The Constitution of India under Article 15(1)[i] prohibits the state from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This elementary concept acquires complex undertones when we further dig into the question: “What constitutes “only”?
The interpretation of the word “only” is of prime importance in determining the ambit of Article 15(1), and in understanding the no-discrimination mandate of the Constitution of India (hereinafter “Constitution”). This is the reason why it has been subjected to colossal amounts of litigation and judicial scrutiny since 1950. The judicial interpretation with respect to the meaning accorded to the word “only” can be understood in terms of these three approaches:
(I) The initial approach of the judiciary was centred around the object of curbing discrimination. To achieve this, it is seen to have given a wider meaning to the phrase “on grounds only of” and uncared for the specific meaning attached in the legislative framing of the provision. The judgement delivered by the Bombay High Court in the case of Punjab v Daulat Singh[ii] (1946) with respect to the interpretation of the phrase “on grounds only of” in Article 298(1), Government of India Act, 1935is reflective of such approach. The Court, while discussing the test for the applicability of Section 298(1), held: “In the view of the lordships, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in Section 298(1), but whether its operation may result in a prohibition only on these grounds.”The court discarded the consideration of the “object of the agreement” like upliftment of a specific class etc, as a separate ground for discrimination. The court in the case is seen as circumventing the requirements of a “due process”, in order to offer greater protection under the “no-discrimination mandate” of Article 298(1), Government of India Act, 1935.
This Daulat Singh legacy of anti-discrimination has percolated in the post-Constitution era as well. A patent application of the test laid down in Daulat Singh can be seen in the case of Bombay v Bombay Education Society[iii], This case related to the policy of restricting admission to English speaking pupils, specifically of Anglo-Indian and European descent, in the English medium schools of Bombay. The government, rebutting the contention, that the policy amounted to breach of Article 15(1), responded that the restriction was not discrimination based only on the ground of religion, race, caste, language or any of them “but on the ground that such denial will promote the advancement of the national language and facilitate the imparting of education through the medium of the pupil’s mother tongue.” The Court rejecting the government’s contention, denied this object and reason based classification, and proceeded with applying Lord Thankerton’s test (laid down in Daulat Singh) in that “whatever the object, the immediate ground and direct cause for the denial” dictates the inquiry.
This approach empowered Article 15(1), beyond what had been contemplated by the legislature. Herein, the object of the provision was appreciated, in ignorance of the specific language used to restrict its application.
(II) The second judicial approach has been followed for the most time in the post-Constitutional era. This approach believes in strict application and literal interpretation of the language of the Constitution. Herein, the phrase “on grounds only of” is given a very direct and provisional meaning, thereby restricting the application of Article 15(1) to a great extent. It is interpreted to connote only and only, the grounds mentioned in the Article, unlike the previous approach wherein the object of the impugned provision/Act was also encompassed within the scope of Article 15(1). The presence of any other discriminating factor, apart from the grounds mentioned in Article 15(1), would offer protection from being invalidated under the Constitution.
The application of this approach offered ample space for the misuse of the “no-discrimination mandate” of the Constitution. The Indian judiciary, in order to circumvent invalidation of any provision by Article 15(1), has been seen as “inventing” new discriminatory grounds. One such new-fangled invention was seen in the case of Air India v Nergesh Meerza[iv] where theAir India Employees Service Regulations (Service Regulations) was under challenge for violating Article 14 and 15, Constitution of India. The regulations provided that an air hostess was to retire from service upon one of the following occurring: on attaining the age of 35 years (extendable to 45 years); on the event of marriage, if it took place within four years of their service; and upon their first pregnancy. The court, while deciding upon the challenge under Article 15, opined that the same would not be applicable as the discrimination here, is not solely based on “sex” but several other “considerations”. “What Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations”. The court didn’t explicitly adduce what these other considerations are, a credible inference would however dictate that these “other considerations” was the “classification of Air Flight Pursers(a male class) and Air Hostesses(a female class) forming different classes” discussed by the Court while dealing with the challenges under Article 14. Such classification as a justification to disable Article 15(1) from operating is erroneous, as it is itself an offshoot of a gender-based classification.
Such type of reasoning led to the confinement in the ambit accorded to the word “only”, and in effect, to the atrophication of the constitutional mandate of no-discrimination and destruction of the object with which it was instituted.
(III)
The third approach was specifically drafted to remedy the problems faced with
the second approach. A cogitation of this approach was seen first in the case
of Anuj Garg v. Union of India[v],
where the Court opined that the phrase “on grounds only of” should not be
understood in a manner that stereotypical grounds become a barrier for us to
invalidate a provision under Article 15(1). However, a proper manifestation of
this approach was only made patent in the case of Navtej Johar v. Union of India[vi],
where the Court specifically targeted the case of Air India v Nergesh Meerza to explain the
fallacy with the second approach. The Court expressed its aversion to view the
Constitutional provision of Article 15(1) with a pedantic/formalistic approach.
The court pointed out, that Indian judiciary has in the name of stereotypical
grounds, stripped off Article 15 of its content. The court, in this case,
recognised the intersectional nature of sex discrimination, which cannot be
said to operate in isolation of other identities, especially from the
socio-political and economic context. An application of this approach, would
therefore dictate, that Article 15(1) would not cease to operate in a scenario
where there exist “sex + other considerations” as discriminatory grounds,
provided these other considerations are mere “virtual grounds” (offshoot of
gender, or are in fact, any other stereotypical ground).
[i] Article 15(1), Constitution of India
[ii] Punjab Province v Daulat Singh, (1946) 48 BOMLR 443
[iii] The State of Bombay v. Bombay Education Society, 1954 AIR 561
[iv] Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc, 1981 AIR 1829
[v] Anuj Garg v Union of India, Appeal (civil) 5657 of 2007
[vi] Navtej Johar v. Union of India, Writ Petition (Criminal) No. 76 OF 2016
This article is written by Paras Ahuja of National Law University, Jodhpur
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