Special Provision for Women

In one line

Article 15(3) lets the State favour women, and the whole difficulty is telling a provision that helps them from one that keeps them where they are.

In the wording a student can write in an exam: article 15(1) forbids the State to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, and article 15(2) forbids subjection to any disability, liability, restriction or condition on those grounds with regard to access to certain places and facilities. Article 15(3) then provides that nothing in article 15 shall prevent the State from making any special provision for women and children. It is an enabling clause and not a right, so no woman can compel the State to make a provision under it; it is an exception to the whole of article 15, including clause (2); and it operates only in favour of women and children, so it cannot be used to justify a provision that disadvantages them.

Why the clause is not an exception at all

The clause is usually described as an exception to article 15(1), and on the same reasoning that governs article 16(4) that description is misleading.

Article 15(1) forbids discrimination against a citizen on the ground of sex. A special provision in favour of women is not discrimination against anybody on that ground; it is a classification which the equal protection limb of article 14 already permits, because women and men are not similarly situated in the respects the provision addresses.

On that reading article 15(3) is declaratory rather than derogatory: it puts beyond argument something article 14 would have permitted anyway, and it does so because the drafters did not want the point litigated. In Indra Sawhney the same reasoning was applied to article 16(4), which the Court held to be "an instance and an illustration of the classification inherent in" article 16(1) rather than an exception to it.

Why it matters for an answer. If the clause is an exception, it is construed narrowly and the State must bring itself within it. If it is an instance of the equality principle, the question is the ordinary one: is the differentia real and does it connect to the object. The second is the better view and it is the one that explains the case law.

Four features of the clause

"Special provision" is wider than reservation. It covers reservation of seats or posts, but also protective legislation, financial assistance, separate institutions, relaxed conditions, and procedural advantages such as exemption from court fees.

"For women and children". The two are coupled, and the clause protects each independently: a provision for children alone is within it, as is a provision for women alone.