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Describe prohibition of discrimination based on sex. Explain meaning, scope and extent of term ....

Updated: Aug 20, 2021

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 | This question was asked in 2019 MPJS mains under constitutional law.


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


Start writing the answers in lucid style by retaining key words and apt legal terminologies


QUESTION CAN BE ATTEMPTED TILL 18.08.2021

ANSWER WILL BE POSTED ON 18.08.2021

ANSWERS WRITTEN BY ASPIRANTS WILL BE EVALUATED AND POSTED ON 21.08.2021


How to post my answer ?


STEP 1 : Take a sheet of paper and write the answer in it.

STEP 2 : Take a picture of it and post it in the comment section.


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


Ans: Constitution provides protection against discrimination by following ways

  1. 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.

  2. 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

  3. 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.

  4. Article 17 – Prohibits untouchability

  5. Article 18 – Abolishes titles conferred


PROHIBITION OF DISCRIMINATION BASED ON SEX DESCRIBED !

Discrimination is nothing but an unfavorable treatment and sex is nothing but identification of ones gender.

On glancing the above provisions we can say that any discrimination based on sex is

  • Broadly violates art 14 if it does not satisfy the test of reasonable classification

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.

  • Specifically violates art 15 if such discrimination is on 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.


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 art 16 if such discrimination is employment under state

EXCEPTION under art 15 – Clause 3 enables state to make laws for upliftment of women again here men would be discriminated based on sex yet cannot be complained.

Example | Gujarat has given reservation in favor of women

  • Specifically violates art 17 if untouchability is practiced based on sex.

Thus above are the safeguards that has both in broad and narrow sense prevent discrimination based on sex.


CITIZENSHIP UNDER INDIAN CONSTITUTION


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.


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.



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