 16 Of The Indian Constitution

    Articles 15 and 16 of the Indian Constitution are based upon the concept of equality, social justice and social harmony. Article 15 (4) and 16 (4) are not exceptions to their respective provisions. They provide positive and affirmative support to the objective of the provisions. These Articles are aimed at promoting real equality in the society ...

  14. Article 15 of Constitution of India

    The clauses under Article 15 are stated below: Article 15 (1) guarantees to all citizens that the state can not discriminate any citizen on grounds of religion, race, gender and place of birth. Article 15 (2) restricts subjection of a citizen to any disability, liability, condition on grounds of religion, race, gender and place of birth.

  15. Article 15 Of The Indian Constitution: An Insight

    The article of the constitution is guarded under the part III of the Indian constitution moreover article 15 specifically comes under the heading of Right to Equality. Introduction to article 15(1) Article 15 (1) says that state shall not discriminate it's citizens on the grounds of caste, sex, race, religion, place of birth and race. Case Law:

  16. Women's Empowerment: Constitutional Provisions, Article 15

    Important Constitutional Provisions are Articles 14, 15, 16, 21, 21A, 23, 24, 38, 39, 42, 44, and 55(e). In this article, we shall study Article 15 of the Constitution of India and its interpretation with respect to women's empowerment. Right to Equality: Right to Equality means that all citizens enjoy equal privileges and opportunities.

  17. Horizontal Discrimination and Article 15(2) of the Indian Constitution

    This article explores horizontal non-discrimination rights under the Constitution of India (Indian Constitution). The Indian Constitution is unique in that it expressly prohibits private discrimination on the grounds of sex, race, caste, religion, etc. for the purpose of, inter alia, "access to … shops" (Article 15(2)).The article argues that a historically grounded understanding of the ...

  18. Article 15 of The Constitution of India and Important Case Laws

    Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to a) .access to shops, public restaurants, hotels and palaces of ...

  19. Article 15 of Indian Constitution, Provisions, Explanation

    Article 15 Clause. Provisions. Article 15 (1) It provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Article 15 (2) It states that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or ...

  20. 8 Landmark Judgments on Article 15 of the Indian Constitution

    The article '8 Landmark Judgments on Article 15 of the Indian Constitution' collectively affirms the principles of non-discrimination and social justice embedded in Article 15 of the Indian Constitution, progressively expanding its scope to encompass various facets of societal inequalities.. Introduction . Article 15 forbids discrimination based only on religion, race, caste, sex, place of ...

  21. 28 Constitutional provision relating to rights of children

    Case laws under this study on Article 15(4): Forward class woman marrying the Scheduled case husband is not entitled to Scheduled Caste status. Sobha Hymavathi Devi v. ... Article 32 of the Indian Constitution provides for remedies for the enforcement of rights conferred by this Part on Fundamental Rights.

  22. Article 15 of the Indian constitution

    The inherent consequence of Art.14 & is not that the state cannot pass unequal laws, but that it can, and that the inequality must be justified. Art. 15 (ii) No one has the authority to restrict the public space under Art.15 (1). Art.15 (iii) Nothing in this article precludes the government from establishing specific provisions for women ...

  23. All You Need To Know About Article 15 of Indian Constitution

    Article 15 of Indian Constitution states that "Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. ... of the Constitution. In Mandal Commission case, the Supreme Court by a majority of 6-3 has held that the sub-grouping of backward castes into more backward castes and backward castes for the reasons of ...

  24. Assembling India's Constitution: Towards a New History

    The conventional understanding has been that the Indian constitution was a product of elite consensual decision-making, and that India's constitution-makers endowed it from above; it has been described as 'a gift of a small set of India's elites'. 5 In line with this view, studies of the making of the Indian constitution, both older and ...