The framers of our Constitution have incorporated certain provisions within the Constitution to ensure the enforcement of Fundamental Rights; the most important of which is the Right to Constitutional Remedies under Part III, which has been made a  Fundamental Right. This is the most unique feature of our Constitution. A citizen has the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, which is guaranteed. The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III.

In the Constituent Assembly Debates Dr. Babasaheb Ambedkar once said,
“If I am asked which is the most important provision of the Indian Constitution, without which the Constitution would not survive I would point to none other than Article 32 which is the soul of the Indian Constitution.”

Another highlighting feature of our Constitution is the Judicial Review dealt with under Article 13, which states that the Constitution is the supreme power of the nation and all laws are under its supremacy.

The discussion of these provisions is also needed. Starting from the field of education, the governing provision is Article 29(2) of the Constitution which states,

“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”

This provision obviously omits the word “sex”. This has given rise to a presumption that if an educational institution discriminates on the basis of sex while admitting students it is not hit by the provisions of Article 29(2). In University of Madras v. Shantha Bai the High Court of Madras said that the omission of “sex” in Article 29(2) was a deliberate departure from the language of Article 15(1) and its object was to leave it to the educational authorities to make their own rules suited to the conditions and not to force on them an obligation to admit women students.

In another case, Anjali v. State of West Bengal, the High Court of Calcutta stated that, although final opinion on the point was not yet expressed, it was inclined to hold the view that discrimination in regard to the admission of students into educational institutions on the ground of sex might not be unconstitutional. In this connection, it said that “the framers of the Constitution may have thought because of the physical and mental differences between men and women and considerations incidental thereto, exclusion of men from certain institutions serving women only and vice versa would not be hostile or unreasonable discrimination.”

Thus, it is clear that sex can be a valid basis for discrimination in regard to the admission of students into educational institutions. What is more, Article 29(2) says that even educational institutions maintained by the State may practice such discrimination. This power conceded to the State by Article 29(2) virtually takes away the effect of Article 15(1) which prohibits the State from making any discrimination on the ground of sex.

Education is the most important instrument to bring about equality among human beings, and if the sex-based discrimination is permitted in the field of education it would blunt the instrument itself. It is said that the provisions in Article 29(2) help to establish educational institutions exclusively for women and also for men. This is not in any way beneficial to women. If there is any need for establishing separate educational institutions for women, sufficient scope is provided in Article 15(3) for the State to satisfy any such need. The State may carry out its task in this respect either by reserving a few state maintained educational institutions for women only or by permitting private management to establish educational institutions exclusively for women.

Besides, there are certain renowned educational institutions, which were established long ago, and admission into them was confined from the beginning to male students. Article 29(2), which allows them to continue the status quo with regard to admission of students, virtually prevents the admission of women into such prestigious and well-equipped educational institutions. Therefore, Article 29(2) is not only disadvantageous to women but also detrimental to their interest. The High Court of Calcutta tried to justify this provision by a strange and archaic argument based on “the physical and mental differences between men and women and considerations incidental thereto,” which has largely lost its meaning in the modern world.

The right to equality can be made more meaningful for women if its impact is made to be felt in the educational field, and this can be accomplished by amending Article 29(2) and adding the word “sex” in it between the words “caste” and “language.”

After the commencement of the Constitution, Parliament enacted several pieces of legislation relating to institution of marriage, adoption and inheritance, which have brought revolutionary changes in the position of women. The Hindu Marriage Act of 1955, which applies to Hindus as defined in Section 2, states in Section 5(1) that a marriage may be solemnized between any two Hindus if “neither party has a spouse living at the time of the marriage.” A marriage solemnized in contravention of the condition contained in Clause (i) of Section 5 is invalid under Section 11 of the Act and on a petition by either party to such marriage, it may be declared null and void.

Besides, Section 17 declares that a marriage solemnized in contravention of Clause (i) of Section is void and is punishable as an offence under Sections 494 and 495 of the Indian Penal Code.

Thus, Sections 5(i), 11 and 17 of the Hindu Marriage Act of 1955 have been so contrived as to prohibit the age-old practice of polygamy among Hindus, which was the bane of Hindu women, and to impose the system of monogamy on them. The judiciary in this country upheld the validity of these provisions and negated the contention that they were ultra vires the provisions of Articles 14, 15 and 25 of the Constitution. A similar result is achieved by the provisions of Sections 4(a), 24, 43 and 44 of the Special Marriage Act, 1954, under which any two persons, no matter what religion or religions they follow, may solemnize their marriage.

Apart from this, Article 44 of the Constitution imposes a duty on the State to secure a Uniform Civil Code for the citizens of India. This is intended to remove some of the outdated rules found in various personal laws, which are discriminatory in character, and to treat all citizens without any discrimination as equals.

Protective discrimination in favour of women provided under Article 15(3) of the Constitution states that,

“Nothing in this article shall prevent the State from making special provision for women.”

This is intended to give an initial advantage to women so that they can compete with men in various fields effectively. Since women were suppressed for a very long period, they have lost their initiative, confidence in their capacity to face problems and opportunity to equip themselves for various types of professions and vocations. It is because of these facts that the Constitution makers considered them weaker sections of the people who required some definite help and initial advantage to compete with men in all spheres of life.

Therefore, this provision has been described by various writers as “protective discrimination” and “adventitious aid” for women.

In the Constituent Assembly there was a controversy on this point. A few members held the view that the word “sex” should be deleted from the main provisions of Article 15 so that State could discriminate on the ground of sex and make special provision for women. But, a few other members opposed it and said that the word “sex” must be retained in the general clauses of Article 15 to ensure equality between men and women and a proviso must be appended to it to enable the State to make special provision for women. The latter view finally prevailed resulted as framing of Clause (3) of Article 15.

The framers of the Constitution took a pragmatic view in incorporating this Clause because they expected that this provision might compensate the loss of opportunities suffered by women during the last several centuries. So, Clause (3) of Article 15 of the Constitution may be described as a compensatory provision for women.

The provision in Article 15(3) has enabled the State to make special provisions for women, for example, separate educational institutions exclusively for women, reservations of seats or places for women in public conveyances and places of public resort. In addition, many pieces of legislation conferred benefits on women, to which men are not eligible.

Furthermore the Constitution provides for equality in the matters of employment opportunity as Article 16(1) of the Constitution guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. While, Article 16(2) states, inter alia, that no citizen shall be discriminated against on grounds only of religion, race, caste, sex, descent, place of birth, residence, or any of them in respect of any employment or office under the State. This provision, no doubt, ensures equality of opportunity to women in matters relating to government employment.

However, in reality there existed the incidences where such equality of opportunity has not been conceded fully to women in matters relating to employment. This fact is brought to the fore in two important cases, namely, C. B. Muthamma v. Union of India and Air India v. Nargesh Meerza.

Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules 1961 provided that (1) a woman member of the service shall obtain the permission of the Government in writing before her marriage is solemnised; and (2) at any time after the marriage she may be required to resign from Service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service.

In Muthamma’s case, characterising this Rule 8(2) as one that practiced discrimination against woman in traumatic transparency, Justice Krishna Iyer said that if the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. Further,

“In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species.”

There are numerous instances of highlighting “woman’s physical capacity” and unreasonably denying women their right to equality of opportunity in various fields as well as their right to equal pay for equal work. The Constitution prohibits sex-based discrimination. The salutary constitutional stipulation must be given full effect, “individualised approach to a woman’s physical capacity” to circumvent the constitutional mandate must be given up and women must be treated as normal human beings like men in all spheres of life, more particularly in the fields of education and employment.

A special provision in Article 16 for reservation of appointments or posts in favour of women would have helped to mitigate this situation.

Therefore, it may be suggested here that in order to render the right to equality of opportunity in government employment more meaningful to women a suitable amendment must be carried out to Article 16 to incorporate in it a special provision for reservation of appointments or posts in government service in favour of women.

The Constitution of India lays that an Indian Woman will function as a citizen and as an individual partner in the task of nation building whatever her social position, role or activities may be. While motherhood is an important function, the Constitution implies that this is not the ‘only role’ for women of India. There are so many other roles for the Indian Women as a partner in the nation building. Since the independence of our country, the Constitution has proven itself to be the guardian of gender equality. It is the basic document providing a strong framework for women empowerment. Although the above mentioned few complexities remain in the Constitution, the overall picture is favouring women empowerment.