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