WHY DOES ARTICLE 29(2) NOT FORBID DISCRIMINATION ON THE BASIS OF SEX?

 

Renu Sirothiya

V Semester, B.A. LL.B., School Of Law, DAVV, Indore

                                  

 

I. Introduction:

 

“May each who feels one with thee, know he or she is also one with every other.”

-Annie Besant

 

Founding fathers of the Constitution Of India have made articulated effort on credence of egalitarianism to provide for constitution with high standards & obligations and no gender bias. Inspired by the verity that prosperity & welfare sustain with gender-equality, in preamble itself aim of securing to all citizen equality of status & of opportunity is envisaged.

 

Assured social, economic & political justice is yet another constitutional aspiration and Right To Equality is also enumerated in Article-14, even then discrimination on the ground of sex is not forbidden by Art.29(2). In this paper causes & consequences of the same are figured out. Here requirement and effect of such discrimination is discussed to draw inference about actual nature of this provision in light of cases viz.

 

1.      State Of Madras v. Champakam Dorairajan[1]

2.      State Of Bombay v. Bombay Educational Society[2]

3.      University Of Madras v. Shantha Bai[3]

4.      Joseph Thomas v. State of Kerela[4]

5.      Mark Netto v. Government of Kerela[5], etc.

 

 

II. Aims of present paper:

 

To Determine –

§         Whether not forbidding such denial is ‘discrimination’?

§         If yes, it is how far justified?

§         What are the aspects & prospects?

§         Does that mean any individual can be denied admission only on the basis of ‘sex’?

§         If its not sole basis what are requisites for such denial? And

§         Which other grounds influence it?

 

To elucidate –

§         What are and may be the valid causes of such denial?

§         What is the permissible extent?

§         What are limitations to it?

§         What was envisioned purpose?

§         What are basic principles & rationale behind the provision?

§         What are differences in actual & anticipated outcomes?

§         What makes it indispensable? And

§         What are provisions to apply ‘virtual contents’ without ambiguity and to rule out misuse?

 

IN ORDER TO EXAMINE –

 

“Why does Article-29(2) not forbid discrimination on the basis of sex?

 

 

III. Article-29(2):

 

Provision:

 

“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.”

 

Implication:

 

Since ground of ‘sex’ is not specified, therefore, on this ground any citizen may be denied admission into any educational institution maintained by the state or receiving aid out of state funds.

 

 

IV. Attributes & Nature:

 

Is article 29(2) discriminating with respect to gender?

 

Although word ‘sex’ is not explicit yet the article intend no ‘gender-bias’. It should be read subject to the Article 15(4)[6], permitting the state for making any special provisions for the advancement of any educationally backward classes of citizens. And it is not discerning to women as the Article 15(3), permitting the state for making any special provision for women, supports it.

 

 

Is it against Article-14?

 

Non-repellence of ‘denial of admission on the basis of ‘sex’, if reasonable, unbiased, constructive & in mass interest, is not against Article-14 which gives Right to Equality as “Article-14 has an in built flexibility to allow reasonable classification passed on an objective basis”[7], and “it is to be understood in the light of directive principles”[8]. However, subject/(s) should be intelligible & object non-arbitrary and non-detrimental.

 

 

 

 

Can admission be denied only on the basis of ‘sex’?

 

According to Article-15(1), “The state shall not discriminate against any citizen on ground only of ‘sex’. However, according to the Article-15(3) this shall not prevent the state from making any special provision for women. In Dattatrya v. State[9] it was held, “it would not be violation of the Article-15 if educational institutions are established by the state exclusively for women.”

 

 

How it is different from pure discrimination?

 

Discrimination means ‘making an adverse distinction with regard to’ or ‘distinguishing unfavorably from others’[10], whereas exclusion of ‘sex’ as a ground in Art. 29(2) is only for protecting mass interest when morality or discipline based segregation has to be done for reasonable requirement, as a secular & unprejudiced step and for leaving adequate possibility for “gender-exclusive institutions” as a protective discernment if not compensatory discrimination and it has no intention of creating any adverse or unfavorable effect.

 

 

V. Underlying Principles for gender exclusive institutions:

 

 

1.      Social interest is to be preferred over individual interest,

2.      True gender justice,

3.      Directive Principles have to be given priority,

4.      To flourish ‘equality’ creating ‘equitability’ is vital,

5.      Harmony of the state & society,

6.      Unequal treatment of unequals[11],

7.      Protective discrimination or affirmative action[12].

 

8.      Duties of a ‘welfare state’ viz. egalitarianism, distributive justice, utilitarianism[13] i.e. greatest good of greatest number and secularism.

 

 

VI. Raison d'être of not including sex as a ground:

 

Rationale prima facie -

 

§         Ground named ‘sex’ was not included explicitly in Art.29 (2) because expressed provisions are construed literally while hidden connotations are subject of analysis so by keeping it implicit scope for intensive interpretation as per circumstances was secured, for the possible demand or need of ‘exclusive institutions’ for any gender whether male or female, for any of the valid cause or purpose which may appear.

 

§         Moreover to assure female education Art.15 & Art.15 (3) and for ‘equality’ art’14 was already framed.

 

§         Another valid reason is that if constitution makers would have included ‘sex’ as one of the basis then non- co-ed system would have become legally wrong while in fact implementation of absolute co-ed pattern in conservative country like India is practically difficult & quite non-conducive & unacceptable and hence inapplicable & to the very extent impossible.

 

Legal Motivation -

 

§         Article-15 validate exclusive institutions for women[14] and also Art.15 (3) explicitly provide that any special provision for women is justified, so if there was ground of ‘sex’in the Art.29 (2), it would have become contradictory to Art.15 & Art.15 (3).

 

Social Objective –

 

§         Art.29 (2) does not explicitly forbid denial of admission into any state-aided institution on the ground of sex but it is silent about the issue because ‘co-ed’ system is subject of sociological, religious, moral, personal, psychological as well as socio-political concern & there exist respective norms, which have social sanctity attached to them, therefore, if circumstantially inevitable, non-co-education has to be recognized as a right, up to the extent of rationality, provided it is not encouraged by going beyond social reasoning and is identified in right spirit without going beyond legal limits.

 

§         In fact absence of word ‘sex’ is very well- conceived as it widens the scope of the constitution to bring in ambit the possibilities of disposing or determining level of co-education as per suitable consequential acceptability & validity which may vary in our conservative & sensitive country, with multitudinous & distinctive diversification in culture & scientific temper, with respect to, educational pattern in particular.

 

 

 

Ground Of Female Emancipation –

 

§         Women require special treatment on account of their very nature. Art.15(3) empowers the state to make special provisions for them. The reason is that woman’s physical structure & the performance of maternal functions place her at disadvantage in the struggle for subsistence & her physical well-being becomes an object of public interest land care in order to preserve the strength & vigor of the race.[15]

 

 

VII. When such denial on the basis of sex justified?

 

1.      When it is not arbitrary, partial & biased,

2.      When there is reasonable cause & non- detrimental approach,

3.      When it is secular in nature (barring situation when it is mandate laid by terrorists),

4.      When it is not adverse & against natural justice,

5.      When it is not against Article –14 i.e. Right to Equality,

6.      When right to education (Art.21-A) is not infringed, and

7.      When it is not against personal liberty (Art.21),

 

In Maneka Gandhi’s case[16] it has been held that a law depriving a person of his personal liberty under Art.21 must also satisfy the test of ‘reasonableness’ under Articles 14 &19 of the Constitution.

 

 

VIII. Wide Application of Article 29(2):

 

§         It is a controlling provision when question relates to admission to colleges.[17]

 

§         The right to education into an education institution conferred by Art.29 (2) is a right of an individual given to him as a citizen & not as member of any community.[18]

 

§         Article 29(2) cannot be invoked where refusal of admission to a student is on the ground of his not possessing requisite qualifications.[19]

 

§         The protection of Article 29(2) does not apply where the student is expelled from an institution on grounds of indiscipline.[20]

 

§         Private educational institution is not immune from judicial surveillance of the SC (Art.32) or HC (Art.226). Private institution, which is receiving aid from the state, cannot discriminate[21].

 

IX. Art.29 (2) vis-à-vis Art.29 (1) & Art.30 (1):

      [In context of present study]

 

§         While ordinarily educational institutions established in pursuance of Art.29 (2) & Art.30 (1) are subject to Art.29 (2), they are not so if they do not receive any aid from the state, therefore, they are free in matter of admission.[22]

 

§         If non- inclusion of word ‘sex’ in Art.29 (2) is interpreted such that “it crosses barrier of regulatory measures & comes in the region of interference with the administration of minority institution”, it is inconsistent with Art.30.[23]

 

 

X. An overview on impact of Article29 (2):

 

Effect –

 

§         The High Court of Madras has held that the effect of omitting the word ‘sex’ from Art.29 (2) is that the right of women to admission in educational institutions is a matter within the regulations of college authorities.[24]

 

§         A girl student can be denied admission in educational institutions.[25]

 

§         A male can be denied admission in “female exclusive” institution.[26]

Objective Achievement -

 

Combined principles of equality in Articles 14, 15(1), 15(4) and 29(2) are applied for equality on broader basis.[27]

 

Socio-Economic Influence –

 

 

Role in Liberal Education -

 

Art. 29(2) serve as an incentive for people to send their daughters to schools so it ensures female education & in a way is vital for liberal education. It is highly significant as “our concept of freedom will remain impoverished one, until it is rounded & deepened by liberal education”[28]. Moreover, a gender- sensitive curriculum as validated by absence of ground of ‘sex’ in Art.29(2) is a crucial element of liberal education.

 

XI. Conclusion:

 

Article 29(2) is highly effective & extensive. Although it doesn’t directly forbid denial of admission on the basis of ‘sex’ in state-aided institutions yet it doesn’t refer to discriminating approach in any sense as its read with Article 15 and its sole motive is to keep range for preservation of socio-cultural & community based education related standards which are resultant of logical expectations, intact.

 

With broad sensitization of religious & regional requirements & keeping in view consequential issues by not mentioning word ‘sex’ in Art. 29(2) the constitution framers took remarkably reasonable step, to deal with the situations that perhaps arise.

 

Art.29(2) has no gender bias but only moral & social inclination. Undoubtedly it is not meant to imply or inspire discrimination, but has foresight within & with varied perspectives in vision, it equips the Constitution of India for intensive application, to provide education to all without costing social sentiments to fulfill personal aims of individuals whether male or female.

 

So, the quintessence of the provision for justification & application is derived & defined not by superficial words only but by deep contemplation & reference of purpose, allied provisions & precedents, by giving attention to all words & also by reading beyond its lines but between lines of other cardinal provisions, so as to correctly assess it is not discriminating & to observe it as an imperative for the enlightened & educated nation.

 

 

 

 

 

XII. References:

 

1.      Constitution Of India, V.N. Shukla, By Mahendra P. Singh, Edition2001,

2.      Constitutional Law Of India, Dr. J.N. Pandey, Edition 2003,

3.      The Constitution Of India, P.M. Bakshi, Edition 2001,

4.      Digest Of All India Education Cases (1950-1955), A.K. Yog, Edition 1996, and

5.      We The Nation, Nani A. Palkhiwala, Ó1994.

 

 

 


[1] AIR 1951 SC 226

[2] AIR 1954 SC 561

[3] AIR 1954 SC Mad. 67

[4] AIR 1958 ker. 33

[5] AIR 1979 SC 83

[6] Added by the Constitution First Amendment Act, 1951

[7] Granites v. State of Tamil Nadu, (1994) SC 374

[8] Indra Sawhney v. Union Of India, AIR 1993 SC 477,para.4

[9] AIR 1953 Bom. 311

[10] Kathi Rani Rawat v. State of Saurashtra, (1952)

[11] St. Stephens College v. University of Delhi (1992)

[12] State of West Bengal v. Anwar Ali Sarkar (1952)

[13] Concept by Jeremy Benthem

[14] Dattatrya v. State AIR 1953 Bom. 311

[15] Muller v. Oregan.52 L.Ed. 551.

[16] AIR 1978 SC 597.

[17] Joseph Thomas v. State of Kerela, AIR 1958 Ker 33.

[18] Ibid.

[19]Nageshwara Rao v. Principal, Medical College, AIR 1962 AP 212.

[20] Ramesh Chandra v. Principal, B.B.I. College, AIR 1953 all. 90.

[21] Ravneet kaur  v. Christian medical college, AIR 1998 P&H 1 .

[22] Asha Gupta v. State of Punjab, AIR 1987, P&H 227;

   Gurpreet Singh Siddhu v. Punjab University, Chandigarh, AIR 1938, P & H 78.

[23] Mark Netto v. state of Kerela, AIR 1979 SC 83.

[24] University of Madras v. Shanta Bai, AIR 1954 SC Mad.67.

[25] Ibid

[26] Implied from verdict of Dattatrya v. State, AIR 1953 Bom.

[27] Pg. 226-227 AK Yog’s Digest Of All India Education Cases.

[28] Nani A Palkhiwala, We The Nation, Pg. 240