Edited by: Vaani Garg
What is discrimination? Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics such as race, gender, age or sexual orientation. That’s the simple answer. But explaining why it happens is more complicated. The human brain naturally puts things in categories to make sense of the world.
The stories of women being beaten up for drawing water from well, people being harassed if their shadow falls on other men, devotees being stopped from entering into the temple and beaten up for touching idols of gods has become a common affair of newspapers headlines, whenever I go through one. It seemed to me like a nightmare which has compelled me to look into the provisions in force that prohibits such differentiation.
There are several ways that a person can experience discrimination. Some examples are:
- A bank has lending rules that make it unreasonably difficult for new immigrants to get loans. This may be a case of discrimination based on two grounds — race and national or ethnic origin.
- A person is systematically referred to secondary screening at airports due to the colour of their skin. This may be a case of discrimination based on the ground of colour.
- An employer assigns her employees to weekend shifts without recognizing that some employees observe the Sabbath and cannot work on those days. This may be a case of discrimination based on the ground of religion.
- An employer’s physical fitness requirements are based on the capabilities of an average 25 year old instead of being based on the actual requirements of the job. This may be a case of discrimination based on the ground of age.
- A female employee with an excellent performance record announces that she is pregnant. Immediately, her employer begins to identify performance issues that lead to her dismissal. This may be a case of discrimination based on the ground of sex.
- A policy provides benefits to some married couples but not to others. This may be a case of discrimination based on two grounds — sexual orientation and marital status.
- After having a child, a woman cannot find childcare to continue working overnight shifts, and her employer does not allow flexibility by scheduling her on day shifts. This may be a case of discrimination based on the ground of family status.
- An employer requires all employees to have a valid driver’s licence. People who cannot drive due to a disability are not given an opportunity to show how they could still perform the job by, for example, using public transit. This may be a case of discrimination based on the ground of disability.
- A person is denied a job because of a previous conviction for which a pardon has been granted or a record has been suspended. This may be a case of discrimination based on the ground of pardoned conviction.
- Someone is denied a job because they shared the results of their genetic testing with a potential employer. This may be a case of discrimination based on the ground of genetic characteristics.[i]
- A policy requires that a person identifies themselves as either male or female. This may be a case of discrimination based on gender identity or expression.
Article 15[ii] in The Constitution Of India 1949
“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
- 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 palaces 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
Nothing in this article shall prevent the State from making any special provision for women and children
- 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”
Article – 15 Scope of discrimination
Discrimination occurs when you are distinguished or treated in a less favorable manner than another person under similar circumstances or if you are disadvantaged by being placed on equal footing another under different circumstances, for example, you being disabled or pregnant. This action cannot be reasonably and objectively justified.
Article 15 restricts discrimination on the ground of:
- Religion – It means that no person should be discriminated on the basis of religion from accessing any public place or policy by the state or any group.
- Race – Ethnic origin should not form a basis of discrimination. For example, a citizen of Afghan origin should not be discriminated from those of an Indian origin.
- Caste – Discrimination on the basis of caste is also prohibited to prevent atrocities on the lower castes by the upper caste.
- Sex – Gender of an individual shall not be a valid ground for discrimination in any matter. For example, discriminating transgenders, females, etc.
- Place of birth – A place where an individual is born should not become a reason for discriminating among other members of the country.
Often the word ‘Discrimination’ is perceived to be contrary to the principles of equality. Individuals tend to confuse discrimination with breach of equality. Can something that is disadvantageous and against the general classification of the individual be taken as discrimination? The answer remains ‘NO’. The Supreme Court in the following cases has observed that every classification does not constitute discrimination in the first place.
Article 15 – Relevant Case Laws :
- Kathi Raning Rawat v. State of Saurashtra:[iii]
In the state of Saurashtra set up special courts under Saurashtra State Public Safety Measures Ordinance 1949, to adjudicate on the matters of Section 302[iv], Section 307[v], Section 392 [vi]of the Indian Penal Code, 1860. The contention brought before the court was that these provisions are discriminatory for the residents depending upon the territory.
The court stated that all kinds of legislative differentiation are not discriminatory. The legislation did not refer to certain individual cases but to offences of certain kinds committed in certain areas and hence it is not discrimination.
- John Vallamattom v. Union of India [vii]:
In this case the petitioner was prevented the petitioners from bequeathing property for religious and charitable purposes. The petitioner contented it to be discriminatory against the testamentary dispositions by a Christian.The court stated that the Act was to prevent people from making injudicious death-bed bequest under religious influence, but had a great impact on a person desiring to dispose of his property upon his death. Hence, the legislation is clearly discriminatory as the properties of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi were excluded from the provisions of the Act. Further, no acceptable reasoning was provided to show why the provision regulates religious and charitable bequests of Christians alone.
Article 15 has always hurdled its way out to reach to the one really in need. The condition of the downtrodden has highly improved since its inception in 1949. It provides a base to each and everything that legislature needs to formulate provisions to promote harmony in the society. There is an extreme decline in the number of cases of atrocities against the underprivileged classes.
Article 15 truly is the guardian of downtrodden and a shield against discrimination, it has helped the Indian society to stand tall and proud despite such a huge diversity and all kinds of sexism, racism and rigid caste system and will continue to contribute to India’s unity and equality, forever.
[i] Examples of discrimination – https://www.chrc-ccdp.gc.ca/eng/content/what-discrimination