Directive Principles of State Policy

Article 39(a) and Article 39(d) of the Directive principle of state policy also talks
about gender equality. The former article talks about having an equal right to men
and women for an adequate means of livelihood whereas the latter supports equal
pay for equal work for both men and women. Basically, the philosophy behind the
Directive principle of state policy is based on maintaining a balance between
individualism and socialism. The DPSP has taken all the measures to cover the
aspect of women in the post-modernist era.

The framers had the long-sighted vision which allowed them to think of the
problems, a woman would have faced in the changing trends of the society. To
support the fact, article 51(a) further talks about the provision which renounces
practices derogatory to the dignity of women.

Seeing the laws cumulatively, there is no going back to the thought that the
constitution has forgotten the position of women. Certainly, our constitution
framers have tried to incorporate as many provisions as they could think of which
would have caused prejudice if the certain provisions were not available.

Protectionist Interpretation of Laws for Women

The laws are already there in the constitution favouring equality but still, a woman
is in a disadvantageous condition even in the 21st century. Our society is still static
and views a woman through the spectacles of a patriarch. Despite the broad
horizon provided by the Constitution, the interpretations of these provisions have
echoed the patriarchal and conservative nature of the Indian society.
The courts itself while interpreting the laws, makes it difficult for understanding to
the society at large. Court as a mechanism for providing justice tends to play the
role of a protectionist. The interpretation of separate laws on the ground that the
women are weak and are different from men creates an imbalance in the society. A
man with ordinary prudence after reading certain things would surely think that
women are weak compared to men and further laws are made for them. When such
ideology travels in the air, discrimination and patriarchy turn out to be the ground.

Women are subjected to as subordinate to men when they are put under the status
of the weaker sex. The constitution gave the tag of weaker sex keeping in mind the
past discrimination that a woman has gone through. The economic and sociological
prejudices in their past have made their progress rate slow and further, they need
laws for the advancement. The Constitution nowhere mentions that women are
weak in comparison to the men according to nature. Such patriarchal
interpretations are prevalent for a long time.

Taking an example of the law of Adultery which is now unconstitutional, earlier in

the case of W.Kalyani v State Tr.Insp.Of Police & Anr, it was held that only men
can be prosecuted for the offense of adultery and women cannot be prosecuted.
The judgment was further criticized on the grounds for showing a strong gender
bias making the position of a married woman almost as a property of her husband.

The women were seen as it was subordinate to men and in the jurisdiction of them.
It took almost 160 years for the court to understand that women are not a chattel
and have certainly equal status that of men. After having the provisions of equality
in article 14, the court continued to interpret the law basely. In the recent judgment
of section 497, the court held that there cannot be a patriarchal monarchy over the
daughter or, for that matter, a husband’s monarchy over the wife. That apart,
there cannot be a community exposition of masculine dominance.

The judgment passed is a step towards gender neutrality but certainly, it is already
too late to identify the prejudices that a woman have gone through. The absence in
understanding the concept of gender neutrality by the courts after having the
provisions laid down in the Constitution has resulted in the prima facie violation of
women independence.

In Independent Thought v. Union of India, a division bench of the Supreme Court

of India read down Exception 2 to Section 375, Indian Penal Code (hereinafter,
IPC), which now stands thus altered, Sexual intercourse by a man with his wife,
the wife not being less than 18 years of age, is not rape.

Earlier the provision had prescribed the age as 15 rather 18. Sexual violence apart
from being a dehumanising act is an unlawful intrusion of the right to privacy and
sanctity of a female. It is a serious blow to her supreme honour and offends her
self-esteem and dignity- it degrades and humiliates the victim and where the victim
is a helpless innocent child, it leaves behind a traumatic experience.

The traditional practice being referred to in the case deals with child marriage and
the rights secured to women. The IPC sanctified the practice by allowing the
husband of a girl child to have sexual intercourse with her, regardless of her
consent, provided she was not under the age of 15. The Court identified the harm
that the right of the girl child to maintain her bodily integrity is destroyed when her
husband is given the full control over her body, thereby reducing her to nothing
more than his property.
By denying a whole category of women the right to refuse consent to sexual
intercourse with their husbands, merely by virtue of being married, the IPC
similarly destroys the right of this category of adult women to their bodily
integrity. Thus, the basis of the violation of Article 21, as identified by the Court
itself, is applicable equally, and in the same way, to adult married women, as it is
to child brides.

The need for the alteration was necessary because it was giving the undue
advantage to the men who were protected from the ambit of rape. Law says that
having sexual intercourse with women below 18 years is an offence, this law
before alteration stands contradictory to it.

It was submitted that to this extent Exception 2 to Section 375 of the IPC is not
only arbitrary but is also discriminatory and contrary to the beneficial intent of
Article 15(3) of the Constitution which enables Parliament to make special
provision for women and children. In fact, by enacting Exception 2 to Section 375
of the IPC in the statute book, the girl child is placed at a great disadvantage,
contrary to the visionary and beneficent philosophy propounded by Article 15(3) of
the Constitution.

Protection of women has been always the mind-set of the constitution but the
problem as stated in the interpretation. With the time, the ambit is getting bigger
and the offences are being highlighted with more sincerity. In this case, only, the
interpretation of the rape was given maturely and has been termed as one of the
most heinous crime. In the judgement, Justice Madan B Lokur stated that:
Rape is one of the most heinous crimes committed against a woman. It insults
womanhood. It violates the dignity of a woman and erodes her honour. It dwarfs
her personality and reduces her confidence level. It violates her right to life
guaranteed under Article 21 of the Constitution of India.

This judgement stood strong on the grounds of equality and justice for women and
throws out the patriarchal laws that were once prevalent in our country.