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QUESTION| Describe prohibition of discrimination based on sex. Explain meaning, scope and extent of term ‘citizen’ within the purview of Constitution of India.
Importance of this question : MP Judiciary Mains Question 2019
QUESTION POSTED ON | 15.10.2021
MODEL ANSWER WILL BE POSTED ON | 16.10.2021
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How to answer this question?
1. This question has two parts – make a side heading for each part so you cover all parts of the given question. In the second part you have to explain about meaning, scope and extent – make them as sub-headings so that each one of them are covered.
2. Identify the articles that prohibit discrimination based on sex under Indian Constitution
3. Plan for landmark cases and recent cases on the issue
4. Start writing the answer with apt legal terminologies
Answer | Constitution of India provides protection against discrimination by following ways:
Article 14 – Generally declares everyone to be treated equally but allows certain class of people to be treated favorably provided such class is identified on reasonable classification.
Article 15 – Specifically prohibits discrimination on grounds only of religion, race, caste, sex, place of birth or any of them against citizens ( foreigners do not enjoy art 15 ) with access to public places
Article 16 – Specifically prohibits discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them against citizen ( foreigners do not enjoy Art 15 ) in matters of employment under state.
Article 17 – Prohibits untouchability
Article 18 – Abolishes titles conferred
What is discrimination?
The word ‘discrimination’ as used under Article 15(1) involves an element of unfavourable bias. The provisions of clause (1) are an extention of Article 14. It expresses a particular application of the general principle of equality embodied in Article 14 of the Constitution of India. Clause 1 applies to citizens of India only. The word ‘only’ used under Article 15(1), (2) implies that “what is discountenanced is discrimination purely and solely on account of any of the grounds mentioned”. Discrimination is nothing but an unfavorable treatment and sex is nothing but identification of ones gender.
There is certain exception to this, 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.
In Air India v. Nargesh Meerza,[1]Regulation 46 of Air India was challenged on the ground that it terminates the services of Air Hostesses on her first pregnancy. The court held it as unreasonable and arbitrary provision and violates Article 14 of the Constitution. Thus, the Supreme Court struck down the Air India and Airlines Regulations on retirement and termination of services on pregnancy of Air Hostesses.
It violates clause 2 of Article 15 if there is subjection of a citizen to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex or place of birth with regard to access to public places.
In Indian Young Lawyers Association v. State of Kerala, popularly known as Sabarimala Temple Entry case, the Supreme court had declared the years old custom which prohibited entry of women into temple during their mensurating years, as unconstitutional as it violates Article 14 and 25 of the Constitution.
EXCEPTION under art 15 – Clause 3 enables state to make laws for upliftment of women and children, here men would be discriminated based on sex yet cannot be complained.
For example: Immoral Traffic (Prevention) Act, 1961, Maternity Benefit Act, 1961, Sexual Harassment of Women at workplace (Prevention, Prohibition, and Redressal) Act, 2013, POCSO Act.
Specifically violates Article 16 if such discrimination is employment under state.
For example: Maratha quota law which provides separate reservation for Maratha community beyond 50% is held unconstitutional by the Supreme Court Bench.
In Jarnail Singh v. Lachhmi Narain Gupta, (2018) the apex court held that exclusion of creamy layer extends to SC/ST and therefore, the State cannot grant reservation in promotion to SC/ST who belong to the creamy layer of their community.
Specifically violates Article 17 if untouchability is practiced based on sex. The protection o civil Rights Act, 1955 provies penalty for the offence of untouchability.
Meaning of citizen: the individuals who enjoy the complete civil and political rights in the State.
General meaning: As defined in Cambridge dictionary, ‘citizen’ is a person who is a member of a particular country and who has rights because of being born there or because of being given rights, or person who lives in a particular town or city.
Scope and extent of term ‘citizen’
There are certain rights which are available only to citizens:
a) Right against discrimination- Article 15
b) Right to equal opportunity in matters of employment under the State- Article 16
c) Freedoms under Article 19
d) Cultural and educational Rights- Article 29, 30
e) Right to vote
Articles 5 to 11 of the Constitution lay down as to who are the citizens of India at the commencement of the Constitution and how citizenship can be acquired.
Modes for acquiring citizenship in India:
a) By Domicile [Article 5]- Every person having domicile in India and fulfills the following conditions becomes a citizen of India:
· He was born in India
· Either of whose parents was born in India
· who has been ordinarily resident in India for not less than 5 years immediately preceding the commencement of the Constitution.
b) By registration [Article 8]- Any person who has no domicile in India can acquire citizenship by registering himself as an India citizenship according to the procedure.
c) By migration [Article 6]
Any person who migrates to India from Pakistan can acquire Indian citizenship if he or either of his parents or either of grandparents was born in India.
Besides Constitutional provisions, Citizenship Act, 1955 provides for citizenship by following manner:
a) Citizenship by Birth- Person born in India on or after 26th January, 1950 and those born in India on or after such commencement and either of whose parents is a citizen of India at the time of his birth is a citizen of India by birth except-
· His father possesses diplomatic immunity and is not an Indian citizen.
· His father is an enemy alien and his birth occurs at a place under enemy occupation.
b) Citizenship by Descent- Any person who is born outside India can become an Indian citizenship if either of his parent was a Indian citizen at time of his birth.
c) Citizenship by Registration- Person becomes a citizen of India if he married an Indian citizen or has resided in India for 5 years immediately before making an application for registration.
d) Citizenship by Naturalization- Any person who shows that he resided in India for 11 years in the 14 years preceding 12 months before applying for certificate and that he did not stay in India as an illegal migrant. Then, he would be granted a certificate of naturalization.
e) Citizenship by Incorporation of Territory- Whenever India acquires any new territory it can confer Indian citizenship to people of that territory.
[1] AIR 1981 SC 1829.