Article 15(3) of the Constitution enables and empowers the State to make special provision for the benefit of women and children. The Constituent Assembly debated this provision [then Article 9(2) of the draft Constitution] on 29th November, 1948. Prof. K.T. Shah suggested an amendment to the said Article (Nothing in this article shall prevent the State from making any special provision for women and children) so that it would read:
“Nothing in this article shall prevent the State from making any special provision for women and children or for Scheduled Castes or backward tribes, for their advantage, safeguard or betterment.”
The view expressed was:
“Sir, it must be distinguished from the preceding article. I read it, at any rate, that this is a provision for discrimination in favour of women and children, to which I have added the Scheduled Castes or backward tribes. This discrimination is in favour of particular classes of our society which, owing to an unfortunate legacy of the past, suffer from disabilities or handicaps. Those, I think, may require special treatment; and if they do require it, they should be permitted special facilities for some time so that real equality of citizens be established.
The rage for equality which has led to provide equal citizenship and equal rights for women has sometimes found exception in regard to special provisions that, in the long range, in the interest of the country or of the race, exclude women from certain dangerous occupations, certain types of work.
That, I take it, is not intended in any way to diminish their civic equality or status as citizens. It is only intended to safeguard, protect or lead to their betterment in general; so that the long-range interests of the country may not suffer.”
The amendment was negatived by Dr. Ambedkar in the following manner:
“With regard to amendment No. 323 moved by Professor K.T. Shah, the object of which is to add Scheduled Castes and Scheduled Tribes along with women and children, I am afraid it may have just the opposite effect. The object which all of us have in mind is that the Scheduled Castes and Scheduled Tribes should not be segregated from the general public.
For instance, none of us, I think, would like that a separate school should be established for the Scheduled Castes when there is a general school in the village open to the children of the entire community. If these words are added, it will probably give a handle for a State to say, Well, we are making special provision for the Scheduled Castes. To my mind they can safely say so by taking shelter under the article if it is amended in the manner the Professor wants it. I therefore think that it is not a desirable amendment.”
The response given by Dr. Ambedkar suggests that he certainly favoured special provisions for women and children with a view to integrate them into society and to take them out of patriarchal control. But a similar integration could not be achieved by making special provisions for Scheduled Castes and Scheduled Tribes it would have the opposite effect and further segregate them from the general public.
Supreme Court Discussion
What clearly emerges from this discussion is that Article 9(2) of the draft Constitution [now Article 15(3)] was intended to discriminate in favour of women and children a form of affirmative action to their advantage. This intention has been recognized by decisions of supreme Court and of some High Courts.
The earliest such decision is of the Calcutta High Court in Sri Mahadeb Jiew v. Dr. B.B. Sen[1] in which it was said that:
“The special provision for women in Article 15(3) cannot be construed as authorizing a discrimination against women, and the word for in the context means in favour of.”
In Government of A.P. v. P.B. Vijayakumar[2] affirmative action for women (and children) was recognized in paragraphs 7 and 8 of the Report in the following words:
“The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15.
Its object is to strengthen and improve the status of women What then is meant by any special provision for women in Article 15(3)? This special provision, which the State may make to improve womens participation in all activities under the supervision and control of the State can be in the form of either affirmative action or reservation.”
Yusuf Abdul Aziz v. State of Bombay[3] is a Constitution Bench decision of supreme Court in which the constitutional validity of Section 497 of the IPC was challenged on the ground that it unreasonably exempts a wife from being punishable for an offence of adultery and therefore should be interpreted restrictively. Rejecting the contention that Article 15(3) of the Constitution places any restriction on the legislative power of Parliament, it was said:
“It was argued that clause (3) [of Article 15 of the Constitution] should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.
The view that Article 15(3) is intended to benefit women has also been accepted in Cyril Britto v. Union of India[4] wherein it was held that prohibition from arrest or detention of women in execution of a money decree under Section 56 of the Civil Procedure Code is a special provision calculated to ensure that a woman judgment-debtor is not put to the ignominy or arrest and detention in civil prison in execution of a money decree and that this provision is referable to Article 15(3) of the Constitution.
A similar view was taken in respect of the same provision in the Civil Procedure Code in Shrikrishna Eknath Godbole v. Union of India, 2016.
It is quite clear therefore that Article 15(3) of the Constitution cannot and ought not to be interpreted restrictively but must be given its full play.
Reference
Independent Thought vs Union Of India, 2017
[1] AIR 1951 Cal 563
[2] (1995) 4 SCC 520
[3] 1954 SCR 930
[4] 10 AIR 2003 Ker 259 11 PIL No. 166/2016