The Exploratory Study of Constitutional Perspective of Women’s Right Relation To Equality

The Exploratory Study of Constitutional Perspective of Women's Right Relation To Equality
ATIN KUMAR DAS, LL.M IInd YEAR, NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL.
INTRODUCTION
Constitution is the fundamental legal document in a democratic society. The Indian constitution, which came into force on 26th January, 1950.It sets the framework and the principal functions of the organs of the government of the state and declares the principles governing the operation of those organs. The constitution aims at the creation of new legal norms, social philosophy and economic values which are to be effected by striking synthesis, harmony and fundamental adjustment between individual rights and social interest to achieve the desired community goals. The ideals enshrined in the preamble of the constitution are to be secured to all the citizens of the country. As every person, who has a domicile in India, and who was born in India, or either of his parents were born in India, or who has been resident of India for not less than five years before the commencement of the constitution, is a citizen of India, women residing in India and fulfilling these conditions are automatically citizens of this country. They are as much entitled to the rights, obligations, duties and protection under the constitution as any other citizen.
While in Indian constitution there are several provisions which are related to the protection and providing respect. For an e.g. Equality provisions like Article 14,15and 16.Then there are certain provisions which are providing protection of life and personal liberty of every person who may be a male or female like Article 21.Article 23 and 24 provides prohibition of trafficking. Recently added Article 21A provides free and compulsory education. Then there are certain provisions under the Directive Principles of state policy like Article 39(a), 39(d), 39(e), 42 and Article44.
Then there are certain provisions under the fundamental Duties like Article 51 - A was newly added to the constitution by the 42nd Amendment, 1976.And Article 51-A (e) is related to women. In this research researcher try to find out the root problems of the women's which they are face. And deeply analysed the critical issues related to reservations and recently added Article 21A.
Review of Literature
 Sarat .c. Joshi, defines the term women in primitive society as well as in the modern world in his book "Fundamentals of Sociology".
 Uma Devi, explains that how law protects women and position of women in 21st century in her book "Domestic Violence in India".
 Monica Chawla describes the constitution of India and role of government in changing scenario in her book "Gender Justice Women and Law in India".
 Shukla V.N. explains the constitutional provisions which protect the women and also analyze the recent decisions in his book "constitutional law of India".

Statement of problem
Part III and IV provide or confer as the backbone on which protective legislation for women has been based. But how far it is protecting the women in India, and successful in India.


Aims and Objectives:
The main aims of the project are as follows:
 The paper essentially seeks to outline the relevant constitution provisions pertaining to women.
 To identify or examine the Equal opportunity and protective provisions.
 To examine the current status of women in the eye of constitution.


Scope, focus and limitations of the project: (Hypothesis)
 In the constitution ‘citizen' means both male and female.
 In fundamental Rights and Directive Principles both provides the no discrimination provision.
 To analyze the recent bill on women's right.
 To Analyse Judicial pronouncements.



Research Questions:
All through the project, the following questions are being addressed to which answers found form the base of the project.
 If and in what manner has the State and the International structures through its mechanisms and policies perpetuated protection of women's?
 What has been the role of legislations in ensuring rights of women's?
 In what manner our government tries to solve the problems relating to women's?
 Whether reservation only solution of every problem of women's?


Sources of data:
The researcher has mainly relied upon secondary sources such as books and articles.



Methods of analysis:
This project uses both the analytical and descriptive methods. The Analytical method is used widely throughout this project while examining the role of the state, its various mechanisms (legislature, judiciary, executive). Descriptive method is also used in this project to give illustrations.

References and style of footnoting:
All references are cited and a uniform style of footnoting has been followed throughout the project, acknowledging the respective sources that have been used



CHAPTERISATION

CHAPTER I

EQUALITY PROVISIONS
Article 14 of the constitution guarantees equality before law, of females and males, caste and creeds, religions or etc.But the status of women as half to men under Muslim law: law has not been accepted as true law under the constitution of India.
Article 15 is more clear on treatment of discrimination of any sort. It provides prohibition of discrimination on grounds of religion, race, sex or place of birth. But the most important provision is that under Article 15(2) state can make any special provision for women and children.
Reading Arts.15 (3) and 15(1) together, it seems to be clear that while the state may discriminate in favour of women against men, it may not discriminate in favour of men against women. However, only such provisions can be made in favour of women under Art.15 (3) as are reasonable and which do not altogether obliterate or render illusory the constitutional guarantee mentioned in Article15(2).
The operation of Art.15 (3) can be illustrated by the following few cases:
 Under Section 497, I.P.C., the offence of adultery can be committed only by a male and not by a female who cannot even be punished as an abettor. As this provision makes a special provision for women, it is saved by Art.15(3).The Supreme court has observed in the famous case of Yusuf abdul Aziz vs. state of Maharastra , the court held that "sex is a sound classification and although there can be no discrimination in general on that ground the constitution itself provides for special provision in the case of women and children by clause(3) of Art.15.Arts.14 and 15 thus read together validate the last sentence of section 497, I.P.C,which prohibits the women from being punished as an abettor of the offence of adultery."
 Section 497. Cr.P.c. 1898, prohibited release of a person accused of a capital offence on bail except a women or a child under 16 or a sick man. The provision has been held valid as it metes out a special treatment to women which is consistent with Art.15(3).The Rajasthan High Court observed in the case of Mt. choki vs. State of Rajasthan, the court held that "state may make laws containing special provisions for women and children, but no discrimination can be made against them on account of their sex alone."

Now the question has been raised that what does the expression "special provision" for women mean? The "special provision" which the state may make to improve women's participation in all activities under the supervision and control of the state can be in the form of either affirmative action or reservation. Under Art.15 (3), both reservation and affirmative action are permissible in connection with employment or posts under the state.Art.15 are designed to create an egalitarian society.

The Supreme Court has explained the relationship between Arts. 15 and 16 as follows.Art.15 deals with every kind of state action in relation to Indian citizens. Every sphere of state activities is controlled by Art.15 (1) and, therefore, there is no reason to exclude from the ambit of Art.15 (1) employment under the state.Art.15 (3) permits special provisions for women.Arts.15 (1) and Art.15(3) go together.
An important point of distinction between Arts.14 and 16 is that while Art.14 applies to all persons, citizen as well as non citizens, Art.16 applies only to citizens and not to non citizens.
In the famous case of Apparel Export Promotion Council vs. A.K. Chopra in this case Supreme Court held that an incident of sexual harassment of a female at the place of work amounts to violation of her fundamental right to gender equality under Art. 16(2).


CHAPTER II

DIRECTIVE PRINCIPLES OF STATE POLICY

Article 39(d), the state has to ensure that ther is equal pay for equal work for both men and women.
The Supreme Court has emphasized in Randhir singh vs. Union of India the Supreme Court held that referring to Art.39 (d), that the principle is not expressly declared by the constitution to be a fundamental Right yet may be deduced by constructing Arts. 14 and 16 in the light of Art.39 (d).The word ‘socialist' in the preamble must at least mean "equal pay for equal work".
Article 39(e) specifically directs the state not to abuse the health and strength of workers, men and women.
Article 42 of the constitution incorporates a very important provision for the benefit of women. It directs the state to make 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 ‘The Maternity Benefit Act, 1961.
Article 44 directs the state to secure for the citizens a uniform civil code through out the territory of india. This particular goal is towards the achievement of gender justice. Even though the stae has not yet made any efforts to introduced 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 Sarla Mudgal vs. Union of India .
Apart from these specific provisions all the other provisions of the constitution are equally applicable to the men and women. This 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.

The supreme court has recently dealt with the validity of the chotanagpur Tenancy Act, 1908 of Bihar which denied the right succession to scheduled Tribes woman as violative of right to livelihood under Article 21 of the constitution ( M. Kishwar vs. State of Bihar) .


Fundamental Duties towards women

Part IV-A which consists of only one Article 51-A was newly added to the constitution by the 42nd Amendment, 1976.This Article for the first time specifies a code of ten fundamental duties for citizens.Artcle 51-A(e) is related to women. It states that "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 transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women".

CHAPTER III

RESERVATION OF SEATS FOR WOMEN

According to Article 40 of the constitution of India, the state shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government. Reservation of seats for women in panchayats and Municipalities have been provided in Articles 243-D and 243-T of the constitution of India. Part IX and IX-A have been added to the constitution (73rd Amendment)Act, 1992 and the constitution (74th Amendment)Act, 1992 popularly known as the panchayat Raj and Nagarpalika constitution Amendment Acts with Articles 243,243-A to 243-D and Arts.243-P to 243-ZG.

Reservation of seats for women in panchayats

Article 243-D of the constitution of India provides that,
 In every panchayat, seats shall be reserved for the scheduled castes and scheduled tribes. The number of seats so reserved shall be, as nearly as may be, in the same proportion to the total number of seats to be filled by direct election in that panchayat as the population of the SCs and STs in that panchayat area.
 Out of total number of seats reserved under clause (1) not less than one third seats shall be reserved for women belonging to the SCs and STs.
 Such seats may be allotted by rotation to different constituency in a panchayat.
 However, not less than one- third of the total number of the offices of chairpersons in the panchayat at each level shall be reserved for women. The number of offices reserved under this clause shall be allotted by rotation to different panchayats at each level.
 The reservation of seats under clause (1) and clause (2) and the reservation of offices of chairpersons under clause (4) shall cease to have effect on the expiration of the period specified in Article 334.
 Nothing in this Part Shall prevent the legislature of a state from making any provision for reservation of seats in any panchayat offices of chairpersons in the panchayat at any level in favour of backward class citizens.


Reservation of seats for women in Municipalities
According to Article 243-T of the constitution of India:
 Seats shall be reserved for the scheduled castes and the scheduled Tribes in every Municipality.
 No less than one - third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the scheduled castes, or as the case may be, to the scheduled Tribes.
 The offices of chairperson in the Municipalities shall be reserved for the SCs the STs and women in such manners as the Legislature of a state may, by law, provide
 The reservation of seats and the offices of chairpersons cease to have effect on the expiration of the period specified in Article 334.

CHAPTER IV

Judicial Pronouncement

In Walter Alfred Baid Irwin Hospital vs. Union of India ,a rule making male candidate ineligible for the post of senior tutor in the school of Nursing was held to be violated of Article 16(2) and was not saved by Article 15(3).

On the other hand, the Punjab and Haryana High Court took a different view in Samsher singh vs. State of punjab ,a rule granting a special allowance to the women principals working in a wing of the Punjab Educational Services was challenged on the ground that their male counterparts were not given the same benefits although both performed identical duties and were part of the same service. The constitutional validity of the rule was challenged under Article 16(2).

On the other hand, Supreme court held in the case of Anjali vs. State of west Bengal , the court held that the scope of Art. 15(3) is wide enough to cover the entire range of state activity including that of employment. Art.15(3) is a special provision in the nature of a proviso qualifying the general guarantees contained in Arts.14,15(1), 15(2), 16(!) and 16(2).

M.C. Sharma vs. Punjab University, Chandigarh
It was held by the majority that there was no principle or criterion involved in denying the post of the principal of a girls' college to a male when males could be appointed as teachers and head of departments in such colleges. The functions of principal are mostly administrative in nature and there is no bar in a female being appointed as the principal of a Boys' college.



Vishaka vs. State of Rajasthan
The Supreme Court has declared sexual harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is a clear violation of Arts.14, 15 and 21 of the constitution. Sexual harassment also violates the victim's fundamental right.

Government of Andhra Pradesh VS. P.B. Vijay Kumar
The Supreme Court has ruled that in the instance case that under Art. 15 (3), the state may fix a quota for appointment of women in government services. Also, a rule saying that all other things being equal, preference would be given to women to the extent of 30% of the posts was held valid with reference to Art. 15(3).


RECOMMENDATION
 Our government is tried to solve the problems of inequality in terms of employment, service or etc.
 Now women's Bill is passed on reservation upto 33% seats in parliament.
 Like Domestic Violence Bill, Maternity Benefit Act, Dowry Prohibition Act, women's Bill try to improve the position of women in India.
 Through education,seminar,conference and the appropriate initiatives of non
Governmental organisations the problems of women is quiet solve.

SUGGESTIONS/CONCLUSION

While all provisions of the constitution are applicable in equal measure to men and women, and can, therefore, be invoked by women for the assertion of their rights; Parts III and Part IV need special mention; as these are the backbone on which protective legislation for women has been based.

BIBLIOGRAPHY

Basu D.D, "Constitution Law of India, Prentice Hall of India, New Delhi, Edition: IIIrd
2008.

Chawla Monica, "Gender Justice" Deep and Deep Publication New Delhi, Edition: Ist 2006.

Devi Uma, "Domestic Violence in India", Universal Publication New Delhi, Edition: Ist 2007.

Joshi C Sarat, "Fundamentals Of Sociology", Published by Akansha Publishing House, Gurgaon India, Edition: I 2006.

Malik K. Pal, "Law and Social Transformation", Allahabad Law Agency, Faridabad, Edition: Ist 2007.

Shukla V. N, "Constitution of India", Eastern Book Co. Lucknow, Edition: Xth 2006.