MIGHT TO EQUALITY uae. 8) une of religion for if non-Muslim fell within the definition of "evac som equally apply 9 hin! Clause (2). Article 15Q) is a specific applic ined in Article 15 (1), It provides : "No citizen 9 ontaiae, seX, place of birth or any of them be subj festricion cor condition with regard to (a) ac to shops, public re faces of public entertainment; or (b) the use of wells, tanks, bathing ghi jaces of public resort, maintained wholly or partly out o Fe of the nencral public.” A ‘place of public resort” means places which are frequented by the public like « public park, a public road, a public bus, ferry, public usinal, or railway, a hospital, etc, Itis to be noted that while clause (1) of Article 15 prohibits discrimination by the tate but clause (2) prohibits both the State and private individuals from making any discrimination. The object of Article 15 (2) is to eradicate the abuse of the Hindu social system and to herald a united nation, 149 0" then the law ion Of the general prohibition Clause (3) : Special provision for women and Children. —Article 15(3) is one of the two exceptions to the general rule laid down in clauses (1) and (2) of Article 15. it provides : “Nothing in this Article shall prevent the State from making any special provision for women and children". Women and children require special treatment on account of their very nature. Article 15 (3) empowers the State to make special provisions for them. The reason is that “women's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical well- being becomes an object of public interest and care in order to’preserve the strength and vigour-of the race.”* Thus, under Article 42, women workers can be given special matemity relief and a law to this effect will not infringe Article 15 (1). Again, it would not be violation of Article 15 if educational institutions are established by the State exclusively for women. The reservation of seats for women in a college does not offend against Article 15 (1)? Adultery~Provision of women not guilty.—In Yusuf Abdul Aziz v. State of Bombay,‘ the appellant was prosecuted for adultery under Section 497, IPC. He applied to the High Court to determine the constitutionality of Section 497 as to whether it contravened Articles 14 and 15. The last sentence in Section 497 prohibits the Punishment of woman even as an abetter. Chief Justice M. C. Chagla and Justice P.B. Gajendragadkar, of the Bombay High Court held Section 497, IPC not uncontitutional The very fact that this offence is cognizable only with the consent of the husband emphasizes the point of view that the underlying idea of Section 497, is that wives are the properties of their husbands. It may be argued that Section 497 should not find a place iany modern Code of law. Days are past, we hope, when women were looked upon as peny of their husbands. But that is an argument in favour of doing away with Section altogether. On appeal, the Constitutional Bench of the Supreme Court through jatice Vivian Bose held—Sex is a sound classification and though there can be 00 Pratimination in general on that ground yet the Constitution itself provides special valigg OM in the case of Women and Children. Article 14 and Article 15 (3) read together te (ie. the wife would not be punishable as an abettor) the impugned clause in “ection 497 of the IPC. anes : 2 te Nomani v, Dy, Custodian of Evacuee Property, AN 1951 Mut, 930. 3, Muller ¥, Oreyon, 52 Ltd. 551 « itatrayay, State, AIR 1953 Bom SUL AIR 1954 5C. ‘R1. Re © scanned with OKEN Scanneree - CONSTITUTIONAL LAW OF INDIA [Chay ; i 5 Court in a f Joseph Shine v. Union of India," the Supreme 4 five Jug decision overriel Sowrmt! Vis ¥ Union of Indi? 0 Reva ft Bg India,? and other judgments following preced I a nae. i 97 of LPC. Penaih th alley violative af Atices 1, 15) and 21 ofthe Constitution of gi and nt beneficial lepton covered by Article 1503) af he Constitution, Chie yaa Misra for himself and on behalf of Justice A.M. Khanwilkar held ; in i inasmuch as it lays do treated as subordinate to men inasmuc 25 down that ee Meads Mh man, there is no offence. Thee treals the w cnt chattel. It eats her asthe property of man and totally subservient to th yt at Its reflection of the social dominance that was prevalent why" provision was drafted. ision treats a married woman as a property of the husband, 5, Pc ‘eet fot bring within is purview an extra marital relationship with anunnet woman or a widow. The dictionary meaning of “adultery” is that a marcy Pen commits adler if has sex with woman with Whom he has not entered ino wage a per Black's Law Dictionary, ‘adultery’ is the voluntary sexual intercourse of 8 mania person witha person other than the offender's husband or wife. However, he prove, has made it a restricted one as a consequence of which a man, in cerain seen becomes criminally liable for having committed adultery while in other siuanm:® kK cannot be branded as a person who has committed adultery s0 as to invite the. culpabily of Section 497, IPC. Section 198 (2), Cr.P.C. treats the husband of the Woman 4 deemed to be aggrieved by an offence committed under Section 497, IPC and absence ofthe husband, some person who had the care of the woman on his beta ate time when such offence was committed with the leave of the Cour. It doesnot enses the wife ofthe adulterer as an aggrieved person. The offence and the deeming defniton’s an aggrieved person is absolutely and manifestly arbitrary and it does not Ven appear ty be rational and jt can be stated with emphasis that it confers licence on the hustenl eal with the wife as he likes Which is extremely excessive and disproportionate dex Rot lteat a woman as an abettor but protects a woman and simultaneously, it does t nable the woman to file any criminal prosecution against the husband. Indubitbly, te 2a take a civil action but the husband is also entitled to take civil action. However tht does not save the provision as being manifestly arbitrary, ‘Adultery is different from an offence committed under Section 498-A, IPC, or) polation of Protection of Domestic Violence Act, 2005 or the protection conceived ud Section 125, Cs.P.C. or Sections 306 or 304-B or 494, IPC. These offences ato serve various other purposes relatin ing crys in_contradisinction to the demand for dom: rang someone to jail for non-prantof maintenance 0: dultery stands on different footing from the fo into the concept of a crime, If it is treated asa crime tt 1. AIR 2018 se 46 pe stot Mathotra gave separne by pen, Justice Dr. D,¥, Chandrachud and } 2 AIR 1965 SC 1618, : 4. AIR 1988 Sc 835, 698; Justice WF, Nerina a © scanned with OKEN ScannerRi que 8) IGHT TO EQUALITY 15 nish act of adultery would tantamount to punishing people wh sa manalcelationship and any law that would make adultery a crime wet fae i Beh indiscriminately both the persons whose marriages have been broken down as welt Patnose persons whose marriages are not broken down, A law punishing adultery as a me cannot make a distinction between these two types of marriages. It is bound to cine 2 law which would fall within the sphere of manifest arbitrariness! Section 198(2), CrPC which deals with the procedure for filing a complaint in ation t0 the offence of adultery is unconstitutional. When the substantive provision the procedural provision has to pave the same path.2 Free education for children or prevention of their exploitation. —The srovision of free education for children’ or measure for prevention of their exploitation’ Feld also not come within the inhibition of Article 15 (1), Reservation in election for SC not for SC women,—In Permjit Singh v. State of Punjab,’ the Supreme Court held ~ Where the seat of Sarpanch of a village is reserved far Scheduled Castes, both men and women belonging to Scheduled Castes category can gontest the election for the said post because the eligibility is only being a Scheduled Castes Panch and not the nature of the constituency they represent as Panches. A woman cannot be prohibited from contesting the election for the post of Sarpanch against the seat meant for Scheduled Castes category merely on the ground that she was elected as Panch ‘om the reserved seat of Scheduled Castes (women). Such a position would be violation of Article 15 of the Constitution of India which prohibits discrimination of sex. Eighteen years’ upper age for juvenile.—In Salil Bali v. Union of India, the Sepreme Court held—The provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 fixing 18 years as upper age limit for treating persons as Juveniles is ccestitstionzlly valid. The Constitution enables the State Government to make special provisions for children. The basis of fixation of this age is Article 1 of the Convention of tbe Rights of the Child, 1989. India is not only a signatory to this convention but has also ratified it on 11th December, 1992. The essence of the Juvenile Justice Act and Rales made thereunder is restorative not retributive. The age has been fixed on account of Se understanding of experts of child psychology and behavioural pattems that till such an gz, the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future. Clause (4): Special Provision for advancement of Backward Classes. — Antcle 15(4) is another exception to clauses (1) and (2) of Anticle 15, which was inserted by the Constitution (Ist Amendment) Act, 1951, due to decision in State of Madras v. Dorairajan.’ In that case, the Madras Government had by a G.O. reserved sz iz State Medical and Engineering Colleges for different Communities in certain Bpentions on the basis of religion, race and caste. The Government defended it for Pamcting social justice for all sections of people as required by Article 46. The Supreme Com held the G.O. void because it classified students on the basis of caste and religion Exspective of merit. The Dircctive Principles of State Policy could not override the EXenenal Rights. In another case an order requisitioning land for the construction of a = Colony was held to be void under Article 15 (1). To modify the effect of these Shine ». Union of Indie, AIR 2018 SC 4898 at pp. 4912, 4913. Bat ap 4925, hin a period of ten years from the for all childcen woul they complete says, “The Suse idm und youth are protected 84 icularly direct iis policy towands securing. what ‘exploitation unsuited to their age or strength *Hpwam Kew vy. State of Mahorashira, AIR 1982 Bom 461, © scanned with OKEN Scanner