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Women and Law

A. B. C. D. Introduction Constitutional Provisions Other Legal Provisions Special Initiatives for women National Commission for Women Reservation for Women in Local Self -Government The National Plan of Action for the Girl Child (1991-2000) National Policy for the Empowerment of Women, 2001 E. Women in the Five Year Plans F. Case Laws: Gaurav Jain v. Union of India (1997 (8) SCC 114)4.10 Vishaka v. State of Rajasthan (AIR 1997 SC 3011)4.9 Kishwar v. State of Bihar {(1996) 5 SCC 145}4.8 Sarita Samvedi v. Union of India (1996 (2) SCC 380)4.6 Air India v. Nargesh Meerza ((1981) 4 SCC 335)4.5 G. Conclusion

A. Introduction: The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes have aimed at womens advancement in different spheres. India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. The exalted status of Indian women in ancient days suffered a setback in the medieval period. Social economic and political factors played a major role in their suppression. Social inhibitions and discriminatory practices against them continued to exist during the 'enlightened' and 'civilised' imperial rule. The leadership of independent movement was, however, committed to accord an equal status to women and give them a place of honour, and dignity in the society. Accordingly the Indian Constitution emerged out of the

constituent assembly, treated both men and women equally and also provided for protective discrimination for women in view of their peculiar position in the human society. B. Constitutional Provisions: The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favor of women for neutralizing the cumulative socio, economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard. Constitutional Privileges Equality before law for women (Article 14) The Constitution of India ensures gender equality in its preamble as a fundamental right b ut also empowers the state to adopt measures of positive discrimination in favor of wome n by ways of legislation and policies. But it also empowers the state to adopt measures of positive discrimination in favor of women by ways of legislation and policies. The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (i)) The State to make any special provision in favor of women and children (Article 15 (3)) Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16) The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d)) To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A) The State to make provision for securing just and humane conditions of work and for maternity relief(Article 42) The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46) The State to raise the level of nutrition and the standard of living of its people (Article 47) To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e)) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled

by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3)) Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4)) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T (3)) Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4))

C. Legal Provisions: To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as Murder, Robbery, Cheating etc, the crimes, which are directed specifically against women, are characterized as Crime against Women. These are broadly classified under two categories.

(1) The Crimes Identified Under the Indian Penal Code (IPC) Rape (Sec. 376 IPC) Kidnapping & Abduction for different purposes ( Sec. 363-373) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC) Torture, both mental and physical (Sec. 498-A IPC) Molestation (Sec. 354 IPC) Sexual Harassment (Sec. 509 IPC) Importation of girls (up to 21 years of age) (2) The Crimes identified under the Special Laws (SLL) Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. Some acts which have special provisions to safeguard women and their interests are: (i) The Employees State Insurance Act, 1948 (ii) The Plantation Labour Act, 1951 (iii) The Family Courts Act, 1954 (iv)The Special Marriage Act, 1954 (v) The Hindu Marriage Act, 1955 (vi) The Hindu Succession Act, 1956 with amendment in 2005 (vii) Immoral Traffic (Prevention) Act, 1956 (viii) The Maternity Benefit Act, 1961 (Amended in 1995) (ix) Dowry Prohibition Act, 1961 (x) The Medical Termination of Pregnancy Act, 1971

(xi) The Contract Labour (Regulation and Abolition) Act, 1976 (xii) The Equal Remuneration Act, 1976 (xiii) The Prohibition of Child Marriage Act, 2006 (xiv) The Criminal Law (Amendment) Act, 1983 (xv) The Factories (Amendment) Act, 1986 (xvi) Indecent Representation of Women (Prohibition) Act, 1986 (xvii) Commission of Sati (Prevention) Act, 1987 (xviii) The Protection of Women from Domestic Violence Act, 2005 D. Special Initiatives for Women: National Commission for Women: It was formed as the apex national level organization of India with the mandate of protecting and promoting the interests of women. The commission has the following functions: It reviews the legal and constitutional safeguards for women. It recommends the remedial legislative measures. It facilitates the redressal of grievances. It advices government on all policy matters affecting women. National Policy for the Empowerment of Women, 2001: The goal of this Policy is to bring about the advancement, development and empowerment of women. The policy has the objective of Creating an environment through positive economic and social policies for full development of women to enable them to realize their full potential The dejure and defacto enjoyment of all human rights and fundamental freedom by women on equal basis with men in all spheres political, economic, social, cultural and civil Equal access to participation and decision making of women in social, political and economic life of the nation Equal access to women to health care, quality education at all levels, career and vocational guid ance, employment, equal remuneration, occupational health and safety, social security and public office etc. Strengthening legal systems aimed at elimination of all forms of discrimination against women Changing societal attitudes and community practices by active participation and involvement of both men and women.

Mainstreaming a gender perspective in the development process. Elimination of discrimination and all forms of violence against women and the girl child; and Building and strengthening partnerships with civil society, particularly womens organizations. Legaljudicial system will be made more responsive and gender sensitive to womens needs, esp ecially in cases of domestic violence and personal assault. New laws will be enacted and existing laws reviewed to ensure that justice is quick and the punishment meted out to the culprits is com mensurate with the severity of the offence. Womens equality in power sharing and active partici pation in decision making, including decision making in political process at all levels will be ens ured for the achievement of the goals of empowerment. Policies, programs and systems will be e stablished to ensure mainstreaming of womens perspectives in all developmental processes, as c atalysts, participants and recipients. Women Reservation Bill: The bill was introduced in the constitution as the 108th amendment. It seeks to reserve onethird of all seats for women in the Lok Sabha and the state legislative assemblies. The allocation of re served seats is determined by such authority as prescribed by Parliament. One third of the total n umber of seats reserved for Scheduled Castes and Scheduled Tribes are reserved for women of th ose groups in the Lok Sabha and the legislative assemblies. E. Women in the Five Year Plans: First five year plan: In the first five year plan itself, a number of welfare measures for women were envisaged.Central Social Welfare Board, organization of Mahila Mandals and the Community Development Progra ms were established. Second five year plan: The empowerment of women was closely linked with the overall approach of intensive agricultur al development programs in the second five year plan. Third year plan and fourth five year plan Both the third and fourth year plans supported female education as a major welfare measure. Fifth five year plan It emphasized training of women, who were in need of income and protection. This plan coincide d with International Womens Decade and the submission of Report of the Committee on the Sta

tus of Women in India. In 1976, Womens welfare and Development Bureau was set up under th e Ministry of Social Welfare. Sixth five year plan The term women welfare shifted to women development. It recognized womens lack of access to resources as a critical factor which was hampering their growth. Seventh five year plan The seventh five year plan emphasized the need for gender equality and empowerment. And the emphasis was placed upon qualitative aspects such as inculcation of confidence, generation of a wareness with regards, to rights and training in skills for better employment. Eighth five year plan The focus was on empowering women, especially at the grass roots level, through Panchayat Raj Institutions. Ninth five year plan The ninth plan adopted a strategy of womens component plan, under which not less than 30 perc ent of funds/benefits were earmarked for womenspecific programs. Tenth five year plan The tenth plan aims at empowering women through translating the recently adopted National Pol icy for Empowerment of Women (2001) into action and ensuring Survival, Protection and Devel opment of women and children through rights based approach. Eleventh five year plan In the Eleventh Plan, for the first time, women are recognized not just as equal citizens but as age nts of economic and social growth. The approach to gender equity is based on the recognition that interventions in favour of women must be multipronged and they must: i. ii. iii. iv. v. provide women with basic entitlements, address the reality of globalization and its impact on women by prioritizing economic em powerment, ensure an environment free from all forms of violence against women (VAW) physical, economic, social, psychological etc., ensure the participation and adequate representation of women at the highest policy level particularly in Parliament and State assemblies, and strengthen existing institutional mechanisms and create new ones for gender mainstream ing and effective policy implementation.

F. Case Laws: 1. In Gaurav Jain v. Union of India (1997 (8) SCC 114)4.10 The condition of prostitutes in general and the plight of their children in particular were 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.

2. In Vishaka v. State of Rajasthan (AIR 1997 SC 3011)4.9 The Supreme Court, in the absence of legislation in the field of sexual harassment of working women at their place of work, formulated guidelines for their protection. The Court said: "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."

3. In Madhu Kishwar v. State of Bihar {(1996) 5 SCC 145}4.8, The Supreme Court dealt with the validity of the Chotanagpur Tenancy Act, 1908 of Bihar which denied the right of succession to Scheduled Tribe women as violative of the right to livelihood. The majority judgment however upheld the validity of legislation on the ground of custom of inheritance/succession of Scheduled Tribes. Dissenting with the majority, Justice K. Ramaswamy felt that the law made a gender-based discrimination and that it violated Articles 15, 16 and 21 of the Constitution. In his dissenting judgment he said: "Legislative and executive actions must be conformable to and for effectuation of the fundamental rights guaranteed in Part III, Directive Principles enshrined in Part IV and the Preamble of the Constitution which constitute the conscience of the Constitution. Covenants of the United Nations add impetus and urgency to .eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constitute economic empowerment of women in socio-economic restructure for establishing egalitarian social order."

4. In Sarita Samvedi v. Union of India (1996 (2) SCC 380)4.6 The Supreme Court held invalid a provision of the Railway Board Circular dated 27th December, 1982 which restricted the eligibility of a married daughter of a retiring official for out-of-turn allotment of a house, to situations where such a retiring official had no son or where the daughter was the only person prepared to maintain the parents and the sons were not in a position to do so. This was held to be discriminatory on the ground of sex.

5. In Air India v. Nargesh Meerza ((1981) 4 SCC 335)4.5 Nargesh Meerza filed a writ petition, In this case, the air-hostesses of the Air-India International Corporation had approached the Supreme Court against, again, discriminatory service conditions in the Regulations' of Air-India. The Regulations provided that an air-hostess could not get married before completing four-years of service. Usually an air-hostess was recruited at the age of 19 years and the four-year bar against marriage meant that an air-hostess could not get married until she reached the age of 23 years. If she married earlier, she had to resign and if after 23 years she got married, she could continue as a married woman but had to resign on becoming pregnant. If an air hostess survived both these filters, she 'continued to serve until she reached the age of 35 years. It was alleged on behalf of the air-hostesses that those provisions were discriminatory on the ground of sex, as similar provisions did not apply to male employees doing similar work. The Supreme Court upheld the first requirement that an air-hostess should not marry before the completion of four years of service. The court held that: "It was a sound and salutary provision. Apart from improving the health of the employee it helps a great deal in the promotion and boosting up of our family planning programme." Conclusion: The framers of the Indian constitution best owed sufficient thought on the position of women in the social order. This is evident from the provision of the constitution, which have not only ensured equality between men and women but also provided specifically certain safeguards in favor of women. Equality of status & of opportunity is a concomitant to the principle of social justice. Women & children require special treatment on account of their nature.