Article 15 of the Indian Constitution is a fundamental right that prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. While Article 15(1) lays down the general rule of non-discrimination, Article 15(3) introduces a crucial exception to this rule. This clause empowers the State to enact special provisions for women and children, recognizing their historically disadvantaged status and unique needs.
This provision reflects the Constitution’s commitment to substantive equality, moving beyond mere formal equality to enable affirmative action aimed at uplifting vulnerable sections of society. It acknowledges that treating unequal groups identically can perpetuate existing inequalities, and therefore permits differential treatment to achieve a more equitable social order.
Original Text
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
Detailed Explanation
Article 15(3) serves as an exception or a proviso to the general rule of non-discrimination enshrined in Article 15(1) and 15(2). While Article 15(1) prohibits the State from discriminating on grounds inter alia of sex, Article 15(3) explicitly permits the State to make special provisions for women. Similarly, while discrimination based on age is not directly listed in 15(1), the inclusion of ‘children’ in 15(3) allows for specific measures targeting this group.
The rationale behind Article 15(3) is rooted in the principle of social justice and protective discrimination (or affirmative action). Women and children have traditionally been vulnerable groups, often subjected to social, economic, and physical disadvantages. Special provisions are necessary to address these historical inequalities, protect their interests, and promote their welfare, enabling them to participate fully and equally in society.
The term “special provision” is broad and can encompass various measures. These are not limited to welfare schemes but can include legislative actions, executive orders, or policies that provide preferential treatment or specific benefits. Examples include reserving seats for women in local bodies, providing free education for children, offering special facilities in public transport, or enacting laws protecting women from domestic violence or workplace harassment.
Crucially, the power granted by Article 15(3) is enabling, not mandatory. The State is permitted, but not compelled, to make such special provisions. However, once such provisions are made, their validity is assessed under Article 15(3), shielding them from challenge under Article 15(1) or 15(2) on the ground of discrimination based on sex (for women) or any other ground implicitly involved in specific provisions for children (e.g., age-based benefits).
The scope of Article 15(3) has been interpreted broadly by the courts. The Supreme Court has held that “special provision” can extend to giving women an advantage over men. Landmark cases like Government of A.P. v. P.B. Vijayakumar established that reservation of posts for women in state employment is permissible under Article 15(3), even though Article 16 (which deals with equality in public employment) does not explicitly provide for reservations based on sex. The Court reasoned that Article 15(3) is a facet of equality and not an exception to it, aimed at correcting social imbalances. Similarly, provisions like exemption of women from conscription or providing maternity benefits are considered valid under Article 15(3). For children, examples include laws related to compulsory education, child labour prohibition, and juvenile justice.
While Article 15(3) allows for differential treatment, such provisions must be reasonable and directly aimed at the welfare or advancement of women and children. They cannot be arbitrary or used to perpetuate discrimination under the guise of special provisions. The measures taken must have a rational nexus with the objective of uplifting or protecting these groups.
Detailed Notes
- Purpose: Acts as an exception or proviso to the general non-discrimination rules in Article 15(1) and 15(2).
- Empowerment: Explicitly permits the State to make “special provisions” for women and children.
- Beneficiaries: Specifically targets two vulnerable groups: women and children.
- Rationale: Based on principles of social justice, protective discrimination, and affirmative action to address historical disadvantages and promote welfare.
- Scope of “Special Provision”: Broadly interpreted; includes legislative acts, executive orders, policies, schemes.
- Examples of Special Provisions for Women:
- Reservation of seats in local bodies (Panchayats, Municipalities).
- Reservation in public employment (subject to limitations and context).
- Special facilities in public transport (e.g., reserved seats).
- Laws related to maternity benefits.
- Laws for protection against domestic violence, sexual harassment.
- Exemption from certain duties (e.g., conscription).
- Examples of Special Provisions for Children:
- Right to Free and Compulsory Education (Article 21A, enabled by policies under 15(3)).
- Prohibition of Child Labour.
- Juvenile Justice laws.
- Special health and nutrition schemes.
- Lower fares in public transport.
- Relationship with Article 15(1) & 15(2): Saves provisions made for women and children from being struck down as discriminatory under 15(1) or 15(2). It is seen as a measure to achieve substantive equality, not a deviation from the principle.
- Relationship with Article 16: While Article 16 guarantees equality in public employment and permits reservations based on caste/tribe, it does not explicitly mention sex. However, the Supreme Court, in Government of A.P. v. P.B. Vijayakumar (1995), held that Article 15(3) extends to public employment and allows reservations for women under Article 15(3) read with Article 16. Article 15(3) is considered a distinct, independent power.
- Nature of Power: Enabling, not mandatory. The State may make special provisions, but is not obligated to.
- Judicial Interpretation: Courts have upheld various special provisions for women and children under this clause, emphasizing that such measures are constitutional efforts towards achieving substantive equality. Provisions must be reasonable and directly related to the welfare/advancement of the target group.
- Not a License for Arbitrary Discrimination: While permitting differential treatment, the provisions must be justifiable and serve the intended purpose of uplifting women/children. They cannot arbitrarily discriminate against other groups.
Additional Comments
- Article 15(3) highlights the concept of ‘protective discrimination’ or ‘affirmative action’ embedded within the fundamental rights framework, alongside provisions for Scheduled Castes, Scheduled Tribes, and OBCs.
- This clause is particularly important for promoting gender equality and protecting the rights of children, who are often the most vulnerable members of society.
- The balance between permitting special provisions under 15(3) and the general non-discrimination rule under 15(1) is crucial and has been subject to extensive judicial interpretation.
- The constitutional validity of laws or policies favouring women or children is typically examined through the lens of Article 15(3).
Summary
Article 15(3) of the Indian Constitution is a crucial provision that acts as an exception to the general prohibition of discrimination under Article 15(1) and 15(2). It empowers the State to enact special provisions specifically for women and children. This enables the government to undertake affirmative action and protective measures aimed at addressing the historical disadvantages faced by these groups, promoting their welfare, and achieving substantive equality in society. Such special provisions, which can range from reservations and quotas to specific welfare schemes and protective laws, are considered constitutionally valid efforts towards social justice, distinct from arbitrary discrimination.