8 Indian Constitutional Framework; Articles 14, 15 and 16 of the Indian Constitution and women’s rights

Radhika Gupta

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Introduction

The Constitution of India is the result of a long and hard fought quest for freedom and self-determination. The essence of the Constitution, or the pillar as it may be called, is Part III containing the Fundamental Rights. There are six key fundamental rights:

  1. Right to Equality (Articles 14 to 18)
  2. Right to Freedom (Articles 19-22)
  3. Rights against Exploitation (Articles 23-24)
  4. Right to Freedom of Religion (Articles 25-28)
  5. Cultural and Educational Rights (Articles 29-30)
  6. Right to Constitutional Remedies (Article 32)

Under the broad spectrum of the Right to Equality, Articles 14, 15 and 16 collectively represent the general principles of equality before law and non-discrimination, while Articles 17-18 seek to further the cause of social equality.

The Constitution of India

Article 14

Article 14 of Part III of the Constitution of India states thus – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The expressions ‘equality before law’ and ‘equal protection of the laws’ of Article 14 seek to establish the principle of ‘equality of status’ as envisioned in the Preamble to the Constitution. Thus the Article prohibits any discriminatory treatment on the grounds of a person’s caste, creed, colour, sex, gender, religion or place of birth.

While ‘equality before law’ may be interpreted as a negative concept that implies the absence of any special privileges attached to certain individuals and equal subjection of all classes to the ordinary law of the land, the concept of ‘equal protection of the laws’ denotes a positive understanding that implies equality of treatment under equal circumstances.

Equality before Law

The expression ‘equality before law’ of Article 14 is a reflection of the doctrine of the Rule of Law of British jurisprudence. Simply put, the doctrine of the Rule of Law implies that no one is above the law. Although the genesis of the doctrine can be traced back to 16th Century England, it was popularized by British jurist A.V. Dicey (1835-1922) in the 19th century. According to Dicey, under the Rule of Law, “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land”. It further implies that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.

 

However, the concept of ‘equality before law’ as enumerated in Article 14 is not an absolute rule, and there are a number of exceptions to it. For instance, Article 361 of the Constitution attaches certain privileges and immunities to the offices of the President of India or the Governor of a State. Under Article 361(2), no criminal proceedings can be instituted or continued against the President of India or the Governor of a State during his or her term in office. Ministers, Members of Parliament and State Legislative Assemblies (MPs and MLAs) also enjoy a number of privileges and immunities so as to facilitate the smooth discharging of their responsibilities. Under Article 359(1) when a Proclamation of Emergency is in operation, the President may issue an Order whereby the enforcement of Article 14 may be suspended during the period in which the Proclamation is in force. Moreover, under the dictates of international law, foreign diplomats enjoy immunity from being prosecuted under the domestic law.

Equal Protection of the Laws

The notion of ‘equal protection of the laws’ is inspired by the American Constitution. It implies that the same law shall be applied to all those who are similarly situated. As per the scope of Article 14, (a) equal protection means equal protection under equal circumstances; (b) the State can make reasonable classification for purposes of legislation; (c) there must be a presumption of reasonableness in favour of the legislation; and (d) the burden of proof is on those who challenge the legislation.

Article 14 prohibits hostile classification by law and is directed against the discriminatory class legislation. But it does not prohibit reasonable classification. Classification to be reasonable must fulfill the following two conditions: (1) The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (2) The differentia must have a rational relation to the object sought to be achieved by the Act.

In Air India v. Nergesh Meerza, the Court was faced with questions of the constitutional validity Regulations 46(1)(c) and 47, which provided for the termination of services of female airhostesses upon being married or first pregnancy, whichever occurred earlier. These regulations forced them to retire at an age earlier than their male counterparts. The Court struck the impugned regulations, stating that the thought there was an intelligible differentia on the basis of sex, the classification did not have any nexus with the object of the Act; it was arbitrary and unreasonable, thereby violating Article 14.

Article 15

Article 15 of Part III of the Constitution is extremely significant as it prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. However, unlike Article 14 that protects all persons whether they are citizens or aliens, the scope of Article 15 extends only to the citizens of India.

 

Prohibition of Discrimination (Clauses 1 and 2)

Clause 1 of the Article states – The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. It is significant to note that this prohibition is against the state and not against private individuals. Also, although Article 15(1) prohibits discrimination on the grounds of place of birth, it cannot be read as a prohibition of discrimination on the grounds of the residence.10 Residence as a qualification for certain purposes such as employment may still be permitted.

Clause 2 of the Article states – 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-

  • 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.

Clause 2 of Article 15 is thus applied to acts of private individuals as well. This Article makes way for Article 17 of the Constitution that abolishes the practice of untouchability and forms a key pillar in disseminating the cause of social equality.

Special Provisions (Clauses 3, 4 and 5)

There are three significant exceptions to the provisions of prohibitions of discriminations as enshrined in the first two clauses of the Article 15. Clauses 3, 4 and 5 of the Article permit protective discrimination by the state in certain cases.

Clause 3 of the Article states – Nothing in this Article shall prevent the State from making any special provision for women and children.

The special treatment meted out to women and children by Article 15(3) thus recognizes the need to overcome the structural discriminations prevalent in society through positive discrimination. The Article lays the foundation for gender equality not only in terms of equality of opportunity but also in terms of equality of results. It seeks to enable women to surpass the obstacles of socio-economic, cultural or political discrimination and facilitates the goal of gender parity.

Clause 4 of the Article states – 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.

This clause was not originally a part of the Constitution and was inserted into Article 15 by the First Amendment Act of the Constitution, 1951. The rationale behind the adoption of this clause was to correct the historical wrongs being committed against the backward classes. The insertion of the clause is in spirit with the resolution of the Constituent Assembly that states, “Wherein, adequate safeguards shall be provided for minorities, backward, and tribal areas, and depressed and other backward classes”. The notion of social justice has also been held as a part of the basic structure of the Constitution by the Supreme Court of India.

Clause 5 of the Article states – 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.

This clause was also not originally a part of the Constitution and was inserted through the 93rd Constitutional Amendment Act, 2005. The Supreme Court of India had upheld the validity of Article 15(5) and argued that it does not contravene the basic structure of the Constitution. Ruling on the issues, a five judge bench of the Supreme Court states, “Article 15(5) is consistent with the socialistic goals set out in the Preamble and the directive principles and to ensure the march and progress of the weaker sections resulting in progress to socialistic democratic State establishing the egalitarian ethos/egalitarian equality, which is the mandate of the Constitution”.

In Anjali Roy v. State of West Bengal, the petitioner finished her intermediate studies and wanted to pursue her Honors at Hooghly Mohsin College, an all-boys institute. When she applied, she was redirected to the newly established Women’s College nearby; merely 3 years old, it did not have an honors course, neither were the educational facilities satisfactory. Faced with the question of constitutional validity, under Article 15(1), of the Order that restricted the admission of women into the aforementioned all boys’ honors college, the Court relied on its misunderstood, extended and inappropriate application of Article 15(3). The court stated that the new women’s college amounted to a ‘special provision’ and that Roy “was not refused admission merely because she was a woman, but because [of] a scheme of better organisation of both male and female education (…) which covered development of the Women’s College as a step towards the advancement of female education and also relieving the pressure on the [men’s college] which was a mixed college.” The judgment has led Atrey to argue that in the court’s “final analysis, the basis of the Court’s decision is not sex coupled with another ground which justified discrimination, but sex coupled merely with other organisational considerations which defeats a finding of sex discrimination.”

In Anuj Garg v. Hotel Association, the Supreme Court correctly interpreted the ethos of Article 15. At the time, S. 30 of the Punjab Excise Act, 1914 prohibited men below the age of 25 and women (of all ages) from being employed in places where liquor and other intoxicating substances were consumed in public. The section was challenged for being ultra vires Article 14, 15 and 16. This is a progressive decision, where the Court took into account feminist ideas, individual rights, the purpose and object of International Treaties (such as CEDAW and Beijing Declaration) to talk about the dignity and autonomy of women. In the instant case, the conflict was between respecting the individual rights of women and the problem of practical import (implementation and security). When the said Act came into force, the idea of equality between the sexes was non-existent. However, the Court recognized that we, as a society have reached a time where current realities require us to take leave of the themes such as those enshrined in the impugned section. There is a tension between the right to employment and security of the employees (thereby invoking the doctrines of self-determination and interest of the individual); this cannot be interpreted in a manner so as to handicap the women and undermine their autonomy in choosing the profession they choose; further, it is the duty of the State to come up with new models of security to ensure that women are not rendered vulnerable at their workplace. The Supreme Court took a progressive step and held that, in light of the foregoing, the impugned provision could not be considered to be a ‘special provision’ meant for the benefit of women; “It is state’s duty to ensure circumstances of safety which inspire confidence in women to discharge duty freely in accordance to requirements of profession they choose to follow”.

Article 16

Article 16 of the Constitution guarantees equality of opportunity to all citizens in matters of public employment. Clause 1 of the Article states – There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State Clause 2 of the Article explains the first clause in detail and states thus – No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

However, equal opportunity in employment to all citizens does not necessarily imply absolute equality. Distinctions can be made on certain grounds such as age, qualifications and others. The State can select the best person or persons from the candidates who have applied for a post or posts. The Indian Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. Clause 3 of Article 16, therefore, states – Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

Positive Discrimination

Although Article 16 guarantees all citizens equal opportunity in matters of public employment, it also incorporates the need to make special provisions for backward classes keeping in line with the spirit of social equality enshrined in the Constitution. The notion of ‘backward class’ can also extend so as to be applicable to women. Clause 4 of the Article states – Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

 

In Government of Andhra Pradesh v. P.B. Vijayakumar, the State Government passed an order, Rule 22-A(2) of which provided for a 30% of reservation of seats for women, for posts for which men and women were equally suited. The purpose of the order was to improve the scarce presence of women in public offices. The Rule was challenged on the grounds that the rule made an arbitrary classification that seriously affected all unemployed males in the State of AP, therefore, was is in violation of Articles 14, 15 and 16. The Court looked at the object and scope of Article 15(3), which recognizes the fact that women have been socially and economically handicapped for centuries; in order to rectify this situation, it is imperative to increase women’s access to job opportunities. The central idea behind 15(3) is to bring effective equality between the two sexes. Special provisions help improve women’s participation in all activities that come under the supervision or control of the State. These provisions include affirmative actions, as well as reservations. Unlike other systems of reservation, this rule served as an administrative guideline for the selection of candidates who were equally meritorious. After a harmonious reading of Articles 14, 15 and 16, the Court upheld the validity of the impugned rule.

The Parliament has also passed a few amendments in connection with the reservation regime to make it more equitable, such as The 77th Amendment to the Constitution was introduced in 1995 that inserted a new clause 4(a) to Article 16 that provides for reservation in promotion for Scheduled Castes and Scheduled Tribes; this clause is also governed by the reasons of backwardness and adequate representation and by the requirement of overall efficiency of the system as provided by Article 335 of the Constitution. The 85 th Amendment to the Constitution was introduced in 2001, which further amended Article 16(4)(a) to include the power to grant consequential seniority to Scheduled Castes and Scheduled Tribes. Another significant development in the context of Article 16 is the 81st Constitutional Amendment Act, 2000. It inserted clause 4(b) into Article 16, which provides that such unfilled vacancies shall not be combined with the vacancies of the year in which they are being filled.

However, Article 16(5) provides thus – Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Conclusion

The Constitution of India, under Articles 14, 15 and 16, is deeply committed to the right to equality as a fundamental right. The Articles guarantee equality before the law and equal protection of the laws (Article 14), prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15), and equality of opportunity in matters of public employment (Article 16). However, the right to equality under the Constitution also allows the State to make positive discrimination in favour of certain classes of citizens such as women, children, socially and educationally backward classes, scheduled castes and scheduled tribes. The founding father of the Indian Constitution, Dr B.R. Ambedkar was of the view that in order to be lasting, social reform must precede political reform and that without according political power to the Depressed Classes their status would not improve. Also, it is important to note that the right to equality loses its reality if all the citizens do not have equal facilities of access to the courts for the protection of their fundamental rights. The fact that these rights are guaranteed in the Constitution does not make them real unless legal assistance is available for all on reasonable terms.

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Reference

  1. Anjali Roy v. State of West Bengal, AIR 1952 Cal 825
  2. Anuj Garg v. Hotel Association, (2008) 3 SCC 1.
  3. Atrey, S. ‘Through the Looking Glass of Intersectionality: Making Sense of Indian Discrimination Jurisprudence under Article 15’, as in Equal Rights Review, Special Focus: Intersectionality Vol.16 (2016) pp.160. Available at: https://www.oursplatform.org/resource/intersectionality-equal-rights-review-vol-16/
  4. Bharathi, K.S. Encyclopedia of Eminent Thinkers: The Political Thought of Ambedkar. New Delhi: Concept Publishing, 1998
  5. Chiranjit Lal Chowdhury v. Union of India and Others, AIR 1951 SC 41
  6. Constituent Assembly Debates, Vol. 1, No. 5, 13 Dec 1956
  7. D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334
  8. Dicey, Albert Venn. An Introduction to the Study of the Law of the Constitution, 5th ed. London: MacMillan, 1897
  9. Government of Andhra Pradesh v. P.B. Vijayakumar, AIR 1995 SC 1648.
  10. J. Venkatesan. “SC upholds constitutional validity of RTE act.” The Hindu, May 6, 2014, http://www.thehindu.com/news/national/sc-upholds-constitutional-validity-of-rte-act/article5981497.ece
  11. Pylee, Moolamattom Varkey. An Introduction to the Constitution of India, 5th ed. Noida: Vikas Publishing House, 2007
  12. Subhash Chand Jain vs. Delhi Electricity Supply, AIR 1981 SC 75
  13. The General Manager, Southern vs. Rangachari, 1962 AIR 36