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WOMEN BEFORE THE COMMENCEMENT OF THE CONSTITUTION OF INDIA: BY: KOMAL SINGH
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WOMEN
BEFORE THE COMMENCEMENT OF THE CONSTITUTION OF INDIA:
AUTHORED BY:
KOMAL SINGH
Course:
B.A.LL. B (Hons.)
Year – 4th
year
Contact
Details: +91 9303828898
College-
Amity Law School (Gwalior), Amity University Madhya Pradesh – 474020
Sociologists
define these women in different ways. In India, history shows that women were
considered divine warriors, but different Indian cultures define women
differently. Therefore, women have nothing in Indian society. But the success
reflects women's overall progress.
According
to historian ROMILLA THAPER, "Women's rights in the Indian subcontinent
vary according to culture, family structure, class, caste, housing rights and
morality."
Both are
Indian philosophy about women. On the one hand, she is considered fertile,
patient and benevolent but on the other hand, she is considered aggressor and
represents 'shakti’. Position of women in Pre-Independence Period To study the
position of women before the independence period, it is necessary to discuss
the position of women during the Vedic period, post Vedic period and medieval
period.
1.
Vedic Period
2.
Post Vedic Period
3.
Medieval Period
1. Vedic
period- There is no doubt that during the Vedic period, women enjoyed good
positions due to freedom and equality. During this period, women took part in
all areas of life. Women study in Gurukul and enjoy freedom in every field.
Women like Apara, Viswara, Yamini, Garji and Gosar came into limelight and
became leaders in the society. They achieved results in art, music and even
war. In Upnishad, the woman is considered as the true partner of her husband.
The wife has the right to be queen in the house of her Rigvedic husband. This
shows high women. In the Mahabharata, women are called the source of
prosperity, happiness and Dharma. In the absence of women, men cannot perform
religious duties. He does not have the right to choose his life partner.
However, polygamy and the dowry system were common only among the ruling
classes. There is no prohibition against widow remarriage and there is no
discrimination between men and women. As a result, girls are allowed to do
telephone exercises (Upanayana Sanskar).
2.
Post-Vedic period- In the post-Vedic period, women suffered great
hardships and restrictions from Manu. He tried to create a male-dominated
society by improving men's rights. The birth of a daughter is seen as a
disaster for the family. Girls have no education. Girls are not allowed to
perform the threading ceremony (Upanayana Sanskar). During this period, the
pre-adolescent marriage system was established and the marriage age of girls
was reduced to 9 or 10 years old. However, daughters of the ruling class were allowed
to receive education and training in military, administrative and fine arts.
Girls grow up under the care of their fathers and become wives of their
husbands and mothers of their sons. Manu, on the other hand, believed that
where women were honored, all gods were happy, and where women were humiliated,
all religions became useless. Surprisingly, in the post-Vedic period, women's
rights were recognized and the concept of 'stridhan' prevailed. According to
Manu's interpretation, "Stredhan" means "something given to the
bride during the ceremony, before the wedding fire, as a token of love, which
she receives from her father, mother, brothers and husband."
3. Medieval
period- Women's rights declined further in the Middle Ages when
Alexander and the Huns invaded India. The organization provided security
against invading soldiers roaming the country, and therefore women were covered
under the headscarf. Women's rights to education and participation in society
are denied. Evil practices such as child marriage, prostitution, and pregnancy
were common in the Middle Ages. Also, curses like holidays have become
inevitable, especially in Rajasthan. Devdarsi system and polygamy are also
common in rural areas. For this reason, women were oppressed everywhere in the middle
ages.
Women's
rights during the British period
It is worth
noting that the status of women changed greatly during the British period, this
is mostly due to the influence of the West on leadership culture. India. Ideas
of equality, freedom and human secularism emerged, but only among the ruling
classes. Two important movements occurred during British rule. These are:
(i)
Social reform; and
(ii)
Nationalism movement.
(i) Social
Reform Movement. This movement took place in the 19th century and
raised the issue of women's equality. Social reformers voiced concerns about
issues such as sati, the ban on procreation, the abolition of property rights,
child marriage, and women's education. Reformers believed that social reform
for women could be achieved by ensuring women's access to education and
implementing development policies. Swami Vivekanand, Dayanand Saraswati and
Annie Besant believed that the ancient Vedic era should be revived as an ideal
for women's work. M.K. Father of the Nation Gandhi criticized child marriages,
Sati method, marriage ban and Devdarsi system.
(ii)
Nationalist Movement. The nationalist movement attracted the attention of a
large number of people and created confidence among women to raise their voices
against the oppressive system. In 1927, the All India Women's Conference was
formed and it proved to be a major movement towards women's right to equality. As
a result, a number of legislations such as the Widow Remarriage Act, the Child
Marriage Act and the Hindu Women's Right to Property Act were enacted to
eradicate certain social evils. Even the provisions of industrial laws were
duly modified to restore the position of women which prevailed during the Vedic
period. Under the banner of the nationalist movement, the establishment of
crèches, the reduction of working hours, the prohibition of night work and the
limitation of work in mines were introduced. It is said that during the British
period, public awareness was created while women's political and social
participation gained momentum.
Women's
movement
Different
thinkers advocated the subordination of women in different perceptions with
different approaches. It is true that women are subordinated to a rather lower
position in the field of politics, economy and education. Even in society they
were placed below men. To end this subordination and different perception,
three main ideological movements of women emerged. These are :-
1.
Liberal movement
2.
Radical movement
3.
Socialist movement
1. Liberal
movement- This feminist movement arose in the 18th century based on the
Enlightenment period of the Western movement. During this period, many thinkers
debated the nature, status, and role of women. The concept of individualism
meant giving the individual the freedom to do what he wished without
interference from people. Mary Wollostone Craft was a prominent and ardent
supporter of women's causes. A seminal work on the subject, namely "A
Vindication of the Rights of Women", was published by Mary Wollostone
Craft in 1792, which mentioned the need to recognize that women are human
beings and not just sexual beings, and if women are denied equality. human
rights, it must be shown that they have no rational capacity to invoke equal
participation and equal rights.
Another
ardent supporter of liberal feminism, John Stuart, opined that: “The existing
relations of the sexes, the legal subjection of one sex to the other, is in
itself bad, and is now one of the chief obstacles to human improvement, and
should be replaced by a perfect equality admitting of no power or privilege on
either side. nor disability on the other side.
During the
liberal movement, it was accepted that the husband earns for family expenses
and the wife takes care of the household and family expenses. Even in a sexual
encounter between a husband and a wife, both have to play an equal role, but
his pleasure may be of varying degrees. If the wife leaves for work, the child
left at home will be neglected, leading to an imbalance in their nutrition and
upbringing. Women should have equal civil rights as well as the right to
education to work together to build an ideal society.
2. Radical
movement- This second phase of the movement occurred around 1969-1970, which
had an important connection with the liberal movement. Sexual oppression and
the sexual division of labor concerning women were overlooked in the liberal
movement. The root of subordination was found to lie in the biological family.
Incorporating legislation was not a proper and effective measure unless
society's attitude is reformed through education and participation in politics
and economics. There is a need to establish real gender equality and eradicate
the patriarchal system. It has been suggested that the nuclear family system is
an obstacle to the full achievement of equality, however, this concept
distinguishes the reformers of the radical movement from the reformers of the
liberal movement.
The
reformers of the radical movement campaigned for the elimination of all
differences between the sexes, and man was seen as the enemy, and the
subordination of women was taken as the biopsychological superiority of men
over women. The reformers of the radical movement believed in the collective
care of children, free sex and control over one's own body. They were of the opinion
that rape, pornography and sexual violence are the result of male hostility
towards women. The eradication of male dominance can be achieved by a complete
sexual revolution, and the traditional sexual prohibition can be destroyed by
display solidarity of the women's movement. Important reformers of the radical
movement were especially Ellen Frankfort, Kate Millett, Firestone and Germaine
Greer.
3.
Socialist movement. Thinkers of the sociological school, prominently Karl Marx
and Engels, advocated a socialist pattern of movement. The socialist model of
society is against capitalism and the patriarchal system, but the inferior
position of women cannot be eradicated unless the concept of communist society
is erased. The emergence of the concept of private property, the restriction of
women to child production, and the persistence of gender inequalities created a
major obstacle in the women's socialist movement. Thus, Marxist theory was
found to contain limitations in terms of women's political participation/representation.
Indian social reformers of the 19th century toed the line of the liberal
movement, promoting women's right to education to make women better mothers and
wives and also campaigned for the eradication of social evils such as Sati,
child marriage, prohibition of widow remarriage. etc. However, the issue of
sexual freedom and sexual preference etc. could not be agitated as in developed
western countries as it is against the basic concept of Indian society.
WOMEN AFTER
THE COMMENCEMENT OF THE CONSTITUTION OF INDIA:
?Apart from the measures to improve the status of women
in India initiated by the British, the Indian government took many drastic
steps (legal, social, economic and political) after independence to remove the
obstacles placed in their way by the traditional past. The efforts of social
reformers and their movement launched in the pre-independence period also bore
fruit. The Indian National Movement also led to the emancipation of Indian
women.
The leaders
of the national movement realized that liberating the country from the slavery
of imperialism was impossible without the active participation of women who
made up half of the country's population.
?Most of the social reformers and thinkers of the 19th
and 20th centuries were influenced by the principles of the liberal philosophy
of the West, which emphasized the principle of contract rather than status, a
rational view of life and problems, freedom of expression, criticism of
authority, questioning of accepted dogmas, and finally recognition of the value
of the individual and insistence on the rights of man versus his duties. They
also got their impetus from the Upanishads and other Hindu scriptures.
The decades
after independence saw huge changes in the status and position of women in
Indian society. The Constitution of India has established gender equality as a
fundamental right. But the change from a position of complete degradation of
women to a position of equality is not a simple example of women's progress in
modern times. In order to improve the status of women, many legislations
concerning women were enacted after independence. These mainly concerned
marriages, divorces, inheritance of property and employment. Some of the
important laws are listed below:
1.
The Hindu Marriage Act, 1955 (amended in 1986 and 2010).
2.
The Immoral Traffic (Prevention) Act, 1956.
3.
Prevention of Sati Act, 1987.
4.
Dowry Prohibition Act, 1961.
5.
Child Marriage Prohibition Act, 2007.
6.
Protection of Women from Domestic Violence Act, 2005.
In
addition, the laws relating in particular to employment are:
1.
Factories Act, 1948.
2. The
Employees' Insurance Act of 1948.
3. Equal
Pay Act, 1976.
?
The above
laws and many other emancipatory actions of social reformers have undoubtedly
raised the status of women in India, but much remains to be done in this area.
The institution of bigamy (a man taking any number of wives) has almost ended;
if discovered, it became a criminal offence.
The age for
marriage without parental consent was raised to 21 for boys and 18 for girls.
Monogamy, along with the possibility of judicial separation, annulment and
divorce (even by mutual consent), inheritance (equal share in paternal
property), adoption, widow remarriage and abolition of sati are some of the most
prominent features of the post-independence era. The status of men and the
equal status of women from the point of view of legislative measures.
However,
Legal or legislative sanctions by themselves cannot bring about any substantial
change in the oppressed position of women, unless there is a significant change
in their attitude and the consciousness of both men and women. In this regard,
their illiteracy is one of the main obstacles. According to the 2001 census,
45.84 percent and the 2011 census, 34 percent of women in India are still
illiterate. Even literate women also fail to exercise their right to equality
wherever it is required.
The status
of women has thus been elevated in the eyes of the law, but they are still far
from equal to men in all areas of life. In practice, they continue to be
subjected to discrimination, harassment, humiliation and exploitation at home
and abroad. The power to run the home and authority still rests in the hands of
the male head of the household. The dominant model of the father still persists
in most middle- and lower-class families. Leaving aside a few, in so-called
modern families wives ?have not
become equal partners to their husbands, even if they are educated or more
educated towards their husbands. Most of the decisions in the household – from
buying common household items to deciding on the education and marriage of his
children – are taken by the father/husband. Even in families where women work
outside the home, there is no significant change in men's attitudes.
Women as
daughters or wives must obtain permission from their fathers/husbands to go
outside the home or pursue higher education. In some families, it is seen that
husbands do not allow their wives of the same caliber and education to take up
jobs of the same status outside the home. They prefer that their educated wives
use their energy precisely in running the household and raising and caring for
children or elderly parents. The lower status of women in Indian society
contributes to early marriage, lower literacy, poor nutrition, and high
fertility and mortality rates, especially in reproductive age.
Even in the
professional field, their situation is not better. Until recently, upper caste
women were not allowed to work outside the home for any paid work. They do not
have the same rights in many things or in the field of occupation. They do not
occupy a higher position, except for a few popular cases. A woman leader may
have the same rank as a man, but because she is a woman, she may not receive
the same honors and prestige as him.
The case of
super cop Kiran Bedi is well known. She was replaced as Delhi Police
Commissioner by a man two years younger than her seniority. Similarly, a woman,
IAS officer Reva Nayyar, did not make it as Cabinet Secretary and Veena Sikri,
IFS was not appointed as Secretary of State. The best example is provided by
rural India, where women are theoretically equated with goddesses but in
reality are treated as drudgery. The problems of inferiority, inequality,
dependency and exploitation of women have not changed much in the villages
where most of India lives even after 65 years of independence. Abuse is
associated with unequal opportunities for social participation despite the
enormous amount of work expected of them both in the home, in agriculture or in
some occupation. One of the main characteristics of women is their
multitasking. She is usually the one who takes care of the household as well as
the work area or office.
WOMEN UNDER
THE INDIAN CONSTITUTION-
The Constitution
of India which was adopted by the Constituent Assembly on 26 November 1949 is a
comprehensive document that consists various principles of justice, liberty,
equality and fraternity. These objectives specified in the Preamble and
elsewhere form part of the basic structure of the Constitution of India. The
basic law of the country ensures the dignity of individuals regardless of their
gender, community or place of birth. there were freedom fighters, lawyers,
reformers, suffragettes and politicians during the drafting of the
constitution. They also belonged to women's organizations and participated in
feminist movements from 1917. Unfortunately, they were invisible then and
mostly remain invisible even now, 70 years after the entry into force of the
Constitution. The 15 Unseen Women Architects of the Republic of India were as
follows:
"Women
make up half the world's population, work nearly two-thirds of the working
hours, receive a tenth of the world's income and own less than one-hundredth of
a percent of the world's wealth".
- United Nations Report, 1980
Half of
India's population is female. Women have always been discriminated against and
have suffered and are still suffering discrimination in silence. Self-sacrifice
and self-denial are their nobility and bravery, yet they were subjected to all
injustices, indignity, inequality and discrimination.
-Justice K. Rama Swamy
in Madhu Kishwar Vs. State of Bihar [(1996) 5 SCC 148.]
As far as
women are concerned, the Constitution contains many negative and positive
provisions that are of great importance for ensuring gender justice. In
incorporating these provisions, the framers of the Constitution were well aware
of the unequal treatment of the fairer sex since time immemorial. The history
of suppression of women in India is very long and the same has been responsible
for the inclusion of certain general as well as specific provisions for the
upliftment of women. The rights guaranteed to women are at par with those of
men and in some cases women have been allowed to take advantage of certain
special provisions. The general provisions regarding the equal rights enjoyed
by women are the right to vote and other political rights, the fundamental
rights contained in Part III of the Constitution and the Directive Principles
etc.
v Women and
the Preamble of the Indian Constitution:
The
Preamble is the key to the Constitution. It does not discriminate between men
and women, but treats them equally. The framers of the Constitution were well
aware of the unequal treatment of the fairer sex from time immemorial. In
India, the history of suppression of women is very old and long, which is responsible
for the inclusion of general and special provisions for the upliftment and
development of women. Some provisions are specifically designed to benefit
women.
The
Preamble appended to the 1950 Constitution of India undoubtedly contains
various objectives including "equality of status and opportunity" for
all citizens. This goal was inserted to ensure equal opportunities for men and
women.
It further
provides - freedom to practice any religion, freedom to be independent and
freedom to choose representatives in legislative bodies etc. to every citizen
irrespective of his sex.
The
preamble also seeks to ensure that:-
·
JUSTICE, social, economic and political;
·
FREEDOM of thought, expression, belief, belief and
worship;
·
EQUALITY of status and opportunity;
to all its
citizens without discriminating against any of them.
v (ii) Women
and the Fundamental rights:
?Although all the fundamental rights
contained in Part III, Articles 12 to 35 apply to all citizens regardless of
sex, some fundamental rights contain specific and positive provisions to
protect the rights of women. These most important fundamental rights are as
follows:
?
14.
Equality before law:- The State shall not deny to any person equality
before the law or equal protection of the laws within the territory of India.
15.
Prohibition of discrimination on the basis of religion, race, caste, sex or
place of birth :-
(1) The
State shall not discriminate against any citizen solely on the basis of
religion, race, caste, sex, place of birth or any of them.
(2) No
citizen on the sole ground of religion, race, caste, sex, place of birth or any
of them shall be subject to any disability, liability, limitation or condition
with respect to-
(a) access
to shops, public restaurants, hotels and places of public entertainment; or
(b) such
wells, tanks, bathing ghats, roads and places of public refuge are maintained
wholly or partly out of State funds or are intended for the use of the general
public.
(3) Nothing
in this Article shall prevent the State from doing any special provision for
women and children.
(4) Nothing
in this Article or in sub-section (2) of Article 29 shall prevent the State
from making any special provision for the development of any socially and
educationally backward classes of citizens or for the Scheduled Castes and
Tribes].
16.
Equality of opportunity in matters of public employment
(1)
Equality of opportunity applies to all citizens in matters relating to
employment or appointment to any office under the state.
(2) No
citizen shall be disqualified or discriminated against for any employment or
office under the State solely on the ground of religion, race, caste, sex,
origin, place of birth, residence or any of these.
(3) Nothing
in this Article shall prevent Parliament from making any law prescribing, in
respect of a class or classes of employment or appointment to an office
"under the Government or any local or other authority within a State or
Union Territory.", any requirement relating to residence in that State or
Union Territory] before such employment or appointment.
(4) Nothing
in this Article shall prevent the State from making any provision for
reservation of appointments or posts in favor of any backward class of citizens
who, in the opinion of the State, are not adequately represented in the
services under the State.
(4-A).
Nothing in this Article shall prevent a State from making any provision for
reservation in the matter of support of any class in classes of posts in the
State services in favor of Scheduled Castes and Scheduled Tribes which in the
opinion of the State are not adequately represented in the State services].
(5) Nothing
in this section shall affect the operation of any law providing that the holder
of an office in relation to the affairs of any religious or denominational
institution or any member of its governing body shall be a person professing a
particular religion or belonging to a particular denomination.
21.
Protection of life and personal liberty: No one shall be deprived of his
life or personal liberty except by procedure established by law.
23.
Prohibition of human trafficking and forced labor:-
(1) Human
trafficking and begging and other similar forms of forced labor are prohibited
and any violation of this provision is an offense punishable by law.
(2) Nothing
in this Article shall prevent the State from imposing compulsory service for
public purposes and in imposing such service there shall be no discrimination
on the ground of religion, race, caste or class or any of them alone.
24. Prohibition
of employment of children in factories, etc.—No child under fourteen
years of age shall be employed to work in any factory or mine or engaged in any
other hazardous employment.
25. Freedom
of conscience and free profession, practice and propagation of religion:-
(1) Subject
to public order, morals and health and the other provisions of this Part, all
persons have an equal right to freedom of conscience and the right to freely
profess, practice and propagate religion.
(2) Nothing
in this Article shall affect the operation of any existing law or prevent a
State from making any law—
a)
regulation or restriction of any economic, financial, political or other
worldly activity that may be associated with religious practice;
(b)
providing welfare and reforming or opening Hindu religious institutions of a
public character to all classes and classes of Hindus.
Outcome of
these articles and judiciary intervention:
?(i) A woman shall not be denied employment merely
because she is a woman. – In its landmark judgment in Air India v. Nargesh
Meerza, the Supreme Court held that a woman cannot be denied employment merely
on the spot. that she is a woman because it violates Article 14 of the
Constitution. In this case, where flight attendants of Indian Air Lines and Air
India challenged the service rules which state that: "Airmen don't get
married for the first four years after joining, those who get pregnant lose
their jobs. They retire at 35, unless the CEO, at his discretion, extends the
period by ten years."
The Supreme
Court suggested that the first provision is legal because it would help promote
family planning programs and increase the expenses of airlines that hire flight
attendants on a temporary or ad hoc basis, but the second and third provisions
must be declared unethical, callous, cruel. , repugnant, abominable, repugnant,
unreasonable, arbitrary, unconstitutional and as an open insult to Indian
womanhood. Thus, the above decision of the Supreme Court greatly raised the
status of working women.
(ii) Denial
of promotion based on sex. - Rules relating to seniority and promotion in the
Indian Foreign Service were challenged in the Supreme Court in the case of
Miss. basis of sex, it is not only unconstitutional but also a hangover of male
culture to shackle the weaker sex. In this case, a petition was filed in the
Supreme Court alleging that she was denied promotion to Class I on the basis of
sex, in violation of Article 15 of the Constitution of India, 1950. The
petition was upheld by the Supreme Court. and held that Rule 8 (2) of the
Indian Foreign Service (Conduct and Discipline) Rules, 1961, which required an
unmarried female member to obtain the permission of the Government before she
married. After marriage, she can be asked to resign at any time if she feels
that her family life is affecting her performance as the Right to Appointment
to Service (IFS) is against Article 15 of the Constitution. In view of the
above decision, these provisions have now 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. It has been decided that if a beauty
pageant indecently represents any woman by depicting in any way the figure,
shape, body or any part thereof of a woman in a manner which is indecent,
derogatory or degrading to women or is likely to corrupt, corrupt and disturb
public morals, it was it would contravene the provisions of the Indecent Representation
of Women (Prohibition) Act, 1986 and also unconstitutional as it violates
Articles 14, 21 and 51-A of the Constitution of India.
(iv)
Constitutional validity of Section 497 (ie adultery) of the Indian Penal Code,
1860.
The offense
of adultery under Section 497 of the Indian Penal Code, 1860 punishes only the
male counterpart and exempts the female. Constitutional validity of Section
497, I.P.C. was challenged on the grounds that it violates Article 14 and
Article 15, paragraph 1 of the Constitution. In Abdul Aziz v. State of Bombay',
the Supreme Court upheld the validity of the provision on the ground that the
classification was not based solely on sex. The court relied on the mandate of
Article 15, Paragraph 3 of the Constitution to confirm the validity of the said
provision of the Code. However, in the present case, the petitioner argued that
even though the woman may be equally guilty as the perpetrator, only the man
was punished, which violates the right to gender equality.
Section 497
IPC - Whoever has intercourse with a person who is and who he knows or has
reason to believe is the wife of another man, without the consent or permission
of that man, such intercourse, which is not the crime of rape, is guilty of the
crime 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 a
case, the wife will not be punished as cheating.
A mere
reading of Section 497 of the Indian Penal Code of 1860 shows that it punishes
the offense of adultery committed with a married woman without the consent or
consent of her husband. The main feature of this crime is that only the man is
responsible. This crime is committed by a third person on the husband in
relation to his wife. If sexual intercourse takes place between a married man
and an unmarried woman, or with a widow or a married woman whose husband
consents to it, this crime is not committed. For an offense under this section,
it is not required that the offender know whose wife she is, but he must know
that she was a married woman. it was argued that Section 497 I.P.C. is contrary
to Articles 14 and 15 of the Constitution on the ground that it makes an
irrational classification between men and women in the sense that:
(i) confers
on the husband the right to prosecute the adulterer, but on the wife no right
to prosecute the woman with whom her husband has committed adultery;
(ii)
confers no right on the wife to prosecute the husband who has committed
adultery with another woman; and
(iii) does
not take into account cases where a husband has intercourse with an unmarried
woman with the result that he is legally permitted to have an extramarital
relationship with an unmarried woman.
However,
reproductive choice can be exercised to procreate as well as to abstain from
procreation. There should be no restrictions on the exercise of reproductive
choices, such as a woman's right to refuse to engage in sexual activity or
alternatively to use contraceptive methods. The court ruled that reproductive
rights include a woman's right to carry a pregnancy to term, give birth and
then raise children. Furthermore, the Medical Termination of Pregnancy Act of
1971 can be considered reasonable restrictions on the exercise of reproductive
decisions.
v (iii) Women
and the directive principles of state policy-
39. Certain
principles of policy to be followed by the State:
The State shall in particular direct its policy to ensure-
a) that citizens, both men and women, have the right
to an adequate means of subsistence;
(b) that the ownership and control of the material
resources of the community are distributed so as to best serve the common good;
c) that the functioning of the economic system does
not lead to the concentration of wealth and means of production to common
detriment;
(d) that there is equal pay for equal work for men and
women;
e) that the health and strength of workers, men and
women, and children of a tender age are not abused and that citizens are not
forced by economic necessity to enter occupations not adapted to their age or
strength;
f) that children are given the opportunities and
facilities to develop in a healthy manner and in conditions of freedom and
dignity, and that children and youth are protected from exploitation and from
moral and material abandonment
39-A. Equal justice and free legal aid:
The state shall ensure that the functioning of the legal
system promotes justice on the basis of equal opportunities and, in particular,
shall provide free legal aid by suitable legislation or schemes or by any other
means to ensure that opportunities for securing justice are not denied to any
citizen on account of economic or other handicap].
42.
Ensuring fair and humane working conditions and maternity relief:
The State
shall ensure ensuring and humane working conditions and maternity relief.
44. Uniform
Civil Code for the Citizens:
The State
shall endeavor to provide uniform Civil Code to the citizens throughout the
territory of India.
Outcome of
these articles:
?a) The principle of "equal
work" is a constitutional goal. –
The Supreme
Court in Randhir Singh v. Union of India,” opined that the principle of “equal
work” is not declared as a fundamental right in the Constitution, but it is
definitely a constitutional objective. Article 39 letter d) The Constitution
declares that the state directs its policy to ensure equal remuneration for
equal work for men and women. The Court further stated that the continuation of
Articles 14 and 16 in the light preamble and Article 39 letter (d), the
principle of equal pay for equal work may be derived from these articles and
may properly be applied to cases of unequal grades of pay which are not based
on any classification or irrational classification, even though different
scales of pay are used. the same job with the same employer. In the present
case, the Supreme Court stated that the principle of "equal pay and equal
work", even if it is not a fundamental right, is certainly a
constitutional goal and therefore enforceable by constitutional means according
to Article 32 of the Constitution.
The
doctrine of 'equal pay for equal work' is equally applicable to men and women,
even daily wagers are entitled to the same wages as other permanent employees
in the department doing the same work." Similarly, in State of Haryana v.
Rajpal Sharma2 the Supreme Court held, that teachers employed in privately
managed aided schools in the State of Haryana are entitled to the same salary
and child care allowance as teachers employed in government schools. If the
type of work is not the same, then it doesn't matter if men are paid more. But
in the case of work of the same type, men and women should be paid equally
without any discrimination.
(b) Men and
women must be protected equally.- According to Article 39 (e) The
health and strength of workers, i.e. men and women, and the health and strength
of minor children must be equally protected by the Constitution. They should
not be forced to work in inhuman and dangerous conditions. With regard to this
article, the state will focus its policy on improving the health and strength
of workers (both men and women) and minor children are not forced by economic
necessity to enter a profession that does not correspond to their age and
strength.
In M.C.
Mehta v. State of Tamil Nadu, 1991 it was held that in view of Article 39 the
employment of children in match factories directly connected with the
manufacturing process of matches and fireworks cannot be allowed as it is
dangerous. However, children may be employed in the packaging process etc.
outside the manufacturing plant.
(c) Equal
Justice and Free Legal Aid. –
Article
39-A of the Constitution provides equal justice and free legal aid. The state
ensures that the functioning of the legal order promotes justice on the basis
of equal opportunities, and in particular provides free legal aid through
appropriate legal regulations or regimes or otherwise ensures the existence of
opportunities to ensure justice.
The Supreme
Court has held on several occasions that legal aid and speedy trial are now
considered fundamental rights under Article 21 of the Constitution, available
to all prisoners and enforceable by the courts. The state has the obligation to
provide the poor with a lawyer and must pay him the remuneration determined by
the court.
(d) Uniform
Civil Code and Gender Justice, Equality –
Article ?44 of the Constitution requires the State to endeavor
to ensure a uniform civil code for the citizen throughout the territory of
India. But women still experience inequality and injustice. The founding
fathers of the Constitution were aware of the gender injustice and sexual
inequality of women and incorporated Article 44 of the Constitution with the
aim that it could be invoked at an appropriate time in the future. It is really
unfortunate that even after 50 years of independence, the state did not
consider it necessary to make a serious effort to (fulfill) this constitutional
obligation.
In the
landmark judgment of Sarla Mudgal v. Union of India, the Supreme Court ordered
the central government to review Article 44 of the Constitution, which mandates
the state to provide a uniform civil code, which the court said was necessary
for the protection of the oppressed and for the promotion of national unity and
integrity. The above direction was given by the Court while deciding a case
where the question for consideration was whether a Hindu husband married under
Hindu law converted to Islam without dissolving the first marriage, after he
can contract a second marriage. The Supreme Court ruled that such a marriage
would be illegal and the husband could be prosecuted for bigamy under Section
494 of the Indian Penal Code, 1860. In this case, the court further ruled that
Hindu marriage continued to exist. even after one of the spouses converted to
Islam. There is no automatic annulment of a Hindu marriage. It can be annulled
only by a decree of divorce on any ground mentioned in Section 13 of the Hindu
Marriage Act. Accordingly, the second marriage of a Hindu after his conversion
to Islam was void within the meaning of Section 494 I.P.C. and the husband
could be prosecuted for bigamy.
On the
issue of "Uniform Civil Code", Justice Kuldip Singh and Justice R.M.
Sahani in their concurrent but separate judgments in the above case observed
that since 1950 many governments have come and gone but no serious effort has
been made to fulfill the constitutional obligation made under Article 44 of the
Constitution. Consequently, the problem today is that many Hindus have changed
their religion and converted to Islam just to escape the consequences of
bigamy. This is because Muslim law allows more than one wife to the extent of
four. Justice Kuldip Singh said that Article 44 of the Constitution is based on
the concept that there is no necessary connection between religion and personal
law in a civilized society. Marriage, inheritance and similar matters are
secular in nature and can therefore be regulated by law. No religion condones
intentional distortion. There is a great fear of bigamy in Islam itself.
Islamic countries such as Tunisia, Morocco, Iran, Pakistan, Syria and several
other Islamic countries have codified their personal law to prevent its abuse.
Even in America, the practice of polygamy has been judicially recognized as
harmful to public morals, although some religions may make it obligatory or
desirable for their followers.
The said
Hon'ble Judge further stated that the State can regulate this abuse of polygamy
only by prohibiting human sacrifice or the practice of sati in the interest of
public order.
v (iv) The
Fundamental Duties
Article 51-A
states about Fundamental duties and reads:- It shall be the duty of every
citizen of India :- Whereby clause (e) specifically talks about women and tells
that it shall be a duty of every citizen of India:
“to promote
harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;”
v (v) Other
provisions under the constitution (Specially for women and children):
?(a) Reservation of seats for women
in colleges. –
The Bombay
High Court in the case of Dettatreya v. State of Bombay” held that reservation
of certain seats in colleges for women was not unconstitutional. The court
stated that the establishment of an educational institution exclusively for
women is not affected by Article 15 of the Constitution.
(b) U.P.
Court of Wards Act, 1912 Ownership relating to property.
In Ram Raj
Rajeswani Devi v. State of Uttar Pradesh,2 where a question relating to a
discriminatory provision in an Act was considered under U.P. Court of Wards
Act, 1912. Under this Act, a man could be declared unfit to manage his property
only on one of the five grounds specified therein, after he had been given an
opportunity to show cause why such declaration should not be In such in this
case, the owner could be declared unable to manage her property for any reason
and without being notified. The Allahabad High Court held that the provision
was wrong as it amounted to discrimination on the basis of sex, which was in
violation of Article 15(1) of the 1950 Constitution of India.
(c)
Constitutional validity of Section 437 of the Penal Code of 1973. –
The mandate
of § 437 of the Penal Code permits discrimination in favor of women even when
there appears to be reasonable ground to believe that they have been guilty of
an offense punishable by death or life imprisonment.
In other
words, this section prohibits the release of a person accused of a capital
offense on bail except for women and children under 16 years of age or sick or infirm
persons. In Choki v. State of Rajasthan, the Rajasthan High Court held that it
was valid on the ground that it contained special provisions for women and was
therefore protected under Article 15(3) of the Constitution.
(d) Grant
of licenses to open liquor shop.-
The
Allahabad High Court in Smt. Savitri v. Bose5 held that Article 15(1) of the
Constitution protects women from discrimination on grounds of sex. Accordingly,
the decision of the revenue authorities to give preference to men over women in
granting licenses to open liquor shops was held to be within the prohibition of
Article 15(1). It was further held that such discrimination is not permitted
under Article 15(1). It was further held that such discrimination is not
permissible under Article 15(3) of the Constitution which empowers the State to
make special provision for women because the special provision may confer some
advantage on women and it cannot be to their detriment.
(e) The
Immoral Traffic (Prevention) Act, 1956 and the Constitution of India.
Article 23
of the constitution provides the right against exploitation. This
constitutional provision prohibits human trafficking. In this context, human
trafficking includes the "devadasi system".?
The Supreme
Court in Vishal Jeet v. Union of India observed that human trafficking has long
been prevalent in India in the form of sale and purchase of people for
prostitution at a price similar to vegetables. Pursuant to Article 23(1) of the
Constitution, the Legislature passed the Immoral Trafficking (Prevention) Act,
1956 to abolish prostitution and other forms of trafficking, including the
"devadasi system". The court further observed that this Act was made
in accordance with the International Convention signed by India on May 9, 1950
in New York (USA) for the Suppression of Immortal Traffic. With regard to the
above-mentioned legal status and circumstances, the Supreme Court confirmed the
validity of the aforementioned law.
Based on
the powers of the constitution, the state is therefore allowed to issue special
laws exclusively for women and children, the state can even grant a
preferential law to support the development of women in all areas of life.
(f)
Reservation of women in elections to local bodies, employment. –
The
reservation of places for women in local authorities and in educational
institutions cannot be considered discrimination on the basis of gender. The
Supreme Court in T. Sudhakar Reddy v. Govt. of Andhrra Pradesh,2 confirmed the
constitutional validity of the proviso to Section 316 para. 1(a) of the Andhra
Pradesh Co-operative Societies Act, 1964 and rules 22(c). c) and 22 A paragraph
3 letter accordingly, relying on the mandate of Article 15, Paragraph 3 of the
Constitution as amended with the above rules, which stipulate the appointment
of two female members as recorders of the management committee of cooperatives
with the right to vote and participate in committee meetings. The Supreme Court
confirmed the validity of these provisions on the grounds that Article 15(3) of
the Constitution allows for special provisions for women.
In 1992,
the 73rd and 74th Amendments to the Constitution incorporated the reservation
of seats for women in the Panchayat and in the Municipality by inserting
Articles 243(d) and 243(t). According to the mandate of Article 243 letter (b)
of the Constitution in the Panchayat, at least one-third of the total number of
seats shall be filled by direct election in each Panchayat by women. These
seats may be allotted by rotation to different constituencies in the panchayat,
which shall not be less than one-third of the total number of seats.
Chairmanship in Panchayat at every level is reserved for women. Art. 243
letters t) The Constitution contains similar provisions on the reservation of
places for women in municipalities. The government has thus successfully
reserved 33% of seats for women in local bodies based on constitutional powers,
which is considered a pioneering legislative move.
Parliament
has introduced the 81st Constitutional Amendment Bill, which seeks to reserve
one-third of the seats in the Lok Sabha and state assemblies for women,
although the bill has been referred to a joint committee of Parliament and has
not yet been approved. With regard to the above constitutional provisions, it
can be said that ?India has
taken a big step forward in empowering women to participate in the political
process at the political decision-making level.
In the
field of employment, the reservation of places for women is ensured by the
incorporation of amendments, changes to the existing statutes and also by the
adoption of special rules. In fact, it is the constitutional duty of the state
to take legal measures to bring women into the mainstream by providing services
under the government. It is to be noted that on many occasions the validity of
the statutes relating to the reservation of posts for women in the service
under the State has been challenged in the courts, but in most cases the
judgment has been given in favor of the women. For example, in Union of India
v. K.P. Prabhakaran," the Supreme Court upheld the Railway Board's
decision to reserve the posts of Inquiry Officers in the metropolitan booking
offices of Madras, Kolkata, Mumbai and Delhi exclusively for women and also the
policy regarding separate seniority panels for promotion of such officers.
Before reaching this conclusion, the Supreme Court relied on the decision in
the case of A.P. v. P.B. Vijay Kumar, where it was held that the power
conferred on the State by Article 15(3) of the Constitution is wide enough to
cover the entire field of State activity involving employment under the State.
In the above-mentioned case, the Supreme Court decided that the said decision
of the Railway Administration is not constitutional and is confirmed as such.
But in the
case of Mrs. Raghubans v. The State of Punjab3 The Punjab and Haryana High
Court held that a government order declaring women ineligible for the post of
warden in a male prison did not violate Article 15(1) on the ground that if a
woman were employed as a warden, her the position would become worst and risky
in securing and maintaining discipline towards habitual offenders held in
prison. It is reported that this decision seems reasonable as it concerns the
physical safety of women.
(g) Scope
of Article 15(4) of the Constitution. –
The Supreme
Court in the case of Dr. Preeti Srivastava v. State of Madhya Pradesh explained
the scope and ambit of Article 15(4) which was added by the Constitution.
Amendment Act 1951. Enables the State to take special measures for the
development of women, inter alia, Scheduled Castes and Scheduled Tribes,
notwithstanding Articles 51(1) and 23(2). Art. 15 paragraph 4 works similarly
to Article 15 paragraph 3. The provision of Article 15 paragraph 3 was there
from the very beginning. It allows for the adoption of special provisions for
women and children notwithstanding Article 15(1), which imposes a mandate of
non-discrimination based on (among other things) sex. It was a presumed method
of protective discrimination. The same protective discrimination was extended
by Article 15(4) to (among others) Scheduled Cases and Scheduled Tribes. As a
result of the combined action of these programmers of compensating cells, the
field
they were
pursued as protective discrimination by various states and the Union Government.
Since any such policy deviates from the norm of equality, even if permissibly
in favor of the disadvantaged, it must be designed and operated in a manner
conducive to the ultimate construction of an egalitarian non-discriminatory
society.
(h) There
can be no relaxation at the highest level in a medical institution.-
Supreme
Court in Dr. Preeti Srivastava v. State of Madhya Pradesh, where the Post
Graduate Institute of Medical Education and Research, Chandigarh Act, 1966,
namely Section 32 as read by Regulation 27 provides that 20% of the seats in
each course of study in the Institute are to be reserved for candidates
belonging to Scheduled Castes, Scheduled Tribes or other categories of persons
in accordance with the general orders issued by the Central Government from
time to time. However, Regulation 27 can have no application at the highest
level of super-specialization, as this would defeat the very objective of
providing the best possible training to select deserving candidates who can
contribute to the development of knowledge in the field of medical research and
its applications.
Since no
relaxation is admissible at the highest levels in the medical establishment,
the petitioners are right in contending that the reservation made for SC and ST
candidates for admission to the D.M. and M.C.H. Courses which are super special
courses are not part of the constitutional mandate under Article 15(4) and
Article 16(4).Regulation 27 made under the said Act, 1966 shall not apply at
the level of admission to D.M. and M.C.H. Courses.
(i) Mother
can act as natural guardian during father's lifetime.-
The Apex
Court in Mrs. Githa Hariharan v. Reserve Bank of India2 held that the father
could not claim that he himself was the natural guardian and his wife could not
decide without his permission. It was held that the mother of the minor was
relegated to an inferior position only on the ground of sex, as her right of
natural guardian is recognized after the father, which was a violation of
Articles 14 and 15 of the Constitution on this ground. The mother can thus act
as the natural guardian of a minor during the lifetime of the father, who would
be considered absent.
In the
above case, the court noted that the term "natural guardian" is
defined in Section 4(c) of the Hindu Minority and Guardianship Act as any
guardian referred to in Section 6. The term "guardian" is defined in
Section 4(b) of the Hindu Minority and Guardianship Act as a person having
charge of the person of a minor or his property or both, his person and
property and includes, among others, the natural guardian. It is thus seen that
the definitions of "guardian" and "natural guardian" do not
in any way discriminate against the mother and she, one of the guardians
referred to in Section 6 of the Hindu Minorities and Guardianship Act, would
undoubtedly be the natural guardian as per (c) of the said Act.
The only
provision from which an exception is made is found in Section 6(a) of the law,
which reads "the father and after him the mother. This phrase, on a
cursory reading, gives the impression that the mother can be considered the
natural guardian of the minor only after the father has lived. In fact, this
also seems to underlie the stance taken by the Reserve Bank of India as well.
There is no dispute and it is otherwise well settled that the welfare of the
minor in the broadest sense of the word is a paramount consideration and even
during the life of the father he may be replaced by the mother or another
suitable person if necessary. court order where it would be in the interest of
the welfare of the minor. Therefore, the Central Bank of India was wrong in
refusing to open a deposit account to the mother in agreement with the father
for the benefit of her minor son.
v RELEVANT
CASE LAWS:
1.) AIR
INDIA VS. NARGESH MIRZA, 1981-
The court
held that the termination of service on pregnancy was unreasonable and
arbitrary. thus, it was held to be in violation of article 14.
2.) RANDHIR
SINGH VS. UNION OF INDIA, 1982-
The
principle of equal pay for equal work for men and women was laid down.
3.) ANUJ
GARG VS. HOTEL ASSOCIATION OF INDIA-
Prohibition
of employment of women in hotel and bar serving liquor was held to be violative
of gender equality.
4.) RAKESH
KUMAR GUPTA VS. STATE OF UTTAR PRADESH-
Reservation
of seat in favour of women in teacher in the girl's college does not violate
article 14. It is a reasonable classification and is protected under article 15
clause (3).
5.) YUSUF
ABDUL AZIZ VS. STATE OF BOMBAY-
Section 497
of Indian Penal Code which only punishes men for adultery is not a violation of
article 15 (1). It is a protective discrimination.
6.) DOCTOR
NEELIMA VS. DEEN OF PG STUDIES ANDHRA PRADESH, AGRICULTURE UNIVERSITY,
HYDERABAD,1993-
High caste
girl marrying scheduled tribes is not entitled to reservation benefit.
7.)
VISHAKHA VS. STATE OF RAJASTHAN-
Guidelines
for the protection of women against sexual harassment at work place were laid
down.
8.) MEDHA
KOTWAL VS. UNION OF INDIA-
Further,
Guidelines for the protection of women against sexual harassment at work place
were laid down.
9.)
MADHUKAR NARAYAN VS. STATE OF MAHARASHTRA-
It was held
that "the right to privacy" is available to a women of easy virtue
also.
10.)
BODHISATHWA GAUTAM VS. SUBHRA CHAKRAVARTHI-
It was held
that the interim compensation for rape victim shall be provided unless the case
is finally decided.
11.)
SHABANO BEGHUM VS. AHMED ALI KHAN-
The Muslim
women is entitled for maintenance after the Iddat period under section 125 of
the code of criminal procedure.
12.)
SHIRABANO VS. UNION OF INDIA- (TRIPLE TALAQ)-
It was held
that right to life includes right to live with dignity and triple talaq
violates the same.
13.) COMMON
CAUSE VS. UNION OF INDIA- (SABRIMALA CASE)-
It was held that right to life includes right
to live with dignity also and therefore, women are allowed to enter the
Sabrimala temple.
REFERENCES
Books:
1.
“Women and the law” – by Dr. G.B. Reddy
2.
“Women and criminal law” – by Dr. S.C. Tripathi
3.
“Law relating to women and children” – by Prof. DR.
G.S. Sharma and Dr. Anil Kumar Tandi
Web Sources :
Article Information
WOMEN BEFORE THE COMMENCEMENT OF THE CONSTITUTION OF INDIA: BY: KOMAL SINGH
Authors: KOMAL SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/31
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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