This Research paper focuses on Analysis of various case laws where the judiciary has taken a step ahead in interpreting the constitutional provisions in a way that has meliorate the condition of women in the society.
DECLARATION
This paper is authored by Jasmee Atul Sanghani, student of Five Year integrated B.A LL.B of GLS Law College, Ahmedabad. This is an original work of the Author and is result of author’s own intellectual efforts and only for academic purpose. The matter embodied has been properly referenced and acknowledged to avoid any kind of copyright issues. This Research Paper has been submitted/presented for the award of International E-Conference on Gender Justice By Centre for Legal Research and Studies, held on April 10
ABSTRACT
It is certainly very ironical that when Indian mythology glorify and venerate women as goddesses on one hand and impose rigorous sanctions on the other hand; such a dualistic approach and an entrenched mind-set results in indignity to women and degradation of their status. It was beautifully delivered by the Supreme Court that “the societal attitudes too centre and revolve around the patriarchal mind-set thereby derogating the status of women in the social and religious milieu”.[1]The Indian Judiciary has played a pro-active role by their benevolent interpretation of the various Constitutional provisions for women, striking down legislations which were not in compliance with constitutional requirements and laying down exhaustive guidelines to realize the concept of gender justice and gender equality.
The Supreme Court of India has observed that democracy, development and respect for human rights and fundamental freedoms are inter-dependent and have mutual reinforcement.The human rights for women, including the girl child, are therefore, an inalienable, integral and indivisible part of universal human rights[2]. All forms of discrimination on the grounds of gender are violation of fundamental Rights enshrined under the Constitution. Henceforth, the Judiciary ha snot only laid down exhaustive guidelines in its various decisions but also gave directions to legislature for legislating necessary legislation to realize the concept of gender justice and gender equality.
I. INTRODUCTION
“Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.” -Swami Vivekananda
It is a very grim reality of our society that a pious class of people is discriminated on sole basis of their gender. Usually the Birth-Giver has to suffer and go through a lot of hurdles created by the society to merely survive. Justice K. Ramaswamy has also stated: “Indian women have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination”[3].
Women have to sacrifice her dignity and integrity;they are subject to barbaric abuse of violence not only outside of the house but also inside those 4 walls that is idealized as safest place.In our culture women are socialized to be dependent on males from their tender age. Lives of women are always subject to male conditions, she is under the protection of her father during her youth, under the protection of her husband after marriage and at the mercy of her sons in her old age. In India, the patriarchal culture forced women to live at the mercy of men, who wield limitless control over them. Aiming to alleviate the condition of women in India, Legislature along with the parent law (Constitution of India) enacted plethora of legislations.
The Judicial system has played a crucial role in ameliorating the status of women and also effectively intervened on the issues of women emancipation. For instance, the validity of the Indian Foreign Service (Conduct an discipline) Rules of 1961 was challenged which provided that a female employee to obtain a written permission of the Government in writing before her marriage is solemnized and at any time after a marriage a women member of the service may be required to resign from service. The Supreme Court held that such provision is discriminatory against women and hence unconstitutional. The Supreme Court made it clear that, we do not mean to universalize or dogmatise that men and women are equal in all occupation and all situations and do not exclude the need to pragmatise 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 demonstrated, the rule of equality must govern[4].
II. CASE LAWS: WHERE JUDICIARY WIDENED THE SCOPE OF FUNDAMENTAL RIGHTS WITH A OBJECT TO ENNOBLE THE STATUS OF WOMEN IN THE SOCIETY
Fundamental rights are quintessential for a mere survival of a human being. Fundamental rights enshrined under the constitution are guaranteed to its citizen in order to uphold integrity and dignity as a human survival is not merely an animal existence but essential for the attainment by the individual of his full intellectual, moral and spiritual status
It has been beautifully stated by Justice P. N. Bhagwati that “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.”[5]
1. Article 14: Equality Before Law
Article 14[6] guarantees to every person the right to equality before the law or the equal protection of the laws within the territory of India. The first expression equality before law is an averment of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favor of any individual. The second expression the equal protection of the laws is the essence and core of the right to equality under which it is the duty of the State to take necessary steps so that every individual, man and woman alike, is given equal respect/opportunity which he or she is entitled to as a human being[7].
The Supreme Court, while dealing with the fixation of different ages of retirement for male and female employees and the provision preventing the female employees from having child, stated that the retirement of air hostesses in the event of marriage taking place within four years of service does not suffer from any irregularity or arbitrariness but retirement of air hostesses on first pregnancy is constitutionally void being violative of Articles 14 and 16 of the Constitution. It was considered that such a provision was callous and insensible to Indian womanhood. Therefore, such disability violates the equal protection of law and opportunity which is the cornerstone of our Constitution and legal system.[8] Article 14 has also been invoked to prohibit sexual harassment of working women on the ground of violation of the right of gender equality[9]
Supreme Court in its Landmark Judgement stated that in the case of maintenance allowance to women after divorce under Muslim Personal Law is allowed only till the completion of Iddat Period; is Violative of Article 14 and 21 as well it is not in consonance with the general law of the land i.e. Section 125 Cr.P.C[10].
2. Article 15: Prohibition of Discrimination
Article 15 concretises and enlarges the scope of Article 14. Article 15 (1) prohibits the State from discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. In other words, all laws are to be applied to members of both sexes equally, and there is an express prohibition of discrimination on the ground of sex.[11]
Article 15(3)[12] empowers the State to make special provisions for women and children, the main objective behind such legislation is based on ‘protective discrimination’, and this provision has enabled the State to make special statutory provisions exclusively for the welfare of women. The State is empowered under the above mentioned provision to establish educational institutions exclusively for women[13]
The Supreme Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, whichis a positive measure in their favour[14]
3. Article 19(1)(g): Freedom Of Trade Of Occupation
Constitution under this provisions guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The right under Article 19(1) (g)[15] must be exercised consistently with human dignity. To realize the importance of gender equality and protection of women against sexual harassment at work place, Supreme Court in its landmark judgment gave exhaustive guidelines
The court further held that it is the duty of the employer or other responsible person to prevent sexual harassment of working women and to ensure that there is no hostile environment towards women at their working place. These guidelines were framed to protect the rights of working women to work with dignity under Articles 14, 19 and 21 of the Constitution; Their Lordships also observed that, “each incident of sexual harassment of women at work place, results in violation of fundamental principles of Gender Equality and The Right To Personal Liberty And Life”[16]
4. Article 21: Right To Personal Liberty And Life
Article 21[17] depicts provisions for protection of life and personal liberty of persons. It states:” No person shall be deprived of his life or personal liberty except according to procedure established by law”. This short one sentence has been given wider interpretation by the Judiciary.
The Supreme Court has held that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. This article has also been invoked for the up-liftment of and dignified life for the prostitutes.[18] The Supreme Court has placed emphasis on the need to provide to prostitute opportunities for education and training so as to facilitate their rehabilitation.[19]
Right to life is a basic Human Right, henceforth it has to be read in consonance with the Universal Declaration of Human Rights, 1948, Declaration on the Elimination of Violence against Women, Declaration and Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights, which have been ratified and incorporated under various municipal laws of the country. Article 21 also includes right to live with human dignity.[20]
III. CASE LAWS: WHERE JUDICIARY WIDENED THE SCOPE OF DPSP WITH A OBJECT TO ENNOBLE THE STATUS OF WOMEN IN THE SOCIETY
Though the principles enshrined under the part VI of the constitution can’t be challenged in any court of law, but these principles are quintessential in the governance of the country, it shall be the duty of the State to apply these principles in making laws or enacting any policies to secure social order, these principles are based upon the concept of ‘Welfare State’[21]
According to Article 39(a)[22], the State shall direct its policy towards securing that the citizen men and women equally, have the right to an adequate means of livelihood.[23] Under Article 39 (d)[24], the State shall direct its policy towards securing equal pay for equal work for both men and women.[25]
A very essential provision for women’s welfare is incorporated under Article 42[26] of the Constitution. It imposes an obligation upon the State to make provisions for securing just and humane conditions of work and maternity relief. Some of the legislation which were enacted compelling the objectives of this Article are the Workmen’s Compensation Act, 1923, Employees State Insurance Act, 1948, Minimum Wages Act, 1948, Maternity Benefit Act 1961, Payment of Bonus Act, 1965 etc.
Under Article 44[27], Supreme Court in its judgement directed the government to take for the implementation of Article 44 of the Constitution in the interest of unity and integrity and for the welfare and benefit of women.[28]
IV. CONCLUSION
The issue of gender inequality is pre-addressed; however the presence of legislation does not imply a consistent implementation. But the proactive role of judiciary in interpreting the provisions and issuing further guidelines with the objective to alleviate the status of women in the society has been commendable.
There are many gender biased laws in order to be at par with gender equality. There are further amendments with an objective to ameliorate the status of women in the society such as Criminal Law Amendment Ordinance, 2018: which provides death penalty for rape of girls below the age of 12, it further amends I.P.C, Cr.P.C, Evidence Act and POCSO. Further, The Transgender Persons (Protection of Rights) Act, 2019 was enacted with a view to extend the scope of gender justice in India.
It is perceived that despite the constitutional safeguard and the active judicial support towards the cause of women, changes in social behavior and institutions cannot be brought under an ideal situation instantly. Though minimum required changes are need to be changes by deliberate and planned efforts so that the pernicious social evil of gender inequality is buried deep down. Laws written in black and white are not enough to combat the evil. The role of Courts and judge is crucial and it is expected that the Judiciary would deal with cases relating to woman in a more realistic manner. A socially sensitive judge is indeed a better statutory armor in cases of crimes against women than the long clauses of penal provisions, containing complex exceptions and provisos[29].
REFERENCES
- Dr. J.N. Pandey- ‘The Constitutional Law of India- 2014- Central Law Agency.’ ISBN- 978-48- 5247-02.
2. Universal’s Criminal Manual – 2019- Lexis Nexis. ISBN: 978-81-7534-917-9.
[1]Indian Young Lawyers Association v. The State of Kerala, WRIT PETITION (CIVIL) NO. 373 OF 2006
[2]Valsamma Paul v. Cochin University and others, AIR 1996 SC 1011
[3]MadhuKishwar v. State of Bihar, AIR 1996 SC 1864
[4]C. B. Muthammavs Union Of India &Ors, 1979 AIR 1868, 1980 SCR (1) 668
[5]Maneka Gandhi v/s UOI, 1978 AIR 597, 1978 SCR (2) 621
[6]INDIA CONST. art. 14.
[7]Dr. J.N. Pandey- ‘The Constitutional Law of India- 2014- Central Law Agency.’ ISBN- 978-48- 5247-02.
[8] AIR India v/s NergeshMeerza, AIR 1981 SC 1829
[9]Vishaka v. State of Rajasthan, AIR 1997 SC 3011
[10]Shabana Bano v. Imran Khan (2010) 1 SCC 666, Section 125- Order for maintenance of wives, children and parents, The Code of Criminal Procedure, 1973
[11]Supra note. 8
[12]INDIA CONST. art.15, cl. 3.
[13]Dattatraya v. State of Bombay, AIR 1952 SC 181
[14] Air India Cabin Crew Association v.Yeshaswinee Merchant, AIR 2004 SC 187
[15]INDIA CONST. art.19, cl. 1(g).
[16]Supra note. 10.
[17]INDIA CONST. art. 21.
[18] State of Maharashtra v. MadhukarNarayanMandikar, AIR 1991 SC 207, 211
[19]Gaurav Jain v. Union of India, AIR 1997 SC 3021
[20]BodhisattwaGautam v. SubhraChakraborty, AIR 1996 SC 922
[21]Supra note. 8
[22]INDIA CONST. art.39, cl. (a).
[23] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
[24]INDIA CONST. art.39, cl. (d).
[25]Randhir Singh v. Union of India, AIR 1982 SC 879
[26]INDIA CONST. art. 42.
[27]INDIA CONST. art. 44.
[28]SarlaMundgal v. Union of India, AIR 1995 SC 1531
[29]Supra note 4.
BY: JASMEE SANGHANI
JURISTIC LEGAL 