Despite widespread discrimination in the private sector on the basis of caste, gender and religion, among other things, very few cases are litigated on private discrimination before our courts?

 The Supreme Court’s interpretation of Article 15(2) of the Constitution in its 2011 judgment in the case of Indian Medical Association vs. Union of India provides recourse, mandating the private sector must conduct its affairs in a non-discriminatory manner.

Does the Constitution provide protection against private discrimination?

Private discrimination in India is pervasive. The Indian Constitution contains various provisions to address discrimination under its chapter on fundamental rights.

In this scheme, Article 15(2) of the Constitution is unique. While most other fundamental rights concern the actions of the State, this provision is addressed to private individuals. This provision reads:

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.”

Ours is a Constitution which recognises the threat of private discrimination, and prohibits it in its text. At the time of enactment of the Constitution, it was recognised that prohibiting State discrimination alone will be insufficient to promote substantive equality. Dalits were – and still are, in recurring instances – denied access to public places; the practise of untouchability was widespread; sex-based discrimination pervaded every social institution – this too is an evil that continues to this day.