Women have been playing a major role in shaping the society by providing the
moral country and one of the indices of national development. Women have gained
a lot of ground in politics, the workforce, and even more power within their own
households. There was a time in history when women were unable to voice their
opinion in politics being unable to cast a vote or run for office, and now in
modern time there are more than one woman running in the presidential campaign.
Now women and men can both be the bread winners, the stereotypical role place on
women are slowly dissolving and both spouse parents are sharing the
responsibilities that come with the house and family. They are the embodiment of Shakti, the creator and destroyer of human race. It needs to be recognised that
women are builders and moulders of nation's destiny.
They are the partner and
soul of men and behind every successful man, there is a woman. But it is
deplorable to treat that they are the most neglected and deprived segment of the
society. In most families a daughter is viewed as liabilities and she is
conditioned to believe that she is inferior and subordinate to men. Sons are
idolized and celebrated.
"May you be the mother of hundred sons" is a common
Hindu wedding blessing. It is generally viewed empowerment of women is a
solution to gender discrimination. It is now widely believed that empowerment of
women that is providing equal rights, opportunities and responsibilities in the
decision-making process will go a long way in removing the existing gender
"A woman's sphere of influence is a unique sphere, one that cannot be duplicated
by men. Because of that influence, women have an important responsibility in
strengthening the kingdom of God on the earth" �... M. Russel Ballard
Women have a unique position in every society whether developed, developing or
underdeveloped. This is particularly due to the various roles they play during
various stages of their life, as a daughter, wife, mother and sister etc. In
spite of her contributions and role in the life of every human being, she still
belongs to a class or group of society which is in a disadvantaged position on
accounts of several barriers and impediments.
She has been the victim of tyranny
at the hands of men who dominate the society. The position of Indian women is no
better compared to their counterparts in other parts of the world. On the one
hand she is held in high esteem by one and all, worshipped, considered as the
embodiment of tolerance and virtue. But on the other hand, she has been the
victim of untold miseries, hardships and atrocities caused and perpetuated by
the male dominated society.
Constitutional safeguards were however provided in independent India declaring
that all are equal before the law and any discrimination based on sex, caste,
race etc. is unconstitutional. Special provisions made for women were
incorporated in the Constitution keeping in view their position in the society.
The general provision dealing with equality as such was made in Articles-14, 15,
16 and Article 23 dealing with traffic in human being.
This was followed by
Directive Principles (Article- 39 and 42) which deal with equal pay for equal
work for women at par with men and maternity benefit for them. There are also
brief accounts of the Fundamental Duties towards women and an election provision
prohibiting discrimination based on sex etc. There are other such provisions to
protect the women from gender bias and discrimination. But unfortunately, the
theoretical commitment to gender equality has failed to be transformed into real
Meaning Of Crime / Violence Against Women
"The Semantic meaning of �crime against women" is direct or indirect physical or
mental cruelty to women. Crimes which are �directed specifically against women"
and in which �only women are victims" are characterized as "Crime
It is equally important to clarify the concept of �Violence" against women.
Violence is also known as abuse and include any sort of physical aggression or
misbehave. When violence is committed at home it becomes domestic violence and
involves family members such as children, spouse, parents or servants. Domestic
violence may involve different means such as hitting, kicking, biting, shoving,
restraining, throwing objects.
In broad terms, it includes threats, sexual
abuse, emotional abuse, controlling or domineering, intimidation, stalking,
passive/covert abuse and economic deprivation, rape, abduction, kidnapping,
murder (all cases of criminal violence, dowry death, wife battering, sexual
abuse, maltreatment of a widow and for an elderly women (all cases of domestic
violence) and eve-teasing, forcing wife/daughter-in-law to go for foeticide,
forcing a young widow to commit sati, etc (all cases of social violence), are
issues which affect a large section of society.
The United Nations defined "Violence against Women" in 1993 in Declaration on
the Elimination of Violence against Women. It defines it as any act of
gender-based violence that results in, or is likely to result in, physical,
sexual or psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring in public
or private life
Constitutional And Legal Provision For Women
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 for neutralizing
the cumulative socio economic, education and political disadvantages faced by
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 Protection of the Rights of Women:
The status of women in India has been subjected to many changes over the past
few millennia. Women in India now participate in all activities such as
education, politics, media, art and culture, service sector, science and
technology etc. Our Constitution guarantees equal rights to men and women. The
Constitution is firmly grounded in the principles of liberty, fraternity,
equality and justice. It contains a number of provisions for the empowerment of
women. Women's right to equality and non-discrimination are defined as
justifiable fundamental rights.
The Constitution explicitly clarifies that
affirmative action programmes for women are not incompatible with the principle
of non-discrimination on the ground of sex. The Government of India has always
attached great importance to the protection and promotion of the human rights of
women and is committed to achieving it. National plans and policies have
consistently reflected a vision of progress that is not narrowly confined to
expanding incomes, but gives a central place to the achievement of human rights,
freedoms and wellbeing for all.
The framers of the Constitution were well conscious of the discriminations and
unequal treatment meted out to the fairer sex, from time immemorial. They
included certain general as well as specific provisions for the upliftment of
the status of women. They provided equality of status and opportunities
explicitly at some places and implicitly in all other places at par with men as
citizens of India.
It is true that the original Constitution of India did not reflect concerns for
gender justice adequately as expected. It provides against discrimination on the
ground of sex (Article-15 &16) but it did not take note of discrimination that
is based on gender. Giving women certain rights in order to compensate them for
their reproductive function is not a charity but an obligation.
3 of the Article-15 of the Constitution of India says that the state may make
special provisions for women, this is a protectionist strategy and not an equalisation measure. Women should be provided with affirmative action by the
state in order to help them overcome the handicap which they suffered under the
patriarchal regime. As all the fundamental rights are male centric, there is no
possibility of getting equality for women.
However, this fundamental law of the land through various provisions
particularly as laid down in the Preamble, Part-III dealing with Fundamental
Rights and in Part IV which deal with Directive Principles of State Policy
thrive for securing gender justice thereby putting women at par with men.
Constitutional Provisions for women are as under:
- Article 14, confers on men and women equal rights and opportunities in political, economic and social sphere.
- Article 15, prohibits discrimination against any citizen on grounds of religion, race, caste, sex etc.
- Article 16, provides for equality of opportunities matters relating to employment or appointment to any office under the state.
- Article 39(a)(d), mentions policy security of state equality for both men and women the right to a means of livelihood and equal pay for equal work for both men and women.
- Article 42, Direct the State to make provision for ensuring just and humane conditions of work and maternity relief.
Legal Provisions for women are as under:
Factories Act 1948: Under this Act, a woman cannot be forced to work beyond 8 hours and prohibits employment of women except between 6 A.M. and 7 P.M.
Maternity Benefit Act 1961: A Woman is entitled 12 weeks maternity leave with full wages.
The Dowry Prohibition Act, 1961: Under the provisions of this Act demand of dowry either before marriage, during marriage and or after the marriage is an offence.
The Equal Remuneration Act of 1976: This act provides equal wages for equal work: It provides for the payment of equal wages to both men and women workers for the same work or work of similar nature. It also prohibits discrimination against women in the matter of recruitment.
The Child Marriage Restrain Act of 1976: This act raises the age for marriage of a girl to 18 years from 15 years and that of a boy to 21 years.
Indian Penal Code: Section 354 and 509 safeguards the interests of women.
The Medical Termination of Pregnancy Act of 1971: The Act safeguards women from unnecessary and compulsory abortions.
Amendments to Criminal Law 1983, which provides for a punishment of 7 years in ordinary cases and 10 years for custodial rape cases.
73rd and 74th Constitutional Amendment Act reserved 1/3rd seats in Panchayat and Urban Local Bodies for women.
The National Commission for Women Act, 1990: The Commission was set up in January, 1992 to review the Constitutional and legal safeguards for women.
The Protection of Human Rights Act, 1993:
Protection of Women from Domestic Violence Act, 2005: This Act protects women
from any act/conduct/omission/commission that harms, injures or potential to
harm is to be considered as domestic violence. It protects the women from
physical, sexual, emotional, verbal, psychological, economic abuse.
Protection of Women against Sexual Harassment at Workplace Bill, 2010: on
November 4, 2010, the Government introduced protection of Women Against Sexual
Harassment at Workplace Bill, 2010, which aims at protecting the women at
workplace not only to women employee but also to female clients, customer,
students, research scholars in colleges and universities patients in hospitals.
The Bill was passed in Lok Sabha on 3.9.2012.
The Preamble to the Constitution of India declares that social, economic and
political justice should accrue to all its citizens, which means everybody both
men and women should not be denied the fruits of justice. Social justice as
interpreted means recognition of greater good to a larger number without
deprivation of legal rights of anybody.
So, it is expected that the state should enact positive measures for the
protection of the weaker sections of the community (which includes women also)
so as to uphold the Constitutionality of such measures. The expression 'social
and economic justice' intends to remove the economic inequalities and rectify
the injustice done to the unequal in the society thereby asserting the concept
of distributive justice.
Again, the Preamble to the Indian Constitution contains various goals including
'the equality of status and opportunity' to all the citizens. This particular
goal has been incorporated to give equal rights to the women and men in terms of
status as well as opportunity. It has been the basis for much legislation like
the Modern Hindu Laws which aim at giving equal status and rights to the women.
Even though, all fundamental rights contained in Part-III Articles 12-35 are
applicable to all the citizens irrespective of sex, certain fundamental rights
with certain specific and positive provisions protect the rights of women.
Article-14 provides equality before law that is no person in the state will be
denied equality before law and equal protection of the law. Thus, women in
Indian society enjoy the same protection and treatment as men which are
guaranteed by the Constitution.
Article-15 prohibits any sort of discrimination against women when it declares
in clause-1 that 'the state shall not discriminate against any citizen on
grounds only of religion, caste, race, sex, place of birth or any of them'.
Article-15(3) provides that, 'nothing in this Article shall prevent the state
from making a special provision for women and children'.
This obviously refers that whenever any need arises due to peculiar
characteristics the women enjoy, the state will not hesitate to meet their
special needs by enacting laws for them. This was the intention of the framers
of the Constitution and in order to improve the condition of women by giving
special protection, this particular clause has been inserted. Justifying it
Honourable Justice S. Manohar observed:
'The insertion of clause (3) of the Article-15 in relation to women is
recognition of the fact that for centuries, women of this country have been
socially and economically handicapped. As a result, they are unable to
participate in the socio-economic activities of the nation on a footing of
It is in order to eliminate the socio-economic backwardness of women and to
empower them in a manner that would bring about effective equality between men
and women that Article-15(3) is placed in Article-15. Its object is to
strengthen and improve the status of women' (Government of Andhra Pradesh v P.
B. Vijay Kumar,). Here it is also submitted that when special treatment for
women arises, they should be treated as socially and educationally backward as
contemplated in the Article-15(4) of the Constitution.
Article-16 guarantees equal opportunity in matters of public employment as
Article-16(1) declares that "there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under
the state". In this case a reference may be made to the case of C.B. Muthamma
v Union of India
, where the rules requiring female employees to get
permission before marriage and denial of right to employment to married women
were held discriminatory and violative of Article-16 of the Constitution.
Justice V. R. Krishna Iyer declaring this rule to be in defiance of Article-16
went on to observe:
"if a married man has right to a married woman other thing being equal, stands
on no worse footing. This inferior posture is hangover by the masculine culture
of threatening the weaker sex forgetting how our struggle for national freedom
was also a battle against women's slavery. Freedom is indivisible, so is Justice
that our founding faith enshrined in Article-14 and 16 should have been
tragically ignored vis-a vis half of India's humanity, namely our woman is a sad
reflection on the distance between Constitution in the book and law in action.
He went on to observe further that "we do not mean to universalise or dogmatise
those men and woman are equal in all occupations and all situations and do not
exclude the need to pragmatize where the requirements of particular employment,
the sensitivities of sex or the peculiarities of societal sectors or the
handicaps of either sex may compel selectivity. But save where the
differentiation is demonstrable, the rule of equity must govern."
Article 16(4) of the Constitution provides for the reservation of appointments
or posts in favour of any backward class of citizens and its object has been
beautifully stated by Justice Jeevan Reddy when he said: In short, the object
behind 16(4) is empowerment of the deprived backward communities to give them a
share in the administrative apparatus and in the governance of the community.
Now a question arises whether women can be considered to be included in the
'deprived backward community'. Taking into consideration the fact of their
status and position they enjoy and the way they are ignored, they fulfil almost
all the characteristics of a deprived backward community. As a class distinct
from men, they are considered backward in all the spheres, social, economic and
educational. That is why, it was thought that the women should not be treated
unfavourably and every possible step should be taken in achieving this
Constitutional goal of putting women at par with men.
Article-19 guarantees to all the citizens both men and women "the right to
freedom of speech and expression". Thus, everyone has a fundamental right to
form his own opinion on any issue of general concern. Life and personal liberty
of everyone (may be a male or a female) is protected by the Article-21 of the
Constitution which provides that "No person shall be deprived
of his life or personal liberty except according to procedure established by
law". Right to life is regarded as the most precious fundamental rights amongst
all the human rights. The expression 'Life' assured under this Article does not
connote mere animal existence or continued drudgery through life. It has got a
much wider meaning. So also, the Supreme Court has given the widest possible
interpretation to the expression 'personal liberty' which appears in the same
Article in Menaka Gandhi's case. The impact of the case is significant as a
variety of rights were drawn into the contours of Article-21 by incorporating
the concept of reasonableness into the procedure established by law.
Article-23 of the Constitution specifically prohibits traffic in human beings.
In this context traffic in human beings includes 'Devadasi System'. (Vishal Jeet
v Union of India,). Trafficking in human beings has been prevalent in India for
a long time in the form of prostitution and selling and purchasing human beings
for a price just like vegetables. On the strength of Article-23(1) of the
Constitution, the legislature has passed the Suppression of Immoral Traffic Act,
1956 (now renamed as The Immoral Traffic (Prevention) Act, 1956) which aims at
abolishing the practice of prostitution and other forms of trafficking.
This is an Act made in pursuance of the International Convention signed at New
York on the 9th day May,1950 for the prevention of immoral traffic. Recently the
Andhra Pradesh legislature has enacted the Devadasis (Prohibition of Dedication)
Act, 1988 to prohibit the practice of dedicating women as Devadasis to Hindu
Deities, idols, temples etc, which invariably results in evils like
In "Peoples Union for Democratic Rights vs Union of India",the exaction of
labour and services against payment of less than the minimum wages were held as
forced labour and violative of Article-23. Under Article-25 of the Constitution
of India, all persons either man or woman of any caste or creed are equally
entitled to freedom of conscience and the right to freely profess, practice and
propagate any religion - subject to public order, morality and health of the
The above enumerated fundamental rights in respect of women as enshrined in
Part-III of our Constitution certainly aim at women welfare and to promote
interests of women. The equality clause which widens the scope of fundamental
rights of women beautifully found place in the words of Justice Krishna Iyer
when he says: "The fight is not for women status but for human worth. The claim
is not to end inequality of women 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 women comes. The soul of man is woman and when she goes there
is not goodness of strength left" (V.R. Krishna Iyer "Of Law and Life",
Directive Principles of State Policy:
Besides the Fundamental Rights, the Constitution in Part-IV under Directive
principles of state policy also directs the state to take certain remedial
measures for the welfare of the women. Article-37 says that it is the duty of
the state to apply these directive principles in making laws. Thus, while
special laws are needed to be enacted these principles will be followed.
Article-39 which directs the state to secure a social order and promotion of
welfare of the people has specific provisions for women also. Article-39 (a)
says "that the citizens, men and women equally, have the right to an adequate
means of livelihood."
Article-39 (d) provides that "there is equal pay for equal work for both men and
women". In Uttarakhand Mahila Kalyan Parishad vs state of UP, it was held that
female teachers are entitled to the same salary as is paid to the male teachers
of the same institution. Again, the state has enacted the Equal Remuneration
Act, 1976 to give effect to these Directive principles. (Uttarakhand Mahila
Kalyan Parishad VS State Of UP)
Article-39 (e) specifically directs the state not to abuse the health and
strength of the workers, men and women. That is why the Constitution imposes
upon the state an obligation to ensure that the health and strength of workers,
men and women and the underage of children are not abused and that citizens are
not forced by economic necessity to enter a vocation unsuited to their age or
strength. In the case of the labours working on Solal Hydro Project vs State of
Jammu and Kashmir, the Supreme Court held that construction work is hazardous
employment and children below 14 years cannot be employed in such type of work.
Article-42 of the Constitution incorporates a very important provision for the
benefit of women. It directs the state to make provisions for securing just and
humane conditions of work and for maternity relief. The state has tried to
implement this directive by enacting the Maternity Benefit Act, 1961.
Article-44 directs the state to secure for the citizens a uniform civil code
throughout the territory of India. This particular goal is towards the
achievement of gender justice. Even-though the state has not yet made efforts to
introduce Uniform Civil Code in India, the judiciary has recognised the
necessity of the uniformity in application of civil laws like law of Marriage,
Succession, Adoption and Maintenance etc., in the case of Salara Mudgal vs.
Union of India and other cases. (Sarala Mudgal VS Union of India)
Finally, through Article-46 the state is directed to "promote with special care
the educational and economic interests of the weaker sections of the people, and
in particular, of the Scheduled Castes and Scheduled Tribes and shall protect
them from social injustice and all forms of exploitation". We have already seen
that the women have been regarded as economically and educationally backward;
hence they require special protection as per the provision of this Article.
Apart from these specific provisions, all other provisions of the Constitution
are equally applicable to the men and women. It clearly establishes the
intention of the framers of the Constitution to improve the social, economic,
educational and political status of the women so that they can be treated with
men on equal terms.
In Part-IV-A of the Constitution, certain fundamental duties are enumerated for
the citizens which is obligatory on their parts to do and respect. Article-51
(a) deals with such duties and clause (e) relates particularly to women which
says: "it shall be the duty of every citizen of India to promote harmony and the
spirit of common brotherhood amongst all the people of India transcend in
religious, linguistic and regional and sectional diversities, to renounce
practices derogatory to the dignity of women.
Women's Representation in Local Bodies:
Article-40 of the Directive Principles of State Policy states that the state
shall take steps to organise village panchayats and endow such powers and
authority as may be necessary to enable them to function as units of
self-government. The 73rd and 74th Amendments to the Constitution in 1992
provide for reservation of seats for women in election to panchayats and
municipalities in Articles 243-D and 243-T. A Bill is pending before the
parliament for reservation of seats to women in parliament and state
Though the Indian Constitution provides equality of status and of opportunity to
women, discrimination is persisting in one form or the other. Discrimination
against women continues to exist even today as it is so deep rooted in the
traditions of Indian society. The root cause for the discrimination of women is
that most women are ignorant of their rights and the position of equality
assured to them under the Indian Constitution and the legal system. Enlightened
women should fight to bring awakening in other women regarding their rights
through awareness about their status in society as they constitute half of the
Written By: Amish Kumar,
BA.LLB 9th Semester