Antidiscrimination in India: Laws and Courts Fight Centuries of Custom

Author(s): Marguerite J. Fisher

Source: American Bar Association Journal, Vol. 49, No. 11 (NOVEMBER 1963), pp. 1104-1107
Published by: American Bar Association
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in India:

Antidiscrimination
and

Laws

Courts

of Custom

Centuries

Fight

India, like the United

States, is going through a period of closing
the gap between
law and custom in the field of discrimination
against
certain persons,
Dr. Fisher
She discusses
the antidis
points out.
crimination
of the Constitution
of India
and outlines
provisions

decisions
and

by Marguerite

of

legislative

J. Fisher

the Supreme
acts.

of India

Court

Associate Professor

that have

of Political

Science,

arisen

under

it

Syracuse

University

Throughout

asia

andAfricathe

literate classes are generally aware of

one particular aspect of American de
mocracy?the
Supreme Court decisions
of the last decade which have struck
down discrimination on grounds of
race

and

color.

But

these

same

Asians

and Africans have also heard about

Little Rock and the hostile picket lines
outside desegregated

Orleans.

They

schools of New

sometimes

ask,

there

fore, why discrimination continues in

America when the Supreme Court has
declared it to be unconstitutional.
But it is not only in the United
States that this gap exists between law
and custom where discrimination is
concerned. The Constitution of theRe
public of India contains three articles
which prohibit discrimination and un
touchability.1 Yet, an estimated fifty
five to sixty million untouchables, al

most

one in every seven of the total

population, still live and work outside
the regular structure of orthodox Hin

duism, and the barriers between the

castes, although weakening in urban
areas, still exert a profound influence
in Indian society. Thus the Indians,
like theAmericans, have had reason to
learn

that

constitutional

The Constitution of the Indian Fed

eral Republic is interpreted and upheld
by the Supreme Court, which exercises
a power of
judicial review roughly
to
that of theUnited States
comparable
Court.
The court, which sits in
Supreme
review on the constitutionality of the
and

state

has interpreted these articles, especially

when examined in the perspective of
the controversial antidiscrimination de

cisions of the United

States Supreme
same
Court during the
years.

Discrimination

states:

guarantees,

Bar Association

(1) The State shall not discriminate

any

citizen

race,

religion,
or any of them.
of

caste,

on

grounds

sex, place

only of
of birth

(2) No citizen shall, on grounds only

religion,

race,

caste,

sex,

restriction

or

con

(a)

(b)

the use of wells, tanks, bathing

ghats,
resort

roads

and places

maintained

out of State
partly
to the use
dedicated
eral

of public
or

wholly
funds2

or

of the gen

public.

(3) Nothing in this article shall pre

vent

the State

provision

from making
any special
and children.

for women

(4) Nothing in thisArticle ... shall

the State
from making
any
for the advancement
of
provision
and
back
socially
educationally
classes
of citizens or for the Sched

prevent
special
any
ward
uled

Castes

and

the Scheduled

Tribes.3

respect to clause (1), the Su

Court
held in 1953 inNain Sukh
preme
Das v. State of Uttar Pradesh, 1953
With

1184, that the constitutional

prohibition of discrimination applied
to any state action?political,
civil or
otherwise?in
relation to the rights of
S.C.R.

the citizen.

Prohibited

by Constitution
Article 15 of the Indian Constitution

against

liability,

to?
regard
access
restau
to shops,
public
of public
rants, hotels and places
or
entertainment;

govern

defined the meaning and scope of the

three articles dealing with discrimina
tion. It is pertinent to inquire, there
fore, how the Supreme Court of India

customs.

American

the central

ments, is at the head of a single, unified

judicial system, unlike the separate
state and federal courts in the United
States. Since 1950, when the Constitu
tion went into effect, the Indian Su
preme Court has in various decisions

even when upheld in the highest courts

of the land, do not automatically trans
form deeply entrenched prejudices and

1104

of

actions

disability,
dition with

place

of

birth or any of them,be subject to any

1. Articles
and 46 also deal with
25, 29(2),
certain aspects of discrimination.
2. With
funds",
regard to the term "State
the Hon. Dr. Ambedkar,
one of the major
in
the
Constitutional
stated:
Convention,
figures
"We are using the word
'State' in this part to
include not only the Central Government
and
the provincial
and Indian states,
governments
but also local authorities
such as district local
or the port trust authorities."
boards...
Con
stituent Assembly Debates,
Volume VII, page
654.
3. Clause
to Article
added
15 by
(4) was
in 1951.
amendment

Journal

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in India

Antidiscrimination
In Kathi Raning v. Saurashtra,
S.C.R.

435,

the

1952
exam

Court

Supreme

ined the meaning of the word "dis

criminate". Justice Patanjali Sastri de
clared that discrimination "involves an
element of unfavorable bias and it is in
that sense that the expression has to

be understood in this context. If such

bias is disclosed and it is based on any
one of the grounds mentioned in Arti
cles 15 and 16 ... the statute will...
incur

as

condemnation

a spe

violating

cific constitutional prohibition unless

it is saved by one or other of the pro
visos to those articles." Clause
(1)
said

meant,
a

particular

the court,

that no person

of

etc., was

to

caste,

religion,

be treated unfavorably (by the state)

when compared with persons of other
religions,

etc.,

castes,

merely

on

the

ground that he belonged to a particular

religion, caste, etc. Other qualifications
being equal, the religion, race, caste,
sex or place of birth of a citizen should
not be a ground of preference or disa
bility.
In Yusuf Abdul Aziz v. State of
Bombay, 1954 S.C.R. 398, affirming
Yusuf v. State, A.I.R. 1951 Rom. 470,
the constitutionality of a law which
discriminated between men and women
with respect to adultery was involved.
The law provided punishment for the
man,

but

not

for

the

woman

as

an

abettor. The Supreme Court held that

the word "only" in clause
(1) of
Article 15 meant that if there was any
other consideration for discrimination
besides sex, such as the special position
of women in Indian society, there was
no infringement of Article 15. If reli
gion, race, caste, sex or place of birth
was merely one of the factors which
the legislature had taken into consider
ation, then this would not constitute
discrimination

contrary

to

the

con

stitution. But, if the legislature had

discriminated only on one of these
grounds and no other factor could
possibly have been present, then un

doubtedly the law would offend against

Article 15(1). The law in question,
Section 497 of the Indian Penal Code,
said the court, was constitutional be
cause the basis of discrimination was

"not the fact that women had a sex

different from that of men, but that
women in this country were so situated

that special legislation was required

in order to protect them, and hence
Section 497 takes a sympathetic and
charitable view of the weakness of
women in this country and therefore
does not contravene Article 15(1)".
Similarly, inDwaraka Bai v. Nainan,
A.I.R. 1953 Mad. 792, the High Court
ofMadras declared thatArticle 15 was
not contravened by a law which dis

criminated between men and women

in requiring desertion and cruelty,
besides adultery, when a woman sought
to divorce her husband.4

Sukh Das v. State of Uttar

1953 S.C.R. 1184, raised the
of
the constitutionality of a
question
law which provided for separate com
munal electorates in the election of
Nain

Pradesh,

ant or others of the same caste as the

complainant, the latter's caste being
that of a cobbler or leather worker.
The state alleged that the barber had
committed an offense under theWest
Bengal Social Disabilities Removal Act.
The barber, however, contended that
he was the one who was being dis
criminated against by such a law. The

High Court of Calcutta rejected his

argument, denying that the law pre
vented him from practicing his profes
sion as a barber. All it did was to

compel him to serve all alike and for

bade him to discriminate between one
Hindu and another. The law, said the

in
and Anglo-Indians
the municipal corporations. The Su
preme Court held the law to be clearly
in violation of Article 15, clause (1),

Against
Clause

Applies

Action

Private

(2) of Article 15 has broad

application because its prohibitions are
leveled not only against state action

but also against the actions of private

persons,

groups

or

institutions.

The

phrases "places of public resort" and

"dedicated to the use of the general
public" in clause (2) have raised some
questions of meaning in cases brought
before the courts. In Lingana v. State

1954 Mys. 12, the

of Mysore, A.I.R.
question was whether the tennis court
of a private club was a place of "pub
lic resort". The High Court of Mysore

declared that the essential qualification

of a "place of public resort" was that
the public had a right to enter. Thus
the tennis court of a private club, even
though open to the public view, did
not fall within themeaning of "public
resort".

Das v. Pakhu Bhandari,

1951 Cal. 167, arising under
clause (2), involved a barber who re
fused to cut the hair of the complain
Banamali

A.I.R.

pe

clauses. Hence
legislation providing
formaternity relief forwomen workers
and

for

and

accommodations

separate

entrances for women and children at

places of public resort has been held
to be in conformity with clauses (1)
and

(2)

but

and

Clause (3) of Article 15 constitutes

an exception to the rule against dis
crimination contained in the first two

an Christians

Clause

discriminate

abolishes
tendencies in
to
and
discriminate,
society
therefore does not offend against Arti
cle 15(2) of the Constitution".

members of local governing bodies.

Under the law of Uttar Pradesh certain
seats were reserved forMuslims, Indi

declaring that the prohibition against

discrimination in this clause extended
to political as well as to other rights.

not

"does

court,

nalizes
Hindu

(2)

of Article 15.

Clause (4) was added to Article 15

by amendment in 1951 to enable the
government tomake special provisions
for the welfare of any particular caste
or class which needed protection or
intervention.
ment,

it was

after

Thus,
no

longer

this

amend

contrary

to

Article 15 to make special provisions

for the assistance of any backward
class,

caste

or

tribe,

such

as

the

requi

sitioning of land for the purpose of

setting up a colony for untouchables.5
Article 16 aims primarily to prevent
discrimination in employment. It pro
vides :
(1) There shall be equality of op

in matters
for all
citizens
or appointment
to employment
relating
to any office under
the State.

portunity

"... an
4. The
court stated in this case:
adultery by a wife is different from an adultery
by a husband. A husband commits an adultery
somewhere but he does not bear a child as a
result of such adultery, and make it a legitimate
child of his wife to be maintained
by the wife.
... But if the wife commits adultery, she may
bear a child as a result of such adultery and
the husband will have to treat it as his legiti
that
mate child and will be liable to maintain
child."
1952
5. Jagwant v. State of Bombay, A.I.R.
Bom. 678.

November,

1963

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Vol.

49

1105

in India

Antidiscrimination

The word "employment", as used in

(1) of Article 16, has been in
terpreted by the courts to include not
only positions paid by fees or emolu
clause

ments but also officeswhich are honor

ary

or

not

do
to

respect

carry
term

the

salary.

"backward

groups

class"

tians

(4), nowhere in the Indian

Constitution is the term "backward"
courts have accepted the
the government may se
that
principle
lect a class as "backward"
if, and
such
is a
"backwardness"
only if,

defined. The

Dey Brothers & Co. Studio

J. Fisher, who has

Marguerite
traveled and written widely, is now
associate professor of political
sci
ence
in the Maxwell
Graduate
School
of Citizenship
and Public
She
Affairs of Syracuse University.
spent a year and a half in India as
a Fulbright
lecturer at the Univer
of
Delhi.
She was educated at
sity

Columbia
(A.B.),
College
and
(M.A.)
Syracuse
University
(Ph.D. 1942).
Smith

of

race,
sex, descent,
caste,
religion,
or any of them,
of birth, residence

be

for, or

ineligible

discriminated

in respect
of, any
against
or office under
the State.

employment

(3) Nothing in the article shall pre

vent Parliament
from making
any law
to a class or clas
in regard
prescribing,
to an
or appointment
ses of employment

officeunder any State specified in the

First

or other
local
any
its territory,
any re
to residence
within
that
or

Schedule

within

authority
quirement
State
prior

as

to such

or ap

employment

pointment.

(4) Nothing in this article shall pre

vent
sion

from making
the State
any provi
of appointments
for the reservation

or posts

in favour

of any backward

class

of citizens which, in the opinion of the

is not adequately
State,
represented
the State.
under
the services

in

(5) Nothing in this article shall ef

fect the operation

of any

law which

pro

vides that the incumbent of an officein

connection
gious

with

the affairs

or denominational

of any reli
or
institution

any member of the governing body

thereof

particular
particular

1106

a person
a
professing
or
a
to
religion
belonging

shall

be

denomination.

American

of

class

persons

as distinguished from the general mass

of citizens. The Supreme Court has
declared that it would not ordinarily
substitute its own judgment for that
of the legislature as to whether a class

was

or not.6

backward

v. State of Uttar
In Banarsidas
1956
S.C.R. 357, the Supreme
Pradesh,
Court held that Article 16 did not
mean

that

the government

could

not,

like other employers, pick and choose

from among those candidates offering
for

themselves

government

employ

ment. It was held in this case that the

State of Uttar Pradesh could lay down
a rule that it would not reappoint cer

(2) No citizen shall, on grounds only

place

of

tain Patwaris
(village officials) who
had taken part in a mass agitation with
the object of putting undue pressure
on

the

Uttar

state

Hence

government.

Pradesh

the
ex

order

government

cluding those Patwaris from reappoint

ment was held not to be contrary to
Article 16. The court stated: "What
are the qualifications that are required
and what should disqualify a person
from

are

service

government

matters

in which discretion should rest in the

state

and

government
a
flagrant

been

unless

abuse

of

there

has
or

power,

there has been discrimination which

has contravened any provision of the
Constitution, the courts should not
lightly interfere."
the

Although

state

may

reserve

cer

tain positions for backward classes, the

Supreme

V.

in Venkataramana

Court

State ofMadras, 1951 S.C.R. 229, held

it to be a violation of Article 16 when
distributed gov
the State of Madras
ernmental officesby fixed ratios among

various
not

communal

backward.

The

classes
Communal

which

ment Order of the State ofMadras

Bar Association

were

Govern

had

of

number

With

in clause

characteristic

reserved posts for harijans

(untouch
ables) and other backward Hindus, as
sanctioned by clause (4) of Article 16,
but the order also reserved a certain
?

other

for

posts

Brahmins,

communal
Chris

Muslims,

non-Brahmins.

and

Under

this

system the petitioner was ineligible for

any of the reserved posts, although
otherwise qualified by experience and
education. The court declared: "This
ineligibility created by the Communal
does

G.O.

not

appear

to us

to be

sanc

tioned by clause (4) of Article 16 and

it is an infringement of the funda
mental right guaranteed to the peti
tioner as an individual citizen under
Article 16 (1) and (2)."
v.

In Kesava

A.I.R.

Mysore,

1956

Mys. 20, the State of Mysore had or

dered that if the requisite number of
to
candidates
qualified
belonging
scheduled (specified by law as back
ward) castes or tribes, for which posts
had

been

available

reserved, did

as

result

of

not become

examinations

for the judicial service, the govern

ment could then fill the consequent
vacancies

by appointment of qualified
from other backward
candidates
classes. The High Court of Mysore
held that the order was in conformity
with the Constitution, adding: "There
is nothing wrong in allotting the posts
reserved for scheduled castes and tribes
to other backward classes of citizens
when there are no qualified candidates
belonging

to

the

former

category.

. . .

This does not offend the provisions of

Art. 16 (4)."

Article 17 Relates
to Untouchables
The most widely quoted of the con
stitutional provisions dealing with dis
crimination is Article 17, which is con
cerned with the untouchables, renamed
harijans, or children of God, by Ma

hatma Gandhi. Untouchability rests on

a religious foundation in the Hindu
belief that it is a divine punishment
for

unworthiness

in previous

incarna

tions. The harijan lives his life outside

the caste system, debarred fromHindu

society and condemned to follow occu

pations considered repulsive by the
6. Venkataramana
S.C.R. 229.

Journal

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v. State

of Madras,

1951

in India

Antidiscrimination
higher born, such as sweeping, scav
enging and handling of carcasses.
"
Article 17 states:
'Untouchability'
is abolished and its practice in any
form is forbidden. The enforcement of
any disability arising out of 'untouch
ability' shall be an offence punishable

in accordance with law." The word

is
"untouchability'', like "backward",
not defined in the Constitution, on the
assumption that itsmeaning would be
understood by all persons in India.
In P. S. Chary a v. State ofMadras,
A.I.R. 1956 Mad. 541, the High Court
ofMadras held that theMadras Temple
con
Entry Authorization Act was in
con
act
17.
The
Article
with
formity
on
of
the
classes
the
excluded
ferred
enter
to
the
Hindu community
right
and

temples

"To

worship.

prevent

cer

tain classes of Hindus who were once

called depressed classes from entering
into a public temple is certainly to

practice untouchability", the court de

clared. The Hindu temple authorities
contended that under the law they had
the right to manage their own affairs.
But,

said

the

court,

"what

is

contem

plated here is the business of manag

ing property, etc., and it can have no
reference to deprive certain classes of

Hindus

of their fundamental rights".

federal Parliament in 1955 en

The
acted the Untouchability Offences Act,
which prescribed penalties for the prac
tice of untouchability. Prior to this
federal legislation a number of the
Indian states had adopted statutes pro
viding penalties
These

state

pealed

insofar

for untouchability.

laws
as

have
they

now

are

been
not

re

in con

formity with the Untouchability

fences Act of 1955.

Of

Even though there are fifty-five to

in India,
sixty million untouchables
few have appealed to the courts for
redress of their grievances through the
enforcement of Article 17. There are
several reasons for the paucity of cases
arising under this article, as well as
under Articles 15 and 16. In the first
place, the vast majority of the harijans
are

illiterate and

unaware

of their

rights under the Constitution. But, in

addition, many harijans prefer to sub
mit silently to continued discrimina
tion rather than risk their jobs or even
their safety by filing a complaint

in

court against their neighbors or em

ployers. Even if they are aware that
remedies exist in the law, relatively
few untouchables dare to resort to these
legal remedies for fear of retaliation.
In a society where employment is diffi
cult to find, even for those who belong
to the higher castes of Hinduism, the
untouchable is in too weak an economic
position to initiate or risk the conse
quences of an appeal

to the courts.

Another factor which accounts for

the small number of cases brought be
fore the courts, especially under Arti
cle 17, is the absence of a national
organization with sufficient staff and
funds to plan and conduct continuous
legal action on behalf of the backward
classes.

no

is

There

in

organization

India comparable, for example, to the

National Association for the Advance
ment of Colored People in the United
States.

The abolition of caste discrimination

and untouchability will not be achieved
in the near future by constitutional
provisions,

any more

than

such

provi

sions have eliminated racial discrimina

tion in the United States. Nevertheless,

Articles 15, 16 and 17, as the supreme
law of the land, have significance in
that

they

serve

as

an

an

ideal,

objec

tive toward which the government is

supposed to progress. Their psychologi
cal importance is more than can be
measured

in concrete

terms.

In the sec

ond place, by the gradual process of

judicial review as specific cases are
brought before them, the courts of
India have the opportunity to nullify
governmental
is contrary

or
to

private

the

action

which

constitutional

prin

ciples. Thus judicial interpretation of

the Constitution can to some degree
accelerate the difficultand painful proc
ess of changing the hearts and minds
of the citizens.

governments

of

India

have

aside for the backward classes in Par

liament, and a certain percentage of
civil service positions is earmarked for
them.7 Special scholarships in schools
and universities have been provided

financial

or

assistance

loan would

be given to any housing

co-operative

unless

ten per

it drew

cent

from the untouchables.

of itsmembers
These

measures,
however,
protective
some
conse
unforeseen
produced

have

are already signs that

theymay perpetuate rather than elimi
nate the evils of caste and untouch
ability. Now that they are guaranteed
a certain number of posts in the civil
quences. There

service and seats in the federal and

state legislatures, the groups classified
are showing
by law as "backward"
understandable reluctance to give up
the privileges and benefits of back
more

Even

wardness.

disturbing,

vari

ous caste groups which have a low

status, but not as low as the Scheduled
Castes or untouchables, are beginning
to demand that they, too, be included
by law in the latter group so that they
can enjoy some of the benefits and
privileges reserved for the most back
classes.

ward

For

the Times

example,

of India on March 28, 1961, reported

that a group of weavers meeting in
in the north of India had
a
resolution protesting against
adopted

Mathura
their

noninclusion.

The most effective instrument for

the improvement of the status of the
untouchables
ever,

may

and
turn

lower
out

to

castes,
be

the

how
secret

that India has adopted

universal suffrage, the vote of the low
liest harijan counts as much as that of
the most exalted Brahmin. Political
ballot. Now

parties

in

India,

as

elsewhere,

desire

to win elections, and in the cities there

is already evidence that the "backward
classes" are being courted by the poli
ticians. The latter are discovering that
it is politically profitable, as well as
the spirit of the Constitution,
to sponsor measures for the benefit of
the more backward citizens.

within

en

acted legislation and adopted adminis

trative regulations to carry out the
social philosophy expressed in Articles
15, 16 and 17. Seats have been set

that no

nounced

the federal and

In the meantime
state

for the children of untouchables. In

an
1958 the federal government

7. Of 495 seats in the Lok Sabha, or lower

in 1957 seventy-two were
house of Parliament,
for the Scheduled
Castes. Of 3,283
reserved
477
seats in the state legislative
assemblies,
In
Castes.
were
for the Scheduled
reserved
accordance with Article 35 of the Constitution,
filled
of
vacancies
cent
the
12-1/2 per
by open
in the Central and
examinations
competitive
are reserved for members
Services
All-India
In the case of posts
Castes.
of the Scheduled
than by open
and services filled otherwise
examination,
16-2/3 per cent are
competitive
basis.
reserved on an All-India

November,

1963

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Vol.

49

1107