Introduction social philosophy and economic values which are to

Introduction

Indian Constitution is having a special legal
sanctity and it sets the framework and principal functions of the organs of the
Government and declares the principles governing the organised action of these
organs. The Constitution aims at creating 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.1 When
drafting the Constitution our Constitutional makers were very sensitive to the
problems suffered by the women. They made specific provisions for them. But
those provisions acquire socio-legal locomotion only by State action.

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Objectives

The main objectives of this research paper are (i) to
analyse the Rights of Women available under Indian Constitution; and (ii) to analyse
the role of Indian judiciary in interpreting the provisions of Constitution for
protecting the Rights of Women. In order to highlight the above said objectives
Doctrinal Methodology was adopted. The study is based on primary sources,
secondary sources and tertiary sources.

Rights
of Women under Indian Constitution and the Role of Judiciary

Women Rights have been adopted in Preamble, Part
III, Part IV and Part V of our Constitution. Various articles in our
Constitution under these Parts give special protection to Women. The Preamble
sets out the main objects which have been provided under the Constitution. It
secures all its citizens Justice, Liberty, Equality and Fraternity without any
discrimination of sex. The above mentioned objects have been enlightened in
Articles 14, 15(3), 21, 21A, 39(a) (d), 42, 44 and 51(A) (e), 73rd
Amendment Act, 74th Amendment Act and Article 325. If these
provisions were violated then any person can approach the Supreme Court under
Article 32 and High Courts under Article 226 of the Constitution for the
protection of rights of Women.

 

Article 14 provides that “the State shall not deny
to any person equality before the law or the equal protection of the laws
within the territory of India”2.
This provision was explained by the judiciary in the many cases. In
Gita
Hariharan v. Reserve Bank of India,3
court held that the mother can act as a natural guardian even when the father
is alive. The Word “After’ in Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 was read to mean ‘in absence of father’ so that the
section is consistent with the constitutional safeguard of gender equality.4

The Court held:

“Gender Equality is one of the
basic principles of our Constitution and in the event the word ‘after’ is to be
read to mean a disqualification of a mother to act as a guardian during the
lifetime of the father. The same would definitely run counter to the basic requirement
of the constitutional mandate and would lead to a differentiation between male
and female. Normal rules of interpretation shall have to bow down to the
requirement of the Constitution since Constitution is supreme and the statute
shall have to be in accordance therewith and not de hors the same. The father
by reason of a dominant personality cannot be ascribed to have a preferential
right over the mother in the matter of guardianship since both fall within the
same category and in that view of the matter the word ‘after’ shall have to be
interpreted in terms of constitutional safeguards and guarantee so as to give a
proper and effective meaning to the word used.”

In Air India v. Nergeesh Meerza,5
the Apex Court was faced with constitutional validity of Regulation 46(i) (c)
of Air India Employees Service Regulations it was provided that the services of
the Air Hostesses would stand terminated on first pregnancy. The Court held
that “the termination of service on pregnancy was manifestly unreasonable and
arbitrary and was, therefore clearly violative of Article 14 of the
Constitution.”

Article 15 provides that “the State shall not
discriminate against any citizen on grounds only of religion, race, sex, or
place of birth or any of them.”6 Article
15(3) states that “Nothing in this Article shall prevent the State from making
any special provision for women and children.”7 Article
15 prohibits gender discrimination and Article 15(3) lifts that rigour and
permits the State to positively discriminate in favour of women to make special
provisions to ameliorate their social condition and provide political economic
and social justice.8In
Union
of India v. K.P.Prabakaran,9
the Supreme Court held “Reservation of certain posts exclusively for women is
valid under article 15(3), article 15 covers every sphere of State action.”
Similarly in Dattatraya v. State of Bombay10
and in P.Sagar v. State of Andhra Pradesh,11
the court held “provisions providing for reservation of seats for women in
local bodies or in educational institutions are valid.” Clause (3) of article
15, which permits special provision for women and children, has been widely
resorted to and courts have upheld the validity of special measures in
legislation or executive orders favouring women.12
The provisions in the criminal law, in favour of women, or in procedural law
discriminating in favour of women, have been upheld13
in so many cases. From the above judicial decisions it is crystal clear that
judiciary is protecting the equality rights of women on the basis of the
constitutional mandate.

Article 21 provides that “No person
shall be deprived of his life or personal liberty except according to procedure
established by law.”14 Article
21 confers upon any person, be a citizen of India or a non-citizen, protection
against deprivation of his right to liberty of person by any action taken by
the State which is not in accordance with procedure established by law. The
right provided under this article is not an absolute right as it can be
restricted or taken away by proper execution of law. In Maneka Gandhi v. Union of India,15 the
Supreme Court held that any state action affecting life and liberty of a person
has to be “right, just, fair and reasonable and not arbitrary.”

In Lillu
@ Rajesh & Anr v. State of Haryana, 16
the Supreme Court for the first time
realized the agony and trauma of a rape victim who had to go through two finger
test give her character certification and after analyzing through various
precedents, held that it is violation of victim’s right to privacy and dignity.17
The decision shows approval and it gave a sense of confidence and security to
the rape victims. It did not grant any new right because women have already
been conferred right to privacy by our Constitution but, it stopped the
violation of their right to privacy and dignity which was going on from years
and years and that too was of no use in the investigation.18
The Supreme Court very objectively and scientifically determined if it was
helpful or not and even if it could be helpful, there can be nothing that can
be kept on a pedestal higher than a woman’s dignity, that too an already
traumatized woman.19

In
Budhadev
Karmarkar v. State of West Bengal,20
the Supreme Court held “The sex workers are also human beings hence they are
also entitled to a life of dignity as the word ‘life’ under article 21 is a
life of dignity and not just as an animal existence.” In Suchita Srivatsava v. Chandigarh
Administration,21
the Supreme Court held “The personal liberty includes right of women to make
reproductive choices. She can refuse to participate in sexual act.” The
Supreme Court of India extended the ambit of Article 21 of the Constitution of
India and held that mere existence is not the right to live-it is the right to
live with dignity. Thus, wherever crimes are committed against women the same
should be viewed in the context of violation of her right under Article 21 of
the Constitution of India and not merely as a crime against the society.22

            Article
21A was inserted in Part III by the Constitution (86th Amendment)
Act, 2002. It provides that “The State shall, provide free and compulsory
education to all children of the age of six to fourteen years in such manner in
as the State may, by law, determine.”23 In
Mohini
Jain v. State of Karnataka,24
the Court held that “the right to education is concomitant to the
fundamental rights enshrined in Part III of the Constitution the State is under
a constitutional mandate to provide educational institutions at all levels for
the benefits of the citizens. The educational institutions must function to the
best advantage of the citizens of the citizens and the opportunity to acquire
education cannot be confined to the richer section of the society recognizing
the importance of education, the court further observed that fundamental rights
and other rights under Article 19 cannot be appreciated and fully enjoyed
unless a citizen is educated and is conscious of his individualistic dignity.”

            Article
23 provides “Traffic in human beings and beggar and other similar forms of
forced labour are prohibited and any contravention of this provision shall be
an offence punishable in accordance with law.”25 ‘Traffic
in human beings’ means buying and selling men and women like goods for immoral
and other purposes. In Vishal Jeet v. Union of India,26
it has been held that “traffic in human beings includes ‘devadasis’.”
Trafficking in human beings has been prevalent in India for a long time in the
form of prostitution and selling and purchasing for a price just like
vegetables.27
On the strength of Art.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.28

Article 39(a) provides that “The
State shall, in particular, direct its policy towards securing:

a)      That
the citizens, men and women equally, have the right to an adequate means of
livelihood.”29

This article was explained in Madhu
Kishwar v. State of Bihar.30
In this case the Supreme Court held that in case of death of the last tribal
male member holding agricultural land, the land will be succeeded by his wife
as long as she is dependent on such land for her livelihood. Otherwise she will
be rendered destitute. It is only when she abandons the land; the male family
members in line of descent may claim any exclusive rights over such land. A
mere reading of Article 39(a) of the Constitution obligates the equal treatment
of men and women for right to adequate livelihood. This protects the economic
interests and independence of tribal women depending on agricultural land for
livelihood.

            Article 39(d) states “that there is a
equal pay for equal work for both men and women.”31
Based on this article the Parliament had enacted the Equal Remuneration Act
1976. The Act provides payment of equal remuneration to men and women workers
for the same work or work of a similar nature and for the prevention of
discrimination on grounds of sex. In Randhir Singh v. Union of India,32 the
Supreme Court held that “principle of ‘equal pay for equal work’ though not a
fundamental right is certainly a constitutional goal.”

Article 42 provides that “the State
shall make provision for securing just and humane conditions of work and for
maternity relief.”33 The
State has implemented this directive by incorporating health provisions in
Factories Act, Maternity Act, Beedi and Cigar Workers (Conditions of
Employment) Act, etc.34 In  Dr.
Shanti Mehra case (2016) the court held that “the objective of ILO to
conduct the survey was to promote motherhood and child care as well as to
promote gender equality. Every female employee and male employee whether
appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis
have a fundamental right to reasonable duration of maternity leave as well as
paternity leave, child care leave (CCL) and adoption leave to promote
motherhood and child care under Article 21 of the Constitution of India read
with Article 42 of the Constitution of India.”35
Article 42 was stressed by the Supreme Court in the case of Municipal
Corporation of Delhi v. Female Workers (Muster Roll),36 and
the court held “social order can be achieved only when inequalities are
obliterated and everyone is provided what is legally due.”

Article 44 of the Constitution of
India provides that “The State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India.”37 In
Sarla
Mudgal v. Union of India,38
a Hindu husband married under the Hindu law, embraced Islam and solemnized second
marriage. It was held bigamy if the first marriage was not dissolved. Different
personal laws like succession, inheritance, guardianship, divorce etc. restrict
women rights. Uniform civil code is the need of the hour and it was stressed by
Supreme Court in large number of cases. In a recent case which is popularly
known as Triple talaq case was
decided by the Supreme Court on 22nd August 2017. Shayara Bano was
married to Rizwan Ahmed for 15 years. In 2016, he divorced her through
instantaneous triple talaq (talaq -e bidat). She filed a Writ Petition
in the Supreme Court challenging the constitutional validity of three practices
– talaq-e-bidat, polygamy, nikah-halala – for violating Articles 14, 15, 21, 25
of the Constitution.39
In this case the majority of the Judges held “deemed instant talaq is
unconstitutional.”

After the Apex Court verdict in
August 2017, the present Government introduced the Muslim Women (Protection of
Rights on Marriage) Bill, 2017 in Lok Sabha on 28th December 2017. The bill make instant triple talaq
(talaq-e-biddah) in any form — spoken, in writing or by electronic means such
as email, SMS and WhatsApp illegal and void, with up to three years in jail for
the husband.40
This bill was introduced mainly because of the tremendous effort taken by the
Supreme Court by declaring triple talaq unconstitutional.

Clause (e) of Article 51 A provides
“it shall be the duty of every citizen of India to promote harmony and the spirit
of common brotherhood amongst all the people India transcending religious,
linguistic and regional or sectional diversities, to renounce practices
derogatory to the dignity of women.”41
The passing of the Commission of Sati (Prevention) Act 1987 emphasizes the
importance of the duty. Various laws have been passed by the Central Government
and the State Government which punish practices derogatory to the dignity of
women.

The Seventy Third Amendment and
Seventy Fourth Amendments effected in 1992 provide for the reservation of seats
to the women in Elections to the Panchayats and Municipalities.42
Part IX and IXA were added to the Constitution by these amendments. These
amendments were called as “Panchayati Raj” and “Nagarpalika” Constitution
Amendment Act. It contains Articles 243, 243-A to 243-D, and 243-P to 243-ZG. This
is a welcoming measure towards correcting the gender injustice.

Article 325 article provides that
“there shall be one general electoral roll for every territorial constituency
for election to either House Parliament or to the House of either House of the
Legislature of a State and no person shall be ineligible for inclusion in any
such roll or claim to be included in any special electoral roll for any such
constituency on grounds only of religion, race, caste, sex or any of them.”43

Article 32 provides remedies for
enforcement of rights conferred by the Part III of the Constitution. In Assam
Public Works V. Union of India44
the Supreme Court held “Article 32 of the Constitution guarantees the right to
move the Supreme Court for the enforcement of all or any of the fundamental
rights conferred by Part III of the Constitution. This Article is therefore,
itself a fundamental right.” In Vikram Deo Singh Tomar v. State of Bihar,45 a
public interest has been filed concerning the plight of female inmates of the
‘Care Home, Patna.’ They were compelled to live in inhuman conditions in an old
ruined building. They were illiterates. They were provided with insufficient
and poor quality of food and no medical attention was provided to them. The
Court directed the State to make immediate steps providing them the minimum
conditions ensuring human dignity as the article 21 of the Constitution of
India guarantees the right to live with human dignity.46

Article 226 deals with the power of
the High Courts to issue certain writs.47
The power of the High Court to issue writs under article 226 is wider than that
of the Supreme Court. It is not confined to fundamental rights, but extends to
all cases where the breach of a right is alleged.48
In State
of Orissa v. Madan Gopal Rungta,49
the Court held “the writ may be issued for the enforcement of fundamental
rights of for any other purpose.” In Nand Kishore Sharma v. Union of
India50 public
interest litigation was filed by the social activist under Article 226 of the
Constitution for questioning the vires of Medical Termination of Pregnancy Act
1971. The Court held that “the object is to save life of pregnant women, it is
in consonance with Article 21 of the Constitution.” From the above cases it is
understood that women can approach the High Courts for the enforcement of their
rights under the Constitution. It is not necessary that every time they should
approach the Supreme Court to get justice.

Conclusion

The Judiciary has a constitutional obligation to
enforce women rights which may lead to apply the principles of international
law, not as a source of law as such, but rather as a rule of interpretation
that is to be utilized in progressively interpreting constitutional guarantees.51 The
Indian judiciary is playing a significant role in comparison of judiciaries of
the world. The public at large have faith in our judiciary. The Supreme Court
is ultimate interpreter of the Constitution of India. The Judiciary is
protector of women rights over decades. Some of the unpleasant violations of Women
Rights over decades have been abolished by the initiative of judiciary.52 Though
Indian judiciary has done a commendable job in protecting the rights of women, it
has to continue its efforts until parliament takes enough legislative measures.

1  Myneni, S.R.(Dr), Women and Law, Asia law House,
Hyderabad, 2002

2 Article 14 of the Constitution of
 India

3 (1999) 2 SCC 228

4 Mamta Rao, “Law relating to Women and Children,” 2nd Ed, 2008,  EBC Publishing (P) Ltd, P.60

5 AIR 1981 SC 1829

6 Article
15 of the Constitution of India, 1950

7 Article 15(3) of the
Constitution of India, 1950

8
Mamta Rao, “Law relating to Women and Children,” 2nd
Ed, 2008,  EBC Publishing (P) Ltd, P.56

9 (1997) 11
SCC638

10 AIR 1953
Bom 311

11 AIR 1968 AP 165

12 P.M.Bakshi,
“The Constitution of India,” 13th
Ed, 2015, Universal Law Publishing, P.38

13
Ibid

14 Article 21 of the Constitution of
India, 1950

15AIR 1978 SC 597

16 Ibid

17 https://blog.ipleaders.in/supreme-courts-on-womens-rights/
accessed on 5th January
2018

18
Ibid

19 https://blog.ipleaders.in/supreme-courts-on-womens-rights/ accessed on 5th
January 2018

20
(2011) 10 SCC 277

21  AIR 2010 SC 235

22 A.S.Anand, Justice for Women, 2nd Ed., 2003, Universal Law Publishing
Co.Pvt.Ltd., Delhi, P.6

23 Article 21A of the Constitution
of India

24 (1992) 3 SCC 666

25Article 23 of the Constitution of
India

26AIR 1990 SC 1412

27 G.B.Reddy,
“Women and the Law,” 5th
Ed, 2006, Gogia Law Agency, Hyderabad, P.5

28 Ibid, P.6

29 Article
39(a) of the Constitution of India, 1950

30 AIR 1996 SC
1870

31 Article
39(d) of the Constitution of India

32 AIR 982 SC 879

33 Article 42 of the Constitution
of India,1950

34
 Mamta
Rao, “Law relating to Women and Children,”
2nd Ed, 2008,  EBC Publishing
(P) Ltd, P.65

35
http://indian kanoon.org/accessed on 9th January 2018 at 4.05
P.M

36 AIR 2000 SC 1274

37 Article 44 of the Constitution
of India

38 AIR 1995 SC 1531

39
http://scobserver.clpr.org.in/cases/triple-talaq-case/
accessed on 8th January 2018 at 10.55 P.M

40
http://en.wikipedia.org/wiki/Triple
talaq in India/ accessed on 8th January 2018 at 10.30 P.M

41 Article 51A (e) of the
Constitution of India

42
 G.B.Reddy,
“Women and the Law,” 5th
Ed, 2006, Gogia Law Agency, Hyderabad, P.5

43 Article 325 of the Constitution
of India,1950

44 AIR 2015
SC 783

45 AIR 1988 SC 1782

46
Ibid

47
 Article
226 of the Constitution of India, 1950

48  P.M.Bakshi,
“The Constitution of India,” 13th
Ed, 2015, Universal Law Publishing, P.231

49
 (1952) SCR 28

50
 AIR 2006 Raj 166

51 KesavanandaBharati v. State of Kerala AIR  1973 SC 1416

52 Sandip B. Satbhai, “Protection of Human Rights of
Women-International and National Perspectives”, (cited in Dr. Annie John,
(2012), P. 321