How is State bound to make any special provision in favour of women and children by virtue of Article 15?

Article 15

Article 15 of the Indian constitution states that –“the state shall not make any discrimination on the basis of religion, race, caste, sex, etc.” This article is an application of the general principle incorporated in Article 14. However, as an exception to article 15 sub-clause (3) of the article provides that state can make provisions for women and children. The article says “nothing in this article shall prevent the state from making any provisions related to women and children”. The inclusion of Article 15(3) has affixed under the concept of ‘protective discrimination’ in the Indian Constitution and has strengthened the gender that has been discriminated a lot. It also permits the state to make provisions for children thereby understanding that children are the mainstay of the country.

The physical structure of women and also the maternal functions performed by her keeps her at a disadvantage in her sustenance, struggle and overall physical well-being and therefore a need was felt that some special provisions to be made for her. Thus there are a certain number of Articles in the Indian Constitution that keep her at a special place and that won’t amount to infringement of Article 15. For instance, under Article 42 women are giving maternity relief benefits and the same is not a violation of Article 15 and also the provisions of reservation in educational institutions made solely for women would not be in derogation with Article 15. In the case of ‘Dattatraya v. State’ reservation given to women in a college does not offend Article 15(1).

By the virtue of this section, there are several provisions made for the women and children for their interest, for affording her protection and shielding her interests there are several initiatives made for women.

National Commission for Women– NCW was made in the year 1992 with a specific notion of compulsion of studying and analyzing all the matters related to women’s rights under the Indian Constitution and amending the provisions as and when required.

Reservation for Women in Local Self Government–  As per the 73rd Constitutional amendment in 1992 one third of the total seats are reserved for the women in all urban or rural elected bodies.

National Policy for the Empowerment of Women, 2001: The department of women and child development of the human resource department has created this policy with a goal of advancement and empowerment of women.

In the case of ‘Anjali Roy v. State Of West Bengal ’  it is stated under Article 15(3) only special provisions for the benefits of women and children are provided and it doesn’t mean that they are entitled to purely identical treatment as those enjoyed by men in any similar matters”.

In the case of ‘Premjit Singh v. State Of Punjab ’ The court held that “women cannot be prohibited from contesting election for the post of sarpanch against the seat meant for scheduled caste category merely on the ground that she was elected from the reserved seat of scheduled caste for women.”

Gender equality principle is also enshrined in the preamble of the constitution and so in the fundamental rights, fundamental duties and Directive Principle of State Policy.  The constitution along with granting equal rights to both men and women it gives the state to make special provisions for the betterment of women and by the virtue of Article 15(3) state government and central government both have made laws for the furtherance of women. India had also been a signatory of International conventions related to women and has ratified many laws regarding the same too. For the emancipation of women in all area and for the improvement of the condition Indian Government has passed an end number of laws, the major ones being- The Special Marriage Act, 1954, The Equal Remuneration Act, 1976Commission of Sati (Prevention) Act, 1987 The Protection of Women from Domestic Violence Act, 2005, The Maternity Benefit Act, The Medical Termination of Pregnancy Act and many more.  In the case of Vishakaha v. the State Of Rajasthan, It was held that there is a need to provide a safe environment to women employees’ free form sexual harassment and the court for the first time invoked an International covenant to which India was a signatory of.

In another famous case of Indian Young Lawyers Association v. The State of Kerala, It was held that excluding entry of only women in the temple Sabarimala is violating the rights of women and such practice must be banned. Judiciary has always given importance to women’s rights in India and has given various judgments to the various matters of national importance thereby boosting women empowerment.

Talking about the Child’s development the government has taken many pivotal steps for the wellbeing and security of the children of the nation. According to the past statistics of the country out of the total population, 35% of the children couldn’t complete their prenatal stage due to which India accounts for a high infant mortality rate. Seeing these issues and challenges the government has made several laws and Acts through the power given under Article 15(3).

Article 21 A provides for the right to education to all children aged 14-16 years. In the case, Unnikrishnan J.P, and others v. State of Andhra Pradesh and other Supreme Court held that “Right to education is included in the right to life”

Article 45 includes provisions for early childhood care and education of children below 6 years of age.

Article 24 ensures the protection of the child from any hazardous employment.

Whereas Article 23 provides the right to the children to be protected from being trafficked and forced into bonded labour.  M.C.Mehta v. State of T.N  “ The Court issued wide-ranging directions in the context of employment and exploitation of children in Sivakasi prohibiting employment of children below the age of 14 and making arrangements for their education by creating a fund and providing employment to the parents or able-bodied adults in the family”.

Article 39 (f)) states the Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment. In Labourers Working on Salal Hydro Project v. State of J. & K. The court held that and children below 14 years cannot be employed in construction work as it is hazardous employment. Article 24 makes it obligatory for the state to protect the economic, social and humanitarian rights of millions of children working in factories and such other workplaces.

In another case of Vikram Deo Singh Tomar v. State of Bihar, In this case, the court directed the state to improve the matters in the care homes in Bihar, made for women and development.

In another case of Gaurav Jain v Union of India, The Supreme Court directed the states to take measures related to the children of prostitutes as they also have the right to equality, and life and right to live with dignity.” There are various other cases where the judiciary took cognizance of this matter and has guided the states and central government to make certain policies for the security of the rights of children.

There is an abundant number of Acts made for safeguarding the interest of children. Some of the radical ones are- The Protection of Children From Sexual Offences (Amendment) Act, 2019, Prohibition of Child Marriage Act, 2006, the juvenile justice (care and protection of children) Act, 2015, The Commissions For Protection of Child Rights Amendment Act, 2006, etc.

Women and Children are the backbones of our nation. The stoicism women took and the vulnerability she has faced makes it necessary for the government to adopt certain measures of positive discrimination so that the socio-economic, political and other disadvantages faced by her can be neutralized. Whereas Children as aforementioned are the future of the nation. As ‘Justice Bhagwati’ has rightly quoted “the child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into the maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional, intellectual and spiritual being.” They need guidance and care and support and thus there is a need for eradication of social evil prevalent these days to safeguard their interest. Thus talking as a whole for the advancement of the nation and economy the government must make laws regarding the welfare of women and children and also should check whether their implementation is being done aptly or not as the final affirmation can only be done if there are implementation and national cooperation.

Edited by Ojaswi Gupta

Approved & Published – Sakshi Raje

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I am Ananya Pandey pursuing BBA LL.B from Banasthali University. I am a law enthusiast and have keen interest in Constituional Law, Criminal Law and Company Law. Other than that I am an ardent mooter, a trained classical singer, a reader and ofcourse a writer. I believe law is one of the finest profession in one hand it serves the masses well and in other hand it serves the lawyer -" You win some you lose some, but you get paid for all of them".