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Special Protection Of Women In Indian Constitution (By-Kalyani Ravindra Shegaonkar)

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Kalyani Ravindra Shegaonkar
Journal IJLRA
ISSN 2582-6433
Published 2022/08/05
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Volume 2
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Special Protection Of Women In Indian Constitution
Authored By-Kalyani Ravindra Shegaonkar
L.L.M 2nd Year (3rd Semester)
 
Abstract
Gender equality means a society in wherein both women and men enjoy the same opportunities, rights and obligations in different spheres of life. Equality in decision making, economic and social freedom, equal access to education and right to practice an occupation of one’s choice In order to promote gender equality , we need to the empowerment of women.
 

  Special Protection Of Women In Constitution :

Freedom of speech and expression and freedom to practice any profession or to carry
any occupation , trade or business – Article 19Protection of life and personal liberty- Article 21
 
?                  Right to Privacy- Article 21
?                  Right to property- Art. 300
 
Political rights- women reservation in for instance, panchayats. Art 15 of the Constitution allows special provisions for women and children to be made for their welfare. Under the Legal Services Authorities Act women and children are entitled to free legal aid Under the Constitution of India , the Directive Principles of State Policy contain duties of the State to apply these   principles while making laws. These principles state that state shall direct its policies to secure that citizens , men and women equally have the right to an adequate means of livelihood, that there is equal pay for both men and women, provide free and compulsory education for children and duty to improve public health. Whereas incase of violation of fundamental rights , these rights are enforceable , that is , a victim can seek legal redress through a court of law , the directive principles are only a guiding factor and its non observance is not actionable .
 
 
 
 
 

Introduction :

 
Legally a female is known as a woman after she has passed through her childhood and adolescence, i.e. basically after crossing the teenage a girl is a woman. Government of India has made several laws to proved qual status to women in our country and secure their lives from various violence and crimes. Constitution of India provides fundamental rights and fundamental duties to the citizens of India; each and every citizen of this country is equally entitled of these rights and duties. The Constitution of India guarantees to all Indian women equality (Article 14), no discrimination by the State (Article 15(1)), equality of opportunity (Article 16), and equal pay for equal work (Article 39(d)). In addition, it allows special provisions to be made by the State in favor of women and children (Article 15(3)), renounces practices derogatory to the dignity of women (Article 51(A) (e)), and also allows for provisions to be made by the State for securing just and humane conditions of work and for maternity relief. (Article 42). Rolling back to the history of our country we can find the pathetic condition of the women from the very first era. According to studies, women enjoyed equal status and rights during the ancient and the early Vedic period. However in approximately 500 B.C., the status of women began to decline, and with the Islamic invasion of Babur and the Mughal Empire and Christianity later worsened women's freedom and rights.
 

Historical Background

 
Women were not always treated horribly in India. In ancient times, women had substantial rights and social standing. This is evident from their access to education, social customs surrounding marriage, and the portrayal of women in religious texts. Over time, these protections eroded as various invasions made the country less stable. Furthermore, changes in Hinduism and the emergence of Islam contributed to new cultural beliefs about the role of women. This section of the paper traces the evolution of women’s rights throughout Indian history. Unless otherwise cited, the information in this section is taken from India: A History, Brittanica, or PBS’ timeline of Indian history.
Although the first human inhabitants migrated to India between approximately 70,000 and 50,000 BC., the first major settlement of India did not occur until the Harappan Empire, which lasted from around 3,000 to 1,700 BC. Together, Harappa and Mohenjo-Daro comprised the Indus Valley Civilization.
 
The Harappans were not only the first people to use wheeled transport, but were extremely sophisticated and valued uniformity in city planning and construction, as evidenced by their cities’ extremely detailed, grid-like remains. Interestingly, there is no evidence of a major religion and the Harrapans disappeared suddenly, possibly due to severe climate change. A significant period in early Indian history was the Vedic period, which lasted from 1,500 to 1,000 BC. During this time, the foundational scriptures and hymns for Hinduism, called the Vedas, were composed. The Vedas are believed to be divinely revealed and are comprised of four books: the Rig-Veda, the Sama-Veda, the Yajur-veda, and the Athara-veda. Hindu priests, called Brahman, memorized and transferred these texts orally. The Vedas also contain evidence of the religious use of astronomy and math. Vedic literature contained three commentaries written by priests: the Brahmanas, Aranyakas, and Upanishads During the Vedic period, daughters were less desirable than sons because people believed that boys could contribute more to the family. Sons were valued because of their physical strength, ability to fight, and because they remained with the family after they married. This preference for boys is reflected in sacred literature, including the Athara-veda, which contains rituals to guarantee the birth of a son. However, although daughters were less preferable than sons, girls were still valued by their families. For example, one of the Upanishads contains rituals used to guarantee the birth of an intelligent daughter. Greater proof for the value of the female sex is evident in the fact that women could engage in religious activities, even sacrificial rituals. Additionally, the Rig-Veda contains hymns that were divinely revealed to female seers. In later times, widows were viewed as unclean,   but the Rig-Veda reaffirms their value. For example, one of its hymns encouraged a widow to “rise up, woman, into the world of the living” rather than giving up because of her husband was dead. Furthermore, certain epics from this time portrayed widows as the guardians of their family, which reinforces the view of a woman as capable of agency and strength, rather than dependent on her husband. In the Vedic age, customs surrounding marriage were less harmful to women than modern day practices. Widows could remarry, and girls could remain single until they had received a decent education, which was around sixteen years old. The Athara-Veda describes an educated woman as an asset to the marriage. The Rig Veda mentions educated girls several times, and in the Upanishads intelligent women engaged men intellectually. In short, the Vedic period was a good time for women. Although they were not the equals of men, they were still valued by society.

 
The Aryan incursion, which overlapped with Vedic period, was the next major shift in Indian history. The Aryans were a seminomadic people who invaded the region gradually and in waves of tribes, rather than through force. Aryan society was built on three pillars: the language of Sanskrit, the priesthood of the Brahmans, and a hierarchical social structure, which provided the foundation for the caste system that persists in India to this day. Religion was incredibly important and helped propel linguistic advancement, an obsession with holiness, and a fear of being made unclean, all of which contributed to a continued emphasis on social stratification in India.
 
Constitutional /Jurisprudence Aspect
 
Our constitution is a set of fundamental ideologies and written codes that is itself promoting equality between sexes. Equality means that men and women should be treated alike in all the circumstances unless an intelligible differentia with rational reasoning is proven. The different waves of feminism have endeavoured to change the vision of the socie2ty which carries a patriarchal ideology. Modern feminism has the set goal to eliminate gender distinctions and to promote absolute equality in all the areas. To ascertain their goal, our constitution has already embedded this philosophy.
B.R. Ambedkar, the draftsman of the constitution was the feminist before feminism who certainly
ensured that women who were once deprived with power and were treated   unfairly should be treated with the same pair of lenses in the post-independence period. The framers of the constitution of India were conscious of the discrimination and unequal   treatment of women in every field of their lives and violence against them including domestic violence. In one of the speeches said by the Justice Chandrachud, he mentioned that our constitution is itself feminist because feminism is a lot about the disruption of social hierarchies and that is what the constitution intends to do. Our constitution agrees to the fact that women are weaker section and they should be provided with benefits so that their standards can be equally matched with that of men.
 
Where is the problem
The problem occurs at the time of interpretation. Constitution to its core has demanded equality but the interpreters have made it an arduous job. It is true that   woman in today’s time is still falling under the realm of Moral slavery. Male dominance or the patriarchal structure of the society has turned out the societal vision and has given ‘women’ the status of subordinate gender.
 
 
The vulnerable status of women is one of the issues that have not yet witnessed a radical change in the era of globalization and liberalization. The eternal truth of the constitutional morality is that no country can see the full swing of development in the field of the social or economic sector until the quandaries of women are addressed and are further mitigated. Let’s take an example; the constitution says that women are a weaker sex. The interpretation of this should be liberal and should state that women at one time were in a weak position and consequently need assistance to function as said equals. The wrong interpretation of the same is seeing the women as a weaker sex in today’s time just because the constitution has termed this. It all depends on how the society is interpreting the law.
Law For Women In The Constitution Of India
Laws for women exist from the commencement of the constitution when ‘We the people’ have agreed to the ideologies of equality, liberty, etc. The problem that is causing the undue delay in providing justice is that women are afraid to seek a remedy through law enforcing agencies. They are still living in the 3rd world where the stress of male domination manifests itself in the form of various cruelties. The Indian constitution was very much conscious about the interests of women and to provide them with the tag of equal to their counterparts. The efficiency factor is criticized on the grounds of the enforcement agency as it remains neglected. The Judiciary aided the process of equalization during the post-independent period. However, the most sacred object, “the constitutional mission of equalization” couldn’t be achieved due to ignorance of the law and the indifferent and hostile attitudes of law-enforcing agencies and also the lack of community support for women seeking against discrimenation.
 

Exclusive Rights For Women Every Indian Needs To Know

We live in a world where goddesses are worshiped and women get tamed, harassed, abused, raped, and kidnapped every single day. Keeping a check on a number of women-related cases, the government of India provides crucial rights to Indian women. "Human rights are women's rights and women's rights are human rights, once and for all." - Hillary Clinton . Unfortunately, many of the women do not know their rights.

 

On The Grounds Of Gender Equality, Here Are 11 Rights An Indian Woman Holds In India

 
 
1.             Women Have The Right To Equal Pay
 
 
According to the provisions listed under the Equal Remuneration Act, one cannot be discriminated on the basis of sex when it comes to salary, pay or wages. Working women have the right to draw an equal salary, as compared to men. Women are eligible to get an equal pay under the laws of India.

2.             Women Have The Right To Dignity And Decency

 
In an event that the accused is a woman, any medical examination procedure on her must be performed by
-- or in the presence of -- another woman.
 

3.Women have the right against workplace harassment

 
The Sexual Harassment of Women at Workplace Act gives a female the right to file a complaint against any kind of sexual harassment at her place of work. Under this act, she can submit a written complaint to an Internal Complaints Committee (ICC) at a branch office within a period of 3 months.

4.Women Have A Right Against Domestic Violence

Section 498 of the Indian Constitution looks to protect a wife, female live-in partner or a woman living in a household like a mother or a sister from domestic violence (including verbal, economic, emotional and sexual) by the hands of a husband, male live-in partner or relatives. The accused shall be punished with a non-bailable imprisonment for a term which may extend to three years and shall also be liable to fine.
 

5.Female Sexual Assault Victims Have The Right To Keep Their Identity Anonymous

 
Protests against rape in India. To ensure that her privacy is protected, a woman who has been sexually assaulted may record her statement alone before the district magistrate when the case is under trial, or in the protecton.
 

6.Women Have The Right To Get Free Legal Aid

 
Under the Legal Services Authorities Act, female rape victims have the right to get free legal aid or help from the Legal Services Authority who has to arrange a lawyer for her.
 

7.Women Have Right Not To Be Arrested At Night

 
 
Unless there is an exceptional case on the orders of a first class magistrate, a woman cannot be arrested after sunset and before sunrise. A woman cannot be arrested before sunrise and after sunset. In addition, the law also states that the police can interrogate a woman at her residence only in the presence of a woman constable and family members or friends.

8.Women And Constitution

 

?  Equality before law for women (Article 14)
?       The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (i))
?       The State to make any special provision in favour of women and children (Article 15 (3)) ? Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)
?       The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))
?       To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A)
?   The State to make provision for securing just and humane conditions of work and for maternity relief
(Article 42)
?       The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)
?  The State to raise the level of nutrition and the standard of living of its people (Article 47)
? To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e))
 
?       Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in aPanchayat (Article 243 D(3))
?       Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4))
?       Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in aMunicipality (Article 243 T (3)).
?        Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4))

9.Women Have The Right Against Indecent Representation

Depiction of a woman's figure (her form or any body part) in any manner that is indecent, derogatory, or is likely to deprave, corrupt or injure the public morality or morals, is a punishable offence.
 

10.                 Women Have The Right Against Being Stalked

 
Section 354D of the IPC makes way for legal action to be taken against an   offender if he/she follows a woman, tries to contact her to foster personal interaction repeatedly despite a clear indication of disinterest; or monitor the use by a woman of the internet, email or any other form of electronic communication.
 

11.                Women Have A Right To Zero FIR

 
An FIR that can be filed at any police station irrespective of the location where the incident occurred or a specific jurisdiction it comes under, the Zero FIR can later be moved to the Police Station in whose jurisdiction the case falls under. This ruling was passed by the Supreme Court to save the victim's time and prevent an offender from getting away scot-free .

Constitutional Privileges

(i)   Equality before law for women (Article 14)
(ii)     The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (i)) .The State to make any special provision in favour of women and children (Article13(3)
(iii)       Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)
(iv)        The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a) equal pay for equal work for both men and women (Article 39(d)) .
(v)     To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A)
(vi)         The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)
(vii)        The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)
(viii)        The State to raise the level of nutrition and the standard of living of its people (Article 47)
(ix)        To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e))
(x)     Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3)) .
(xi)    Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4).
(xii)        Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by
(xiii)         Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manners.
 


Landmark Judgements Changed The Course For Women In India

The Indian judiciary has played a crucial role in framing and interpreting the law to uphold women`s rights and dignity in India, resulting in several landmark judgments, writes Nivedita Pal. The Indian judiciary comprising the High Courts of the states and the Apex Court i.e. the Supreme Court have, time and again, delivered judgments and orders that uphold the rights and dignity of women in the country. The progressive judgments delivered by these courts, since Independence, have helped and, sometimes, persuaded the Indian executive and the legislature to frame laws to uphold women`s rights.
India is one of the few countries in the world with maximum number of laws that protect women and empower them. The Indian Constitution, through the Fundamental Rights, Fundamental Duties and the Directive Principles guarantees equal rights to all citizens. In fact, there are several provisions in the Constitution that embody the spirit of gender equality and lay the ground for framing policies, mechanisms, safeguards and programmes for protection and, more importantly, empowerment of women in the country. The Indian Constitution upholds women’s rights through right to equality, right to life with dignity and right to freedom from discrimination. In addition, there are several laws that ensure protection of women rights and dignity.
 
When a judicial body delivers an order, that order becomes binding on the parties, that in such cases are often the state or the central government. In this manner, the judiciary plays a crucial role in interpreting the law to uphold women’s rights, providing a lawful impetus to the law-making bodies in framing laws that protect women and setting precedents for lower courts and guiding them to deliver such judgments. There are countless judgments that have positively influenced the women   rights movement in India and upheld the constitutional rights affecting different spheres of a woman’s life.6
 

The Sexual Harassment Of Women At Workplace Act, 2013

  Vishakha and others v/s state of rajasthan

 
One of the most important cases that provided for safety of women from sexual harassment at workplace was the Vishakha and others v/s State of Rajasthan case. Bhanwari Devi, a social worker (saathin) in Rajasthan was working with a state government programme to prevent child marriages. At one such instance, she tried unsuccessfully to protest against and stop a child marriage of a one-year-old infant. The family head, Ramakant Gujjar in a bid to seek revenge for the humiliation, raped Bhanwari-- Devi with five of his men in front of her husband. The lower courts acquitted all the accused.
Consequentially, Vishakha (group for women’s education and research)
 
along with four other women organisations filed a writ petition in the Supreme Court   on the issue of sexual harassment of women at workplace and the absence of any protection — to enforce Fundamental Rights of working women under Articles 14, 19 and 21 of the Indian Constitution. In 1997, the court ordered framing of such guidelines as ‘Vishakha Guidelines’ to be practiced at workplaces by the employers. These guidelines eventually formed the basis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 — an extremely important law to protect millions of Indian women who step out of their households to earn a living for their families
 
The judgment laid down that it is the duty of the employer or other responsible persons in workplaces or other institutions to prevent sexual harassment and furnish employees with mechanisms for effective resolution of such incidents. The Supreme Court also defined ‘Sexual Harassment’ for this purpose as disagreeable sexually determined behaviour direct or indirect as:
? physical contact and advances,
? a demand or request for sexual favours,
? sexually-coloured remarks,
? showing pornography,
? any other unwelcome physical, verbal or non-verbal conduct of sexual nature

 

A Landmark Judgment On Acid Attacks

 

Laxmi v/s union of India (2006)
 
Another landmark case, Laxmi v/s Union Of India (2006) where an acid attack victim, Laxmi filed a Public Interest Litigation (PIL) in the Supreme Court praying for the betterment of the acid attack survivors, adequate compensation to the   victim and measures to regulate the sale of acid. Laxmi was a minor when she was attacked by three men in New Delhi as she refused to marry a man named Naeem Khan. She faced severe physical and mental trauma. The issues raised in the PIL were:
        Considerable amendment in the Indian Penal Code (IPC), 1860 and Criminal Procedure Code (CrPC), 1973 relating to acid attacks as there is no specific provision for the same;
       Complete ban on the sale of acid and its various forms and that such acids should not be available over the counter, as easy availability encourages such culprits;
       Prosecution of acid throwers as well as the rehabilitation of acid attack victim which included treatment as well as compensation, as the treatment and surgeries are very expensive .
In 2013, the Supreme Court taking cognisance of the rise in cases of acid attacks on women, imposed strict regulations on the sale of acid, including ban on sale of acid over the counter and ban on sale of acid to a person below 18 years. Dealers can sell acid to a person only after furnishing of a valid identity proof and the need for the purchase. Also, it is mandatory for the dealer to submit the details of the sale within three days to the police.
Many other orders were passed by the court for providing guidelines for the betterment of the acid attack survivors and granting them justice. These include amendment in Cr .P.C requiring the government to compensate the victim, amendment in IPC and inclusion of separate section specifically dealing with acid attacks, minimum compensation of Rs 3,00,000/- to be given to every acid attack victim, full and free medical treatment and assistance to be provided to the victim even by private hospitals and no hospital or clinic can refuse treatment.

?   Upholding The Dignity Of Rape Survivor

 

  Lillu v/s state of Haryana (2013)
In Lillu v/s State Of Haryana (2013), for the first time the agony and trauma of a rape victim was realised who had to go through the two-finger test to give her character certification. On the basis of various precedents, the court held that the test is a violation of the victim’s right to privacy and dignity. The court held that rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment, and health should be of paramount consideration whi7le dealing with gender-based violence.
 

  Roxanna Sharma vs Arun Sharma

 
Roxana Sharma Vs Arun Sharma Roxann was involved in a bitter child custody battle with her estranged husband. A court in Goa granted her interim custody of their child, but Arun Sharma whisked their son away and refused to let Roxann meet the child. She filed a case against him, which led to the landmark judgment pronounced by the apex court regarding children caught in a legal battle between parents. The Supreme Court ruled that when estranged parents are involved in a legal tussle over the custody of a child who is under the age of five years,
 

  Tamil nandu vs Suhas Katti

 
Tamil Nadu Vs Suhas Katti This case led to the first conviction under the Information Technology Act, 2000. The victim was being harassed by the accused, Suhas Katti, when she refused to marry him. He would send defamatory and obscene messages to her online in a Yahoo message group. To add to her
agony, she began to receive phone calls from unknown people soliciting sex work. The victim filed a
complaint in February 2004, and within seven months the accused was convicted. In an age of merciless trolls and other forms of online harassment, this judgment acts as a tool that woman can use to safeguard their dignity.


 
     Termination of 24-week old pregnancy permitted on account of abnormal fetus The petitioner, a rape survivor, who wished to remain unidentified, approached the Supreme Court seeking permission to abort her 24-week abnormal fetus. The petition challenged the 46-year-old Maternal Termination of Pregnancy Act that does not permit abortion of a fetus after 20 weeks. The Supreme Court ruled in favour of the petitioner after the medical board submitted a report stating that continuing with the pregnancy would put the mother'lifeatrisk.
 
 

Conclusion

 
It is a reality that women everywhere are likely to suffer in some form or other discrimination. We need to increase our efforts to empower women and increase their progress through their human rights. It is our moral, social and constitutional responsibility to ensure progress by giving them equal rights and opportunities. One of the important factors in the success of development is determined by the status and position of women in society. Empowerment. Women need to have a cohesive approach, a cause that requires constant attention and leadership by all. Legal literacy and awareness programs are other important measures to achieve women their rights. For this purpose, paralegals should be trained to educate women about their rights and the challenge

 

Suggestion

 
There are several laws in India that give women the authority to fight against abuse, discrimination, violence, harassment, indignities, etc. Being aware of them is the first step towards fighting against any injustice. Women’s agency and their independence have been stifled for way too long. From what they can say to how they can dress, their freedom has been questioned and repressed. There are too many ‘don’ts’ that a woman is forced to adhere to. Being compared to goddesses doesn’t certainly help them. No one wants to be put on a pedestal where every action of theirs has implications far worse than what is necessary. Things have changed a lot for the average Indian woman in the last few years. They are more aware of their rights, contribute directly to the economy, and have been trailblazers in various areas. Laws promulgated for the well being of women have been laid down, but many of them are unaware of these. India’s judicial system is another men’s club. Silencing of victims or slut shaming are common in police stations. Unless the victim in question has political links or monetary power, chances of getting justice are bleak. But that shouldn’t stop women from knowing their laws and rights, because that is the only solution.

 

Bibliography

 

?    BOOKS

 
 
?    JOURNALS
?    WOMEN PAWER
 
  SUPREME COURT CASES
 

  CRMINAL LAW JOURNAL

 
  ALL INDIA REPORT
 

?    THE INDIAN CONSTITUTION

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