This is part-1 of a two-part article that attempts to show why the 93rd Amendment of the Indian Constitution, that inserted Article 15(5), is ultra vires (of the Constitution, of course). In this first part, the reasoning provided by the makers of the Constitution in creating Article 15(1) will be detailed. In the second part, using this reasoning and the text of the Constitution, at attempt will be made to highlight why Article 15(5) is not sustainable.
The Advisory Committee
The Constituent Assembly formed several committees to handle various aspects of Constitution making. One of the important committees thus formed was the “Advisory Committee on Fundamental Rights, Minorities, etc”. Its scope was to come up with the draft provisions for fundamental rights and provisions for minority rights.
This advisory committee constituted two sub-committees:
- Sub-committee on Fundamental Rights
- Minorities Sub-committee
The agenda of each of these committees is self-evident from their names.
The two sub-committees submitted interim, and subsequently full, reports to the parent Advisory Committee for further refining and adoption. On the 21st and 22nd of April 1947, the Advisory Committee held detailed meetings to achieve the same.
Safeguard against discrimination
In the morning session of the meeting on the 21st April, various provisions giving benefits to minorities and depressed classes were being debated threadbare. Sri Alladi Krishnaswami Ayyar then raised a serious objection to the whole structure of the fundamental rights. He pointed out that the entire section was evolving into a section of ‘discriminatory provisions’ and hence urged that this be remedied.
“Is this a chapter on fundamental rights or is it a chapter of discriminatory provisions? Let us be quite clear on that point….
You may have all protection to minorities, you may have all protection to any particular class, but this fundamental principle that there shall be no discrimination on account of race or colour among the citizens of this Union must be placed in the forefront….
There are differentiations made, for example, when you want to have a certain proportion for the depressed classes. By all means have it. But they must be treated as an exception of the fundamental principle recognised, namely that there shall be no discrimination subject to this….”
This argument of Sri Ayyar quickly found support among the various other members of the Committee. Sri K T Shah then clarified that discrimination as being discussed can only mean that it is in the mould of a special advantage and cannot be a discrimination against anybody.
“Discrimination is generally used in the sense of discrimination against. It does not mean discrimination in favour of a special advantage…….It is not discrimination against anybody”
At that point, Sri C Rajagopalachari suggested that a special clause be inserted right at the front to highlight this fundamental principle of non-discrimination.
“I suggest a very small draft immediately if it is acceptable. We do not require a committee ‘There shall be no discrimination against any citizen on grounds of religion, race, caste, language or sex‘.
The only thing to be provided is beneficial provision for some.
‘Provided that this shall not prevent any provision being made for the convenience of particular classes like women or backward groups‘”
Dr B R Ambedkar fully agreed with this approach, and in fact further explained how the entire section would operate.
“Provision can be made this way. Clause 4 may start like this: ‘Subject to the provisions hereinafter following, there shall be no discrimination against any citizen on grounds of religion, race, caste, language or sex’.”
K M Munshi, M Ruthnaswami and other members all agreed to this approach.
Birth of Article 15(1)
Due to the above deliberations, the clauses were redrafted and refined, and, in the report submitted by the head of the committee, Sri Sardar Vallabhbhai Patel, on the 23rd of April 1947, the following clauses came into being.
“Section titled “Rights of Equality”
4(1) The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex.
4(2)(a) and 4(2)(b) <………..text……….>
Provided nothing contained in this clause shall prevent separate provision being made for women and children.”
Current state of these clauses
Some further refinements were made to the above clauses before their final adoption by the Constituent Assembly. Also, over time, due to amendments, special provisions were inserted for socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
As of today, this is how the provisions exist.
“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.
(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.”
Note: Clause 15(4) was added via the Constitution (First Amendment) Act, 1951
Classes enjoying special provisions
For the purpose of part-2 of this post, it is important to remember the following two points
- The classes that are provided special provisions under fundamental rights are -women, children, socially and educationally backward classes of citizens and Scheduled Castes and Scheduled Tribes.
- Religious or linguistic minorities DO NOT come under the protection of these special provisions.
- The Indian Constitution
- The Framing of India’s Constitution – Select Documents – Vol 2
- Advisory Committee Proceedings, April 21-22, 1947
- Interim Report of the Advisory Committee on Fundamental Rights, April 23, 1947