Gender Equality and Positive Discrimination with regards to Article 15(3) of Indian Constitution

Blog By-

Lipika Gupta

Abstract

Under this article, the state has been empowered to make special provisions for Women and Children. Under this article, the court had upheld the validity of legislation or executive orders discriminating in favour of women. This Article states that, even though the state wouldn’t discriminate anyone on the basis mentioned in Art 15(1), yet they have the whole authority to make special provisions in order to protect the interests of Women and Children. Women should be provided equality in every field whether its education or about equal salary. In the below article you will get to know about the significance and necessity of gender equality and positive discrimination under Article 15(3). There are many issues from which women and children deal in their day to day life so I have discussed my views and a data analysis which proves that strict laws should be implemented to protect women and children.

Introduction:

Under Article 15(3), the State is provided with the power to make special provision for women and children. In pre-independence India, especially with women and children, it was often seen that they were seen and deemed inferior to men. It can be said that these provisions are meant for the upliftment of women and children of the society which have been downtrodden/poor state for many years. Article 15 is all about equality and eradicating discrimination. This Article not only grants gender equality but also empowers the State to adopt measures of positive discrimination in favour of women and children for neutralizing the cumulative socio economic, education and political disadvantages faced by them. There are also numerous legislations that have specific provisions to address women and their interests thereby providing a strong legislative basis for gender justice in India. Some of these are ESI Act^[1], MB Act^[2], Women constitute the majority of the world’s population, but there is still no society in which women enjoy full equality with men. They often face specific discrimination, even in countries which grant legal equality to both sexes; women are often economically disadvantaged and suffer discrimination. The ‘special provisions’ which the State may make to improve women’s participation in all activities under the supervision and control of the state, can be in the form of affirmative action or reservation. The State can reserve seats for ST, SC, OBC³ in educational institutions, grant fee concessions or arrange special coaching classes. The States started the provision of reservations for ST, SC & OBC because in pre- independence and also after the independence these sections of the society were not provided with many facilities like education, proper nutrition, etc. To uplift them government decided to reserve seats under Article 15 so that they can also get equal opportunities like others.

Case law: In Case “Yusuf Abdul Aziz v/s State of Bombay”^[3]the judgement was passed by the court which stated under Sec 497 of IPC only men can commit the crime of adultery and be punished for the same. The court had also stated that women shall not be punished as an abettor, as this would offend Art 14 and 15(3). The court had stated that since art 15(3) is a special provision made for women by the state therefore the woman was saved under this article. However, recently in “Joseph Shine v/s Union of India”^[4]^. Adultery was decriminalized since it was violating Art 14, 15 and 21 of Indian Constitution. Hence it is no longer treated as a crime, rather it can only act as a reason for divorce.
Why gender equality is important?

Gender equality is when people of all genders have equal rights, responsibilities and opportunities. Everyone is affected by gender inequality – women, men, trans and gender diverse people, children and families. It impacts people of all ages and backgrounds. Gender equality prevents violence against women and girls. It’s essential for economic prosperity. Societies that value women and men as equal are safer and healthier. We can say that gender equality is an important aspect of Article 15(3). The main issues that come in the way of gender equality are listed below:

Gender bias in education- There are many ways that girls’ educationbenefits economies and societies. Yet an estimated 130 million girls will never set foot inside a classroom. Child marriage, lack of adequate sanitation (especially for girls who are of menstruating age), and gendered violence in the classroom are some of the obstacles specific to girls when it comes to this very basic human right. To prevent this government came up with many schemes like ‘Beti Bachao, Beti Padhao’^[5] which encouraged many women for getting a better education.
Unequal pay- The another problem faced by women’s in workplace is unequal pay which means that women’s get lesser amount of salary as compared to men just because of gender inequality which is not at all fair so government made principle of ‘Equal Pay for Equal Work’ which was first considered in Kishori Mohanlal Bakshi v. Union of India^[6]in the year 1962.
Sexual harassment- An obstacle that many women face in the workforce is sexual harassment. While the #MeToo^[7] movement has helped to shed light on the issue, little had been known, until now, about how many women are subjected to this type of mistreatment. The matter was first analysed in case ofVishakha and Ors. v. State of Rajasthan and Ors^[8] which led to the implementation of the sexual harassment of women at workplace^[9].

Is positive discrimination ethical?

Positive discrimination is the policy of granting special privileges to the downtrodden and the underprivileged sections of the society, most commonly women. These are affirmative action programs, most visible in both the United States and India, where there has been a history of racial and caste discrimination. The practice is most prominent in India, where it has been enshrined in the constitution and institutionalized. The Constitution of Independent India which largely followed the pattern of the Government of India Act, 1935, made provisions for positive discrimination in favour of Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted about 23% of the divided India’s population as they were oppressed section of the society so the government of India decided to uplift them by making some special laws which comes under Article 15(3) and considered as Positive Discrimination.^[10]

Statical analysis: According to the survey of 20 people of different age group with a set of questionnaires I found that 85% people believe that Article 15 (3) help in the upliftment of women and children as well as provides gender equality whereas 15% people couldn’t decide whether this Article helps or not as many women were not aware of their rights made for their betterment in the society. Another question comes whether this Article provides positive or negative discrimination and here 80% people think its positive discrimination and 10% people think its negative discrimination as they say that why laws should be made only for women and children as compared to men but its high time to understand that women and children are still oppressed in some parts of the society which needs to be stop now where 70% people says that its correct to make special laws for women & children and on the other hand 10% people say its incorrect to provide special privileges to them where 20% people says may be its incorrect just because they don’t know the importance of making such laws. 55% people believe that many provisions came under this article made it easier for women to work freely and independently whereas 45% people believes that it still need some improvements so that women can work in a healthy environment and contribute to the country economically too in a much better way. A very important question came to my mind that why discrimination like gender inequality still takes place at an alarming rate and the responses are like 25% people said that it still happens because of the improper implementation of laws, 45% people said that it happen because of strict laws which I personally feel that it’s a big reason for this happenings , 20% of them said that women were not aware of such laws through which they can protect themselves and 10% people can’t answer it as they don’t know the main issue that women go through in not so developed areas. All of them think that in India still in some areas the State lacks in providing equality, freedom and indiscrimination among men, women & children because of improper implementation of strict laws and rules. 90% of them agreed on that this Article promote and provide equal opportunities to all but they also think that the article also need more attention and improvement whereas 10% of them didn’t agreed on it. These people also shared their views which were listed below:

Indian already have many useful laws but are neglected by the people of India they should be given bit more attention and many more laws are needed to empower women and children, especially in rural areas. I personally think that’s the place where most of the discrimination happens and women’s don’t get equal respect as men. Some laws should be made to open up the narrow mind of society.
Article 15 must be known to everyone and it must follow certain strict rules and regulations to protect the rights and freedom of people and person’s equality must not be denied.
Despite of implementation of law, the states still discriminates people and regard them as SC/ST, OBC, general and others. The centre provides reservation to SC/ST which discriminates towards generals. As they have been uplifted now so the reservation system should get a break and equality should be provided to everyone. Women’s safety can be enhanced by improving hygiene issues and sex education among the teenagers.
Strict laws should be applicable for women and children security and strict actions should be taken those who try to break it.

Conclusion-

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. It helped in the improvisation of women and children but still need some strict laws and amendments to make India free from discrimination and inequality in rural areas.

^[1] The Employees State Insurance Act,1948

^[2] The Maternity Benefit Act,1961

³ Schedule Tribes, Schedule Caste, Other Backward Classes

^[3] Yusuf Abdul Aziz v. State of Bombay, 1954 ,A.I.R 321, SCR 930

^[4] Joseph Shine v. Union of India, 2018 SCC Online, SC 1676

^[5] https://www.news18.com/news/partner-content/government-schemes-and-policies-for-girl-child-empowerment-2275341.html

^[6] Kishori Lal Mohan Lal Bakshi v. Union of India, A.I.R. 1962 S.C. 1139 http://www.companyliquidator.gov.in/12/jud_sc/OFFICIAL%20LIQUIDATOR%20VS.%20DAYANAND.pdf

^[7] https://en.wikipedia.org/wiki/Me_Too_movement

^[8] Vishakha and ors. v. State of Rajasthan and ors., A.I.R 1997 SC 3011.

^[9] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 , https://en.wikipedia.org

^[10] http://www.legalservicesindia.com/