Article 15(3) of Indian Constitution: When Exception is the rule

Women Empowerment, the most discussed yet least achieved target for any Indian govt. The need to bring Indian women to the mainstream of population was felt long back in ‘50s, however even after six decades women in India are not empowered and the need of a new law to empower them is felt almost every now and then.

To understand how exception has become the rule in India, let’s see what is written in article 15 of the constitution –

ARTICLE 15

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Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) 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.

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So this article of our constitution says that the state will consider everyone equal in terms of their access to any public property or wealth. The reason this article was brought in was that in ‘50s our India had a great issue of un touchability. People were simply denied access to public toilets, wells, bathing ghats etc. based on their caste or religion. So this article never talks about restricting anybody’s access from these public properties and hence gives a positive right to the people. So in a sense it is a positive step for the people discriminated, allowing them equal access to the public resources available.

Now let’s see Article 15(3) of constitution that empowers the state to make special provisions for women and children –

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ARTICLE 15(3)

“Nothing in this article shall prevent the State from making any special provision for women and children.”

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So it states that even though the state will not discriminate anyone, they can make special provisions only for women and children for safeguarding their interests. From the main article we understand that it may be like having some bathing ghats marked only for women, or some wells accessible only for women or some other public properties made accessible only to women etc. So we understand that if these provisions are made men will not be allowed to access those resources. This also clarifies that all these resources are public resources and NOT any private resource.

To understand this abuse, if you read this article you will know how many such provisions already exist today only for women. We wonder why in spite of existence of so many provisions Indian women are never empowered.

On the other hand article 15(3) also talks about empowering children, but we don’t see new laws coming for empowering children that often. In fact, in recent past we have seen only Sexual Harassment of Children law being passed by the parliament whereas for women a new Sexual Assault Law (Nirbhaya Act), Workplace Harassment Law, Domestic Violence Act, Aendment to Hindu Succession Act and many other laws are passed and different reservation policies in public places (like transport, ladies special etc.), less tax for women taxpayers, Concession in House Registration, grace marks in IIM etc. are also enacted. Also provisions of Salary to the Wife, Marital Rape, Provisions under Food Security Bill etc. are discussed.

We wonder why women are given much more security and rights than even our children under Article 15 (3) and why most of these laws actually talk about creating harsher provision for men (which is negative right for men) rather than giving women right (which is positive right). And there can be no other reason other than the popular vote bank politics. We understand that children are not a vote bank for our politicians but women are. Hence we are made fools every day.

To understand the concept of positive rights vs negative rights let’s take example of Marriage Law Amendment (IrBM). Here a wife was given right to her husband’s inheritable and inherited property where she had not contributed. So this was negative right for husband where right to his own property was supposed to be taken away in the name of giving property to the wife. If the constitution was followed then Govt. should have designed a welfare program for those women from govt. funds (and not from the husband’s money). 

So even if we agree to what our leaders said in the parliament that –“98% women do not own property” even then the husband does not become responsible for giving them property. Now imagine how could unmarried women get property in this rule? This again confirms that IrBM bill was never intended to empower women but was aimed at extorting families so that the drama of empowerment continues.

Since this property given to the women under IrBM was not PUBLIC property but belonged only to their husbands, the applicability of Article 15 (3) did not arise (note constitution gives right to access to public places, institutions, properties etc. and not any private property). So this bill directly violated Article 15 that spoke about state not discriminating one based on one’s gender. Yet this was passed by Rajya Sabha for political reasons.

Our constitution makers wanted to bring reservation or special provisions only for 10 years. However, our politicians are continuing the same for vote bank politics and showing Article 15(3) as a reason. However, constitution only gave permission to create special provisions and not new laws for women. Unless this sense prevails in our legislature we can’t stop the anarchy prevailing in the society in the name law misuse and taking our legal system for a ride in all women centric laws.


Related Articles –

  1. The Politics of Women Empowerment in India

  2. An Open Letter to Honorable Supreme Court

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