Open Access Research Article
GENDER AND CONSTITUTIONAL RIGHTS
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GENDER AND CONSTITUTIONAL RIGHTS
AUTHORED BY - SUBHAGYA SINGH
ABSTRACT
Indian
women have been treated differently since time immemorial. Even after
independence, women were discouraged from doing various things and were deemed
as caretakers of the family. This sort of inequality prevailed despite so many
goddesses being worshipped in the country. Even today although there is a vast
improvement regarding gender equality in comparison to how it was before
independence, the mindset of the society towards this is still lacking
somewhere.
Inequality
and discrimination lie in the mindset the people hold and the way they approach
it. Gender inequality affects everyone, be it children, women, transgenders or
even men. Gender equality is a human right but there seems to be a certain gap
in access to various opportunities as well as the decision-making power for
women and men. Women’s empowerment is an important aspect of bringing gender
equality. Giving equal opportunities to women and guaranteeing them their equal
share of rights, helps in not only achieving gender equality but also in a wide
range of development goals.
The
principle of gender equality is enshrined in the Indian Constitution in its
Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The
Constitution not only grants equality to women, but also empowers the State to
adopt measures of positive discrimination in favour of women. Within the
framework of a democratic polity, our laws, development policies, plans and programs
have aimed at women’s advancement in different spheres. India has also ratified
various international conventions and human rights instruments committing to
secure equal rights of women. Key among them is the ratification of the Convention
on Elimination of All Forms of Discrimination Against Women (CEDAW) in
1993.
CONSTITUTIONAL PROVISIONS
The Constitution of India not only grants equality to
women but also empowers the State to adopt measures of positive discrimination
in favour of women for neutralizing the cumulative socio economic, education
and political disadvantages faced by them.
Fundamental Rights, among others, ensure equality before the law and
equal protection of law; prohibits discrimination against any citizen on
grounds of religion, race, caste, sex or place of birth, and guarantee equality
of opportunity to all citizens in matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b),
39(c) and 42 of the Constitution are of specific importance in this regard.
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))
iii.
The State to make any
special provision in favour of women
and children (Article 15 (3))
iv.
Equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State (Article
16)
v.
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))
vi.
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)
vii.
The State to make
provision for securing just and humane conditions of work and for maternity
relief (Article 42)
viii.
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)
ix.
The State to raise
the level of nutrition and the standard of living of its people (Article 47)
x.
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))
xi.
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))
xii.
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))
xiii.
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 a Municipality (Article 243 T (3))
xiv.
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))
LEGAL PROVISIONS
To uphold the Constitutional mandate, the State has
enacted various legislative measures intended to ensure equal rights, to
counter social discrimination and various forms of violence and atrocities and
to provide support services especially to working women.
Although women may be victims of any of the crimes such
as 'Murder', 'Robbery', 'Cheating' etc, the crimes, which are directed
specifically against women, are characterized as 'Crime against Women'. These
are broadly classified under two categories.
1.
The Crimes Identified
Under the Indian Penal Code (IPC)
i.
Rape (Sec. 376 IPC)
ii.
Kidnapping & Abduction for different purposes
(Sec. 363-373)
iii.
Homicide for Dowry, Dowry Deaths, or their attempts
(Sec. 302/304-B IPC)
iv.
Torture, both mental and physical (Sec. 498-A IPC)
v.
Molestation (Sec. 354 IPC)
vi.
Sexual Harassment (Sec. 509 IPC)
vii.
Importation of girls (up to 21 years of age)
2. The Crimes
identified under the Special Laws (SLL)
Although
all laws are not gender specific, the provisions of law affecting women
significantly have been reviewed periodically and amendments carried out to
keep pace with the emerging requirements. Some acts which have special
provisions to safeguard women and their interests are:
i.
The Employees State Insurance Act, 1948
ii.
The Plantation Labour Act, 1951
iii.
The Family Courts Act, 1954
iv.
The Special Marriage Act, 1954
v.
The Hindu Marriage Act, 1955
vi.
The Hindu Succession Act, 1956 with amendment in 2005
vii.
Immoral Traffic (Prevention) Act, 1956
viii.
The Maternity Benefit Act, 1961 (Amended in 1995)
ix.
Dowry Prohibition Act, 1961
x.
The Medical Termination of Pregnancy Act, 1971
xi.
The Contract Labour (Regulation and Abolition) Act, 1976
xii.
The Equal Remuneration Act, 1976
xiii.
The Prohibition of Child Marriage Act, 2006
xiv.
The Criminal Law (Amendment) Act, 1983
xv.
The Factories (Amendment) Act, 1986
xvi.
Indecent Representation of Women (Prohibition) Act,
1986
xvii.
Commission of Sati (Prevention) Act, 1987
xviii.
The Protection of Women from Domestic Violence Act,
2005
In my
opinion, even after so many years of getting independence, we as individuals
have not truly gained independence from the mindset of patriarchy and still
hold beliefs that women are not equal to men as men are the sole breadwinners
of the family and all women do is to feed children and nurture home. I believe that to be able to create an
egalitarian society, we have to work together and have to make a broad outline
of what all needs to be done in order to be at par with men or male members of
the family.
Moreover,
I would like to bring attention to the atrocities which are being faced by
women on a regular basis. Even after living in 21st Century, it is
unfortunate that we as a progressive nation have not been able to provide equal
status to women in terms of education, working environment, security,
sanitation and so on. It would not be incorrect to say that there are numerous
instances which showcase how women in India as well as in other parts of the
world are fighting daily to get equal status in the society and have constantly
been denied the privilege of equal citizens in the country, they live in.
CASE LAWS
1. VISHAKHA
VS. STATE OF RAJASTHAN (1997)
In
this case, the court laid down ‘The Vishaka
Guidelines’ which were later converted into the Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This case pertains to a woman Bhanwari Devi who was gang-raped
by five men as revenge on her for attempting to terminate the marriage of an
infant and to fight against the male ego in Rajasthan which was part of her
job. The court held that sexual harassment was a clear violation of rights
under Articles 14, 15, 19 and 21 of the Indian Constitution.
2. AIR
INDIA VS. NARGESH MEERZA (1981)
In this case, an inclusive reading of Article 14 was done by the Supreme Court
and it was decided that employment cannot be denied to any person on the
grounds of sex. For inflight services, stress was laid on the height of the
youth, appearance, and glamour quotient of the employees. An aviation company
called Air India regulated that the air hostesses should retire if they reach the
age of 35, conceiving a child, or on marriage whichever occurs earlier. These
conditions were derogatory and offending and hence challenged in the court and
were later struck down.
3.
LAXMI VS. UNION OF INDIA (2015)
Amidst
increasing acid attacks, the Supreme Court was called out to issue directives
and suggest ways to prevent such attacks. The court instructed the Governments
at both levels to prohibit the unauthorized sale of acids across the nation.
This decision paved the way to enforce
harsher punishments for people involved in such crimes.
4.
VINEETA SHARMA VS. RAKESH SHARMA
(2020)
In
this case, the Supreme Court held that
daughters will have equal coparcenary rights in the Hindu Undivided Family by
their birth and cannot be excluded from inheritance irrespective of whether
they were born before the amendment of 2005 to the Hindu Succession Act, 1956.
EXISTING LOOPHOLES AND POSSIBLE SOLUTIONS
India’s low rank at the ‘WEF’s Global Gender Gap Index report’ shows
that there is a need for work to be done at the grass-root level. Culture and
traditions play an important role in igniting gender inequality. A cultural
parental preference for a son automatically leads to poor consequences for
daughters. In many parts of the country today, customs like sati, child
marriage still exist and no one is even aware of all this. To achieve gender
equality, solutions should be implemented targeting gender-based violence and
discrimination; also creating awareness especially in the rural areas and
remote villages is a must. Women have time and again proved that they are equal
to men in every field. So, what can be done to strengthen gender equality?
i.
Implementing measures to strengthen
women’s economic independence through improving financial and employment
services.
ii.
Improving gender violence prevention
systems and stringent penalties to those who cause gender-based violence.
iii.
Creating awareness among vulnerable
sections of society about sexual rights and sex education.
iv.
Help improve life and development
skills of low-income women for a better understanding of how to manage lives.
All these
measures sound ambitious and stable; however, the main crux of improving
gender-based equality lies in changing the mindset and the thinking of the
people.
Article Information
GENDER AND CONSTITUTIONAL RIGHTS
Authors: SUBHAGYA SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/08
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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