4.1 Introduction: The framers of the Indian Constitution were inspired by the Universal Declaration of Human Rights and they saw to it that the essence and the Spirit of the Universal Declaration was incorporated in the Constitution. The inspiration is evident in the Preamble to the Constitution which declares:
“We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens:
Justice, social, economic and political:
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity Fraternity assuring the dignity of the individual and the (unity and integrity of the Nation);
In our Constituent Assembly this Twenty-sixth day of November, 1949 to hereby adopt, enact and give to ourselves this Constitution.”
Human rights are an integral part of the concept of human dignity which are protected by different provisions of the Constitution of India. It is a harsh reality that women have been ill-treated in every society for ages and India is not an exception to this universal problem. The irony lies in the fact that in our country where women are worshipped as ‘shakti’, the atrocities are committed against her in all sections of the life. She is being looked down as commodity or as a slave, she is not only robbed of her dignity and pride outside her house but she also faces ill-treatment and other atrocities within the four walls of her house also. The women are being considered as an object of male sexual enjoyment and reproduction of children.
Women are deprived of economic resources and are dependent on men for their living. Women works are often confined to domestic sphere, she has to do all house hold works, which are not recognized and unpaid. In modern times many women are coming out to work but has to shoulder double responsibility, one she has to work where she is employed and secondly she also has to do all the house hold works, moreover, she is the last to be considered and first to be fired as she is considered to be less productive that her counterpart. Her general status in the family and in the society has been low and unrecognized.
Law cannot change a society overnight, but it can certainly ensure that the disadvantages are not given a raw deal. However, the courts can certainly go beyond mere legality insulting women against injustice suffered due to biological and sociological factors. Indian judiciary has been very sensitive to women and women related issues. The apex court took special interest in discharging its legal and constitutional obligations and safeguarding the interest of women in changing situation and societal demands.
The battle for gender justice has been a long –drawn struggle. The sustained efforts of several social reformers, even in the face of resistance from social orthodoxy, have given impetus to the course of gender justice. Constitutional provisions, various laws and judgments of courts have made their own contribution to the cause of gender justice. However, more fundamental is the work and role of social reformers who sought to change the mindset of orthodox, tradition-bound society and usher in women’s reforms in the social, economic and educational fields.
Hence there is a need to address vital issues for creation of maternity fund, ban on sex determination tests, reservation for women in government jobs, treating bride burning and dowry deaths as murders, provisions of public toilets and smokeless chulhas in villages, more hostels for single women in urban areas, making them as joint owners of house and land and making women co-sharers in the wealth and incomes of their husbands to bring women at par with men in the real sense.
4.2. Gender Justice and the Indian Constitution: The elimination of gender-based discriminations is one of the fundamentals of the constitutional edifice of India. In fact the constitution empowers the state to adopt measures of positive discrimination in favor of women for neutralizing the cumulative discriminations and deprecations’which women face.
Constitution of India has done a magnificent job in ensuring gender justice in the supreme law of the country. The preamble to the Constitution, inter alia, assures justice, social economic and political, equality of status and opportunity and dignity of the individual. It recognizes women as a class by itself and permits enactment of laws and reservations favoring them. Several articles in our Constitution make express provision for affirmative action in favor of women. It prohibits all types of discrimination against women and lays a carpet for securing equal opportunity to women in all walks of life, including education, employment and participation.
The commitment to gender equality is well entrenched at the highest policy making level in the Constitution of India. A few important provisions for women are mentioned below in brief.
4.3. Fundamental Rights (Part III): Article 14 of the constitution of India ensures to women the right to equality. Article 15(1) specifically provides for affirmative and positive action in favor of women by empowering the state to make special provisions for them; and the article 16 of the Constitution provides for equality of opportunity to all, in matters relating to public employment or appointment to any office and specifically forbids discrimination inter-alia on the ground of sex. These articles are all justiciable and form on the basis of our legal Constitutional history.
4.4. Directive Principles of State Policy (Part IV): Article 38 requires the State to secure a social order in which justice social, economic and political for the promotion of welfare of the people. It requires the state to strive to eliminate inequalities in status, facilities and opportunities. Clearly the intention of the makers of the Constitution was to ensure that equality would not be only of opportunity but in reality.
Article 39 puts down the principles of policy to be followed by the state which include that the state should direct its policy toward securing the right to an adequate, means of livelihood, that there is equal pay for equal work, that the health and strength of workers men and women, are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
Article 42 requires the state to make provision for securing just and humane conditions of work and for maternity relief. Article 46 requires the state to promote with special care the education and economic interest of the weaker sections of the citizen. Clearly then the objective is to strive towards a gender just society.
4.5. Fundamental Duties (Part IV: A): In part IV:A of the constitution incorporated through 42nd Amendment Act, 1976, our natural obligation to renounce practices derogatory to the dignity of women has been elevated to the status of fundamental duty by article 51:A. The Equal Remuneration Act, 1976, t6he Maternity Benefit Act, 1961, the Dowry Prohibition Act, 1961 and the Immoral Traffic (Prevention) Act, 1956 are some of the enactments which owe their existence to the above mentioned provisions of the Indian Constitution.
4.6. The Constitution 73rd and 74th Amendments Act of 1993: The 73rd and 74th Amendments (1993) to the Indian constitution have served as a major break through towards enhancing the women’s participation in democratic process. These amendments provided for reservation of 33.33 per cent of elected seats. There is also a one-third reservation for women of posts of chairpersons of these local bodies. This is likely to be widened by constitutional amendment for women’s representation in legislatures by reservation.
However, it must be remembered that guaranteeing a right in law does not ensure the ability to access the right in reality. The fact that the historical subjection of women has not come to an end is constantly before us in the form of the reducing number of women in each census. It is falling at an alarming rate which is a matter of concern. Similarly crimes against women have been on the increase. Incidents of rape, sexual assault, sexual harassment, domestic violence, cheating etc. have been growing not only in numbers but also in intensity and brutality.
The statistics provided by the Crime Bureau of India brings this before us every year. These statistics only reveal the numbers of reported cases. One can easily imagine how much bigger the number would be if one were to take into account the numerous unreported cases. In addition, in the context of an expanding market economy, there has been the increasing objectification of women in the advertisements and the media. Parliament has from time to time either made amendments to the existing laws or enacted new laws to address these various concerns.
Judicial Approach towards Gender Justice: The Supreme Court in Muthamma v. Union of India (1979) 4 SCC 260 and Air India v Nagresh Mirza AIR 1981 SC 1829 Struck down discriminatory service conditions requiring female employees to obtain government permission before marriage and denying married and pregnant women the right to be employed.
In Vishaka v State of Rajasthan AIR 1997 SC 3011 the Supreme Court observed that equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.
Therefore, the Supreme Court issued guidelines to ensure that the women have equal working conditions and are protected from sexual harassment. Vishaka was public interest class action and came up before Supreme Court of India at the instance of certain social activists and Non-Government Organizations (NGOs) seeking to prevent sexual harassment of working women in all work places. Their grievance was that while working women remained vulnerable to this, neither the legislature nor the executive government was taking any effective preventive measure in this behalf. Therefore, the plaintiffs approached the apex court for the enforcement of the fundamental rights of the working women as guaranteed by the Constitution. This was endorsed in Apparel Export Promotion Council v. A. K. Chopra AIR 1999 SC 625 in which disciplinary proceedings for sexual harassment leading to dismissal from service were upheld by the Supreme Court.
In Cases relating to public employment, the courts have quashed the discriminatory provisions that gave advantages to men and imposed disabilities on women.
In Maya Devi v. State of Maharashtra 1986(1) SCR 743 the requirement of husband’s consent for wife’s application for public employment was struck down as an anachronistic obstacle to women’s equality and economic justice. Since article (15(3) itself hints substantive approach, its application for giving special educational facilities, for giving representation in local bodies and for protection in places of work has a substantive dimension.
Upholding a service rule that preferred women in recruitment to public employment to the extent of 30% of posts, the Supreme Court stated in Government of A. P. v. P. K. Bijayakumar AIR 1995 SC 164 to say that under Article 15(3) job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article Making special provision for women in respect of employments or posts under the state is an integral Part of Article 15(3)”.
The subordinated position of Christian woman, who was denied equal right in the matter of divorce against her husband, was brought to the limelight by way of anti-subordination interpretation in Ammini E.J. v. Union of India AIR 1995 Ker 252 Referring to the life of Christian wife being compelled to live as wife against her will the High Court of Kerala observed, It will be a humiliating and oppressed life without freedom to remarry and enjoy life in the normal course. It will be a life without freedom to uphold the dignity of the individual in all respects. The Court quashed the impugned provision as violative of articles 14, 15 and 21.
In Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa, AIR 1987 SC 1281 the court observed that there was discrimination in payment of wages to lady stenographers and such discrimination was being perpetuated under the garb of a settlement between the employees and the employer. The Court finally not only made it mandatory to pay equal remuneration to lady stenographers as their male counterparts but also observed that the ground of financial incapability of the management cannot be a ground to seek exemption from the equal Remuneration Act, 1976.
Interpretation of the guardianship law in the light of Article 15 by the Supreme Court in Githa Hariharan v. Reserve Bank of India AIR 1999 SC 1149 could equate the position of mother to that of father in the matter of guardianship. All the wings and layers of government legislature, executive and judiciary at central, state and local levels have the responsibility towards empowerment of women.
Legislature has enacted many laws in bringing about equality between men and women to fulfill the obligation not only of the international conventions but also of the Constitution of India. A Combined reading of article 14, 15 and 21 of the Constitution of India categorically provides that no law can be made or can be applied which discriminates against women. Law cannot alone remedy the inequalities and bring about justice, development and empowerment. It can act as a spring board of doubt of all sections of society required to achieve the ends.
Whatever the causes may be, it is the duty of human to protect the human rights of those who are victims. Even though the government is trying to take care of this natural right by formulating various policies, enacting and formulating laws but these are not enough to tackle this problem unless a strong move to protect the rights of women is launched by the people’s movement. This is not a one man’s job. Entire humanity will have to join hands. Gender injustice is a problem that is seen all over the world. But unless there are certain attitudinal changes, women will continue to get at raw deal. They need to be educated. Educated mothers take care of their children irrespective of the boys or girls.
4.7. Some Land Mark Judgments:
(A) A Woman shall not be denied a job merely because she is a woman: In its land mark judgment the Apex Court in Air India v. Nergesh Meerza,1 has held that a woman shall not be denied employment merely on the ground that she is a woman as it amounts to violation of Article 14 of the Constitution. In the present case where in airhostesses of Indian Air Lines and Air India have challenged the service rules which state that:
Airhostesses shall not marry for the first four years of their joining, they will lose their jobs if they be become pregnant. They shall retire at the age of thirty five years, unless managing director extends the term by ten years in his discretion. The Supreme Court suggested that the first provision is legal, as it would help in promotion of the family planning programmes, and will increase the expenditure of airlines recruiting airhostesses on temporary or adhoc basis, but the second and third provisions to be declared as unethical, callous, cruel, detestable, abhorrent, unreasonable, and unconstitutional and an open insult to Indian womanhood.
Thus, the above decision of the Apex Court has greatly elevated the status of working woman.
(B) Denial of Seniority promotion on Ground of Sex: Rules regarding seniority and promotion in the Indian Foreign service was challenged before the Apex Court in Miss. C. B. Muthamma v. Union of India.2 Where it has been held that the Rules relating to seniority and promotion in Indian Foreign Service which make discrimination only on ground of sex is not only unconstitutional but also a hangover of the masculine culture of hand cuffing the weaker sex. In the instant case a writ petition was filed before the Apex Court it was contended that she had been denied promotion to Grade I on the ground of Sex, which violated Article 15 of the Constitution of India, 1950. The Apex Court allowed the petition and held that Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 which requires that an unmarried woman member should take permission of the Government before she marries. After marriage, she may be asked any time to resign if it is felt that her family life affects her efficiency as of right to be appointed to the service (I.F.S.) contravenes Article 15 of the Constitution. In view of the above decision, now these provisions have been deleted.
(C) Beauty Contests: Whether Violation of Constitutional Provisions: This question was raised before the Andhra Pradesh High Court in C. Rajakumari v. Commissioner of Police, Hyderabad.3 It has been held that if a beauty contest indecently represents any woman by depicting in any manner the figure of woman, form, body or any part thereof in such a way so as to have the effect of being indecent, or derogatory to or degrading women, or likely to deprive, corrupt an injure the public morality would be volatile of the provisions of the Indecent Representation of women (prohibition) Act, 1986 and also unconstitutional as it violates Articles 14, 21, and 51:A of the Constitution of India.
(D) Constitutional Validity of Section 497 (i.e. Adultery) of the Indian Penal Code, 1860: In the offence of adultery Section 497 of the Indian Penal Code, 1860 punishes only the male counterpart and exempt the women from punishment. The Constitutional Validity of Section 497, I.P.C. was challenged on the ground that it is violative of Articles 14 and 15 (1) of the Constitution in Abdul Aziz v. State of Bombay.4 The Apex Court upheld the validity of the provision on the ground that the classification was not based on the ground of sex alone. The court relied upon the mandate of Article 15(3) of the Constitution to uphold the validity of the said provision of the code. However, in the present case the petitioner contended that even though the woman may be guilty as an abettor, only the man was punished, which violate the right to equality on the ground or sex.
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