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Women's Rights and Violence in India: A Study of Constitutional Safeguards

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 discrimination.

"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 practice.

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 Against Women"

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 them.

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.

Although clause 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.

Fundamental Rights:

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 equality.

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 prostitution.

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 community.

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.

Fundamental Duties:

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 legislature.

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 Indian population.

Written By: Amish Kumar, BA.LLB 9th Semester

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