RIGHTS OF WOMEN UNDER INDIAN CONSTITUTION

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Author’s name: Shilpa Sarkar

5^th Year B.A L.L.B

Sureswar Dutta Law College, Howrah, University of Calcutta.

Table of Contents

Abstract

Women rights are the all time controversial and a swaping topic in our Indian legal system. Rights of women have been categorised by the wrongful act made to them which infringe or makes discrimination of them with other human beings, where rights priorities are focused on civil and political realm within public sphere. In this article we will discuss the history, development and implementation of women’s rights in various fields like social, economical, political, educational and cultural. However, women in India continue to face abomination such as rape, acid attack, dowry killing, young girls are thrown into prostitution, as of them rape has seen sharpe increase following some high profile cases where young girls were brutally raped in public area. Following the circumstances the law and order have been implemented to cater the need of the women’s protection and development.

Introduction:

Women are considered as the vulnerable section of our society. The advancement in the rights of women has been concern of whole world since the end of second world war. Indian legal system has made many provisions ensuring the gender equality and women empowerment. India has followed the forum of international covenants which were situated for the development and security of women.

History

For better understanding the history of women’s rights has been divided into two parts one is around the world and then in Indian judicial system.

History of women’s rights in international forum:

Former worldwar period :- The history of women’s rights are traced back in 19th centuries where the “women’s suffrage movement” was a long fight to win the right to vote for women in United States. The first convention on women’s right was introduced by Elizabeth Cady Stanton and Lucretia Mott in July 1848 at Newyork, after this convention had passed, the rights of women came into picture in the lands of European countries and United States of America.[1] In this mean time there was many cases and instances were caming into picture that women’s had not only faced discrimination on the ground of gender but also with color complexion, caste, region, age and so on. This historical movement are known as the first feminist move to get equal rights as men in political and social state.

Post worldwar period :- After the world war since the starting of 20th century to mid 20th century, women were the one who are exploited more by physically and mentally throughout the world and majorly in western states. For the advancement of rights of women it has been concern of world to give them adequate means of life and freedom, put them forward as well as men in the society. Following this objective the United sates of America established United Nation Organization on 24th October 1945 at San Francisco, through this establishment the world felt the need for provisions for human rights as to protect the rights and dignity of every individual living.

After the establishment of UNO the organisation adopted another declation on human rights named Universal Declaration on Human Rights on 10th December, 1948 where the organisation keenly felt for need of the woman’s rights isolatedly.

Therfore the principle of equal rights of men and women has been incorporated in the Universal Declaration of Human Rights. Article 1 of this declation lays down that ” all human beings are born free and equal in dignity and rights.” Article 2 of the declaration lays down that ” everyone is entitled to all the rights and freedom set forth in this declation without distinction of any kind”.[2]This International Document possess all the guideline regarding equality of men and women on economic, social, political and cultural rights.

One of the most noticeable boost in feminist movement had seen at the time of mid 1970s. The pioneer of the movement was led by the French thinker, author and activist Francoise d’Eaubonne, who potraite the scenario of women’s social standings by linking the connection exploitation of nature and the subjugation of women’s right later it known as eco-feminism.[3]

History of women’s rights in India

Ancient period:- Many Indian scripters and scholars has given the picture of women’s value in the society as same as men. Their role was not only limited in household works and maternity job they were also potrait as a warrior, horserider, teacher and artist. In Vedic period of India women were worshiped as a symbol of strength and mighty. Their opinion, moral values were respected by every human being. So phylosophers often mention that women were more indepent and their rights were not limited as nowdays.[4]

Pre-colonial period:- The right of women were no longer concern for people of that period specially since the establishment of mughal empire. The position of women was declined in this period slowly they became the victims of sexual exploitation and slave of the ruler particularly who were economically backward. the Tradition of pardah, child marriage, sati pratha and jahar System were social evils in their development and social growth. But they were not separated from education women have different and a compulsory type of education like madras as they were allowed to read their religious books and exercise cultural practices.

Colonial period:- When britishers came to India the rughts of women get divided into two groups those who belongs to royal families or rich families They got the opportunity of being educated, wellrespected, welbehaved and had their opinion. On the other hand those women’s who are economy weaker or those who were against the ruler of colonialism faced many challenges and ineqaulity. Mostly the tribe women’s of India were threatened to their life as slavory, torture and sex slave. But in British history Queen Elizabeth II was the women who hold the administration during the times of turmoil.

It was a total Rollercoaster in the history to fuoght for women’s right, not only women fuoght for their life and liberty many proficient schoolars and phylosophers took stand for the development of women.

Raja Rammohan Roy who demolishes the ‘sati’ practice with the help of Lord William Bentinck in 1829.

Ishwar Chandra Vidya Sagar establishes the Widow Remarriage Act of 1856 for the upliftment of widows who were cornered by the society for being widow, and many young aged women was victim of that social discrimination and also aid the women’s by providing education.

In 1879, John Elliot Drinkwater Bethune established the Bethune School in 1849, which developed into the Bethune College in 1879, thus becoming the first women’s college in Asia.[5]

Importance of Women’s rights:-

Womens rights are important for achieving gender equality. They should have the right of their own opinion, control over their activities and own bodies and reproductive choices. For the sustainable development of women gender equality is the key in making educational, economical growth, peace and security. Equality between men and women is the fundamental principle of the natural justice system and a well maintained law and order. Because women are victims of exploitation in many ways whether it is growing crimes against them or not giving them much priorities in civilized nations. India has move forward for the development and protect women from any form of discrimination or offence or harmful action. Jurists considered that a mother is the first teacher of a child so it is important to protect all the women and give adequate means of living as well as men.

Categories of women’s rights:-

Women in India have to face discrimination at every step in their life. Even before born, she is subjected to sex-selected abortion. As per the World Health Organization 30% of the women population faced sexual, physical exploitation. India is not untouched in this regard. Here, are the categories of rights which every women should have.[6]

Educational right : Education is important for both gender, but education of women is need for a developing nation. It is also a fundamental right that every person till the age of 14 years must be provided free and compulsory education.
Right of Equal pay : Equal pay for equal value of work is a right of women to be paid as men.
Civil Rights : This rights includes right to better livelihood everyone should get protection ragardless of gender. Women’s should have right to life, liberty and security.
Political Rights: Women’s should have right to take part in government and administrative like services. And freedom of association and expression.
Economic and social rights: Every women should have the right to work, health adequate food, with adequate shelter and services.
Cultural rights : This ensures the rights relating to form family, own religious practice, conscience and marital practice.
Rights against Exploitation: Women’s perticularly faces physical and mental exploitation to eradicate this they are able to make complaints through the statutory remedies, also with right against slavory and forceful slave like practices.
Right to get free Legal Aid: In times of distress women are eligible to get free legal aid such as they can file Zero FIR regardless of place.

Women’s rights under Indian law:-

India has recognised women’s right in two categories one is the constitional laws and other are the legal rights which were added and implemented according to the need of the society. The legal rights can be understood as the different type of rights which were given in many acts according to the procedure established by the law.

Constitutional provisions

The Constitution of India not only grants equal rights but also empowers the state to act upon the measures taken for the development and protection of the women. It is the concern of the states as directed in Directive Principles of State Policy contained in part VI of the Constitution where women’s cultural, educational, political and economical rights should not be harmed or infringed. There are following provisions for the protection of women’s right mention below:

Article 14- Equality before law: The state shall not deny to any person equality before the law for the protection of men and women as well within the territory of India, here the phrase any person which is directly identifying the all gender as its includes the rights of women.
Article 15(1)- Non Discrimination on the grounds of race, religion, sex, caste, place of birth: It replicate the idea that the state should not discriminate against any citizens on the grounds of race, religion, caste, sex, or place of birth. Nowadays this includes laws addressing sexual harassment and promoting equal opportunities to all.
Article 15(3)- State may make any special provision in favour of women and children: This article is giving additional power to make provision in regards to protection of women’s rights and children.
Article 16- Equality of opportunity in matters of employment: This is offering an important right to the women’s of India that they are free to choose their profession.
Article 39(a)- Equal rights for men and women in to Adequate means of livelihood: Women are no longer different from men for maintaining a adequate livelihood both of them have the same rights.
Article 39(d)- Equal pay for equal work: This doctrine cannot be put into a straight jacket, though it is based on reasonable classification as well as it provides oppertunity women who are engaged in daily basis working.
Article 42- Just and human conditions of work: The constitution empowers the States to make provisions for securing just and humane conditions for maternity relief.
Article 51A(e)- Fundamental Duties of citizens of India regards to women’s safety: That it shall be a duty of every citizen to renounce practices derogatory to the dignity of women.
Article 243D-Reservation for Women: Not less than 1/3 of the total number of offices of Chairperson in Panchayat at each level shall be reserve for women.[7]

Other Indian laws

Crimes against women occurs every minutes in India. Women are not safe whether in their house, workplace or at public places. Here are following rights which are enshrined under the law as against the prohibition of crime against women.

Prohibition of Child Marriage Act, 2006 because India steeps into Indian culture and traditions since centuries. It has been tough to eliminate it where it was majorly infringing the girls life and liberty, since law makes this illegal it acts as a major deterent.[8]
Dowry prohibition act 1961, Dowry is a culture of India many cases where we can demand of Dowry even after marriage are not met by the girls families many women are tortured, beatened and even brunt by their in laws.[9]
Maternity Benefit Act 1861, this right is enjoyed by the women who will be mother in future and after the birth of child during such period, women shall be given maternity paid leave.
Medical termination of Pregnancy 1971, it is aimed to reduce illegal abortion and clearly gives the right to the women under which a pregnancy can be ended or aborted.
National commission for women act 1990, the NCW represents the rights of women in India and provides a voice and issue of their concern. Every state has a state commission for women.
Sexual Harrasment of Women at workplace Act 2013, this act is consisted with the guidelines from the land mark case of Vishakha and ors. V. State of Rajasthan, where the victim was brutally gang raped in her own workplace, now women have the right against any form of exploitation happens in her own workplace to get easy remedies or to make complaints.
Equal Remuneration for work Act 1976, every women are entitled to get paid as men as equality of work.
Mines Act 1952 and Factories Act 1948 prohibits the employment of women between 7 P.M. to 6 A.M. in Mines and factories and provides for their Safety and Welfare.[10]
Indian Penal Code of 1860, enumerates many rights as against the torture and exploitation are such as , Section 326A & 326B talks about the acid attack on women’s now it is a part of grievous hurt, accused may face imprisonment upto 7 years and fine. Section 359 to 369 states the provision regarding abduction and trafficing not only limited to women it is applied to all genders. Section 375 to 376E contains the Rape provisions it is particularly for the women who are victim of this. Section 304B is the all time sacking Clause deals with the cases of Dowry deaths where unnatural death of a women within 7years of marriage are identified. Section 498A right of women against her in laws from being tortured or beaten by them popularly known as domestic violence. Section 354 and 509 deals with modesty and sexual Harrasment, women can have remedies under this basis and the accused may be punished by 20 years of imprisonment .
Section 125 of Code Of Criminal Procedure code 1973, enshrined the legislation for providing maintainance to the women’s, children’s, and parents. Here women’s are entitled to get from her husband in their separation period or after separation.
Abolition of Triple Talaq, (Sayara Bano v. Union of India): Sayara Bano was married for 15 years. In 2016 her husband divorced her through Tin Talaq ( Talaq e biddat). She filed petition before the Supreme Court where challenged Muslim Personal Law in violation with Art 14, 15 and 21 under Constitution of India. The Supreme Court held that the practice of Triple Talaq is unconstitutional and demolished such practice within the territory of India.[11]

Foreign Laws

At very first the Universal Declaration of Human Rights has given us the path that women rights are no longer limited in households, it has extended to civil, political, educational, cultural and economical rights for the atmost development.

CEDAW: The Convention on Elimination of All forms of Discrimination Against Women was adopted by UN in 1979. Here it implies all appropriate measures shall be taken to eliminate discrimination against women in the field of employment in order ensure equlity of work on the basis of equality of men and women.[12]
UNO: 1945 the United Nation Organization adopted a document for the maintainance of human rights the charter lays down that “ the United Nation shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs.”[13]
The Underground World Women Convention 1935 for advancing womens suffrage gloably.
The Equal Remuneration Convention 1951, for equal pay for of equal valuation as men.

Amendments

In recent years India has changed set of laws that challenges women’s rights in the society in punic way majorly those three spines of criminal laws were amended such as the Bharatiya Nyaya Sanhita 2023 replacing the Indian Penal Code 1860, Bharatiya Saksha Adhiniam 2023 replacing the Indian Evidence Act 1872, Bharatiya Nagrik Suraksha Sanhita 2023 rapalcing the Code of Criminal Procedure 1973.[14]

Section 376 of IPC specifies the punishment for rape, and sec 376D with gang rape, the punishment of gang rape on a women under age of 16 years and 12 years which is contained in section 376DA and 376DB of IPC has been merged in Sections 70(1) and 70(2) of BNS with punishment with enhancement under the new law is upto 20 years of imprisonment.

The BNS has introduced two new offences with regards to women and children. As section 69 contained that sexual intercourse by employing deceitful means or making promises of marriage without the intention of said are punishable offense with imprisonment of 10 years.

Provisions for Zero FIR under section 173(1) of BNSS which allows women’s to lodge a zero FIR regardless of the location of crime.

Misuse of Women’s Right:

lawyers often says there is law there is loopholes. It is very obvious that women are at some point are quite advantageous. Where in public transport there’s always a portion of seats are reserved for women’s despite of that many women’s tends to take lap on nonreserved seats where the mens are to be seated. In India there’s no doubt many laws are only women centric for their protection. Here one allegation of mistreatment is enough to make one guy arrested, if the complainant is a women. There are some majorly misused laws by women’s are:

Firstly, the domestic violence law under section 498A of IPC, it is misused in such a manner nowadays many married women files complain under this basis where there was nothing as such proof of violence by her inlaws. Seondly, the rape laws, our society believes if a women is complaining about sexual assault there must be some truth in her voice. Hence, the males are held guilty. Thirdly, the Dowry Prohibition Acts, for a married women it is very easy to send her husband behind the bars by making an allegation under this act. Fourthly, Section 125 of IPC, it is recent trend that many women filed for divorce after one year or more or less than their execution of marriage, they demand for huge amount of maintainance from their in laws specifically from her husband. Socially and economically, and mentally it is a torture on the husbands.

Case Laws:

people’s of Union For Democratic Rights and others v. Union of India, in this case the petitioner raised voice about the unequal payment of wages of construction site workers based on gender. The women’s were compan sated at a rate of Rs. 7 per day, whereas their male coworkers received an amount of Rs. 9.25 per day. The Supreme Court Directed that the government to ensure compliance with the Equal Remuneration Act, which aims to prevent such discrimination from paying lower wages to female as it was violation of Art 14 (equality of law).[15]
In Rajinder Singh v. State of punjab, 2015, in this case the court has observed that time delays might cause cases. Within four months of marriage the deceased consumed aluminium phosphide a pesticide and she died. Deceased father discloses that his in law was demanding for money for house construction and the deceased father failed to do the same. Thereafter, 7 to 8 months later his daughter was treated badly again after examining the evidence the Trial Court convicted the appellant husband under section 304B of IPC with rigorous imprisonment of 7 years.[16]
Shambhu and another v. State of Haryana, in this case the victim was gang raped by two of her known village persons who threatened her with showing knife and took her to their shop and raped her turn by turn. The Additional session Judge convicted the accused with rigorous imprisonment of 10 years and fine Rs. 5000/- each culprits. Thereafter the appellant challanged the order of sessions Court, whereby Hgh Court dismissed the appeal and affirmed the conviction order by the Additional Session judge.[17]

Conclusion

The rights of women’s has been subject to many great changes over the past millenias. From equal status with men in ancient time through the low points in the mediaeval period to the promotion of equal rights by the reformers in the history of India. But in modern India women holds offices and controls administrations as the Prime Minister, speaker of lok sabha, and the leader of oppotion. It is cleared that women’s are equipped with more rights rather than men nowadays, despite of that increasing crimes and offences are still numerous in count, and cases like R.G Kaur rape case is just an example that women’s are still not safe around her known people. Indian laws are endless remedies are the way to get justice.

[1] https://www.britannica.com/topic/woman-suffrage

[2] https://www.refworld.org/legal/resolution/unga/1948/en/11563

[3] Miles, K. (2018, October 9). ecofeminism. Encyclopedia Britannica.

https://www.britannica.com/topic/eco-feminism

[4] The Position of Women in Ancient Indian Buddhism A Historic Analysis

by Kavita Chauhan.

[5] https://www.hercircle.in/engage/get-inspired/achievers/a-brief-history-

of-women-rights-freedom-and-gender-equality-in-india-1071.html

[6] https://images.app.goo.gl/RSPpxvFYVmj4N3tf6

[7] https://lawbhoomi.com/constitutional-provisions-for-women-in-india/

[8] https://www.tnsocialwelfare.tn.gov.in/en/social-legislations/prohibition-

of-child-marriage-act