Consti Project 3r6h3b

INTRODUCTION 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 programmes 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. 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. Social change is an inevitable phenomenon of every society because social conditions never remain static. Social change whether it comes through legislation or through judicial interpretation indicates the change in accepted modes of life, or perhaps a better life. The changing pattern does have an impact on the laws and the life of a given society, law must keep pace with the changing socio- economic trends, and political movements of the society, while at the same time preserving necessary balance between individual rights and duties. Thus, law and justice provide a potential force for the attainment of a progressive social change. The exalted status of Indian women in ancient days suffered a setback in the medieval period. Social economic and political factors played a major role in their suppression. Social inhibitions and discriminatory practices against them continued to exist during the 'enlightened' and 'civilised' imperial rule. The leadership of independent movement was, however, committed to accord an equal status to women and give them a place of honour, and dignity in the society.

Accordingly, the constitution - the fundamental law- as emerged out of the constituent assembly, treated both men and women equally and also provided for protective discrimination for women in view of their peculiar position in the human society. RESEARCH METHODOLOGY The researcher has used doctrinal method of research. For the primary source, The Constitution of India has been referred and Important Constitutional And Legal Provisions For Women In India 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 programmes 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 Safeguards for Women and the Liberal Interpretation of these provisions by the Judiciary : Our Constitution, the fountainhead of all laws and the Organic law of the land, recognizes equality of the sexes and prohibits discrimination on the basis of sex. It also provides legislation to be made to confer more rights on women by making special provisions. It has to be borne in mind that in the absence of equality of gender, human rights remain in the inaccessible realm. In most of the nations, women are ascribed a secondary role. This secondary role has to be metamorphosed to the primary one to bring women at an equal stratum with men. To achieve so, a different outlook in law has to be perceived. For this reason, various provisions have been engrafted in our Constitution.

The Preamble of the Constitution is “a key to open the mind of the makers of the constitution which may show the general purposes for which they made the Constitution.”1It declares the rights and freedoms which the people of India intended to secure to all citizens.2The Preamble begins with the words “We, the People of India...........” which includes men and women of all castes, religions, etc. It wishes to render “Equality of status and of opportunity” to every man and woman. The Preamble again assures “dignity of individuals” which includes the dignity of women. On the basis of the Preamble, several important enactment shave been brought into operation, pertaining to every walk of life family, succession, guardianship and employment which aim at providing and protecting the status, rights and dignity of women. Fundamental Rights Guaranteed to women under the Constitution: Part III of the Constitution, consisting of Articles 12 to 35, relating to Fundamental Rights, is considered the „heart‟ of the Constitution. The fundamental rights are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual status. As per Justice P. N. Bhagwati: “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.”3 Article 14 Equality before Law: Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws within the territory of India. The first expression „equality before law‟ which is taken from the English Common Law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. The second expression, „the equal protection of the laws‟ is the essence and core of the right to equality under which the State is under an obligation to take necessary steps so that every individual, man and woman alike, is given equal respect which he or she is entitled to as a human 1

Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 856. Sir Alladi Krishnaswami, „Constituent Assembly Debates‟, Vol. 10, 41. 3 Chitra Ghosh v. Union of India, AIR 1970 SC 35 2

being. This provision is based on the last clause of the first section of the Fourteenth Amendment to the American Constitution and directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination. It is, therefore, said that “the equal protection of the laws‟ is a pledge of protection or guarantee of equal laws. Though Article 14 permits reasonable classification, yet classification based on sex is not permissible.4 In the case of AIR India v. Nergesh Meerza5, the Apex Court, while dealingwith the fixation of different ages of retirement for male and female employees and the provision preventing the female employees from having child, expressed the view to theeffect that the retirement of air hostesses in the event of marriage taking place within four years of service does not suffer from any irregularity or arbitrariness but retirement of air hostesses on first pregnancy is unconstitutional being violative of Articles 14 and 16 of the Constitution. It was considered that such a provision was callous, cruel and an insult to Indian womanhood. Therefore, such disability violates the equal protection of law and opportunity which is the cornerstone of our Constitution and legal system. Payment of equal pay for equal work has also been justified under Article 14. Unequal pay for materially equal work cannot be justified on the basis of an artificial classification between the two kinds of work and employment.6 In the case of Mackinnon Mackenzie and Co. Ltd. v. Andrey (D)‟ Casta7, the question involved was getting of equal pay for equal work. Their Lordships ruled that when lady stenographers and male stenographers were not getting equal remuneration, that was discriminatory and any settlement in that regard did not save the situation. Their Lordships also expressed the view that discrimination between male stenographers and lady stenographers was only on the ground of sex and that being not permissible, the employer was bound to pay the same remuneration to both of them when they were doing practically the same kind of work. In Madhu Kishwar v. State of Bihar,8the Chotanagpur Tenancy Act, 1908 was challenged on the ground that the Act denied the right to succession to scheduled tribe women to the tenancy lands and hence, it violates Articles 14, 15 and 21 of the Constitution. The Supreme Court, by itting the petition, quashed the 4

Maneka Gandhi v. Union of India, AIR 1978 SC 597 Chitra Ghosh v. Union of India, AIR 1970 SC 35 6 AIR 1981 SC 1829 : 1981 Lab IC 1313 7 State of M.P. v. Pramod Bhartiya, AIR 1993 SC 286 8 AIR 1987 SC 1281 5

discriminative provisions of the Act and paved a way for tribal women to entitle their rights to tenancy lands along with men. Article 14 has also been invoked to prohibit sexual harassment of working women on the ground of violation of the right of gender equality.9 Article 14 indeed contains important provisions for protecting the rights of women and the interpretation of this Article by the judiciary enables the establishment of equality between the sexes. Article 15 : Prohibition of discrimination on grounds of sex : Article 14 embodies the general principle of equality before the law. A specific application of the same principle is provided in Article 15. Article 15 concretises and enlarges the scope of Article 14. Article 15 (1) prohibits the State from discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. In other words, all laws are to be applied to of both sexes equally, and there is an express prohibition of discrimination on the ground of sex. The right guaranteed in this clause of Article 15 is conferred on a citizen as an individual and is available against his being subjected to discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen generally. A law which deprived a female proprietress to hold and enjoy her property on the ground of her sex was held violative of Article 15.10Article 15(2) provides that no citizen shall, on the grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of the general public. Thus, by incorporating Articles 14 and 15, the status of women has been uplifted and a new life of equal rights at par with men has been accorded to them. However, the provisions of non-discrimination on this do not prevent the State from making any special provisions for women and children. The same has been laid down in Article 15 (3), which empowers the State to make special provisions for them. Thus it would be no violation of Article 15 if institutions are set up by the State exclusively for women or places are reserved for women at public entertainments or in public conveyances. The main object of Article 15 (3) is based on “protective discrimination‟ keeping in view the weak physical position of women. The reason is that “womens physical structure and the performance of

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AIR 1996 SC 1864 Vishaka v. State of Rajasthan, AIR 1997 SC 3011; Apparel Export Promotion Council v.A. K. Chopra, AIR 1999 SC 625 10

maternal functions place her at a disadvantaged position in the struggle for subsistence, and her physical well-being becomes an object of public interest and care in order to preserve the strength and vigour of the race.”.11 This provision has enabled the State to make special statutory provisions exclusively for the welfare of women. In the case of Dattatraya v. State of Bombay12, the Bombay High Court held that the State can establish educational institutions for women only. Again in Yusuf Abdul Aziz v. State of Bombay13, the validity of Section 497 of the Indian Penal Code was challenged under Articles 14 and 15 (1) of the Constitution. Section 497 of the IPC deals with the provisions of relating to the offence of adultery, which only punishes man for adultery and exempts the woman from punishment though she may be equally guilty as an abettor. This section was held by the Supreme Court to be valid since the classification was not based on the ground of sex alone. The Court upheld the Section 497 of the IPC as valid by relying upon the mandate of Article 15 (3) of the Constitution. Even Section 354 of the IPC is not invalid because it protects the modesty only of women and Section 488 (now Section 125) of the Cr. PC. (Code of Criminal Procedure) is valid although it obliges the husband to maintain his wife but not vice versa.14 Similarly, Section 14 of the Hindu Succession Act, 1956 converting the womens limited ownership of property into full ownership has been found in pursuance of Article 15 (3).15 When the matter relating to mother as natural guardian was questioned, the Supreme Court held that relegation of mother to inferior position to act as a natural guradian is violation of Articles 14 and 15 and hence, the father cannot claim that he is the only natural guradian. The guardianship right of women has undergone a sea change by this interpretation given by theApex Court.16The scope of Article 15 (3) is wide enough to cover any special provision for women including reservation in jobs. Article 16 does not come in the way of such reservation. The two articles must be harmoniously construed. Women are a weaker section of our society for whose upliftment Article 15 (3) is made which should be given widest possible interpretation and application subject to the condition that reservation should not exceed

11

Muller v. Oregon, 52 L.Ed. 551 AIR 1952 SC 181 13 AIR 1954 SC 321 14 Shahdad v. Mohd. Abdullah, AIR 1967 J & K 120; Girdhar Gopal v. State, AIR 1953MB 147; Thamsi Goundan v. Kanni Ammal, AIR 1952 Mad 529. 15 Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312. 16 Mrs. Gita Hariharan v. Reserve Bank of India with Dr. Vandana Shiva v. Jayanta Bandhopadhyaya, AIR 1999 SC 1149. 12

50% limit as laid down in the case of Indra Sawhney v. Union of India.17 The Court has also upheld anOrissa Government Order reserving 30% quota for women in the allotment of 24 hoursmedical stores as part of self-employment scheme.18 Thus, the language of Article 15 (3)is in absolute and does not appear to restrict in any way the nature or ambit of special provisions which the State may make in favour of women or children. Article 16 Equality of opportunity in matters of public employment: Article 16 is an instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State. Explaining the relative scope of Articles 14, 15 and 16, Das, J. said : “Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances.”19 Article 16(1) and (2) embody the general rule that the State shall provide equal opportunities for all citizens in matters relating to employment or appointment to any office under the State. There shall be no discrimination on the grounds of religion, race, caste, sex, place of birth, residence or any of them in providing employment. These provisions are an extension of the principle of equality before law and of the goal of equality of status and opportunity as set in the Preamble of the Constitution. The import of these provisions is that a woman has the same rights in matters of employment under the State as a man and the State shall not discriminate against women on this count. It operates equally against any such discriminative legislation or discriminative executive action. If any law is ed or any executive action is taken to prevent the women from taking up employment under the State, such law or executive action could be challenged under Articles 16 (1) and (2). The principle of equal pay for equal work is also covered by equality of opportunity in Article 16 (1).20 Difference in the pay scales and promotional avenues between male and female employees is also prohibited by Article 16 (2).21In the case of Miss C. B. Muthamma, IFS

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AIR 1992 SC 477 Gayatri Devi Pansari v. State of Orissa, AIR 2000 SC 1531. 19 Gazula Dasaratha Rama Rao v. State of A. P., AIR 1961 SC 564 20 Randhir Singh v. Union of India, AIR 1982 SC 879 21 Uttarkhand Mahila Kalyan Parishad v. State of U. P., AIR 1992 SC 1695 18

v. Union of India and others,22 the constitutional validity of Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 and Rule 18 (4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion)Rules, 1961 was challenged before the Supreme Court. The impugned provision Rule 8 (2) requires a woman member of the service to obtain permission of the Government in writing before her marriage is solemnized and at any time after the marriage, a woman member of her service may be required to resign from the service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service. Further, Rule 18 (4) also runs in the same prejudicial strain, which provides that no married woman shall be entitled as a right to be appointed to the service. The petitioner complained that under the guise of these rules, she had been harassed and was shown hostile discrimination by the Chairman, UPSC from the ing stage to the stage of promotion. The Hon‟ble Supreme Court held that these Rules are in defiance of Article 14, 16 and 21 and Krishna Iyer, J. pronounced : “That, our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a- vis half of India‟s humanity, viz; our women, is a sad reflection on the distance between the Constitution in the book and the law in action.”23 In the case of T. Sudhakar Reddy v. Government of Andhra Pradesh,24 the petitioner challenged the validity of Section 31 (1)(a) of the Andhra Pradesh Co-operative Societies Act, 1964 and Rule 22 C,. 22 A (3)(a) of the Andhra Pradesh Co-operative Societies Rules1964. These provisions provide for nomination of two women by the Registrar to the Managing Committee of the Co-operative Societies, with a right to vote and to take part in the meetings of the committee. The Andhra Pradesh High Court quashed the petition and upheld these provisions in the interest of women‟s participation in co -operative societies and opined that it will be in the interest of the economic development of the country. In Government of Andhra Pradesh v. P.B. Vijaya Kumar,25 the legislation made by the State of Andhra Pradesh providing 30% reservation of seats for women in local bodies and in educational institutions was held valid by the Supreme Court and the power conferred upon the State under Article 15 (3) is so wide which would cover

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AIR 1979 SC 1868 Id. at p. 1870. 24 AIR 1994 SC 544 25 AIR 1995 SC 1648. 23

the powers to make the special legal provisions for women in respect of employment or education. This exclusive power is an integral part of Article 15(3) and thereby, does not override Article 16 of the Constitution. At this juncture, it is also noteworthy to mention the case of Associate Banks Officers Association v. State Bank of India,26wherein the Apex Court held that women workers are in no way inferior to their male counterparts, and hence there should be no discrimination on the ground of sex against women. Recently, in Air India Cabin Crew Association v. Yeshaswinee Merchant,27 the Supreme Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. The Constitution does not prohibit the employer to consider sex while making the employment decisions where this is done pursuant to a properly or legally chartered affirmative action plan. Further, in Vijay Lakshmi v. Punjab University,28 it has been observed that Rules 5 and 8 of the Punjab University Calendar, Vol. III providing for appointment of a lady principal in a women or a lady teacher therein cannot be held to be violative of either Article 14 or Article 16 of the Constitution, because the classification is reasonable and it has a nexus with the object sought to be achieved. In addition, the State Government is empowered to make such special provisions under Article15(3) of the Constitution. This power is not restricted in any manner by Article 16. In this way, the Indian Judiciary has played a positive role in preserving the rights of women in the society. Article 19 (1)(g) : Freedom of Trade and Occupation: Article 19 (1)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business. The right under Article 19(1) (g) must be exercised consistently with human dignity. Therefore, sexual harassment in the exercise of this right at the work place amounts to its violation. In the case of Delhi Domestic Working Women Forum v. Union of India29 relating to rape and violence of workingwomen, the Court called for protection to the victims and provision of appropriate legal representation and assistance to the complainants of sexual assault cases at the police station and in Courts. To realize the concept of gender equality, the Supreme Court has laid down exhaustive guidelines in the case of Vishaka v. State of Rajasthan30 to prevent sexual 26

AIR 1998 SC 32. AIR 2004 SC 187 28 AIR 2003 SC 3331 29 (1995) 1 SCC 14 30 AIR 1997 SC 3011 27

harassment of working women at their workplace. The Court held that it is the duty of the employer or other responsible person to prevent sexual harassment of working women and to ensure that there is no hostile environment towards women at their working place. These guidelines were framed to protect the rights of working women to work with dignity under Articles 14, 19 and 21 of the Constitution. Their Lordship also observed : “Each incident of sexual harassment of women at workplace results in violation of fundamental rights of “Gender Equality” and the “Right to Life and Liberty.”31 Article 21: Protection of life and personal liberty. Article 21 contains provisions for protection of life and personal liberty of persons. It states : “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This short one sentence in which Article 21 has been couched has made long strides due tothe judicial interpetation received at the deft hands of judges of the Apex Court. Article 21,though couched in negative language, confer on every person the fundamental right to life and personal liberty and it has been given a positive effect by judicial interpretation. “Life”, in Article 21, is not merely the physical act of breathing. This has been recognized by the Courts. The Rig Veda32 gives a subtle description of the mundane activity of speech. The soul (which, in the Rig Veda, is compared to a bird soaring high in the heavens) inspires or fills up the mind with speech. The “Gandharva” (the mind) carries it to the heart; and then, the luminous inspired speech takes shape in words that can be heard. One can pursue this imagery further. While the external mundane activities of life have their own place, they are the manifestations of an inner, unseen, unperceived activity which, indeed is the real “life” that a human being lives, it is true that judicial decisions on Article 21 do not embark upon such an analysis in depth. But the judiciary does take note to deal with the wide approach of the right to life. In view of the global developments in the sphere of human rights the judicial decisions from time to time have played a vital role towards the recognition of affirmative right to basic necessities of life under Article 21. In the case of State of Maharashtra v. Madhukar Narayan Mandikar, the Supreme Court has held that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as

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AIR 1997 SC 3011. AIR 1997 SC 3011.

and when he likes. This article has also been invoked for the upliftment of and dignified life for the prostitutes. The Supreme Court has placed emphasis on the need to provide to prostitute opportunities for education and training so as to facilitate their rehabilitation.33 Sexual harassment at workplace is a violation of Article 21 of the Constitution and hence, the Apex Court of the Country, in the case of Vishaka v. State of Rajasthan,34 has laid down detailed direction and guidelines on the subject which are to be strictly observed by all employers, public or private. Right to life is recognized as a basic human right. It has to be read in consonance with the Universal Declaration of Human Rights, 1948, the Declaration on the Elimination of Violence against Women and the Declaration and Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights to which India is a party having ratified them. The right to life enshrined in Article 21 of the Constitution also includes the right to live with human dignity and rape violates this right of women.35 Article 23 Right against exploitation and prohibition of traffic in human beings : For centuries women have been humiliated, exploited, tortured and harassed in all walks of life physically, mentally and sexually. To safeguard and protect women against exploitation, Article 23 (1) of the Constitution of India prohibits traffic in human beings and begar and other similar forms of forced labour. “Traffic in human beings” means selling and buying human beings as slaves and also includes immoral traffic in women and children for immoral or other purposes.36 To curb the deep rooted social evil of prostitution and to give effect to this Article, the Parliament has ed The Immoral Traffic (Prevention) Act,1956.37 This Act protects the individuals, both men and women, not only against the acts of the State but also against the acts of private individuals and imposes a positive obligation on the State to take all measures to abolish these evil practices. another evil practice of the Devadasi system, in which women are dedicated as devadasis to the deities and temples, was abolished by the State of Andhra Pradesh by enacting the Devadasis (Prohibition of Dedication) Act, 1988. The Supreme Court has also held that traffic in human beings includes devadasis and speedy and effective legal action should be taken against brothel

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Gaurav Jain v. Union of India, AIR 1997 SC 3021 AIR 1997 SC 3011 35 Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922; Chairman, RailwayBoard v. Chandrima Das, AIR 2000 SC 988 36 Raj Bahadur Singh v. Legal Remem-brancer, AIR 1953 Cal 522 37 Formerly known as the Suppression of Immoral Traffic in Women and Girls Act, 1956 34

keepers.38 Similar evil practices are prevalent in India such as selling the female infants and girls to foreigners under the guise of inter-country adoption and marriages. The Supreme Court accepted a letter as a writ petition,39 complaining of mal-practices indulged by non-government organizations and orphanages engaged in the work of offering Indian children, more specifically, female infants, in adoption to foreign parents. The Courts observed that in the guise of adoption, Indian children of tender age were not only exposed to the long dreadful journey to distant foreign countries at great risk to their lives, but in case they survive, they were not provided proper care and shelter and were employed as slaves and in the course of time they become beggars or prostitutes for want of proper care and livelihood. As there are no specific legislative provisions to regulate Inter-country adoptions, the Court laid down certain principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents. Further a direction was given tothe Government to enact a law regulating intercountry adoptions, as it is their constitutionalobligation under Articles 15 (3), 23, 24 and 39 (c) and (f) of the Constitution. The Role of Directive Principles of State Policy in Protecting the Rights of Women. Part IV of the Constitution from Articles, 3 to 51 contains what may be described as the active obligation of the State. The Directive Principles of State Policy are fundamental in the governance of the country and it shall be the duty of the State of apply these principles in making laws an to secure a social order in which social, economic and political justice shall inform all the institutions of national life. These Directives Principles are ideals which are based on the concept of „Welfare State‟ and they fix certain goals; social and economic; for immediate attainment by the Union and State Governments while formulating a policy or enacting a law.According to Article 39(a), the State shall direct its policy towards securing that the citizensmen and women equally, have the right to an adequate means of livelihood.40 Under Article 39 (d), the State shall direct its policy towards securing equal pay for equal work for both men and women.41 This Article draws its from Articles 14 and 16 and itsmain 38

Vishal Jeet v. Union of India, AIR 1990 SC 1412 Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469 40 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 41 Randhir Singh v. Union of India, AIR 1982 SC 879; Mackinnon Mackenzie and Co. Ltd. v. Andrey D‟Kosta, AIR 1987 SC 1281; State of M.P. v. Pramod Bhartiya, AIR 19 39

objective is the building of a welfare society and an equalitarian social order in the Indian Union. To give effect to this Article, the Parliament has enacted the Equal Remuneration Act, 1976 which provides for payment of equal remuneration to men and women workers and prevents discrimination on the ground of sex. Further Article 39 (e) is aimed at protecting the health and strength of workers, both men and women. A very important and useful provision for women‟s welfare and well-being is incorporatedunder Article 42 of the Constitution. It imposes an obligation upon the State to make provisions for securing just and humane conditions of work and for maternity relief. Some of the legislations which promoted the objectives of this Article are the Workmens Compensation Act, 1923, the Employees State Insurance Act, 1948, the Minimum Wages Act, 1948, the Maternity Benefit Act 1961, the Payment of Bonus Act, 1965, and the like. In the case of Dattatraya v. State of Bombay,42 the Court held that legal provisions to give special maternity relief to women workers under Article 42 of the Constitution does not infringe Article 15 (1). Recently, in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll),43 the Supreme Court held that the benefits under the Maternity Benefits Act, 1961 extend to employees of the Municipal Corporation who are casual workers or workers employed on daily wages basis. Upholding, the claim of non-regularized female workers for maternity relief, the Court has stated : “Since Article 42 specifically speaks of just and humane conditions of work, and maternity relief, the validity of an executive or istrative action in denying maternity benefit has to be examined on the anvil of Article 42 which though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of.”44 Article 44 provides that the State shall endeavour to secure for the citizens, a Uniform Civil Code, throughout the territory of India. India comprises of diverse religions, faith and beliefs and each of these religious denominations are governed by their distinct personal laws which vary from one another. In matters relating to marriage, divorce, adoption, maintenance and succession, different personal laws have treated and placed women on different levels. Due to

93 SC286 42 AIR 1952 SC 181 : 1952 Cri LJ 955. 43 AIR 2000 SC 1274 44 Id. At p. 1277

these variations, people are being tempted to convert from one religion to another in order to seek the benefit under the guise of those personal laws. Placing , reliance on Article 44 by the Supreme Court in upholding the right of maintenance of a Muslim divorce under Section 125of the Criminal Procedure Code has boomeranged resulting in a separate law of maintenance for Muslim female divorcee.45 Later the Court again reminded the State of its obligation under this Article and issued direction to it to take appropriate steps for its implementation and inform the Court of these steps. In the case of Sarla Mundgal v. Union of India,46 a Hindu husband married under Hindu Law and again married the second time by converting himself to Islam. As the State had not yet made any efforts to legislate the Uniform Civil Code, the Supreme Court directed the Government to report the measures taken for the implementation of Article 44 of the Constitution in the interest of unity and integrity and for the welfare and benefit of women. Fundamental Duties towards woman enshrined in the Constitution: Article 51-A under Part IV-A of the Constitution of India lays down certain Fundamental Duties upon every citizen of India, which were added by the Forty-Second Amendment of the Constitution in 1976. The later part of Clause (e) of Article 51-A, which relates to women, gives a mandate and imposes a duty on Indian citizens “to renounce practices derogatory to the dignity of women”. The duties under Article 51-A are obligatory on citizens, but it should be invoked by the Courts while deciding cases and also should be observed by the State while making statutes and executing laws. Reservation of Seats for Women in Election to Local Bodies: The Parliament has succeeded in its efforts to provide for reservation of seats for women in election to the Panchayat and the Municipalities. Reservation of seats for women in Panchayats and Municipalities have been provided in Articles 243 D and 243 T of the Constitution of India. Part IX and IX A have been added to the Constitution by the 73rd and 74th Amendment Acts with Articles 243, 243 A to 243 D and Articles 243 P 243 ZG47. According to Article 243 D(3), “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 45

Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 954 : 1985 Cri LJ 875 andthe Muslim Women (Protection of Rights on Divorce) Act, 1986 46 AIR 1995 SC 1531 47 The Constitution (Seventy-third Amendment) Act, 1992 and the Constitution Seventy-fourth Amendment Act 1992 popularly known as the Panchayat Raj and NagarpalikaConstitution Amendment Acts.

seats to be filled up by direct election in every Panchayat, shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. Article 243 T (3) of the Constitution provides similar provisions for reservation of seats for women in direct election in every Municipality. Therefore, reservation of 33% of seats for women candidates to hold office and perform all public functions at the Panchayat and Municipal level is within the constitutional mandate. As an extension the 73rd and 74th Amendments to the Constitution, the Constitution (81stAmendment) Bill was introduced in the Parliament way back in 1996 to reserve one-third of seats for women in the Lok Sabha and the State Assemblies. However, this bill has not yet been brought in to shape due to political overtures.

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)) (ix) 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)) (x) 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))

Though the constitution has provided equality of both the sexes man and women but biological condition of the female and developed sense of subordination demand extra protection for them. The reason is that "women's physical structure and the performance of certain functions place her at a disadvantage in the struggle for subsistence and her physical well- being becomes an object of public interest and care in order to preserve the strength and vigour of the race”. Thus the law and justice demands additional privileges and safeguards for maintaining proper socio- legal status of women in the society. Legal Provisions (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 State Initiatives For Women National Commission For Women In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc. Reservation For Women In Local Self - Government

The 73rd Constitutional Amendment Acts ed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas. The National Plan Of Action For The Girl Child (1991-2000) The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child. National Policy For The Empowerment Of Women, 2001 The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a “National Policy for the Empowerment of Women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women. Women‟s Security: Indian Scenario Policies relating to women's rights have had a positive trajectory in the past few decades with the central government articulating many progressive measures to advance gender equality in social, economic, and political arenas. Inequality between men and women runs across the board, including in education, economic opportunities, representation in governance, and other state and private institutions. The multiple forms of violence experienced in the household, at the community level, and in some instances by the state, threaten women‟s security in India. Some recent statistics on women include: -20 country in which to be a woman. (TrustLaw, Thomson Reuters)

Bureau)

Research on Women) in five Indian women, many child mothers, dies during pregnancy or child birth. (the United Nations)

foeticide in their lifetimes are divorced, widowed, or deserted

in the country during the year 2011 as compared to 2,13,585 incidences in the year 2010 recording an increase of 7.1% during the year 2011. Women and girls in urban India are also at high risk of gender-based violence. In Delhi, the country‟s capital, a scan of daily newspapers reveals shocking numbers of cases of violence against women. Street violence in urban centres is a growing concern for young women and girls, who are increasingly moving away from rural areas for economic opportunities and higher education. Particularly women and girls from the northeast region of India living in urban centres such as Delhi have reported experiencing social discrimination and marginalization, and many times physical violence. In 2005, according to the North East Centre, among the 100,000 people from the northeast living in Delhi 86% had reported racial discrimination and 41% of cases were sexual abuse cases.48 Trafficking Of Women And Girls49 India is both a source and destination for trafficked women and girls into prostitution and bonded labour. While exact numbers of trafficked women and girls are difficult to ascertain, there have been figures projected by various national and international organisations.

children go missing in the country every year. Of these, 11,000 remain untraced. It is quite

48

BBC report on „How India treats its women‟ dated 29 December 2012, www.bbc.com retrieved on 12th October 2014 49 NCRB, (2011), Crime in India: Compendium-2011, National Crime Records Bureau, Ministry of Home Affairs, Government of India, New Delhi

unacceptable that cases of 'missing children', which may or may not be the result of human trafficking, are considered on a par with a 'lost and found', adds the report. -winning economist Amartya Sen has estimated that more than 100m women are "missing" worldwide - women who would have been around had they received similar healthcare, medicine and nutrition as men. Anderson and Debraj Ray estimates that in India, more than 2m women are missing in a given year. the missing women disappear at birth, 25% die in childhood, 18% at the reproductive ages, and 45% at older ages. Sexual Harassment And Rape Cases Rape cases in India increased by 3.6 percent to 22,172 in 2010 from 21,397 cases the previous year, according to figures from the National Crime Records Bureau. Nearly 68,000 rape cases were ed across the country during 2009-11 but only 16,000 rapists were sentenced to prison, presenting a dismal picture of conviction of sexual offenders. According to National Crime Records Bureau, 24,206 rape cases were ed in India in 2011 but only 5,724 people were convicted for the crime. Similarly, in 2010, 22,172 rape cases were ed while the number of convicted persons for the crime was 5,632. A total of 21,397 rape cases were ed in 2009 but only 5,316 persons could be convicted. Forty percent of all sexual abuse cases in India are incest, and 94% of the incest cases had a known member of the household as the perpetrator. The number of such cases has decreased by 14.0% during the year over the previous year (9,961 cases). Andhra Pradesh has reported 42.7% (3,658 cases) followed by Maharashtra 12.5% (1,071 cases) of total incidences during the year 2011. Andhra Pradesh has reported the highest crime rate (4.3%) as compared to the National average of 0.7%. An increasing trend in cases of rape has been observed during 2007 – 2008. A mixed trend in the incidence of rape has been observed during the periods 2008 - 2011. These cases have reported an increase of 3.5% in the year 2008 over the year 2007, a decline of 0.3% in the

year 2009 over 2008 and an increase of 3.6% in 2010 over 2009 and further an increase of 9.2% in the year 2011 over the year 2010. Madhya Pradesh has reported highest number of Rape cases (3,406) ing for 14.1% of total such cases reported in the country. Mizoram has reported of crime rate 7.1 as compared to National average of 2.0%. Rape cases have been further categorised as Incest Rape and other Rape cases. Incest Rape Incest rape cases have decreased by 7.3% from 288 cases in 2010 to 267 cases in 2011 as compared to 9.2% increase in overall Rape cases. Maharashtra (44 cases) has ed for the highest (15.3%) of the total such cases reported in the country. Rape Victims There were 24,270 victims of Rape out of 24,206 reported Rape cases in the country. 10.6% (2,582) of the total victims of Rape were girls under 14 years of age, while 19.0% (4,646 victims) were teen-aged girls (14-18 years). 54.7% (13,264 victims) were women in the agegroup 18-30 years. However, 15.0% (3,637 victims) victims were in the age-group of 30-50 years while 0.6% (141 victims) was over 50 years of age. Offenders were known to the victims in as many as in 22,549 (94.2%) cases. Parents / close family were involved in 1.2% (267 out of 22,549 cases) of these cases, neighbours were involved in 34.7% cases (7,835 out of 22,549 cases) and relatives were involved in 6.9% (1,560 out of 22,549 cases) cases.50 Sexual Harassment The number of such cases has decreased (8,570 cases) by 14.0% during the year over the previous year (9,961 cases). Andhra Pradesh has reported 42.7% (3,658 cases) followed by Maharashtra 12.5% (1,071 cases) of total incidences during the year 2011. Andhra Pradesh has reported the highest crime rate (4.3) as compared to the National average of 0.7. Molestation

50

Prajanya Trust, (2010) GENDER VIOLENCE IN INDIA : A Prajnya Report 2010, Prajanya Trust, Chennai

Incidents of Molestation (42,968 cases) in the country have increased by 5.8% over the previous year (40,613 cases). Madhya Pradesh has reported the highest incidence (6,665) amounting to 15.5% of total such incidences. Kerala has reported the highest crime rate (11.2) as compared to the National average of 3.6. Kidnapping & Abduction These cases have reported an increase (35,565 cases) of 19.4% during the year as compared to previous year (29,795 cases). Uttar Pradesh with 7,525 cases has ed for 21.2% of the total cases at the National level. Delhi UT has reported the highest crime rate at 12.4 as compared to the National average of 2.9. Domestic Violence And Dowry Deaths Newspaper pages in south Asia are full of tales of domestic violence. In 2002, 450 honour killings were reported in Pakistan, 15,000 young brides are burnt to death every year in India, and 10 women a week are subject to acid attacks in Bangladesh (OXFAM 2004). Violence by intimate family is one of south Asia‟s darkest legacies. Fourty per cent of all sexual abuse cases in India are about incest. In a survey on violence against women in India, 94 per cent of the cases involved an offender who was a member of the family (Naved 2004). The violence against women in south Asia often begins before birth. It is estimated the 50 million women are missing in India either through sex selective abortions, female infanticide or female neglect. So much so that the sex ratio in certain states of India is very disturbing. There are 79.3 girls for every 100 males in the Punjab and 87.8 girls for every 100 males in Gujarat (OXFAM 2004:10).51 Domestic violence rates in south Asia does vary from community to community and depends on the questions asked. A survey of 1,842 women in Uttar Pradesh and Tamil Nadu in India presented a rate of 40 per cent of women interviewed stating they were victims of wife beating. In Pakistan, a survey of 1,000 women indicated that 55 per cent in the urban areas and 35 per 51

OXFAM, (2004), Oxfam Briefing Paper, August 2004, „Towards Ending Violence against Women in South Asia‟, OXFAM International, Washington DC

cent in the rural areas stated that they were victims of domestic violence. In Sri Lanka, one survey put the figure at 60 per cent, another at 32 per cent (UNIFEM 2004). They found that women died more from "injuries" in a given year than while giving birth injuries, they say, "appear to be indicator of violence against women". Deaths from fire-related incidents is a major cause - each year more than 100,000 women are killed by fires in India. The researchers say many cases could be linked to demands over a dowry leading to women being set on fire.52 In many cases, violence against women has a level of social acceptability. A government survey found 51 percent of Indian men and 54 percent of women justified wife beating. The cases under this Act have increased (6,619) by 27.7% during the year 2011 as compared to the previous year (5,182 cases). 28.7% of cases were reported from Andhra Pradesh (1,899) followed by Karnataka (1210 cases) ing for 18.3% of total cases at the National level. The highest crime rate of 2.5 was reported from Odisha as compared to 0.5 at the National level. Torture (Cruelty By Husband & Relatives) „Torture‟ cases in the country have increased (99,135 cases) by 5.4% over the previous year (94,041 cases). 19.9% of these were reported fromWest Bengal (19,772 cases). The highest crime rate of 21.6 was also reported from West Bengal as compared to the National rate at 8.2. Importation Of Girls An increase of 122.2% has been observed in Crime Head as 80 cases were reported during the year 2011 as compared to 36 cases in the previous year (2010). Madhya Pradesh (45 cases), Bihar (10 cases) and Karnataka (12 cases) have together contributed more than two-third of total such cases at the National level. Crime-Head Wise Analysis (Special Laws)

52

Reuters, „India advances, but many women still trapped in dark ages‟ quoted in AlertNet, Thomson Reuters Foundation, accessed on www.trust.org/alertnet/news/feature-indiaadvances-but-many-women-still-trapped-indarkages/ retrieved on 6th October, 2014

Immoral Traffic (Prevention) Act, 1956 : Cases under this Act have ed a decrease of 2.6% (2,435) during the year as compared to the previous year (2,499). 20.4% (497) cases were reported from Andhra Pradesh followed by Tamil Nadu 17.2% (420 cases). Daman & Diu reported the highest crime rate of 2.5 as compared to the National average of 0.2%. Sati Prevention Act, 1987 One case was ed under this Crime Head in Jammu & Kashmir during the year 2011. Indecent Representation Of Women (Prohibition) Act. A decrease of 49.4% (453 cases) was noticed in this crime head during the year 2011 as compared to the previous year (895 cases). Andhra Pradesh with 314 cases has ed for 69.3% of total such cases at the National level which has also reported the highest crime rate of 0.4%. Crime Against Women In Cities 53 cities having population over 10 lakh have been identified as Mega cities as per population census 2011. A total of 33,789 cases of crimes against women were reported from these 53 cities during the year 2011 as compared to 24,335 cases (35 mega cities) in the year 2010. The rate of crime in cities at 21.0 was comparatively higher as compared to the National rate of 18.9. Among 53 cities, Delhi (4,489 cases) has ed for 13.3% of total such crimes followed by Bengaluru (1,890 cases) (5.6%), Hyderabad (1,860 cases) (5.5%) and Vijayawada (1,797 cases) (5.3%). Post Delhi Gang Rape Case Justice Verma Committee Recommendations In keeping with the public outrage over Nirbhaya‟s brutal gang rape in Delhi on November 16, the Justice J S Verma Committee has raised the bar of punishment for a wide range of existing and proposed sexual offences even as it rejected the demand for introducing death for rape. CONCLUSION Our Indian constitution was written in an era when the social condition of Indian women was very poor and need an urgent reform. She was mentally and physically tortured in the society. She was struggling to find her social status and a respectable place in the society. At that time

Indian women were in a need of some laws in order to improve their social position and to ensure proper safety against mental and physical torture. At that time Dr. B. R. Ambedkar, author of our Indian constitution, took certain constructive and much needed steps in favor of Indian women to make them independent and socially strong and today we can see the revolutionary change in the position and image of Indian women.

Due to the revolutionary changes brought by our constitution and efforts made by Indian women, they have earned themselves a respectable position in the society. Now they are treated equally with men. Today women are everywhere and to be precise women are in space, women are in corporate, women are in politics, women are in entertainment field, women are in defense field and the list goes on. It is indeed a matter of pleasure that the position of women has improved in the last four decades. But still somewhere I feel that the presently Indian women are again a bit struggling to maintain their dignity and freedom. Mental and physical torture of women has again become common and that is why they have started feeling unsafe. As per my personal understanding with the proper knowledge of legal and constitutional rights of a woman their position can be further strengthen in the society. There are lots of provisions in our law which protects a woman from mental and physical torture. To conclude I would like to say that Indian women has come a long way and prove that she is capable of doing anything and equal partner in the growth and prosperity of the nation. Women are one of the pillars of the society and it would be very difficult to imagine society without the presence of women. Now it is high time for all of us to understand the power of women. Even our judiciary and legislature has also accepted the fact that women are one of the most important elements of society and their exploitation would not be accepted at any cost. There is one saying that behind every successful man there is a woman. This saying is enough to prove that man and women both are necessary element of society. Women plays different role in her life which is not an easy task. During her life she acts as daughter, wife, sister and mother at different stages of life. So we must give them due care and respect and understand their efforts towards welfare of the society at large.

REFERENCES : AlertNet, „The world's most dangerous countries for women‟, TrustLaw, Thomson Reuters Foundation, accessed on www.trust.org/trustlaw/news/factsheet-theworldsmost-dangerous-countries-for-women retrieved on 6th February 2013 [2] BBC report on „How India treats its women‟ dated 29 December 2012, www.bbc.com retrieved on 12th February 2013 [3] NCRB, (2011), Crime in India: Compendium2011, National Crime Records Bureau, Ministry of Home Affairs, Government of India, New Delhi [4] NCRB, (2011), Crime in India: Statistics-2011, National Crime Records Bureau, Ministry of Home Affairs, Government of India, New Delhi [5] Coomaraswamy, Radhika, (2005), „Human Security and Gender Violence‟, Economic and

Political Weekly Vol. 40, No. 44/45 (Oct. 29 Nov. 4, 2005) [6] Prajanya Trust, (2010) GENDER VIOLENCE IN INDIA : A Prajnya Report 2010, Prajanya Trust, Chennai [7] OXFAM, (2004), Oxfam Briefing Paper, August 2004, „Towards Ending Violence against Women in South Asia‟, OXFAM International, Washington DC Patel, C.L.,(1996), „Empowerment of Women and Law‟, Central India Law Quarterly, Vol. lX: IV, New Delhi [9] Reuters, „India advances, but many women still trapped in dark ages‟ quoted in AlertNet, Thomson Reuters Foundation, accessed on www.trust.org/alertnet/news/feature-indiaadvancesbut-many-women-still-trapped-indarkages/ retrieved on 6th February 2013 [10]UNIFEM, (2010), Who Answers to Women? GENDER & ABILITY, UNIFEM, New York City

[11]Wardak , Ariana, „Indian woman gangraped, set on fire by abs‟, TrustLaw, Thomson Reuters Foundation, accessed on www.trust.org/trustlaw/news/indian-womangangrapedset-on-fire-by-abs-report retrieved on 6th February 2013