An analysis of constitutional safeguards provided to women in India

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes have aimed at womens advancement in different spheres. India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993. Women do play major role in shaping the society by providing moral force at home. They have very unique position at every society whether it is developed, undeveloped or developing. Women have gained a lot in almost every field. It is said that to understand things in a better manner we need look upon the history. There was a time in history when women were forced to live within the four walls and they were not even allowed to raise their opinion. Now, in the modern days we find woman in every campaign and both men and women are bread earner of the family. Both the spouses are sharing the responsibilities and the stereotypical roles placed on women are slowly dissolving. Women are the embodiment of Shakti, the Creator and the Destroyer of human race. Since Independence the position of Indian women is no better. On one hand she is held high, worshiped, considered as the epitome of virtues and the one who could just sacrifice everything for their family. But on the other hand she has been the victim of miseries, hardships and atrocities that are caused due the male dominating society. They are most deprived and backward section of the society. She had been the victim of tyranny. As a solution to every problems mainly the gender discrimination, women empowerment is the need of hour. It is high time to provide women equal rights, opportunities in decision making and they should be recognized as the builders and moulders of the nation’s destiny. According to a report published by United Nations in 1980 it was found that women do constitute the half of the world’s total population. They do perform nearly about two-thirds of work hours and they receive one tenth of the world’s income. They own less than one hundred percent of the world’s property. According to the Apex Court of India’s observation in the case Madhu krishna v. State of Bihar women constitute half of the Indian population. They have always been the discriminated section of the society and have suffered a lot. In spite, the number of sacrifices they have been treated as the inferiors. With the aim to provide women protection against their sufferings, the framers of the Indian Constitution have incorporated special provisions. These provisions would enable a woman to develop in all spheres of life.

Social Justice when interpreted simply means that larger goal must be achieved and nobody should be deprived of their legal rights. It also means that state should make all those positive laws that are required for the development of society. The expression “social and economic” means that all should have equal opportunities and injustice should not be done even to unequal of the society. The preamble of our constitution is non- discriminatory where all sections are treated equally and alike. But when we look at the history of India, suppression of women is very old and long. The framers have historically examined the situation and incorporated provisions with the view to grant equal status to women in terms of all spheres. The Part III5 of the India Constitution primarily deals with fundamental rights. Even though Articles 12-35 are applicable to all citizens and no discrimination is made on the basis of sex but certain special provisions has been made for the protection of rights of the women. Article 14 of the Indian Constitution guarantees equality before law and equal protection of the law. Thus, a woman of the Indian society enjoys same treatment and protection to that of men as guaranteed by Indian Constitution. Article 15 of the Indian Constitution prohibits discrimination against women. When we talk about clause 1 of Article 15 it states that state should not make any discrimination against any citizen mainly on the grounds of religion, caste, sex of place or any of them. On the other hand, Article 15(3) lifts that ignominy and permits the state will not hesitate to make positive discriminatory laws for women to meet up their special needs. The intention of the f framers could be seen that in order to protect the interest of women such specific clause has been inserted. The concept of Article 15(3) was justified by Honorable Justice S. Manohar. He observed that clause 3 of Article 15 recognises that fact that women have been deprived of their rights since ages and they have been socially and economically handicapped. Dr. G.B Reddy also stated that clause 3 of Article 15 is in favour of women and states are empowered to make special provisions to ameliorate their social, economic and political condition. The object of the Article 15(3) is to eliminate socio- economic backwardness of women. Again in the case of Charan Singh v Union of India, The Honorable Court observed:- that women should be treated as class and their social, economic and political condition should be compared with men. Article 16 talks about equal opportunity in matters of public employment and Article 16(1) states that no discrimination should be made in opportunity and employment to any office under state. In the case, C.B. Muthamma v Union of India,8 the rules requiring female employees to get permission before marriage and denial of right to employment to married women were held to be discriminatory and violative of Article-16 of the Indian Constitution. Now Article 16(4) talks about empowerment of the backward and deprived communities to give them proper share in administrative apparatus. Here the question may arise that whether women are included in the deprived and backward community. Talking into account their condition, position and status they fulfill almost all the characteristics and hence they must be given benefit. Article 19 to 22 deals with right to freedom that must be guaranteed to both men and women. Article 21 states that: No person shall be deprived of his life or personal liberty except by the procedure established by law. This section has been widely interpreted in Maneka Gandhi’s Case. Article 23 of the Indian Constitution talks about prohibits human trafficking. In the case, Vishal Jeet v Union of India, the court observed that trafficking in India is prevalent since ages in the form of prostitution and buying and selling of human beings. And every citizen as per Articles 32 to 35 has right to constitutional remedies. Now taking into consideration the above discussion certain questions may arise. Can a woman be denied a job merely because she is a woman? In the landmark case, Air India v. Nargesh Meerza the Apex Court held that woman should not be denied employment merely on the ground that she is a woman. It is gross violation of Article 14 of the Indian Constitution. Can a person be denied of seniority promotion on the ground of sex? The same question arose and was Indian Foreign Service was challenged in the case Miss C.B. Muthamma v. Union of India. It was held by the court that rules relating to seniority and promotions in India Foreign Services which makes discrimination on the ground of sex only was not only unconstitutional but also a hangover of masculine culture. Whether beauty contests are violation of constitutional provisions? This question arouse in the case of C. Rajakumari v. Commissioner of Police, Hyderabad. The Honorable Court held that beauty contest that is likely to degrade, deprive, corrupt or injure the public mortality is violative of Articles 14, 21 and 51-A of the Indian Constitution. Can a woman make reproductive choice? The Honorable Supreme Court in the case of Suchita Srivastava and Another v. Chandigarh Administration observed that women do have right to make reproductive choice and is covered under Article 21. Can there be reservation of seats for women in college? The Honorable Bombay High Court in Dettatreya v. State of Bombay, held that reservation of seats for women in college in not unconditional. What is the relation between immoral trafficking and the Indian Constitution? Article 23 of the Indian Constitution prohibits human trafficking. In the case, Vishal Jeet v Union of India, the court observed that trafficking in India is prevalent since ages in the form of prostitution and buying and selling of human beings. Can a mother act as a natural guardian during the lifetime of father? The Apex Court in the case, Githa Hariharan v. Reserve Bank of India17 held that father cannot alone was the natural guardian which was violation of Articles 14 and 15 of the Indian Constitution. Hence, the mother can also be the natural guardian during the lifetime of father.

To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as Murder, Robbery, Cheating etc, the crimes, which are directed specifically against women, are characterized as Crime against Women. These are broadly classified under two categories:- The Crimes Identified Under the Indian Penal Code (IPC) and The Crimes identified under the Special Laws (SLL). Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. Special Initiatives for women include (i) National Commission for Women, In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc. (ii) Reservation for Women in Local Self -Government The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas. (iii) The National Plan of Action for the Girl Child (1991-2000), The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child.( iv) National Policy for the Empowerment of Women, 2001, The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a National Policy for the Empowerment of Women in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.

Fundamental Duty:- Article 51A (e)enjoins upon every citizen to renounce practices derogatory to the dignity of women. Reservation of seats for Women in Panchayats and Municipalities – Article 243 D and Article 243 T(3) provide for reservation of not less than one third of total number of seats in Panchayats and Municipalities for women to be allotted by rotation to different Constituencies. Article 243 D(4) provides that not less than one third of the total number of officers of chairperson in the Panchayat and Municipalities at each level to be reserved for women. Voting rights/Electoral law – Not less than one-third seats shall be reserved for women. Such seats may be allotted by rotation to different constituencies in a Panchayat. The office of the chairperson in the Panchayat at the village or any other level shall be reserved for SCs, STs and women in such manner as the legislature of state may, by law provide. Reservation of seats for women in Municipalities is provided – To uphold the Constitutional mandate, the state has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as ‘Murder’, ‘Robbery’, ‘Cheating’ etc, the crimes, which are directed specifically against women, are characterized as ‘Crime against Women’. The Maternity Benefit Act, 1961 – An amendment was made in 2017 to the Maternity Benefit Act, 1961. Under the Act, paid maternity leave for women employees with less than two surviving children, from the original twelve (12) weeks to twenty-six (26) weeks was extended. The amendment further provided working mothers who have adopted a child below the age of three months, to take 12 weeks of maternity leave from the date of receiving the child and also allowed mothers to work from home after completing 26 weeks subject to their mode of work and employer’s consent. The Dowry Prohibition Act, 1961 – This Act prohibits the payment or acceptance of dowry as a consideration for marriage. Asking for or giving of dowry can be punished by imprisonment of up to six months, a fine of up to Rs. 15000 or the amount of dowry, or imprisonment up to 5 years.

Vishaka v. State of Rajasthan (1997) – In this case, the court laid down ‘The Vishaka Guidelines’ which were later converted into the Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013. This case pertains to a woman Bhanwari Devi who was gang-raped by five men as revenge on her for attempting to terminate the marriage of an infant and to fight against the male ego in Rajasthan which was part of her job. The court held that sexual harassment was a clear violation of rights under Articles 14, 15, 19 and 21 of the Indian Constitution. Air India v. Nargesh Meerza (1981) – In this case, an inclusive reading of Article 14 was done by the Supreme Court and it was decided that employment cannot be denied to any person on the grounds of sex. For inflight services, stress was laid on the height of the youth, appearance, and glamour quotient of the employees. An aviation company called Air India regulated that the air hostesses should retire if they reach the age of 35, conceiving a child, or on marriage whichever occurs earlier. These conditions were derogatory and offending and hence challenged in the court and were later struck down. Vineeta Sharma v. Rakesh Sharma (2020) In this case, the Supreme Court held that daughters will have equal coparcenary rights in the Hindu Undivided Family by their birth and cannot be excluded from inheritance irrespective of whether they were born before the amendment of 2005 to the Hindu Succession Act, 1956.

The Indian Constitution has made equality a basic right of all the citizens of this country. Ever since the enactment of the Constitution, society and values have evolved, but there are still some flaws. Some people still consider having a girl child as a burden to the family. The Government, the Supreme Court, and other authorities have time and again implemented various measures to prevent discrimination but, this still does not change the shallow thinking of the people who even consider practising female foeticide. Due to all this, achieving absolute gender equality in a country like India continues to be a huge challenge.

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