Article 15(3) of the Constitution of India: Fertile Ground for Pro-Women Jurisprudence

Abstract

'Equality' is the magnificent cornerstone of the edifice of the Indian constitution. Yet, its Authors elected to embed a seemingly simple but significant section 3 of Article 15, authorizing 'special provisions for women (and Children)'. The incorporation of this Article, anchored under the unique concept of 'protective discrimination', symbolizes constitutional recognition of deeply entrenched discrimination of women prevailing in Indian society. The scheme is also in full realization of the fact that 'formal equality' alone may not suffice in a country plagued with age-old patriarchal culture and history that has perpetuated undermining of women and hence the need for effectuating women protection. Accordingly, Article 15(3) shines as the luminous head of the entire constellation of women welfare legislations of India's post-constitution era.

Indian higher judiciary has mostly been reciprocating the constitutional empathy for women and has shown no hesitations, save a few instances, to uphold initiatives covering women's reservation in public employment, co-operatives, panchayat raj bodies, educational institutions; women's right to property under Hindu Succession Act etc. The Apex Court has enthusiastically amplified the scope of Article 15(3) holding it wide enough to cover the entire range of State activity. Moreover, the same Court has upheld 'laws that treat women more favorably than men', and has also interpreted 'ambiguous laws' via pro-women stances, thus validating the concept 'protective discrimination'.

This contribution embarks upon a critical analysis of select landmark pronouncements on Article 15(3), traversing also through disappointments therein, to bring out enlightened understanding of the judicial 'reading in' the Article.

Keywords: Article 15(3), Protective Discrimination, disappointments in reading in