CONSTITUTIONAL & LEGAL RIGHTS OF WOMEN BY – Nikita Yadav

Abstract

Women have been the deprived and weaker section of the society from immemorial time and have been subjected to many atrocities. We would analyze the rights of women in pre-independent India and post-independent India and issues related thereto. The Constitution of India is a supreme legal document and it contains various articles which confer constitutional rights to women and in the various statutes, there are legal rights conferred to women for the improvement of their socio-economic and political status as well as for the protection of their rights.

The Constitutional makers provided provision for the equality that is equality before the law and equal protection of laws. The concept of equality before law provides equality of women and equal protection of laws gives power to Parliament and State Legislatures to make laws for the advancement of women by making positive discrimination. The parliament, judiciary and executive through the enactment of laws, policies, rules, guidelines, judicial pronouncements and their implementation promotes gender equality, upholds the rights of women and spreads awareness among women concerning their constitutional and legal rights. 

“Men and Women have roles―their roles are different, but their rights are equal.”

―Harri Holkeri

CONSTITUTIONAL & LEGAL RIGHTS OF WOMEN

Introduction

The Constitution of India was written in the era when the social condition of Indian women needed an urgent reform. In earlier days, women were facing a lot of problems socially, mentally and physically. There was a need to ensure proper safety of women in the society against mental and physical torture. Thus, a constructive step was taken by the Constituent Assembly and the Constitution of India was formed including within its fold, the numerous rights in favour of women to make them independent and socially strong. The Constitution of India, when formed, was and is a revolution changing the position, rights and powers of women.

Since the enactment and adoption of the Constitution of India and with collective efforts of women and other society members, women are being treated equally with that of men in society. The position of women has been improved but still, somewhere it seems that they are struggling a bit in maintaining their dignity and freedom. There are lots of provisions in the Constitution and other Statutes to improve the socio-economic and political status of women as well as to protect their rights.

Ancient period

Historical studies indicate that Indian women were having the benefit of equal status and rights during the early Vedic period. The state of Vedic Woman was superior. The woman also gets benefit religious status like that of men, mainly in Vedic initiation and studies. But, later (approximately 500 B.C.), the status of women began to revolve down with the Smritis (esp. Manusmriti) and with the Islamic invasion of Mughal empire and Christianity restrained women’s freedom and right. Whereas reformatory movements as Jainism allowed women to be admitted to the religious order, by and large, the women in India faced confinement and restrictions. Child marriage was practising since the 6th century.

Medieval period

 The position of women gets worse during the medieval period when Sati, child marriages, bar on widow remarriages and polygamy became common in Indian society. The Muslim invasion brought the Pardah practice, the Jauhar was practised among the Rajputs. In both the systems, freedom of a woman was curtailed by society, women were not given the right to live their lives without any restriction of fear and trouble.

Instead of all these religious boundaries, the woman at that time vigorously involves themselves in a social, political, educational and religious field like Raziya Sultan, Chand Bibi etc. In this period Bhakti moment had played a very important role in the development of the status of woman and tried to give equal status to women in society. Guru Nanak advocates the equality of men and woman that is equality of woman in each sector religious, political, educational and cultural.

British rule

In British Rule, the European scholars in the 19th century observed that Hindu women are “naturally pure” and “more honest” than other women  During  British rule many social reformers such as Raja Ram Mohan Roy, Ishwar Chandra Vidyasagar and Jyotiba Phule had struggled for the betterment of the status of woman in Indian society. Peary Charan Sarkar had started girl’s school in India in 1847 at Calcutta.

 The sati system was abolished with the help of governor Bentick; the conception of widow remarriage was introduced. Pandita Ramabai and other social reformers started a movement of freedom against society for the protection of woman. However all the things were presented at that time concerning ability and capability of a woman but still woman was not treated equally. The status of woman in the society was an unprivileged woman was treated as a slave, their position was inferior in the family.

The All India Women’s Education Conference was held in Pune in 1927. In 1929, the Child Marriage Restraint Act was passed, stipulating fourteen as the minimum age of marriage for a girl through the efforts of Mohammad Ali Jinnah. Women played an important part in India’s independence struggle. Some of the famous freedom fighters include. Sarojini Naidu, a poet and a freedom fighter, was the first Indian women to become the President of the Indian National Congress and the first woman to become the governor of a state in India.

 Independent India

 Women in India now take part in all activities such as education, sports, politics, media, art and culture, service sectors, science and technology, etc. Indra Gandhi, former Prime Minister of India served for fifteen years is the world’s longest-serving woman Prime Minister. The Constitution of India provides many rights and provisions to women. Female activists united more problems such as female infanticide, gender bias, women wellbeing, and female literacy.

Since alcoholism is often associated with violence against women in India, many women groups started anti-liquor campaigns in Andhra Pradesh, Himachal Pradesh, Haryana, Orissa, Madhya Pradesh and other states. Muslim women of India have questioned the explanation of women’s rights under the Shariat law and also condemn the triple Talaq system. Self-help groups and NGOs such as Self Employed Women’s Association (SEWA) have taken part in a major role in women’s rights in India.

Many women have emerged as leaders of local movements as in Narmada Bachao Andolan. In 2001 government made the Women’s Empowerment as National Policy, on March 9, 2010, Rajyasabha approved Women’s Reservation Bill, after the day of international women in which 33 per cent of the reservation to women in Parliament and state legislative bodies.

Rights of Women in India

After Independence, lots of provisions, in Constitution as well as in certain other statutes, have been introduced to improve the social condition of women and to give them a platform where they can utilize their potential for their betterment and contribute positively towards the growth of their country.1 These provisions could be classified under two heads:

  1. Constitutional Provisions: The constitutional rights are those which are provided in the various articles of the Constitution.
  2. The Legal Rights: The legal rights, on the other hand, are those which are provided in the various laws (acts) of the Parliament and the State Legislatures.

The women are still facing various problems while improving their social standards. This is because there is a lack of awareness programs. The women are neither aware of their rights nor there is a spreading mechanism to spread these rights.

Constitutional Provisions and Rights of Women

A lot of provisions are present in the Constitution to ensure the Rights and Dignity of Women. Dr B.R. Ambedkar, the Chairman of the drafting company, while drafting the Constitution, was having a clear intention to safeguard the social and legal rights of women. Gender Equality is a principle which is very respectfully enshrined in the Constitution.

The concept of Gender Equality is present in the Preamble, Fundamental Rights, Fundamental Duties and Directive Principles of State Policy.2 The Constitutional makers provided the concept of equality before law providing equality of women and also equal protection of laws gives power to Parliament and State Legislatures to make laws for the advancement of women by making positive discrimination.

A famous saying by Harri Holkeri goes as “Men and Women have roles―their roles are different, but their rights are equal.” By the particular saying, this paper tries to put forth that there is a concept of positive discrimination in favour of women to provide them with equality.

Below mentioned are some of the Constitutional Provisions for maintaining the dignity and respect of women in India. These are:

  1. Article 14: Article 14 of the Constitution of India provides that “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. While the concept of “equality before the law” was borrowed from the Common Law upon which English Legal System was founded, the phrase “equal protection of laws” has its link with the American Constitution. The Constitution provides to every person the concept of Equality before Law and Equal Protection of Laws within the territory of India.3 The concept of equality before law provides equality of women and equal protection of laws gives power to Parliament and State Legislatures to make laws for the advancement of women by making positive discrimination. Article 14 also paves the way for the introduction of numerous acts, legislations, policies etc. for ensuring protection and enforcement of legal rights for women in India.
  2. Article 15: Article 15 of the Constitution of India provides “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. It ensures that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them within the territory of India. At the time of Independence, there was a lot of discrimination in India against women which faded away by the introduction of Article 15 of the Constitution of India. Further, Article 15(3) also provides that the State is authorized to make any special provisions for women and children.
  3. Article 16: Article 16 of the Constitution of India provides for the Equality of opportunity in matters of public employment to all its citizens. As per Article 16, there should not be any discrimination on the grounds of religion, race, caste, sex, descent, and place of birth, residence or any of them, within the territory of India. Now it can easily be seen that Women are really progressing amazingly in any of the fields related to public employment.
  4. Article 39: Article 39 of the Constitution of India is the part of Directive Principals of State Policy ensuring the States to follow the particulars mentioned under this Article while formulating the policies.
  5. Art. 39(a) of DPSP confers and ensures to all the citizens that men and women shall have the equal right to an adequate means of livelihood.
  6. Further, clause (d) of Art. 39 provides that there shall be equal pay for equal work for both men and women.
  7. Moreover, Article 39 (e) states that the State shall ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength.
  8. Article 42:  Article 42 of Constitution of India ensures humane conditions of work and also for maternity relief. When we look in reality, the condition of women in the corporate sector, the industrial sector is very inhumane in fact they are even exploited and are abused by their bosses and seniors. But, in this scenario, Article 42 is casting the duty on every employer to provide good working conditions to all the employees.
  9. Article 51-A: The Part IV-A of the Constitution of India deals with fundamental duties. There are eleven duties under Article 51-A. These duties shall be performed by every citizen of India for every other citizen. Clause (e) of this Article i.e. Article 51 (e) states that it shall be the duty of every citizen of India to renounce the practices which are derogatory to the dignity of women.
  10. Article 243: This Article ensures the reservation of seats in Gram Panchayat for women. This is a very great opportunity of being part of local-level administration improving the social conditions of women in village areas.
  11. Article 243D (3) talks about filling of Panchayat seats. It states that one-third number of seats shall be filled by direct elections in every panchayat by providing reservation to women in those seats.
  12. Article 243D (4) states that one-third of the total number of offices of chairpersons in the Panchayats at each level shall be reserved for women.
  13. Article 243T (3) talks about filling of Municipality seats. It states that one-third number of seats shall be filled by direct elections in every municipality by providing reservation to women in those seats.
  14. Article 243T (4) states that the offices of Chairman in Municipalities shall be reserved for women in the manner as provided by the State Legislature.

These are some of the basic rights which are given by our Constitution of India to the Women to ensure their dignity and self-respect.

Rights of Women and Indian Judiciary

There is no tool more effective than the empowerment of women for the development of a country.”  – Kofi Anan.

India is one of the few countries where offences against women are tremendously increasing. The people of India are, in one way, offers prayer to women as a goddess and at the same time, women are also considered to be in the second position.

All the provisions of Constitution or any other Statute gets their real meaning through the interpretation by the judiciary. In meantime, the Constitutional Law and other Statutes with the help of active judiciary have been acting as a guardian of women saving them from the atrocities and giving them help in numerous ways to increase the standard and status of women in the society.

The judicial approach in matters related to Education

It was observed by the High Court of Andhra Pradesh in case of P. Sagar v. State of Andhra Pradesh4 that Article 15(3) of Constitution of India is an exception of Article 15(1) which clearly means that the reservation for women cannot be denied and State is empowered to make any law for the betterment of women. Moreover, the reservation for sportswomen is also not violating the provisions of Article 15(1) and Article 29(2). Education is a part of the development of the personality of all in general and woman in particular.5

The judicial approach in matters related to public employment

In a number of cases, the Hon’ble Supreme Court had upheld the principle of equality of status of women at an equal level as that of the men.6 Further, in Vijay Lakshmi v. Punjab University7 it was held that the appointment of lady principle in women’s college or lady teacher is not violative of Article 14 and Article 16 of Constitution, as this classification is natural and is having a nexus with the object it seeks to achieve.

Judiciary and DPSP

The judiciary in ‘n’ number of cases has played a very crucial and active role in enforcing and strengthening the constitutional goal of “equal pay for equal work to both men and women” provided in Article 39(a) of Constitution of India and is implicitly provided under Article 14 and Article 16 of Constitution of India.8

Judiciary and Prevention of Sexual Abuse at Work Places

The Supreme Court in Vishakha case9 framed certain guidelines for the protection of women at the workplace and also held that there is a duty on every employer to protect the women from any kind of sexual abuse. This judgement paves the way in the formulation of an Act in 2013 named Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 

The Legal Rights and State initiatives for women

Further, there are certainly other legal provisions also providing for maintaining the dignity of women in India.

Below mentioned are some of the initiatives of State for the protection of rights of women:

National Commission for Woman – In January 1992 the Government set up this statutory body to supervise all the affairs relating to the safeguard of women and analysis the existing legislation to make and suggest amendments wherever necessary. The main objective of the National Commission for women is to signify the rights of women in India and to make a voice available for their problem and anxiety. The subject matter of their campaigns has consist of dowry, politics, religion, equal representation for women in jobs, and the exploitation of women for labour. They have also talked about police abuses against women.10

Reservation of women in local self-government – The 73rd constitutional amendment act passed in 1992 which make sure of 33% reservation of total seats to women in parliament and to all elected bodies in local bodies in both the areas that are rural or urban areas.

The national plan of action for the girl child (1991-2000) – this action plan was to make sure endurance, survival and development of a girl child with the vital objective of bringing up the enhanced future of girl child. National strategy for the empowerment of women (2001) – this Plan was aimed to bring innovation, development and empowerment of women.

Indian women will never be equivalent as long as these 9 laws will continue in the books:

  1. The Goa law on polygamy – Law allows “Gentile Hindu” man of Goa to perform the polygamy if his wife does give birth to a child before the age of 25 or if she does not have male children by 30, this is lean for legitimate sexism.
  2. Parsis law of inheritance – Marriage is allowed only inside their community and those who marry outside their community is still penalized —and it’s allowed. A non-Paris wife or widow of a Parsi cannot inherit. While those children born to a Parsi woman married to a non-Parsi man are not considered as part of the community.
  3. Hindu law of inheritance – Every religion have own personal laws which regulate inheritance, marriage, separation and guardianship. In the Hindus religion, the property of a woman who dies without a will is handled differently from that of a man. In the absence of husband and children, the husband’s inheritor inherits the woman’s property. Even if women were ill-treated in her matrimonial home, her in-laws will get property instead of their own parents.
  4. Prohibition of a child marriage act – The act only put stop to the marriages of children; it does not make them illegal once it happens in reality.  According to the UN, this is one of the core explanations of why the custom is still in additions in rural areas. The married children can make it void. A woman can call off marriage until she turns the age of 20, where a man can call off until he turns to 23.
  5. Marriageable age – The minimum marriageable age set for a boy is 21, whereas 18 for a girl as described in the Hindu marriage act. This is a legal lean-to the patriarchal mindset that considers that a wife should always be younger than the man.
  6. Hindu Minority and Guardianship Act –Women are still not equivalent custodian of their children. A father is considered the “natural guardian” of a child, even though the guardianship of offspring under the age of 5 will is generally awarded to the mother.
  7. No right to marital property -In leading separation or divorce, an Indian woman is the only permit to maintenance from her husband. She has no right on the property, acquisition in her husband’s name during the marriage. So if she gets divorced, even years later after the marriage, she is potential without assets. Though the Provisions in Goa Civil Code allow each partner a 50% share in their marital goods after divorce.
  8. Age of Consent – Sexual Intercourse with a girl without her consent is considered rape stated in sec 375 of Indian penal code. But a husband can legally have sexual intercourse with his wife without her consent if she is above the age of 15 .though marital rape is not a criminal offence in India.
  9. Rape of a separated wife – The rape of a separated wife is an offence, but it does not carry similar punishment as of rape it carries lesser punishment than the rape of any other woman. Forced sexual intercourse is punishable under sec 376 of the Indian penal code that is two to seven years of imprisonment.

Conclusion

Indian women have proved themselves in almost all the stages and aspects of life. Women can equally contribute to the growth and prosperity of the nation. Women, the most essential pillar of a society without which, a Nation cannot be formed.

A famous saying goes on that “Behind every successful man there is the hand of Women”. This saying clearly proves that both men and women equally contribute to society and are essential elements of society without which a society could not be formed. The Rights of women, Constitutional as well as Legal, has to be protected for the proper development of society as the Nation Building is only possible when the women are protected.

The fight is not for a woman’s status but for human worth. The claim is not to end inequality of woman but to restore universal justice. The bid is not for loaves and fishes for the forsaken gender but for cosmic harmony, which never comes till woman comes. The soul of man is a woman and when she goes there is no goodness of strength left.11


1Ankur Garg, Legal And Constitutional Rights Of Women In India, available at http://www.indiastudychannel.com/resources/155065-Legal-Constitutional-rights-women-India.aspx, last visited: 8th October 2018.
2http://mospi.nic.in/sites/default/files/reports_and_publication/statistical_publication/social_statistics/WM16ConstitutionalLegalRights.pdf.
3Art. 14, Constitution of India.
41968 AIR 1379.
5Koneru Anuradha, Judicial Activism in Protection and Promotion of Women in India with special reference to Indian Constitution, available athttp://www.legalserviceindia.com/legal/article-116-judicial-activism-in-protection-and-promotion-of-women-in-india-with-special-reference-to-indian-constitution.html, last visited: 8th Oct. 2018.
6Miss C.B, Muhammad, I.F.S v. Union of India, (1979) 4 SCC 260; Air India v. Nergesh Meerza and other, (1981) 4 SCC 335; A.N. Rajamma v. the State of Kerala, 1983 Lab.I.C. 1388.
7AIR 2003 SC 3331.
8Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473; Randhir Singh v. Union of India, AIR 1982 SC 879; Sanjit Roy v. the State of Rajasthan, AIR 1983 SC 328; Uttarakhand Mahila Kalyan Parishad v. State of Uttar Pradesh, AIR 1992 SC 1695; Mackinnon Mackenzie and Co. Ltd. v. Andrey D’ Costa, 1987 AIR 1281;
9Vishaka v. the State of Rajasthan, AIR 1997 SC 3011.
10Deepti Priya Mehrotra, A gallery of failures, available at http://www.indiatogether.org/ncw-women, last visited: 8th October 2018.
11Dr Naresh Rout & Dr Jayashree Bez, Women’s Rights and Violence in India: A Study of Constitutional Safeguards, available at http://magazines.odisha.gov.in/Orissareview/2017/Jan/engpdf/15-29.pdf, last visited: 9th October 2018.

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