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University of Petroleum and Energy Studies
Bidholi, Dehradun, Uttarakhand
Title
Women Equality and the Constitution of India
Submission Date: 2013-03-07
Submitted to Submitted by
Asst. Dean Saurabh Chaturvedi Dhruv Tripathi
COLS,UPES B.A.LL.B. 3rdSem.
Sap ID: 500017513
Roll No. R450211038
Abstract
“The Lord divided his own body into two parts; half male
and half female and thus was created the universe.”
- Manu Smriti
Since the world’s inception, the male-female combination has proved to be the foremost
necessity for propagating and developing global views. One of the best ways to understand
the spirit of a civilization and to appreciate its excellence and realize its limitation is to study
the position and status of women. Civilization without women is structure of the family
impossible. A woman is an important organ of the family which is the basic unit of society.
However, the nature and structure of the family varies in society. The family includes
members belonging to different age groups, sex and generations. One determining factor of
status in the Indian Family is sex. Women members often are subordinate due to various
factors. The authority of a woman depends upon the husband’s status.
It is true that society till date is male dominated. A woman’s life is akin to slavery, although
she is worshipped as a deity in homes. United Nations reports reveal that women constitute
half of the world’s population. About 2/3 of the world’s female population is malhandled by
husbands. In India, most of the mothers-in-law are cruel towards their daughters-in-law and
countless young wives are burnt to death for non-fulfilment of dowry demands.1
1 Sex-ratio patterns in the Indian population - a fresh exploration. SB Agnihotri, 2000 p. 70-71
Introduction
The Sociologist had described women by propounding different perceptions. In India, the
history speaks that the women are considered as a divine force but the multi-cultured Indian
society placed the women at different positions. Thus, there is no uniform status of women in
the Indian society. However, civilization showed the overall upliftment of women’s position.
According to historian ROMILLA THAPER –
“Within the Indian sub-continent there have been infinite variations on the status of women
diverging according to cultural malices, family structure, class, caste property rights and
morals.”2
The Indian philosophy poses the women with dual character. On the one hand, she is
considered fertile, patient and benevolent but on the other hand, she is considered aggressor
and represents ‘shakti’.
Status of Women in India – A Historical Perspective
Women are considered to be the pivot not only in domestic life but for society. This is
evident through a study of the epics. A study of different stages of civilization with special
reference to women, conducted by Vijay Sharma Kaushik and Bela Rani presents a true
picture of women in different ages.3 They observed that a maid was not only an object of
tender affection and care at home but her education also was taken care of and she had
important duties to perform. A woman was never sacrificed at the altar of marriage. She was
also allowed to select her life partner. The examples of Sita in Ramayana and Daraupdi in
Mahabharata had proved this fact. ‘Kanyadan’ does not necessarily mean her lower social
status. The sacramental nature of marriage also strengthened the position of a wife in a
polygamous society. She was the nucleus of a family. On women was dependent the
prosperity and future progeny of the family. She was considered the creator, protector and
educator of children.
2 Romilla Thaper, Looking Back in History; in Devika Jain, Indian Women, Publication Division, Ministry of Information and Broadcasting, Government of India, New Delhi, 1975, p.6.3 Indian Women Through Ages ( Encyclopaedia of Human Rights and Women’s Development – I ) Vijay Sharma Kaushik, Bela Rani. 1998 p. 48-103.
Modern Indian Women – Present Status
By going through history in the context of women’s position, it may be mentioned that
particularly after establishment of class society and the trend to accumulate private property
in the post Vedic Period, women’s position in society hit patriarchal values.
A woman during this period not only occupied an inferior position but was made to feel that
her position was subordinate to men in society. Middle class educated women, particularly in
large urban areas who are working and moving freely now, give an impression that Indian
women’s status has substantially improved. She is now politically powerful but in small
towns, rural areas or city slums, she still suffers social and economic oppression. The
Constitution of India has provided that equal rights to her, but still she has to face injustice in
her life. Violence against women in the form of rape, prostitution, dowry deaths, sexual
harassment, female foeticide and female infanticide is widely prevalent in society. There is a
growing feeling that women suffer from discrimination and disabilities in more subtle and
convert ways. Thus the dual existence of women in high positions and yet undergoing various
types of sufferings continues. One very hopeful development which has taken place during
the past ten years is the emergence of a woman’s movement wherein women have started
raising their voice against inequality, patriarchal values and unjust social structure. The need
is to adopt more positive steps to raise the status of women so that more Indira Gandhis,
Vijayalakshmi Pandits, Kiran Bedis, and Najama Heptullahs can take birth and govern the
nation like our former President of India Smt. Pratibha Patil.
Today, every law favours women. The recent Amendment to Section 6 of the Hindu
Succession Act, 1956, which gives equal right in coparcenary property to daughters, is a
clear-cut example. Moreover, Article 14 and 15 of the Constitution providing equal status to
women and special laws for women, the Hindu Marriage Act, 1955, allowing her to take
divorce under Section 13(1) (A) on any of the grounds available under this provision and
Section 13(2) giving four special grounds to take divorce exclusively to the wife; the Hindu
Minority and Guardianship Act, 1956; the Hindu Adoption and Maintenance Act, 1956; the
Dowry Prohibition Act; and Section 498-A of the Indian Penal Code, 1860, specifically
relating to punishment for cruelty against wife by her husband and relatives, all favour
women. There are a number of social organizations and commissions working against
exploitation of women at home and workplace.
Women are also aware of these laws and rights and are fighting for their rights.
Unfortunately, she has lost her right to take birth in society, her right to life. The growing
inhuman act of female foeticide is a glaring example of violation of her right to life. This is a
picture of modern Indian women. Henry has rightly said: “ Woman was taken out of man, not
out of his head to rule over him, nor out of his side to be equal to him, but from under his
arms to protect her and from near his heart to love her.” But she is still waiting for this
position.
Women under the Constitution of India
According to a report of the United Nations – “women constitute half of the world population
nearly two-thirds of works hours, receive one tenth of the world income and own less than
one hundred per cent of world’s property.”
In view of the Supreme Court as observed in Madhu Krishnan v State of Bihar4, women form
half of the Indian population. Women have always been discriminated against men and have
suffered denial and are suffering discrimination in silence. Self sacrifice and self denial are
their nobility and fortitude and yet they have been subjected to all kinds of inequities
indignities, incongruities and discrimination.
The Constitution of India, 1950 has certain provisions relating to women. It makes special
provisions for the betterment, treatment and development of women in every sphere of life.
The Preamble – The Preamble is the key to the Constitution. It does not discriminate men
and women bit it treats them alike. The framers of the Constitution were well aware of in
equal treatment meted out to the fair sex, from the time immemorial. In India, the history of
suppression of women is very old and long which is responsible including general and special
provisions for upliftment and development of the status of women. Certain provisions are
specifically designed for the benefit of women.
Undoubtedly, the preamble appended to the constitution of India, 1950 contains various
objectives including, “the equality of status and opportunity” to all the citizens. This
objective has been inserted with the view to give equal status to men and women in terms of
the opportunity.
Fundamental Rights
Part III of the Constitution of India, 1950 deals with the fundamental rights. The provisions
regarding fundamental rights have been enshrined in Articles 12 to 35, which are applicable
to all the citizens irrespective of sex. However, certain provisions protect the rights of
women.
According to Article 15(3) of the Constitution, discrimination on grounds of religion, race,
caste, sex or place of birth shall not prevent the state from making any special provisions for
women and children. Under the Constitution the state has been given power to make laws
4 (1956) 5 SCC 148.
relating to women and children but such laws shall not be violative of Article 15 of the
Constitution. Article 15(1) prohibits gender discrimination. Article 15(3) lifts that ignominy
and permits the state to positively discriminate in favour of women to make special
provisions to ameliorate their social, economic and political condition and accord them
parity.5
Article 15(3) of the Constitution makes special provisions for women and children. It
empowered the state to make special legislation in this regard. The Courts have always
approved the validly of such special legislation rather special measures. These women and
children oriented beneficial legislations can be seen in the ambit of the Criminal Law.
It is to be noted that the Constitution of India guarantees all the rights to women which are
given to men. The special features of fundamental rights are as under:
1. Rights to Equality (Articles 14 and 15 of Constitution) – It means the equality of
opportunity, equality before law, equal protection in the laws, not discriminating
against any person on grounds of sex, religion, caste and place of birth and no
discrimination in the matters of public employment on the grounds of sex only as
provided under Article 16 of the Constitution.
2. Right to Freedom – Articles 19 to 22 of the Constitution deal with the right to
freedom. It includes right to freedom of speech, protection in respect of conviction for
offences, protection of life and personal liberty and protection against arrest and
detention, etc.
3. Right against Exploitation – According to Article 23 of the Constitution traffic in
human beings and forced labour is prohibited. Employment of children is prohibited
under Article 24 of the Constitution.
4. Right to Freedom of Religion – Articles 25 to 28 of the Constitution deal with right
to freedom of religion. It means professing, practising and propagating religion freely.
5. Cultural and Educational Rights – The interest of minorities is protected under
Article 29 of the Constitution. Further Article 30 of the Constitution provides the right
of minorities to establish and administer educational institutions.
6. Rights to Constitutional Remedies – Every Citizen has been provided the right to
Constitutional remedies. Article 32 to 35 deal with the right to Constitutional
5 Dr. G.P. Reddy on Women are Law, IV ed., 2000, p. 2.
remedies. Every citizen of India has the right to Constitutional remedies, that is
approaching Courts for enforcing fundamental rights.
(i) A Women shall not be denied a job merely because she is a woman – In its
landmark judgment t he Apex Court in Air India v Nargesh Meerza6has held that a
woman shall not be denied employment merely on the ground that she is a woman
as it amounts to violation of Article 14 of the Constitution. In the present case,
wherein air-hostesses of Indian Air Lines and Air India have challenged the
service rules which state that:
“Air-hostesses shall not marry for the first four years of their joining; they will
lose their jobs if they become pregnant. They will retire at the age of 35 years,
unless managing director extends the term by ten years at his discretion.”
The Supreme Court of India suggested that the first provision is legal, as it would
help in promotion of the family planning programmes, and will increase the
expenditure of airlines recruiting air-hostesses on temporary or ad hoc basis, but
the second and third provisions to be declared as unethical, abhorrent,
unreasonable, arbitrary, unconstitutional and an open insult to Indian womenhood.
Thus, the above decision of the Apex Court has greatly elevated the status of
working women.
(ii) Denial of Seniority promotion on the ground of sex – Rules regarding seniority
and promotion in the Indian Foreign Service was challenged before the Apex
Court in Miss. C.B. Muthamma v Union of India,7 where it has been held that the
rules relating to seniority and promotion in Indian Foreign Service which make
discrimination only on ground of sex is not only unconstitutional but also a
hangover of the masculine culture of having cuffing the weaker sex. In this instant
case a writ petition was filed before the Apex Court wherein it was contended that
she had been denied promotion to Grade I on the ground of sex, which violated
the Article 15 of the Constitution of India, 1950. The Apex Court allowed the
petition and held that Rule 8 (2) of the Indian Foreign Service (Conduct and
Discipline) Rules, 1961 which requires that an unmarried woman member should
take permission of the Government before the marriage. After the marriage, she
may be asked any time to resign if it is felt that her family life affects her
efficiency as of right to be appointed to the service (I.F.S.) contravenes Article 15
6 AIR 1981 SC 18297 AIR 1979 SC 1868
of the constitution of India. In view of the above decision, now these provisions
have been deleted.
(iii) Beauty Contests – whether violation of Constitutional provisions – This
question was raised before the Andhra Pradesh High Court in C. Rajakumari v
Commissioner of Police, Hyderabad.8 It has been held that if a beauty contest
indecently represent any woman by depicting in any manner the figure of woman,
form, body or any part thereof in such a way so as to have the effect of being
indecent, or derogatory to or degrading women, or likely to deprive, corrupt and
injure the public morality would be violative of the provisions of the Indecent
Representation of Women (Prohibition) Act, 1986 and also unconstitutional as it
violates Article 14, 21 and 51-A of the Constitution of India.
(iv) Constitutional Validity of Section 497 (i.e. Adultery) of the Indian Penal
Code, 1860 – In the offence of adultery Section 497 of the Indian Penal Code,
1860 punishes only the male counterpart and exempts the woman from
punishment. The Constitutional Validity of Section 497, IPC was challenged on
the ground that it is violative of Articles 14 and 15(1) of the Constitution. In Abdul
Aziz v State of Bombay,9 the Apex Court upheld the validity of the provision on
the ground that the classification was not based on the ground of sex alone. The
Court relied upon the mandate of article 15(3) of the Constitution of India to
uphold the validity of the said proviso of the Code. However, in the present case
the petitioner contended that even though the woman may be equally guilty as an
abettor, only the man was punished, which violates the right to equality on the
ground of sex.
Section 497 – Whoever has sexual intercourse with a person who is and whom he
knows or has reason to believe to be the wife of another man without the consent
or conscience of that man, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery, shall be punished with imprisonment of
either description for a term which may extend to five years, or with fine, or with
both. In such case the wife shall not be punishable as an abettor. It was contended
that Section 497, IPC is violative of Article 14 and 15 of the Constitution on the
ground that it makes an irrational classification between men and women in that:
8 AIR 1998 A.P. 3029 AIR 1994 SC 321
(i) it contents upon the husband the right to prosecute the adulterer but it does
not confer any right upon the wife to prosecute the woman with whom her
husband committed adultery;
(ii) it does not confer any right on the wife to prosecute the husband who has
committed adultery with another woman; and
(iii) it does not take in cases where the husband has sexual relation with an
unmarried woman with the result that it amounts to having a free licence
under the law to have extra marital relationship with unmarried woman.
However, the Apex Court rejected theses aforesaid contentions ad held that it cannot be said
that in defining the offence of adultery so as to restrict the class of offender to men, any
constitutional provision is infringed.
Indian Constitution and Special Provision for women
As aforesaid under Article 15 of the Indian Constitution the State is empowered to make
special provisions for women. For instance, making of special seating arrangements in trains
is in no way unconstitutional.
(a) Reservation of seats for women in colleges – The Bombay High Court in Dettatreya
v State of Bombay,10 has held that reservation of some seats in women’s college is not
unconstitutional. The court observed that establishment of educational institution
exclusively for women is not hit by Article 15 of the Constitution.
(b) U.P. Court of Wards Act, 1912: Proprietorship relating to property – In Ran
Raj Rajeshwari v The State of Uttar Pradesh,11 wherein the issue related to a
discriminatory provision in a status was adjudicated under the UP Court of Wards
Act, 1912. According to this Act a male proprietor could be declared incapable in
managing his property only on one of the five grounds mentioned therein and that
too after giving him an opportunity of showing cause as to why such a declaration
should not be made, a female proprietor could be declared incapable to manage
her property on any ground and without giving her any show cause notice. The
Allahabad High Court held that this provision was bad because it amounts to
discriminate on the basis of sex which is violative of Article 15(1) of the
Constitution of India, 1950.
10 AIR 1953 Bom. 31111 AIR 1954 All. 608
(c) Constitutional Validity of Section 437 of the Code of Criminal Procedure,
1973 – The mandate of Section 437 of the Code of Criminal Procedure, 1973
permits that distinction in favour of women even if there appears to be a
reasonable ground for believing that they have been guilty of an offence
punishable with death or imprisonment for life.12
In other words this section prohibits release of a person accused of a capital
offence on bail except women and children under 16 years of age or sick or infirm
person. In Choki v State of Rajasthan,13 the Rajasthan High Court has held that it
is valid on the ground that it makes special provision for women and therefore, it
is protected under Article 15(3) of the Constitution.
(d) The Immoral Traffic (Prevention) Act. 1956 and the Indian Constitution –
Article 23 of the Constitution provides the right against exploitation. The
constitutional provision prohibits traffic in human beings. In this context traffic in
human beings includes “devadasi system”. The Apex Court in Vishal Jeet v Union of
India,14 observed that trafficking in human beings has been prevalent in India for a
long time in the form of selling and purchasing of human beings for prostitution for a
price just like that of vegetables. On the strength of Article 23(1) of the Constitution,
the legislature has passed the Immoral Traffic (Prevention) Act, 1956 which aims at
abolishing the practice of prostitution and other forms of trafficking including
“devadasi system”. The court further observed that this Act has been made in
pursuance of the International Convention which India signed the declaration at New
York (USA) on 9th May, 1950 for the prevention of immoral traffic.
Directive Principles of State Policy and Women
Under the Indian Constitution, 1950 the directive principles of State policy is the reflection of
governance that India is a welfare democratic state. This policy envisaged equal rights to
work, equal work, adequate means of decent and dignified livelihood to both men and women
these are guaranteed under the directive principles of state policy. Part IV of the Constitution
containing Articles 38, 39 (a) (d) and (e), 42, 44 and 45 deal with the welfare and
development of women.
12 Suresh Kumari v State of Haryana, 1995 (4) Crimes 643 C.P.S. 14.13 AIR 1971 Raj. 10.14 Air 1990 SC 1412
According to Article 39(a) the State should direct its policy towards securing that the citizens,
men and women equally have the right to an adequate means of livelihood. This Article
provides equal rights for all citizens, irrespective of sex, to adequate means of livelihood.
As per Article 39(d) of the Constitution in the States that there should be equal pay for equal
work for both men and women. Thus, the state is under Constitutional obligation to direct its
policy towards securing that there is equal pay for equal work for both men and women.
(i) Principles of “equal work” is a Constitutional goal
(ii) Men and Women workers to be protected equally
(iii) Equal justice and free legal laid
(iv) Uniform Civil Code and Gender Justice, Equality
(v) Conversion – Right as to Plurality of Marriage is not conferred on husband
(vi) Protection of women from prostitution and rehabilitation of their children
(vii) PIL regarding eradication of prostitution
(viii) Article 23 of the Constitution and Reservation for SC/ST/BC/Women
(ix) Women’s right to make reproductive choice
Suggestions
1. The implications, as I see it, were that in the unfortunate situation of a young husband
passing away, leaving his widow with minor children, the grand parents, say, could be
made the natural guardians of the minor children. The widow, already grief stricken,
would hardly be in a position to protest and might perforce, keep quiet. Once someone
else was made a natural guardian of her children, she would at all times be under their
domination. Such a situation is easily visualised even with a economically
independent woman.
2. The de-jure and de-facto enjoyment of all human rights and fundamental freedom by
women on equal basis with men in all spheres – political, economic, social, cultural
and civil.
3. Women’s equality in power sharing and active participation in decision making,
including decision making in political process at all levels will be ensured for the
achievement of the goals of empowerment. All measures will be taken to guarantee
women equal access to and full participation in decision making bodies at every level,
including the legislative, executive, judicial, corporate, statutory bodies, as also the
advisory Commissions, Committees, Boards, Trusts etc. Affirmative action such as
reservations/quotas, including in higher legislative bodies, will be considered
whenever necessary on a time bound basis. Women–friendly personnel policies will
also be drawn up to encourage women to participate effectively in the developmental
process.
4. Since women comprise the majority of the population below the poverty line and are
very often in situations of extreme poverty, given the harsh realities of intra-
household and social discrimination, macro economic policies and poverty eradication
programmes will specifically address the needs and problems of such women. There
will be improved implementation of programmes which are already women oriented
with special targets for women. Steps will be taken for mobilization of poor women
and convergence of services, by offering them a range of economic and social
options, along with necessary support measures to enhance their capabilities.
Books Referred
1. Female Foeticide - A Frightful Reality (Social-Legal Ramifications) by Dr. Supinder
Kaur, Central Law Publications, 1st Edition 2009
2. Law Relating to Women and Children, Dr. S.C. Tripathi and Vibha Arora, Central
Law Publications, Fourth Ed., 2010
3. https://www.google.co.in/search?hl=en&output=search&sclient=psy-
ab&q=women+equality+and+constitution+of+india&btnK=
http://wcd.nic.in/empwomen.htm
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