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Authors

Unnati Ghia

Abstract

Article 15(3) of the Constitution of India is an affirmative action provision intended to remedy the disadvantage faced by women, yet its application has been predominantly based in paternalism. In interpreting the phrase “special provisions for women”, Indian courts have often reinforced oppression through an extensive reliance on gender stereotypes and constructed notions of protective discrimination. In light of the shortcomings of the existing approach, this paper illustrates the need for a reconceptualisation of Article 15(3) within a substantive equality framework. Through an exploration of legal theory on affirmative action, as well as the text and history of Article 15(3), this paper suggests an alternative three-part framework that redirects the application of the provision at specific manifestations of historical and structural disadvantage.

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