Some constitutional provisions take on gigantic proportions and a few words can have a large impact. Article 21 for example has received so much attention from Constitutional Courts that it might be possible to (tangentially) make any fundamental right claim under it. On the other hand, some parts of the Constitution have remained virtually untouched. One of these is Article 15(1), which rarely gets distinct attention besides its citation as part of what the Court calls the Equality Code (Articles 14-18) and the broad principles of the Code. The provision is a prohibition of discrimination:
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
This general anti-discrimination clause with protected grounds is reiterated in specific contexts: namely, in access to some public spaces and services (15(2)), for public employment (16(2)) and admission to minority institutions (29(2)). Instead of relying on these provisions, most of Indian equality law has instead been pitched on Article 14’s reasonable classification test, which generally considers whether any classification is intelligible and has a reasonable nexus with the objective of the law which classifies people. This has resulted in a slightly disparate understanding of what the purpose of the specifically listed grounds are.
The prohibition on the basis of caste has informed reservation case law in various (often conflicting) ways. Meanwhile the ground of place of birth has shaped various laws related to benefits of State domicile. Sex has received some attention, and has recently increased its scope with judgments on sexual orientation and gender identity. Religion as a ground has also received some substantial judicial treatment. Crucially, all of these grounds form the sites of frequent identity-based contestation in India. So, even if claims are not made under Article 15(1), religion, caste, sex and place of birth will be discussed at length by Courts exercising their writ jurisdiction under different claims. One ground has remained the outlier with little judicial attention: race.
Race: The Apparently Homogenous Beginnings
Race itself is a contested concept, with critical race theory teaching us that it is a socially constructed category that serves to institute hierarchies of domination. Typically, this account will discuss the use of race in European colonisation, and how it manifested in some of its worst-affected territories, such as the United States and South Africa. Race as a ground of discrimination, therefore, would have been a powerful rights-claim for Indians against the British. In fact, this appears to be the source of Article 15(1). In November 1858, following the First Indian War for Independence in 1857, Queen Victoria proclaimed, inter alia:
“And it is Our further Will that, so far as may be, Our Subjects, of whatever Race or Creed, be freely and impartially admitted to Offices in Our Service, the Duties of which they may be qualified, by their education, ability, and integrity, duly to discharge.”
This was primarily a symbolic gesture. But soon after, Indians were allowed to join the Indian Civil Service. In 1935, the provision was formally enacted in its general form in section 298(1) of the Government of India Act, 1935, which in its title had “Person not to be subjected to disability by reason of race, religion, & c”, but in its body instead used the word ‘colour’:
“No subject of His Majesty domiciled in India shall on grounds only of religion, place of birth, descent, colour or any of them be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India.”
These grounds of colour and race raised questions in the Constituent Assembly. What did it mean to continue using the concept of race in a post-independent India when most Europeans had left? H.V. Kamath initially suggested that the word ‘race’ should be replaced by ‘colour’ because he believed there were no multiple races in India. However, people of the same race could still have different complexions. Vallabhbhai Patel responded with confusion: Indians are of different colours, should all of them be ‘provided for’? While Kamath eventually withdrew the suggestion, the exchange seems to indicate that race was construed as a ground primarily differentiating between Europeans and Indians, and maintained post-Independence primarily for the chance occurrence of such discrimination. K.T. Shah, while discussing the prohibition of discrimination in various other sites made a similar point:
“In the past, when the Government of the country was in the hands of an alien race, and that race itself was deliberately making exclusion against the children of the soil a common feature of this policy for holding this country by maintaining clubs, hospitals, schools and other such places for their own compatriots so to say, there could be some understanding why their example might be followed also by those, at any rate, who imitated them in most respects. But now that principle,–the cause of all exclusiveness, is no more in this country, now that we are directly recognising and founding our constitution on the equality of all citizens, I submit that to introduce or permit exclusiveness in any way, whether directly stated or through a provision like this included in the Constitution, will make for a tendency of exclusiveness which should be reprobated by us, and should be therefore disallowed.”
An example of where this provision might be triggered was produced by BN Rau in response to a suggestion by Pattabhi Sitaramayya. Sitaramayya had suggested that the word ‘only’ should be removed from the draft that became Article 15(1). Rau suggested that if Indians were discriminated against in South Africa, then India would not be able to similarly discriminate against European South Africans because of this clause. The use of the word ‘only’ would, however, allow such discrimination, perhaps hinting at the idea of an additional reason besides race (that word and this reasoning has been a matter of debate in the courts, particularly in the line of cases leading up to Anuj Garg). Freshly independent, the members of the Assembly seemed to view Indians as a single race, subject to domination by Europeans.
The earliest cases that appear to be on this point continued to view race from this freshly post-colonial lens. In Jai Chand Rai v State of Punjab (1954), a University examination offered a choice of Urdu only to Europeans, Anglo-Indians and women, while others had to write a Hindi exam. The Himachal Pradesh High Court considered whether this was discriminatory, but found that it did not have jurisdiction (though it commented that if it did, it was likely to be justified). In State of Bombay v Bombay Education Society (1954), the Supreme Court considered an order that allowed only those ‘whose language is English, namely Anglo-Indians and citizens of non-Asiatic descent’ to study in certain schools that taught in English. Though claims were made on various Articles, the Court only narrowed in on Article 29(2), which prohibits discrimination in minority institutions, and relied primarily on the ground of language (found in this clause as an explicitly protected ground) even though there seemed to be an interplay with race. Notably, in both these cases, there was no application of the prohibition of race, though the obiter dicta provide some useful insight.
Races in India: Caste and Tribe
The social understanding of race among Indians changed as the presence of the European race in our society reduced. The use of racial histories to describe caste differences, or regional differences, became more common. Recently, during the EWS hearings, Professor Ravivarma Kumar argued that most Indians are of the Caucasian race, while Indians belonging to the Scheduled Tribes are of a different race. In a novel argument, he invoked discrimination on the basis of race to challenge the exclusion of Scheduled Tribes from reservations for economically weaker sections. Whether this will receive any judicial attention is yet to be seen as the judgment is reserved. Similarly, scholars such as Kancha Ilaiah Shepherd have argued that caste divisions are also based on racial division between Aryans and Dravidians, though others such as Romila Thapar have argued otherwise. These claims rephrase tribal and caste oppression in the language of colonialism and indigeneity.
Some judges have adopted this view in their judicial output. The most direct application is the earliest, by the Gauhati High Court in Mahendra Nath Pathak v State of Assam (1969) wherein positive discrimination in favour of Scheduled Tribes in a tender was held to be discrimination on the basis of race in Article 15(1). Though this could be justified as a special provision under 15(4), that question was not entered into because of the facts of the case. This remained the sole precedent applying race as a ground for decades- though the reasoning that harmonised 15(1) and 15(4) in Indra Sawhney (1992) might today put it into some doubt. In KC Vasanth Kumar (1985), caste has been defined as ‘a class, a race or a racial unit’. In Tanuja v State of Maharashtra (1988), the Bombay High Court identifies ‘racial features’ as a part of the test to identify Scheduled Tribes. The Supreme Court in Kailas v State of Maharahstra (2011), made remarks comparing Scheduled Tribes to ‘aborigines’ and others as immigrants of a different race.
These disparate remarks seem to say very little about what it means to be a race, especially in the background of the historical debate being an unsettled one. It gives little substance to the protection of race by the Constitution. Another tangential point that may be noted here is that Parsis have also been described as a race and a religion in Petit v Jeejeebhoy (1909): this observation has not grounded any separate claim and only informed the analysis of the religious claims till date, though this intersection has appeared in other contexts in other jurisdictions.
Racism Against People from the North East
The most substantive use of race came later, with the increased migration of people from the North-Eastern states to other parts of India, particularly after liberalisation. The xenophobia against people from the region (either because of their facial features, language or accent) has increased in recent times, resulting in claims from the community and civil society for protections. The Ministry of Home Affairs constituted a Committee headed by MP Bezbaruah in 2014 to review the concerns and make recommendations. In its report, describing the nature of harassment and discrimination faced by people from the North-East, the Committee framed the issue as one of racism, drawing from the advocacy by various civil society organisations on that account. Article 15 was also cited and various recommendations for a criminal law, police enforcement, sensitisation and education, etc. were made.
This report formed the basis for a PIL that resulted in a three-judge Bench Supreme Court decision in Karma Dorjee v Union of India (2016). This is only the second precedent (after Mahendra Nath supra) and the one of highest authority that applies the prohibition of discrimination on the basis of race. The judgment ordered the creation of a committee to monitor and oversee such discrimination and the implementation of the Bezbaruah Committee Report. In its reasoning, the Court relied primarily on Article 15, stating that the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) assumed significance when interpreting Article 15. It must ‘infuse the content of our own constitutional guarantees’. With this significant ratio, Article 15 has found a new dimension, expanded by the specific and detailed promises of the CERD.
As reports of racist attacks against students and other immigrants from Africa increase, this constitutional protection will gain more importance as a tool of social transformation to prevent harm and promote fraternity.
Two Thoughts
As the understanding of race currently stands in our constitutional jurisprudence, therefore, we see race conceived as a ground in favour of Indians (vis-a-vis Europeans though it could of course apply reciprocally), Scheduled Tribes and Castes and by people from the North East. The shifting nature of the concept of race in India raises several questions in light of the social constructionism of identities that critical scholarship has revealed. Is protection of a race the correct formulation for these claims? Are they historically accurate or does historicity even matter? Though, of course, that is beyond my current understanding to sufficiently explore.
A second broader thought that comes from this research is on the use of protected grounds more generally. Indian jurisprudence seems to have shied away from addressing discrimination on the basis of protected grounds until fairly recently, choosing instead to rely on general tests of equality. What makes Article 15(1) different from 14, is a question that will receive more attention as anti-discrimination gains currency as a framework across liberal democracies.
Mihir Rajamane 
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