University of Petroleum and Energy StudiesBidholi, Dehradun, UttarakhandTitleWomen Equality and the Constitution of IndiaSubmission Date: 2013-03-07Submitted to Submitted byAsst. Dean Saurabh Chaturvedi Dhruv TripathiCOLS,UPES B.A.LL.B. 3rdSem.Sap ID: 500017513Roll No. R450211038
Abstract“The Lord divided his own body into two parts; half maleand half female and thus was created the universe.”- Manu SmritiSince the world‟s inception, the male-female combination has proved to be the foremostnecessity for propagating and developing global views. One of the best ways to understandthe spirit of a civilization and to appreciate its excellence and realize its limitation is to studythe position and status of women. Civilization without women is structure of the familyimpossible. 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 includesmembers belonging to different age groups, sex and generations. One determining factor ofstatus in the Indian Family is sex. Women members often are subordinate due to variousfactors. 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, althoughshe is worshipped as a deity in homes. United Nations reports reveal that women constitutehalf of the world‟s population. About 2/3 of the world‟s female population is malhandled byhusbands. In India, most of the mothers-in-law are cruel towards their daughters-in-law andcountless young wives are burnt to death for non-fulfilment of dowry demands.11Sex-ratio patterns in the Indian population - a fresh exploration. SB Agnihotri, 2000 p. 70-71
IntroductionThe Sociologist had described women by propounding different perceptions. In India, thehistory speaks that the women are considered as a divine force but the multi-cultured Indiansociety placed the women at different positions. Thus, there is no uniform status of women inthe 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 womendiverging according to cultural malices, family structure, class, caste property rights andmorals.”2The Indian philosophy poses the women with dual character. On the one hand, she isconsidered fertile, patient and benevolent but on the other hand, she is considered aggressorand represents „shakti‟.Status of Women in India – A Historical PerspectiveWomen are considered to be the pivot not only in domestic life but for society. This isevident through a study of the epics. A study of different stages of civilization with specialreference to women, conducted by Vijay Sharma Kaushik and Bela Rani presents a truepicture of women in different ages.3They observed that a maid was not only an object oftender affection and care at home but her education also was taken care of and she hadimportant duties to perform. A woman was never sacrificed at the altar of marriage. She wasalso allowed to select her life partner. The examples of Sita in Ramayana and Daraupdi inMahabharata had proved this fact. „Kanyadan‟ does not necessarily mean her lower socialstatus. The sacramental nature of marriage also strengthened the position of a wife in apolygamous society. She was the nucleus of a family. On women was dependent theprosperity and future progeny of the family. She was considered the creator, protector andeducator of children.2Romilla Thaper, Looking Back in History; in Devika Jain, Indian Women, Publication Division, Ministry ofInformation and Broadcasting, Government of India, New Delhi, 1975, p.6.3Indian Women Through Ages ( Encyclopaedia of Human Rights and Women’s Development – I ) Vijay SharmaKaushik, Bela Rani. 1998 p. 48-103.
Modern Indian Women – Present StatusBy going through history in the context of women‟s position, it may be mentioned thatparticularly after establishment of class society and the trend to accumulate private propertyin 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 thather position was subordinate to men in society. Middle class educated women, particularly inlarge urban areas who are working and moving freely now, give an impression that Indianwomen‟s status has substantially improved. She is now politically powerful but in smalltowns, rural areas or city slums, she still suffers social and economic oppression. TheConstitution of India has provided that equal rights to her, but still she has to face injustice inher life. Violence against women in the form of rape, prostitution, dowry deaths, sexualharassment, female foeticide and female infanticide is widely prevalent in society. There is agrowing feeling that women suffer from discrimination and disabilities in more subtle andconvert ways. Thus the dual existence of women in high positions and yet undergoing varioustypes of sufferings continues. One very hopeful development which has taken place duringthe past ten years is the emergence of a woman‟s movement wherein women have startedraising their voice against inequality, patriarchal values and unjust social structure. The needis 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 thenation like our former President of India Smt. Pratibha Patil.Today, every law favours women. The recent Amendment to Section 6 of the HinduSuccession Act, 1956, which gives equal right in coparcenary property to daughters, is aclear-cut example. Moreover, Article 14 and 15 of the Constitution providing equal status towomen and special laws for women, the Hindu Marriage Act, 1955, allowing her to takedivorce under Section 13(1) (A) on any of the grounds available under this provision andSection 13(2) giving four special grounds to take divorce exclusively to the wife; the HinduMinority and Guardianship Act, 1956; the Hindu Adoption and Maintenance Act, 1956; theDowry Prohibition Act; and Section 498-A of the Indian Penal Code, 1860, specificallyrelating to punishment for cruelty against wife by her husband and relatives, all favourwomen. There are a number of social organizations and commissions working againstexploitation 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 growinginhuman act of female foeticide is a glaring example of violation of her right to life. This is apicture of modern Indian women. Henry has rightly said: “ Woman was taken out of man, notout of his head to rule over him, nor out of his side to be equal to him, but from under hisarms to protect her and from near his heart to love her.” But she is still waiting for thisposition.
Women under the Constitution of IndiaAccording to a report of the United Nations – “women constitute half of the world populationnearly two-thirds of works hours, receive one tenth of the world income and own less thanone hundred per cent of world‟s property.”In view of the Supreme Court as observed in Madhu Krishnan v State of Bihar4, women formhalf of the Indian population. Women have always been discriminated against men and havesuffered denial and are suffering discrimination in silence. Self sacrifice and self denial aretheir nobility and fortitude and yet they have been subjected to all kinds of inequitiesindignities, incongruities and discrimination.The Constitution of India, 1950 has certain provisions relating to women. It makes specialprovisions 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 menand women bit it treats them alike. The framers of the Constitution were well aware of inequal treatment meted out to the fair sex, from the time immemorial. In India, the history ofsuppression of women is very old and long which is responsible including general and specialprovisions for upliftment and development of the status of women. Certain provisions arespecifically designed for the benefit of women.Undoubtedly, the preamble appended to the constitution of India, 1950 contains variousobjectives including, “the equality of status and opportunity” to all the citizens. Thisobjective has been inserted with the view to give equal status to men and women in terms ofthe opportunity.Fundamental RightsPart III of the Constitution of India, 1950 deals with the fundamental rights. The provisionsregarding fundamental rights have been enshrined in Articles 12 to 35, which are applicableto all the citizens irrespective of sex. However, certain provisions protect the rights ofwomen.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 for4(1956) 5 SCC 148.
women and children. Under the Constitution the state has been given power to make lawsrelating to women and children but such laws shall not be violative of Article 15 of theConstitution. Article 15(1) prohibits gender discrimination. Article 15(3) lifts that ignominyand permits the state to positively discriminate in favour of women to make specialprovisions to ameliorate their social, economic and political condition and accord themparity.5Article 15(3) of the Constitution makes special provisions for women and children. Itempowered the state to make special legislation in this regard. The Courts have alwaysapproved the validly of such special legislation rather special measures. These women andchildren 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 aregiven 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 ofopportunity, equality before law, equal protection in the laws, not discriminatingagainst any person on grounds of sex, religion, caste and place of birth and nodiscrimination in the matters of public employment on the grounds of sex only asprovided under Article 16 of the Constitution.2. Right to Freedom – Articles 19 to 22 of the Constitution deal with the right tofreedom. It includes right to freedom of speech, protection in respect of conviction foroffences, protection of life and personal liberty and protection against arrest anddetention, etc.3. Right against Exploitation – According to Article 23 of the Constitution traffic inhuman beings and forced labour is prohibited. Employment of children is prohibitedunder Article 24 of the Constitution.4. Right to Freedom of Religion – Articles 25 to 28 of the Constitution deal with rightto freedom of religion. It means professing, practising and propagating religion freely.5. Cultural and Educational Rights – The interest of minorities is protected underArticle 29 of the Constitution. Further Article 30 of the Constitution provides the rightof minorities to establish and administer educational institutions.6. Rights to Constitutional Remedies – Every Citizen has been provided the right toConstitutional remedies. Article 32 to 35 deal with the right to Constitutional5Dr. G.P. Reddy on Women are Law, IV ed., 2000, p. 2.
remedies. Every citizen of India has the right to Constitutional remedies, that isapproaching Courts for enforcing fundamental rights.(i) A Women shall not be denied a job merely because she is a woman – In itslandmark judgment t he Apex Court in Air India v Nargesh Meerza6has held that awoman shall not be denied employment merely on the ground that she is a womanas 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 theservice rules which state that:“Air-hostesses shall not marry for the first four years of their joining; they willlose 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 wouldhelp in promotion of the family planning programmes, and will increase theexpenditure of airlines recruiting air-hostesses on temporary or ad hoc basis, butthe 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 ofworking women.(ii) Denial of Seniority promotion on the ground of sex – Rules regarding seniorityand promotion in the Indian Foreign Service was challenged before the ApexCourt in Miss. C.B. Muthamma v Union of India,7where it has been held that therules relating to seniority and promotion in Indian Foreign Service which makediscrimination only on ground of sex is not only unconstitutional but also ahangover of the masculine culture of having cuffing the weaker sex. In this instantcase a writ petition was filed before the Apex Court wherein it was contended thatshe had been denied promotion to Grade I on the ground of sex, which violatedthe Article 15 of the Constitution of India, 1950. The Apex Court allowed thepetition and held that Rule 8 (2) of the Indian Foreign Service (Conduct andDiscipline) Rules, 1961 which requires that an unmarried woman member shouldtake permission of the Government before the marriage. After the marriage, shemay be asked any time to resign if it is felt that her family life affects herefficiency as of right to be appointed to the service (I.F.S.) contravenes Article 156AIR 1981 SC 18297AIR 1979 SC 1868
of the constitution of India. In view of the above decision, now these provisionshave been deleted.(iii) Beauty Contests – whether violation of Constitutional provisions – Thisquestion was raised before the Andhra Pradesh High Court in C. Rajakumari vCommissioner of Police, Hyderabad.8It has been held that if a beauty contestindecently 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 beingindecent, or derogatory to or degrading women, or likely to deprive, corrupt andinjure the public morality would be violative of the provisions of the IndecentRepresentation of Women (Prohibition) Act, 1986 and also unconstitutional as itviolates Article 14, 21 and 51-A of the Constitution of India.(iv) Constitutional Validity of Section 497 (i.e. Adultery) of the Indian PenalCode, 1860 – In the offence of adultery Section 497 of the Indian Penal Code,1860 punishes only the male counterpart and exempts the woman frompunishment. The Constitutional Validity of Section 497, IPC was challenged onthe ground that it is violative of Articles 14 and 15(1) of the Constitution. In AbdulAziz v State of Bombay,9the Apex Court upheld the validity of the provision onthe ground that the classification was not based on the ground of sex alone. TheCourt relied upon the mandate of article 15(3) of the Constitution of India touphold the validity of the said proviso of the Code. However, in the present casethe petitioner contended that even though the woman may be equally guilty as anabettor, only the man was punished, which violates the right to equality on theground of sex.Section 497 – Whoever has sexual intercourse with a person who is and whom heknows or has reason to believe to be the wife of another man without the consentor conscience of that man, such sexual intercourse not amounting to the offence ofrape, is guilty of the offence of adultery, shall be punished with imprisonment ofeither description for a term which may extend to five years, or with fine, or withboth. In such case the wife shall not be punishable as an abettor. It was contendedthat Section 497, IPC is violative of Article 14 and 15 of the Constitution on theground that it makes an irrational classification between men and women in that:8AIR 1998 A.P. 3029AIR 1994 SC 321
(i) it contents upon the husband the right to prosecute the adulterer but it doesnot confer any right upon the wife to prosecute the woman with whom herhusband committed adultery;(ii) it does not confer any right on the wife to prosecute the husband who hascommitted adultery with another woman; and(iii) it does not take in cases where the husband has sexual relation with anunmarried woman with the result that it amounts to having a free licenceunder the law to have extra marital relationship with unmarried woman.However, the Apex Court rejected theses aforesaid contentions ad held that it cannot be saidthat in defining the offence of adultery so as to restrict the class of offender to men, anyconstitutional provision is infringed.Indian Constitution and Special Provision for womenAs aforesaid under Article 15 of the Indian Constitution the State is empowered to makespecial provisions for women. For instance, making of special seating arrangements in trainsis in no way unconstitutional.(a) Reservation of seats for women in colleges – The Bombay High Court in Dettatreyav State of Bombay,10has held that reservation of some seats in women‟s college is notunconstitutional. The court observed that establishment of educational institutionexclusively for women is not hit by Article 15 of the Constitution.(b) U.P. Court of Wards Act, 1912: Proprietorship relating to property – In RanRaj Rajeshwari v The State of Uttar Pradesh,11wherein the issue related to adiscriminatory provision in a status was adjudicated under the UP Court of WardsAct, 1912. According to this Act a male proprietor could be declared incapable inmanaging his property only on one of the five grounds mentioned therein and thattoo after giving him an opportunity of showing cause as to why such a declarationshould not be made, a female proprietor could be declared incapable to manageher property on any ground and without giving her any show cause notice. TheAllahabad High Court held that this provision was bad because it amounts todiscriminate on the basis of sex which is violative of Article 15(1) of theConstitution of India, 1950.10AIR 1953 Bom. 31111AIR 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, 1973permits that distinction in favour of women even if there appears to be areasonable ground for believing that they have been guilty of an offencepunishable with death or imprisonment for life.12In other words this section prohibits release of a person accused of a capitaloffence on bail except women and children under 16 years of age or sick or infirmperson. In Choki v State of Rajasthan,13the Rajasthan High Court has held that itis valid on the ground that it makes special provision for women and therefore, itis 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. Theconstitutional provision prohibits traffic in human beings. In this context traffic inhuman beings includes “devadasi system”. The Apex Court in Vishal Jeet v Union ofIndia,14observed that trafficking in human beings has been prevalent in India for along time in the form of selling and purchasing of human beings for prostitution for aprice 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 atabolishing the practice of prostitution and other forms of trafficking including“devadasi system”. The court further observed that this Act has been made inpursuance of the International Convention which India signed the declaration at NewYork (USA) on 9thMay, 1950 for the prevention of immoral traffic.Directive Principles of State Policy and WomenUnder the Indian Constitution, 1950 the directive principles of State policy is the reflection ofgovernance that India is a welfare democratic state. This policy envisaged equal rights towork, equal work, adequate means of decent and dignified livelihood to both men and womenthese are guaranteed under the directive principles of state policy. Part IV of the Constitutioncontaining Articles 38, 39 (a) (d) and (e), 42, 44 and 45 deal with the welfare anddevelopment of women.12Suresh Kumari v State of Haryana, 1995 (4) Crimes 643 C.P.S. 14.13AIR 1971 Raj. 10.14Air 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 Articleprovides 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 equalwork for both men and women. Thus, the state is under Constitutional obligation to direct itspolicy 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
Suggestions1. The implications, as I see it, were that in the unfortunate situation of a young husbandpassing away, leaving his widow with minor children, the grand parents, say, could bemade 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 someoneelse was made a natural guardian of her children, she would at all times be under theirdomination. Such a situation is easily visualised even with a economicallyindependent woman.2. The de-jure and de-facto enjoyment of all human rights and fundamental freedom bywomen on equal basis with men in all spheres – political, economic, social, culturaland 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 theachievement of the goals of empowerment. All measures will be taken to guaranteewomen equal access to and full participation in decision making bodies at every level,including the legislative, executive, judicial, corporate, statutory bodies, as also theadvisory Commissions, Committees, Boards, Trusts etc. Affirmative action such asreservations/quotas, including in higher legislative bodies, will be consideredwhenever necessary on a time bound basis. Women–friendly personnel policies willalso be drawn up to encourage women to participate effectively in the developmentalprocess.4. Since women comprise the majority of the population below the poverty line and arevery often in situations of extreme poverty, given the harsh realities of intra-household and social discrimination, macro economic policies and poverty eradicationprogrammes will specifically address the needs and problems of such women. Therewill be improved implementation of programmes which are already women orientedwith special targets for women. Steps will be taken for mobilization of poor womenand convergence of services, by offering them a range of economic and socialoptions, along with necessary support measures to enhance their capabilities.
Books Referred1. Female Foeticide - A Frightful Reality (Social-Legal Ramifications) by Dr. SupinderKaur, Central Law Publications, 1stEdition 20092. Law Relating to Women and Children, Dr. S.C. Tripathi and Vibha Arora, CentralLaw Publications, Fourth Ed., 20103. 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