LLM 101 Project
LLM 101 Project
Faculty of Law
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INTRODUCTION
The right to equality has been uppermost in the human conscience during the last fifty years.
Some of the greatest world leaders of this century- e.g. Mahatma Gandhi, Martin Luther King
and Nelson Mandela- have been inspired by its inherent ideology to dream of a new world free
from inequalities. Not surprisingly, when the Constitution of independent India was drafted, the
right to equality is an indispensable part of Chapter III of the constitution. The founding fathers
who listed in the preamble the securing to all its citizens of justice- social, economic and
political- and equality of status and opportunity as among the objectives of the Constitution,
were conscious that neither of these could be realised without making the right to equality a basic
fundamental and justiciable right of every person in the country.1
Seervai has described liberty and equality as words of passion and power. This fact is reflected in
the large number of petitions filed before the High Courts and the Supreme Court where Article
14 (which embodies this right of equality) is invoked. 2 Sometimes, this is also evident in the
controversy and debate which ensues whatever legislation is proposed to promote equality.
Obviously, there can be no going back from the constitutional mandate which the people have
imposed on themselves in order to create a new democratic social, economic and political order
of their choice.
The present research paper has proposed the sociological concept of gender discrimination and
will relate it with Constitution of India, that how discrimination on the basis of sex was
precluded and then how the constitutional framers tried to eradicate the gender discrimination
from the society that they had after independence which was full of practices involving women
and men discrimination on the basis of their working, way of living, education etc. The
researcher has analysed various case laws through which judiciary along with legislative
authorities has tried to eradicate this evil discrimination, directly attacking the ground level of
such practices. Finally, the paper gets summarized by seeing the implementation and impact of
various constitutional provisions and judicial interpretations made over the years.
1
CONSTITUENT ASSEMBLY DEBATES, Book No. 1, December 13, 1946 speech by PANDIT JAWAHARLAL
NEHRU 60 (1999).
2
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 460 (4th ed., 2009).
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HISTORICAL BACKGROUND
In ancient period, patriarchy was predominant and the status of women was undermined. In the
Vedic period, women lost their political rights of attending assemblies. According to the
Aitareya Brahmana, a daughter has been described as a source of misery. Atharva Veda also
deplores the birth of daughters.3 Women were looked down socially, economically and
politically. Women became scape goats of many traditions and customs. During the period of
Smritis, women were bracketed with the Sudras and were denied the right to study the Vedas, to
utter Vedic mantras and to perform Vedic rites. 4 Women’s role was restricted to domestic life
especially kitchen work and bearing and rearing of children. She has no place in economic and
political activities. The Brahmanical law did not allow any proprietary rights to women; the
provision for stridhana is of a very limited nature and does not extend beyond the wife’s rights to
jewels, ornaments and presents made to her at the time of her marriage. One of the inscriptions
from Vijayawada lays down the convention of the Telikis that in the event of death of a married
woman only her husband would have claim over her jewellery and not her parents. existed
among the Aryans in the earlier period. The hymns of the Rig-Veda, the Adharva Veda show that
it was still customary for the widow to lay symbolically by the side of her husband’s corpse on
the funeral, forced child marriages were unknown. During the Mauryan period Brahamanical
literature was particularly severe in the treatment of women and assigned them a very low status
in the society. As per ancient Hindu law giver Manu: “Women are supposed to be in the custody
of their father when they are children, they must be under the custody of their husband when
married and under the custody of her son in old age or as widows. In no circumstances she
should be allowed to assert herself independently”. In the growing instances, female foeticides
were practiced extensively. Female sex ratio significantly declined due to the vicious acts. The
most victimised females were in the state of Haryana wherein the sex ratio was just 877 women
per 1000 males. Then the dowry became popular and it was the starting period of female
infanticide practices in few areas. In India, a sex-selection phenomenon has been in place since
the 1980s, with men born during this period now at marriageable age.
3
Upinder Singh & Nayanjot Lahiri, Ancient India (2010).
4
Aparna Srivastava, Role of police in a changing society (1999).
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CONSTITUIONAL AND LEGAL PROVISIONS FOR ENSURING GENDER
EQUALITY
The Constitution Of India is the foundational stone of a country having a legal sanctity which
sets the framework and the principal functions of the organs of the Government of a State. It also
declares the principles governing the operation of these organs. The Constitution aims at creating
legal norms, social philosophy and economic values which are to be affected by striking
harmony and fundamental adjustment between individual rights and social interest to achieve the
desired community goals. When the constitution was framed, women issues were prioritized and
sensitised so as to ensure gender equality and fairness. In this regard, specific provisions were
incorporated in the law of the land. The Preamble is the essence of the Constitution and reflects
the aims of the people and objectives to be achieved. The Preamble begins with “the people of
India, give to ourselves the Constitution.” The source of the Constitution is thus traced to the
people, i.e. men and women of India, irrespective of caste, community, religion or sex. There are
certain rights which are guaranteed to the citizens in order to ensure equality amongst all.
-FUNDAMENTAL RIGHTS
In the case of Maneka Gandhi v. Union Of India 5 , Justice Bhagwati exclaimed 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." Article 14
ensures equality before law for women. Article 15 prohibits discrimination against any citizen
on the ground of sex: and Article 15 (3) empowers the state to make positive discrimination in
favour of women and child;
POSITIVE DISCRIMINATION
Equality before law and equal protection of the laws is guaranteed under Article 14, Non-
discrimination on the ground of religion, race, caste, sex or place of birth is guaranteed under
Article 15(1). Although Article 15(1) enjoins non- discrimination on the ground of sex, Article
15(3) provides that this shall not prevent the state from making any special provision for women
and children. So that, while there can be no discrimination against women on the basis of sex in
view of Article 15(1), special legislation in favour of women is permissible. Article 15(3) has
been so interpreted as permitting discrimination in favour of women but not against women.
5
AIR 1978 SC 597.
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Every special law for women necessarily carries with it discrimination in favour of women or
sex- based discrimination. This kind of discrimination alone is is permissible- presumably as a
means of strengthening the weak position of of women in the social, legal, and political spheres
and to enable them to attain equal stains with men. Article 15(3) has to be looked at not as an
exception to equality, but as a promoter of equality. In this sense, Article 15(3) can be considered
as a charter for affirmative action in favour of women.
This perception is strengthened by the Directive Principles of State Policy. Article 39 enjoins the
state to direct its policy towards securing that men and women equally have the right to an
adequate means of livelihood, that there is equal pay for equal work for both men and women,
and that health and strength of working men and women and the tender age of children are not
abused and the citizens are not forced by economic necessities to enter on vocations unsuited to
their age or strength. Article 42 directs the state to make provision for securing just and humane
conditions of work and to provide for maternity relief. Article 44 requires that the state shall
endeavour to secure for the citizens a uniform civil code throughout the territory of India. The
Directive Principles as well as Article 15(3) have focussed on the vulnerability of children and
women in our society and have recognised that those who are in unequal socio- economic and
political positions cannot be treated as equals. In this sense, even Article 15 (3) , though drafted
as an exception, flows from Article 14 and 15(1) because Article 14 which enjoins equality
before the law and equal treatment under the lws can be applird fairly, only on the basis that the
law operates alike on persons who are similarly circumstanced can be treated alike both
regarding privileges conferred and liabilities imposed but not those who are dissimilar in
material respects in the context of the law. That is why the principle of classification has been
read into Article 14.
THE DOCTRINE OF CLASSIFICATION
Under these principles, people can be classified into different categories depending upon their
common needs and common characteristics, provided that such classification is relevant for the
purpose of a given law. The law can, on the basis of such differentiation, make different
provisions for different classes. However, Article 15(1) prohibits differentiation which
discriminates on the grounds of sex, race, religion, caste or place of birth. Any classification,
therefore, which treats one sex unfavourably qua the other is impermissible. However, reading
Article 14 and Article 15(3) together, a classification based on sex where this is a relevant
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criterion, can be made by law which is in favour of women, thus permitting affirmative action in
favour of women.
The principle which prompted Article 15(3) has also inspired reservation in employment under
the state for backward classes, Scheduled Castes and Schedule Tribes and Article 16. The
justification for reservations is the same- giving additional support to the weak so as to equalise
or trend towards equalisation of the status of the weak with the strong. Not content with Article
16, parliament amended Art. 15 to introduce 15(4) permitting special provisions to be made for
the schedule caste, schedule tribe and socially or educationally backward classes this Article has
been relied upon while making reservations for these categories of persons in educational
institutions. Since Art. 15(4) and 15(3) are identically worded by parity of reasoning, Art. 15(3)
would also support reservations for women.6 Art. 14 and 15 therefore embodied both a positive
and a negative concept of equality non-discrimination and positive steps to promote equality
even if these involve sex-based discrimination in favour of women.
-DIRECTIVE PRINCIPLES OF STATE POLICY
Under directive principles of state policy, Article 39(a) directs the State to direct its policy
towards securing that citizens, men and women, equally have the right to an adequate means of
livelihood. Article 39(d) directs the State to secure equal pay for equal work for both men and
women. The State in furtherance of this directive passed the Equal Remuneration Act, 1976 to
give effect to the provision. 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 provisions for securing
just and humane conditions of work and for maternity relief. The State has implemented this
directive by incorporating health provisions in the Factories Act, Maternity Benefit Act, Article
44 directs the State to secure for citizens a Uniform Civil Code applicable throughout the
territory of India. Its particular goal is towards the achievement of gender justice. Even though
the State has not yet made any efforts to introduce a Uniform Civil Code in India, the judiciary
has recognised the necessity of uniformity in the application of civil laws relating to marriage,
succession, adoption, divorce, maintenance, etc. but as it is only a directive it cannot be enforced
in a court of law. Parts IV-A which consist of only one Article 51-A was added to the
constitution by the 42nd Amendment, 1976. This Article for the first time specifies a code of
6
Govt. of A.P. v. P.B. Vijaykumar (1995) 4 SCC 520.
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eleven fundamental duties for citizens. Article 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 religion, linguistic, regional or
sectional diversities; to renounce practices derogatory to the dignity of women”.
7
(1979) 4 SCC 260.
8
(1981) 4 SCC 335.
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the ground of sex, as similar provisions did not apply to male employees doing similar work. The
Supreme Court struck down the Air-India Regulations relating to retirement and the pregnancy
bar on the services of Air-hostesses as unconstitutional on the ground that the conditions laid
down therein were entirely unreasonable and arbitrary. In Gaurav Jain v. Union of India 9, the
condition of prostitutes in general and the plight of their children in particular was highlighted.
The Court issued directions for a multi-pronged approach and mixing the children of prostitutes
with other children instead of making separate provisions for them. The Supreme Court issued
directions for the prevention of induction of women in various forms of prostitution. It said that
women should be viewed more as victims of adverse socio-economic circumstances than
offenders in our society. In Vishaka v. State of Rajasthan 10, the Supreme Court laid down
guidelines for the protection of working women against sexual harassment. It was held by the
court that: "Gender equality includes protection from sexual harassment and right to work with
dignity which is a universally recognised basic human right. The common minimum requirement
of this right has received global acceptance. In the absence of domestic law occupying the field,
to formulate effective measures to check the evil of sexual harassment of working women at all
workplaces, the contents of international conventions and norms are significant for the purpose
of interpretation of the guarantee of gender equality, right to work with human dignity in articles
14, 15, 19(1}(g) and 21 of the Constitution and the safeguards against sexual harassment implicit
therein and for the formulation of guidelines to achieve this purpose."
In the case of Daniel Latifi v. Union Of India 11, a divorced Muslim woman who has not
remarried and who is not able to maintain herself after iddat period can proceed against her
relatives who are liable to maintain her in proportion to the properties which they inherit on her
death according to Muslim law from such divorced woman including her children and parents. In
the case of Dr. Upendra Baxi and ors v. State of Uttar Pradesh 12, directions to the state
government was issued for better administration of girls protective homes. The Superintendent of
the Protective Home was directed to take care that no woman or girl is detained in the Protective
home without due authority and process of law. In the case of Centre for enquiry into Health and
Allied themes (CEHAT) v. Union of India 13 , The Supreme Court in this case issued Guidelines
9
(1997) 8 SCC 114.
10
AIR 1997 SC 3011.
11
(2001) 7 SCC 740.
12
AIR 1987 SC 191.
13
(2003) 8 SCC 398.
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to prevent female foeticide. The National Monitoring and Inspection Committee was set up for
periodic inspection.
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of State Policy under Article 39 14, 4215 and 4416. In fact, equal pay for equal work enjoined under
Article 39 is now read into Article 14 as an aspect of equality 17, and the same case would be the
case when state action is designed to further equality between men and women by taking
affirmative action based on Article 39, or 42.
Article 2(f) of CEDAW requires state parties to take all appropriate measure, including
legislation, to modify or abolish existing laws, regulation, customs and practices which constitute
discrimination against women. Article 13(1) of the Constitution deals with existi9ng laws (i.e.
laws extant at the commencement of the Constitution) which were inconsistent with or in
derogation of fundamental rights. It provides that all laws in force in the territory of India
immediately before the commencement of the Constitution, in so far as they are inconsistent with
the fundamental rights guaranteed therein shall, to the extent of such inconsistency, be void.
Article 13(2) deals with future legislation. It provides that the state shall not make any laws
which takes away or abridges the rights conferred by the chapter on fundamental rights; and any
law made in contravention of this clause shall, to the extent of contravention, be void. Under
Article 13(3), ‘law’ is defined to include any custom or usage which, within the territory of
India, has the force of law. ‘Laws in force’ include laws passed or made by a legislature or any
other competent authority in the territory of India before the commencement of the Constitution
and not previously repealed, notwithstanding that any such law or any part thereof may not be in
operation either at all or in particular areas. Customs or usages are, therefore, a part of the law.
One would have thought that if any of the customs existing at the times of the commencement of
the Constitution violated any of the Fundamental Rights, they would be void under Article 13(1).
But the courts interpreted article 13(1) a little differently in the context of personal laws and
confined customs and usages having the force of law to Article 13(2) only. 18 However, if one
looks at the language of Article 13(2), there is a prohibition on the state from making any law
contrary to fundamental rights. It says, “The state shall not make any law…”. Does it mean that
the state shall not make customs or usage? Customs and usages are not normally made by the
14
This Article among other things, enjoins the State to direct its policy towards securing the equality of men and
women.
15
This article requires the state to make provisions for securing just and humane conditions of work and for
maternity relief.
16
Under this article the state is required to work towards the promulgation of a uniform civil code which would be
applicable to all citizens, regardless of their religious or other affiliations.
17
Randhir Singh v. Union of India (1982) 1 SCC 618.
18
See, e.g. State of Bombay v. Narsu Appa Mali (1951) 53 Bom. L.R. 779.
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state. The best interpretation that can be put on Article 13(2) is that the state shall not make a law
giving effect to any custom or usage that violates fundamental rights. The fact that the definition
of ‘law’ and ‘laws in force’ are not exclusive but extensive is also overlooked. They should have
been read harmoniously in the light of each other since both definition are extensive.
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practices and must give way before the good of the people as a whole. That state can legislate
with regards to social reform under Article 25(2) (b) notwithstanding that it may interfere with
the right of a citizen to freely profess, practise and propagate religion.” Those opposing social
reform on religious grounds would do well to remember Article 25 in its entirety.
CONCLUSION
It is imperative to introspect that at the end of the day, it is the people’s constant awareness of
their constitutional dream and their serious endeavour to realise it, that can evolve a socio-legal,
economic and political system based on equality and equity in this country. There has to be a
public commitment to shun discrimination starting from home. If family ‘values’ continue to
discriminate between boys and girls or men and women, social attitudes will perpetuate this
discrimination and the entire sphere of public activity will be affected likewise, as is happening
now. Law can only address itself to visible discrimination. It is the invisible and subtle
discrimination that has to end before one can have real equality. If we want an India where all
citizens are entitled to justice, liberty, equality and fraternity where there is an assurance of the
dignity of the individual and the unity of the nation, then it is ultimately the people who have to
work for this goal and use wisely the constitutional support given to them in the form of
fundamental rights and obligations to achieve their aspirations. It is easy but unrealistic to
suggest that government must frame laws which have teeth and then vigorously implement them
to curb the problem. For this there is a need to bring attitudinal change, and a need for a multi-
pronged policy and programmatic approach highlighting the potential of girl child, within which
legal and other strategies have important role to play. Because this problem has not been tackled
at the level it should have been. Thus it also include the strict implementation of dowry laws,
creating more job opportunities for women, pension schemes for elderly particularly those who
have only daughters, modification in the MTP Act, registration of births and deaths stringent
implementation of the Pre-natal Diagnostic Techniques (PNDT)Act, and of course a general
paradigm shift of social psyche among all sections of our society, which condone such gross
discrimination against women.
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BIBLIOGRAPHY
I. BOOKS REFERRED:
1. M.P. Jain Indian Constitutional Law: With Constitutional Documents, Volume 1, 6TH Ed.
2. V.N. Shukla's Constitution of India, 10th Ed.
3. Commentary On the Constitution of India; Vol 6; (Covering Articles 25 To 35).
4. Commentary On the Constitution of India; Vol 7; (Covering Articles 36 To 78).
II. JOURNALS, ARTICLES AND REPORTS
1. Kalyani Ramnath, Guarding the Guards: The Judiciary as state within the meaning of article
12 of the constitution, Vol. 18, Student Bar Review, pp 75-94.
2. Silvia Helena Barcellos, Leandro S. Carvalho and Adriana Lleras-Muney, Child Gender and
Parental Investments In India: Are Boys and Girls Treated Differently?, American Economic
Journal: Applied Economics, Vol.6, pp 157-179.
3. Vineeta Bal, Gendered Science: Women as practitioners and as targets of research,
Economic and Political Weekly, Vol. 37, pp 5163-5167.
4. S. B Sinha, Constituional Challenges in the 21st Century, Vol. 21, National Law School Of
India Review, pp 117-132 (2009).
III. ONLINE RESOURCES:
1. SCC (Supreme Court Cases) ONLINE.
2. AIR (All India Reporters) ONLINE
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