Clauses 1 and 2 of Article 15 provide that:

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.”

Clause (1) of Article 15

Article 15(1) imposes an enforceable obligation on the State to not discriminate against citizens on any of several grounds, including “caste”. If the State itself discriminates against a citizen under any of the mentioned grounds, then it is discrimination of the highest form. After all, the State is expected to prevent discrimination, not perpetuate it. That is why our Constitution prohibits the State from discriminating against any citizen. Besides, Article 15(2) was adopted to specifically prohibit the discrimination faced by certain marginalized communities in accessing public services and resources.

Historically, the so-called untouchable community was not allowed to use public resources such as water tanks and wells. This provision has a unique imprint of Dr Ambedkar, as he consistently advocated for such a provision for decades.[1] Not only does Article 15(2) prohibit the State from discriminating, it also restricts the citizens or private entities from discriminating against other citizens on the grounds mentioned therein.

Various Dimensions of Discriminations

Discrimination is prohibited, because it has several repercussions on human lives. Discrimination arises due to a feeling of superiority/inferiority, bias, contempt, or hatred against a person or a group. In history, such feelings have led to the genocide of certain communities. Discrimination also lowers the self-esteem of the person being discriminated against. It can lead to unfair denial of opportunities and constant violence against a set of people. Discrimination can also be done by continuously ridiculing or humiliating someone, who is on the weaker side of the social spectrum. It can cause trauma to a person with which they may be affected their entire life.

Discrimination also includes stigmatizing the identity or existence of a marginalized social group. Discrimination can also happen based on certain stereotypes against a marginalized group. As a society that divided people into a hierarchy, we must remain conscious of the forms and kinds of discrimination against marginalized groups.

Discriminatory Laws before Independence and Court Rulings on those laws

Discriminatory laws enacted before the Constitution of India came into force need to be scrutinized and done away with. In India, there have been several instances of laws being enacted based on certain stereotypes against certain groups of people. Our citizens have brought challenges before the constitutional courts against the validity of such laws.

In Anuj Garg v. Hotel Association of India,[2] the validity of Section 30 of the Punjab Excise Act, 1914 was challenged. The provision prohibited the employment of women and men under the age of 25 years in premises where liquor or other intoxicating drugs were consumed by the public. In adjudicating the case, Supreme Court applied the principle that

“[l]egislation should not be only assessed on its proposed aims but rather on the implications and the effects”. It struck down the provision, holding that it “suffers from incurable fixations of stereotype morality and conception of sexual role.”

It was held that “[n]o law in its ultimate effect should end up perpetuating the oppression of women”.

In National Legal Services Authority v. Union of India,[3] the Court recognised hijras, eunuchs, apart from binary gender, as “third gender” and extended the protection of Articles 15 and 16 to them. It was held that discrimination on the ground of “sex” under Articles 15 and 16 includes “discrimination on the ground of gender identity”.

The Court declared that the expression “sex” used in Articles 15 and 16 “is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male or female.”

Supreme Court concluded that “discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution”.

However, the judgment of a two-judge bench in Rajbala v. State of Haryana[4] rejected a challenge founded on the claim of discriminatory impact. A state legislation introduced conditions to contest Panchayati elections, as a result of which, a significant section of Scheduled Castes was debarred from contesting elections. The Bench held that a statute cannot be held unconstitutional on the ground that it is “arbitrary”.

The Court held, “If it is constitutionally permissible to debar certain classes of people from seeking to occupy the constitutional offices, numerical dimension of such classes, in our opinion should make no difference for determining whether prescription of such disqualification is constitutionally permissible unless the prescription is of such nature as would frustrate the constitutional scheme by resulting in a situation where holding of elections to these various bodies becomes completely impossible”.

However, this reasoning prima facie is contrary to the decisions in Shayara Bano, Navtej Singh Johar, and Joseph Shine, which upheld manifest arbitrariness as a ground to strike down a law. At the same time, the impact of the law on the Scheduled Caste population is an example of “indirect discrimination”, a constitutional test which has been applied by the Court in subsequent decisions.

In Karma Dorjee v. Union of India,[5] the Court emphasized that “[t]he Governments, both at the centre and the states have a non-negotiable obligation to take positive steps to give effect to India’s commitment to racial equality”. The Court was hearing a public interest petition seeking guidelines to be set down to curb acts of discrimination against persons from the north-eastern states. It directed the Union Government to take “proactive steps to monitor the redressal of issues pertaining to racial discrimination faced by citizens of the nation drawn from the north-east”.

A Constitution Bench in Navtej Singh Johar[6] gave a broader interpretation to Article 15, while striking down Section 377 of the Indian Penal Code insofar as it decriminalizes homosexual intercourse amongst consenting adults, on the ground that it was discriminatory. In a concurring opinion written by Justice DY Chandrachud, it was held that discrimination, whether direct or indirect, “founded on a stereotypical understanding of the role of the sex” is prohibited by Article 15.

The Court held, “If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate.” It was further held that a provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) “is to be assessed not by the objects of the State in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights”.

The Court discussed the principle that even if the law or action by the State is facially neutral, it “may have a disproportionate impact upon a particular class”. Though facially neutral, the effect of Section 377 was seen to target members of the LGBTQIA+ community.

Another Constitution Bench in Joseph Shine[7] struck down Section 497 of the Indian Penal Code, which related to adultery. It was held that the premise of “Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible”, and hence, it violates the non-discrimination principle embodied in Article 15. The provision, the Court held, “builds on existing gender stereotypes and bias and further perpetuates them”, by giving “legal recognition to socially discriminatory and gender-based norms”.

The Court held that a “provision of law must not be viewed as operating in isolation from the social, political, historical and cultural contexts in which it operates”.

In Indian Young Lawyers Association v. The State of Kerala[8], Supreme Court dealt with the validity of a rule excluding menstruating women between the ages of 10 and 50 from entry in a temple in Kerala, based upon a custom. In his concurring opinion, Justice Nariman held that the said rule is hit by Article 15(1), as it “discriminates against women on the basis of their sex only”. Justice DY Chandrachud who was also a part of the judgment held,

“Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity”.

In Secretary, Ministry of Defence v. Babita Puniya,[9] a two-judge Bench upheld the claims of women engaged on Short Service Commissions in the Army to seek parity with their male counterparts in obtaining Permanent Commissions. It was held that “Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers.”

The Court gave several directions to the Union Government to grant Permanent Commission to women officers in the Army and consequential benefits.

The issue of Permanent Commissions to women officers once again came before the Court in Lt. Col. Nitisha v. Union of India.[10] The petitioners challenged the evaluation criteria applied by the Army as unjust and arbitrary as “the women officers who are in the age group of 40-50 years of age are being required to conform to the medical standards that a male officer would have to conform to at the age of 25 to 30 years, among other factors”.

In deciding the case, the Court discussed the principles of substantive equality, indirect discrimination, and anti-stereotyping under Articles 14 and 15(1). The Court defined indirect discrimination as follows:

“We must clarify here that the use of the term ‘indirect discrimination’ is not to refer to discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion.”

The Court distinguished between direct and indirect discrimination in the following formulation: “… as long as a court’s focus is on the mental state underlying the impugned action that is allegedly discriminatory, we are in the territory of direct discrimination. However, when the focus switches to the effects of the concerned action, we enter the territory of indirect discrimination. An enquiry as to indirect discrimination looks, not at the form of the impugned conduct, but at its consequences.

In a case of direct discrimination, the judicial enquiry is confined to the act or conduct at issue, abstracted from the social setting or background fact-situation in which the act or conduct takes place. In indirect discrimination, on the other hand, the subject matter of the enquiry is the institutional or societal framework within which the impugned conduct occurs. The doctrine seeks to broaden the scope of antidiscrimination law to equip the law to remedy patterns of discrimination that are not as easily discernible.”

The Court however held that “[i]n order to conceptualize substantive equality, it would be apposite to conduct a systemic analysis of discrimination that combines tools of direct and indirect discrimination”, and not just the claim of either of the two.

To evaluate the claim of discrimination, the Court laid down the following test:

“A particular discriminatory practice or provision might often be insufficient to expose the entire gamut of discrimination that a particular structure may perpetuate. Exclusive reliance on tools of direct or indirect discrimination may also not effectively account for patterns arising out of multiple axles of discrimination. Therefore, a systemic view of discrimination, in perceiving discriminatory disadvantage as a continuum, would account for not just unjust action but also inaction.

Structures, in the form of organizations or otherwise, would be probed for the systems or cultures they produce that influence day-today interaction and decision making. The duty of constitutional courts, when confronted with such a scheme of things, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them; but also structure adequate reliefs and remedies that facilitate social redistribution by providing for positive entitlements that aim to negate the scope of future harm…

Therefore, an analysis of discrimination, with a view towards its systemic manifestations (direct and indirect), would be best suited for achieving our constitutional vision of equality and antidiscrimination. Systemic discrimination on account of gender at the workplace would then encapsulate the patriarchal disadvantage that permeates all aspects of her being from the outset, including reproduction, sexuality and private choices which operate within an unjust structure.”

Applying the above principles, the Court concluded that the process adopted by the Army to grant Permanent Commissions to women officers “did not redress the harms of gendered discrimination that were identified by Supreme Court in Babita Puniya”. The Court found the evaluation process to be an instance of “indirect discrimination” and “systemic discrimination”, which “disproportionately affects women”. “This discrimination”, it was held, “has caused an economic and psychological harm and an affront to their dignity”.

The petitioner in Nipun Malhotra v. Sony Pictures Films India (P) Ltd,[11] was aggrieved by the manner in which persons with disabilities have been portrayed in a movie and approached the Court seeking directions for the inclusion of an expert on disability within the Central Board of Film Certification and its advisory panel constituted under Sections 3 and 5 of the Cinematograph Act, among other reliefs. Supreme Court recapitulated “the impact of stereotypes on discrimination and the enjoyment of fundamental rights”.

It reiterated that the anti-discrimination code under Article 15 prevents stereotyping. Regarding the safeguards against stereotyping of persons with disabilities, the Court held:

“… language that disparages persons with disabilities, marginalises them further and supplements the disabling barriers in their social participation, without the redeeming quality of the overall message of such portrayal must be approached with caution. Such representation is problematic not because it offends subjective feelings but rather, because it impairs the objective societal treatment of the affected groups by society. We believe that representation of persons with disabilities must regard the objective social context of their representation and not marginalise persons with disability…”

Summing Up

The jurisprudence evolved by Supreme Court shows that discriminatory laws have no place in our democracy. Discriminatory laws based on stereotypes against a social group were stuck down in judgments like Anuj Garg, Navtej Johar, Joseph Shine, and Indian Young Lawyers Association. Through judgments like NALSA and Babita Puniya, Supreme Court recognized the dignity and aspirations of social groups which have traditionally faced exclusion from equal rights.

Supreme Court recognized indirect discrimination and systemic discrimination in Lt. Col. Nitisha, emphasized the responsibility of the State to curb discrimination in Karma Dorjee, and provided safeguards against discriminatory stereotypes in Nipun Malhotra.

Based on the analysis of the judgments, certain anti-discrimination principles emerge under Article 15(1).

First, discrimination can be either direct or indirect, or both.

Second, facially neutral laws may have an adverse impact on certain social groups that are marginalized.

Third, stereotypes can further discrimination against a marginalized social group.

Fourth, the State is under a positive obligation to prevent discrimination against a marginalized social group.

Fifth, discriminatory laws based on stereotypes and causing harm or disadvantage against a social group, directly or indirectly, are not permissible under the constitutional scheme.

Sixth, courts are required to examine the claims of indirect discrimination and systemic discrimination; and

Seventh, the test to examine indirect discrimination and systemic discrimination has been laid down in judgments of the Court such as Lt. Col. Nitisha.

Reference

Sukanya Shantha v. Union of India (2024)


[1] Anurag Bhaskar, The Foresighted Ambedkar: Ideas that Shaped Indian Constitutional Discourse, Penguin

(2024), pp. 68-87.

[2] (2008) 3 SCC 1

[3]  (2014) 5 SCC 438

[4] 2015 INSC 912

[5] (2017) 1 SCC 799

[6] 2018) 10 SCC 1

[7] (2019) 3 SCC 39

[8] 2018 INSC 908

[9] 2020 INSC 198

[10] 2021) 15 SCC 125

[11] 2024 INSC 465