Describe the Prohibition of Discrimination based on Sex.

Question. Describe the prohibition of discrimination based on sex. [MPJS 2014]

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Answer

Fundamental Rights as enshrined under Part III of the Constitution of India are guaranteed to all persons by the constitution of India without any discrimination of caste, religion, sex, etc. These rights entitle an individual to live life with dignity. Fundamental Rights are meant for promoting the idea of democracy.

Article 15(1) of the Indian Constitution states that the state shall not discriminate against any citizen on grounds only of race, religion, caste, sex, and place of birth.

The word “discrimination” refers to make adverse distinctions with regard to or to distinguish un-favourable from others while the term ‘only’ means that discrimination can be done on the basis of other grounds. The Constitution of India safeguards the fundamental rights of the citizens irrespective of their sex and states no person shall be discriminated against based on their sex. Everyone is equally entitled to enjoy all of the below 6 fundamental rights as mentioned in the constitution.

1. Rights to equality (Article 14-18)
2. Rights to freedom (Article 19-22)
3. Right against exploitation (Article 23-24)
4. Right to freedom of religion (Article 25-28)
5. Cultural and educational rights (Article 29-30)
6. Rights to constitutional remedies (Article 32)

The second clause of Article 15(2) says that no citizen shall be subjected to any disability, liability, restriction, or condition on grounds of any religion, caste, race, sex, place of birth with regard to;

1. Access to shops, public restaurants, hotels, and places of public entertainment.
2. The use of wells, tanks, bathing Ghats, roads, and places of public resorts maintained wholly or partly by state funds or dedicated to the use of the general public.

However, there is a certain exception to the above, considering the concept of differential treatment originated from Article 14. The provision guarantees equal protection only when there is no reasonable basis for the differentiation.

If a law deals equally with members of a well-defined class, it is not open to the charge of denial of equal protection. If the legislature takes care to classify a person based on their sex reasonably for legislative purposes, and if it deals with all persons belonging to such a well-defined class, it doesn’t amount to a denial of equal protection.

If we talk specifically about classifications based on sex, the Courts apply “intermediate scrutiny”, i.e., the putatively discriminatory law will be upheld if the State can demonstrate a substantial need and a reasonable classification between the law and the fulfilling of that need.

This can be understood in the terms that while there are almost no justifiable reasons for classifying individuals on caste or racial lines, such reasons might, on occasion, exist when it comes to the classification of individuals based on the lines of sex.

However, the burden of demonstrating this lies upon the entity responsible for the classification. In this regard, we can resort to Article 15(3) which is an enabling clause. It empowers the state to make special provisions for the protection of women and children.

Even Sir B.N Rau has said that legal provision might occasionally have to be made for women, for example, to prohibit their employment for certain periods before and after childbirth.

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