Article 15: No Discrimination on the Prohibited Grounds

The objection to the narrow reading. It is almost always possible to find some other consideration alongside a prohibited ground. If that defeats the article, the article defeats itself. The purposive answer is that "only" excludes cases where the prohibited ground is IRRELEVANT to the differentiation, not cases where it is present alongside something else.

And the later cases have moved. In C.B. Muthamma v. Union of India, (1979) 4 SCC 260; AIR 1979 SC 1868, rules requiring a woman member of the Indian Foreign Service to obtain the Government's written permission before marrying, and permitting the refusal of promotion, were held discriminatory: if a married man has a right to be considered for a post, so has a married woman, and to make MARRIAGE A DISQUALIFICATION FOR ONE SEX ALONE is in defiance of articles 14, 15 and 16.

In Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1; AIR 2008 SC 663. Facts. Section 30 of the Punjab Excise Act 1914 prohibited the employment of any man under twenty-five, and of ANY WOMAN, in any part of premises where liquor was consumed by the public. Held. The prohibition on the employment of women was unconstitutional. Legislation of this kind, framed as PROTECTION, invites STRICT SCRUTINY, and the justification of parens patriae will not sustain a total exclusion; the proper course is to make the workplace safe rather than to keep women out of it; a law that presumes women incapable of working in certain places is grounded in STEREOTYPE rather than in any relevant difference; and the tension between security and AUTONOMY must be resolved so that the essence of the guarantee, which includes the right to choose a profession, is not lost. Why it matters here is the shift of method: from asking whether the ground is the only one, to asking whether the differentiation rests on a stereotype.

And in Joseph Shine v. Union of India, (2019) 3 SCC 39; AIR 2018 SC 4898, section 497 of the Indian Penal Code was struck down and section 198(2) of the Code of Criminal Procedure held unconstitutional so far as it applied to the offence: the provision treated a wife as the property of her husband, made the offence turn on his consent, denied the woman both liability and standing, and rested on a STEREOTYPE of women as lacking sexual agency, so that it failed articles 14, 15(1) AND 21. Adultery remains a moral wrong against a spouse and a ground for divorce; it is no longer a crime.

Article 15(2): the horizontal clause

Its text. 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.

Note what it does not say. It does not say "the State shall not". It is one of the small group of provisions, with articles 17, 23 and 24, which operate against PRIVATE PERSONS.

Note the qualification and where it sits. The words "maintained wholly or partly out of State funds or dedicated to the use of the general public" attach to clause (b). Clause (a), shops, restaurants, hotels and places of public entertainment, carries no such qualification, so a privately owned shop is within it.

And note the overlap with article 17. An exclusion from a well on the ground of untouchability offends article 17 and article 15(2) at once, and the Protection of Civil Rights Act 1955 makes it an offence.

Article 29(2) beside it

In The State of Bombay v. Bombay Education Society, AIR 1954 SC 561; 1955 SCR 568, decided on 26 May 1954. Facts. A circular of the Government of Bombay directed that no primary or secondary school should admit to a class where English was used as the medium of instruction any pupil other than one belonging to a section of citizens whose language was English. Held. The circular was UNCONSTITUTIONAL. Article 29(2) forbids the denial of admission to a State-maintained or aided educational institution on grounds ONLY of religion, race, caste, language or any of them, and denying admission to a pupil whose mother tongue is not English is a denial on the ground of LANGUAGE. The Court further held that the order would compel Anglo-Indian schools to breach their obligation under the second proviso to article 337, under which such schools receiving special grants must admit a proportion of other communities, and so forfeit their constitutional right to those grants. Why it matters here is that article 29(2) adds LANGUAGE, which article 15 does not name, and that in the field of State-maintained and aided education it is the operative provision.

A worked example

A State rule provides that a post of warden in a girls' hostel may be held only by a woman, and that a post of night supervisor in a factory may not be held by a woman. Both are challenged under article 15(1).

The warden. The differentiation rests on sex. Is it discrimination? The purpose is the privacy and security of the residents, which is a consideration going directly to the duties of the post, and the requirement is not founded on a stereotype about women's capacity. On the modern method it is likely to survive, and article 15(3) is available if the provision can be characterised as a special provision for women.

The night supervisor. This is Anuj Garg. A prohibition framed as protection invites strict scrutiny; parens patriae will not sustain a total exclusion; the proper course is to make the workplace safe rather than to keep women out of it; and a law presuming women incapable of working at night is grounded in stereotype rather than in any relevant difference. It fails.

What would the older method have said? On Nergesh Meerza's reading of "only", the State would argue that the rule rests on sex coupled with the conditions of night work, so article 15(1) is not attracted. That is exactly the reasoning Anuj Garg rejects, and a candidate should say so.

And what if a private factory made the same rule? Article 15(1) binds the State, not a private employer; article 15(2) covers shops, restaurants, hotels, places of public entertainment and the listed public amenities, not employment. The claim would lie under labour legislation and under article 14 if the employer is "State" on the Ajay Hasia tests.

Distinctions

What it does NOT mean

It does not mean article 15 protects everybody. It protects CITIZENS. Article 14 protects any person.

It does not mean the list of grounds can be added to. It is closed. What has happened is that the existing grounds, particularly sex, have been read purposively.

It does not mean "only" defeats every claim. The later cases treat the question as whether the differentiation rests on a stereotype, and Nergesh Meerza itself struck the pregnancy clause down under article 14.

It does not mean article 15(2) reaches employment. It reaches access to the listed places and the use of the listed amenities.

And it does not mean language is a prohibited ground under article 15. It is not. It is a prohibited ground under articles 16(2) and 29(2).

Quick revision

Article 15(1): the State shall not discriminate against any citizen on grounds ONLY of religion, race, caste, sex, place of birth or any of them; five grounds, closed list, citizens only, State only. Article 15(2): no citizen subject to any disability, liability, restriction or condition on those grounds as 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 general public; binds PRIVATE PERSONS.

Nergesh Meerza 1981: sex COUPLED WITH other considerations does not attract article 15(1), the "sex plus" reading; pregnancy clause nevertheless struck down under article 14 as official arbitrariness. C.B. Muthamma 1979: marriage as a disqualification for one sex alone defies articles 14, 15 and 16. Anuj Garg 2007: protective legislation invites strict scrutiny, parens patriae will not sustain a total exclusion, make the workplace safe rather than exclude women, stereotype is not a relevant difference, and autonomy must be preserved.

Joseph Shine 2018: section 497 struck down for treating a wife as property, turning on the husband's consent, denying her liability and standing, and resting on a stereotype; articles 14, 15(1) and 21. Navtej Johar 2018: section 377 unconstitutional as to consensual adult conduct in private; constitutional morality governs. Bombay Education Society 1954: article 29(2) adds LANGUAGE, and refusing admission to a pupil whose mother tongue is not English is a denial on that ground.

Test yourself

1. Name the five grounds in article 15 and two grounds that are not there. Religion, race, caste, sex and place of birth. Descent and residence are not, though both appear in article 16(2); language is not, though it appears in articles 16(2) and 29(2).

2. Which clause of article 15 binds private persons, and what does it cover? Article 15(2). It covers 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 out of State funds or dedicated to the use of the general public.

3. What is the "sex plus" reading, and where does it come from? That where a provision rests on sex coupled with other considerations it does not discriminate on the ground of sex ONLY, so article 15(1) is not attracted. It comes from Air India v. Nergesh Meerza.

4. What is the objection to it? That some other consideration can almost always be found alongside a prohibited ground, so the reading defeats the article; and that "only" is properly read as excluding cases where the prohibited ground is irrelevant, not cases where it is present alongside something else.

5. What method did Anuj Garg substitute? Strict scrutiny of legislation framed as protection; a refusal to accept parens patriae as justifying total exclusion; the requirement that the workplace be made safe rather than women excluded from it; the identification of stereotype as the vice; and the reconciliation of security with autonomy, including the right to choose a profession.

6. Why did section 497 fail article 15(1)? Because it treated a wife as the property of her husband, made the offence turn on his consent, denied the woman both liability and standing, and rested on a stereotype of women as lacking sexual agency.

7. Which article supplies the ground of language, and in what field? Article 29(2), in the field of admission to educational institutions maintained by the State or receiving aid out of State funds. The State of Bombay v. Bombay Education Society.