FEMINISM AND INDIAN CONSTITUTION:

AN ANALYTICAL STUDY
A dissertation to be submitted in partial fulfilment
of the requirement for the award of degree of
Master of Laws

In

Institute of Legal Studies

By

Virat Vaibhav Singh

LLM (CAL)
Semester II
Roll No. 202310301030051

Under the Guidance

of

Dr. Mahendra Kumar

Associate Professor
Institute of Legal Studies

Lucknow-Deva Road, Uttar Pradesh

Session: 2023-24

1
 SHRI RAMSWAROOP
MEMORIAL UNIVERSITY
(Established by UP State Govt. ACT 1 to 2012)
Lucknow-Deva Road, Uttar Pradesh-225003

Date: …………………..

TO WHOMSOEVER IT MAY CONCERN

This is to certify that Mr. Virat Vaibhav Singh, LL.M., CAL has completed his dissertation,

topic “Feminism and Indian Constitution: An Analytical Study” under my supervision, for

the award of degree of Master of Laws at Shri Ramswaroop Memorial University. Dissertation

supervisor will not be responsible for any type of plagiarism, typological error or any factual

legal infirmities.

He has completed all formalities as required under the ordinance and the dissertation is

forwarded for evaluation.

Dr. Mahendra Kumar

Associate Professor
Institute of Legal Studies

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 SHRI RAMSWAROOP
MEMORIAL UNIVERSITY
(Established by UP State Govt. ACT 1 to 2012)
Lucknow-Deva Road, Uttar Pradesh-225003

DECLARATION

I hereby declare that the Dissertation entitled “Feminism and Indian Constitution: An

Analytical Study” Submitted by me in the fulfilment of the requirements for the award of the

degree of "Master of Laws" of Shri Ramswaroop Memorial University, is a record of my own

work carried under the supervision of Dr Mahendra Kumar, Institute of Legal Studies.

To the best of my knowledge this Dissertation has been submitted.

Virat Vaibhav Singh

Semester: II
LL.M., CAL
Roll No.: 202310301030051

3
 A NOTE OF ACKNOWLEDGEMENTS AND THANKS

We cannot achieve anything worthwhile in the field of technical education unless or until the
theoretical education acquired in the classroom is effectively wedded to its practical approach
that is taking place in institutes. It gives me a great pleasure to have an opportunity to
knowledge and to express gratitude to those who were associated with my thesis work.

First of all, I would like to record my deep sense of obligations and gratitude to My
Supervisor Dr. Mahendra Kumar, Associate Professor, Institute of Lega Studies, Shri
Ramswaroop Memorial University for his constant guidance and persistent encouragement
in the preparation of this humble work. He has always been a source of reliability &
collecting of data & for having such an immense faith in me and helping me whenever I had
any trouble sharing with me, and given the vast knowledge about the field that no one else
would have done.
I am deeply indebted to all the Indian and Foreign writers and Judges whose writing and
decisions have been duly cited in this work and have given me inspiration and light for
preparing this work. I acknowledge my gratitude to those authors also whose works, though
might not have been cited in thesis, and helped me enormously in formulating my views and
enriching my thoughts.

I also take the privilege to record my deepest appreciation and heartiest thanks to all the
faculty members of my college whose constant guidance was unbounded source of inspiration
for me helped me to think on right track. The staff of the Law Library ILS, SRMU cheerfully
assisted the Scholar in locating the material for the present work.

VIRAT VAIBHAV SINGH

Shri Ramswaroop Memorial University

Deva Road, Barabanki

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 CONTENTS

Acknowledgement 4

Chapter -1 Introduction 01-12

Introduction
1.1.1 Understanding the Legal Mechanism
1.1.2 Lead Law: The Instrumentalist Vision
1.1.3 Indian Paradigm and Social Transformation
1.1.4 Social Change through Education
1.1.5 Social Transformation through Empowerment
1.1.6 Social Transformation through Employment
1.1.7 Social Transformation through Politics
1.2 Review of Literature
1.3 Objectives of Study
1.4 Hypotheses
1.5 Research Questions
1.6 Research Methodology
Chapter- 2 Indian Paradigm and Social Transformation 13-29
2.1 Preliminary remarks
2.2 Law and social transformation in ancient India
2.2.1 The legal system's social dimension
2.2.3 The approach of collective duties and rights
2.2.3.1 Family, the cradle of collectivism
2.2.3.2 Associations: the schools of collectivism
2.2.3.3 Charitable institutions, the shelters of collectivism
Chapter -3 Protection of the Human Rights of Women Under 30-51
International law
3.1 Protection of the human rights of women under international law

3.1.1 International Human Rights Instruments

3.2 Regional Instruments
3.3 Global
3.3 A. Vienna Declaration and Programme of Action

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3.3 B. International Conference On Population And Development
3.3 C. Beijing Declaration and Platform for Action
3.3 D. Millennium Development Goals
3.3 E. United Nations Conference on Sustainable Development
3.4 United Nations bodies
3.5 The Human Rights Framework in Practice
3.6 Women’s Rights in Public and Political Life
3.7. Sexual and Reproductive Health and Rights
3.8 Women’s Right to an Adequate Standard of Living
3.9 Violence against Women
3.12 European Court of Human Rights: jurisprudence
3.13 European Court of Human Rights: jurisprudence
3.14 Women’s Human Rights in Conflicts and Crises
CHAPTER 4 Relevant Constitutional Provisions and Developments for
52-76
Gender Justice
4.1 Introduction
4.2 Fundamental Rights
4.3 Directive Principles of State Policy
4.4 Role of Judiciary in Empowerment of Women
Chapter -5 Legislative Trends 77-102
5.1 Hindu Law
5.1.1 Rule of Monogamy
5.1.2 Divorce
5.1.3 Common grounds for divorce
5.2 Additional Grounds for Divorce available to wife
5.3 Muslim Law
5.4 Under Christian & Parsi Law
5.5 Maintenance under the Special Marriage Act, 1954
5.6 Maintenance under Section 125, Cr.P.C.
5.7 Article 44 and the Supreme Court
5.8 Legal Provisions for Women Empowerment In India
5.9 Conclusion
Chapter- 7 (Conclusion and Suggestions) 103-118

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Bibliography 119-120

Abbreviation 121

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 CHAPTER-I

INTRODUCTION

Social transformation denotes any departure from accepted norms or established patterns of
life. Social change encompasses alterations in society as a whole. According to MacIver,
society is defined as a "web of social relationships." Any changes occurring within these
relationships signify social change. Thus, observable modifications in interpersonal behavior
indicate social change. Society is viewed as a process rather than a static entity. If it were a
product, it would not undergo changes. Processes entail ongoing transformations; hence,
change is inevitable. Society is dynamic and ever-changing; it cannot remain stagnant. It can
be asserted that change is a fundamental aspect of society, and an unchanging society is
merely a myth. Women have played significant roles as agents of social change, leading to
considerable transformations in their lives. These women not only benefit from change but
also drive it. Throughout India's struggle for independence, women stood alongside men,
actively participating in the movement. The Freedom Movement was inclusive of women,
who initiated and fought battles for independence. Although women contributed to the
struggle for freedom, many continue to face subjugation, marginalization, and
disenfranchisement. Their ongoing struggle for change is integral to the nation's progress.
Freedom for Indian women signifies freedom for the nation to forge a new future.

Everything undergoes change except for the rule of change. The life of a nation or socio-
political system is dynamic, living, and organic. Political, social, and economic conditions
continuously evolve. Social norms and ideals evolve over time, presenting new challenges
and altering existing ones. However, not all changes are inherently positive; some may have
negative implications. The unpredictability of life's processes unfolds in various ways.
Nonetheless, does this imply that human agency plays no role in the process of change? Does
change occur independently of human will? The organization of law and the state over the
past two centuries suggests otherwise. The legal system, encompassing institutions, rules,
procedures, and remedies, represents society's effort, through the state, to regulate and steer
change in a desired direction. This perspective places legal institutions and the state at the
forefront of social discipline. In theory, sovereign power, as the ultimate legal authority
within a polity, can legislate on any issue and exert control over change processes. In highly

1
centralized political systems with advanced technology and communication, legal innovations
are assumed to influence social change. Roscoe Pound viewed law as a tool for social
engineering, underpinned by the belief that social processes can be consciously controlled by
humans, with law serving as the instrument for achieving such control. 1

In its formulation, law serves as a concise yet intricate amalgamation of principles, norms,
ideas, rules, practices, and agencies encompassing legislation, administration, adjudication,
and enforcement, supported by political power and legitimacy. This intricate legal
framework, condensed into a singular term, is abstracted from the social context in which it
operates, often spoken of as if it possesses the capacity to regulate that very context. Pospisil
observes that in Western society, the law is traditionally dissected as an autonomous and
logically coherent legal system wherein diverse rules stem from more abstract norms. These
norms are structured akin to a pyramid emanating from a fundamental norm or sovereign
will, portraying the legal system as a cohesive entity devoid of internal contradictions, where
individual norms derive validity from their logical alignment with the overarching legal
principles rooted ultimately in the sovereign's will and a fundamental norm. It is noteworthy
that legal systems in many Afro-Asian countries, formerly colonies of Western systems until
recently, have been modeled upon these Western paradigms, under the assumption that any
undesirable elements within their systems, such as outdated traditions, orthodoxies, or social
conventions conflicting with Western rationalism, could be rectified through legal means.

Yet, the question persists: how to address social issues like caste? Madhu Kishwar suggests
that despite the drawbacks associated with the persistence of kinship and community bonds,
the presence of robust community ties affords individuals a sense of stability and dignity
greater than what they experience as isolated individuals. This partly elucidates why the
impoverished in India maintain a strong sense of self-respect. This self-respect, which
egalitarian insistence thoughtlessly undermines, is nurtured by the support network facilitated
by kinship ties, offering more substantial social security than the collective impact of all
socialist government initiatives aimed at aiding the poor. Recognizing the caste system's
evolving nature and its adaptation to contemporary circumstances, both positive and negative,
could foster greater respect for India's culture and a deeper comprehension thereof. The caste

1 http://www.legalservicesindia.com/article/1918/Role-of-Lawyers-in-Social-Transformation.html Visited on
1/2/2018

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system extends security and community to millions of Indians, providing them with an
identity that Western science and thought have failed to furnish, for it transcends mere
Brahmin or Harijan categorizations—it embodies a kinship structure, offering a broader
support network than the confines of the nuclear family. 2

This concise narrative illustrates that the legislative efforts in India, aimed at reform through
a leading law approach, have been largely ineffective. It is undeniable that societal issues
such as the caste system must be eradicated or at least ameliorated. However, achieving this
requires a nuanced understanding of entrenched behavioral patterns rooted in customs and
traditions, along with providing appropriate support for individuals to adapt to modern
realities, rather than imposing top-down changes. Roscoe Pound articulated this perspective
by asserting that law, due to challenges related to proof, cannot govern attitudes and beliefs
but only observable behavior.

Teubner identifies the core issue in the detrimental effects of laws as the bureaucratization of
social relations and moral environments, leading to misinterpretation and disruption in
contexts previously governed by non-legal norms. While laws can be effective, they must
consider the contexts previously regulated by non-legal norms. Teubner further suggests the
need to establish a suitable relationship between law and other normative orders to avoid such
disruptions.

Various studies have explored the key factors contributing to effective social control through
law. Yehzkel Dror distinguishes between direct and indirect uses of law in promoting change,
acknowledging the risks associated with pursuing social change through a leading law
approach. However, Dror emphasizes that law can indirectly foster social change by shaping
social institutions, providing an institutional framework for agencies tasked with promoting
policy goals, and creating legal duties conducive to fostering change.

American sociologist William M. Evans, drawing from American experiences, outlines

fundamental conditions for a system of rules that can facilitate social change. These include
the need for new laws to be authoritative and prestigious, grounded in established cultural
and legal principles, and pragmatic in their aims. Evans also highlights the importance of

2 https://rostrumlegal.com/journal/the-role-of-law-in-social-transformation Visted on 1/2/2018

3
timing and strategy in legislative action, although acknowledging the complexity of
determining the appropriate timing and approach for effecting change through law. 3

1.1.1 Understanding the Legal Mechanism

An essential aspect to grasp is the significance of politico-legal frameworks within a nation's
fabric. To elucidate, law can be conceptualized in two distinct manners: "lead law" and "lag
law." Lead law entails the legal system determining the trajectory and nature of the societal
objectives. Conversely, lag law adapts to emerging social issues by formulating regulations.
At the dawn of independence, there was a consensus that the indigenous legal model had
become inadequate due to various factors and was entrenched in societal decay.
Consequently, a shift towards modernity was deemed necessary, guided by Western
ideologies. Western perspectives, exemplified by Henry Maine's derogatory characterization
of Ancient India's wisdom as "dotages of Brahmanical superstitions," underscored efforts by
colonial powers to undermine Hindu intellectual dominance. Exploring how marginalized
groups in Indian society embraced their status within the Dharmic order adds an intriguing
dimension. Contrary to the portrayal of a rigid hierarchical structure, the social system was
dynamic and arguably retains socio-political relevance to this day. 4

1.1.2 Lead Law: The Instrumentalist Vision

Regarding the discourse surrounding the "lead law" versus "lag law" argument in
comprehending the evolving social structure, it's imperative to grasp that the "lead law"
perspective operates under the notion of law as a tool, viewing it as a mechanism of authority
and a tool of governance, particularly when governance is centralized within the state. It
perceives law as an autonomous entity for social regulation and guidance, distinct and
detached from the society it governs. The transcription of law into written form can be
historically regarded as one of the initial steps toward harnessing its potential as a precise tool
of governance. Additionally, the accumulation of state power available for enforcement, the
professionalization of legal doctrine interpretation and application, and the

3Sally Falk Moore, Law as a Process : An Anthropological approach, 1993, Routeledge and Kegal Paul, London
4S. S. Dhavan, Indian Jurisprudence and the Theory of State in Ancient India, Mussorie, National Academy of
Administration, Printed Lectures, 1962

4
instrumentalization of intricate adjudicative procedures have all contributed to solidifying the
instrumentalist role of law. 5
In this perspective, the view regards sovereign power as the ultimate authority within a
political entity, empowered to enact legislation across all realms and regulate behavior within
its borders. Particularly within a highly centralized political structure supported by advanced
technology and communication infrastructure, it is commonly assumed that legal changes can
bring about societal shifts. Roscoe Pound interpreted law as a tool for shaping society.
Implicit in this viewpoint is the belief that human actions can be consciously influenced, with
law serving as the mechanism for such influence. Thus, law is depicted as a condensed
amalgamation of various elements including principles, norms, ideals, rules, practices, and
institutions involved in legislation, administration, adjudication, and enforcement, all
underpinned by political authority and legitimacy.

1.1.3 Indian Paradigm and Social Transformation

India is renowned for its vastness and intricacies. With a population exceeding a billion and
spanning over 3.28 million square kilometers, it experiences diverse weather patterns,
ranging from sub-zero temperatures in the Himalayas to scorching heat exceeding 50 degrees
Celsius in Rajasthan's deserts. It encompasses 16 distinct agro-climatic zones, boasts 18
official languages with 15 different scripts, and embraces nearly 2000 dialects alongside a
rich representation of global religions. Jawaharlal Nehru famously referred to India as the
"museum of world religions," highlighting its remarkable diversity. India's history spans over
5000 years, characterized by a vibrant culture and significant contributions to humanity.
However, India's journey also includes darker chapters, notably the impact of colonialism
which ravaged its economy and societal structures for centuries. The charter issued by Queen
Elizabeth in 1600, sanctioning the East India Company's trade and subsequent colonization,
marked a profound shift in India's socio-legal fabric. Over 350 years, a new system was
imposed, leading to significant adjustments. In the mid-20th century, India emancipated itself
from colonial rule, embracing republicanism, liberal democracy, and a secular state
framework, signaling a pivotal moment in its history. 6

6
5 As quoted in Roger Cotterrel’s Sociology of Law: An Introduction, Butterworth’s, 1992 Sally Falk
Moore, Law as a process, (1993) Routeledge and Kegan Paul, London.

6 Discovery of India, Jawaharlal Nehru, Oxford University Press, 1976

5
During the period of Muslim rule in Medieval India, significant distortions occurred in its
social institutions, while British colonialism further exacerbated its economic decline. In the
mid-19th century, as the Indian freedom struggle emerged alongside what is often termed the
Indian renaissance, efforts were made not only to address the economic exploitation through
political reforms but also to initiate social reforms from within the country. At that time,
Indian society grappled with various social ills, including the caste system, untouchability,
child marriages, sati, and discrimination against women. The caste system stemmed from the
Varna system, which initially served as a method of social organization based on occupation
rather than birth, according to the analysis of Prof PV Kane. However, over time, these
practices became entrenched as orthodoxies and social evils. For instance, sati and child
marriages originated from medieval warfare, where widows feared capture and violation by
enemies and thus chose to self-immolate.7

1.1.4 Social Change through Education

Education plays a crucial role in the modernization of Indian society. It serves as the primary
institution for granting women equal status, rights, and opportunities. In pre-independent
India, education was primarily accessible to males from privileged backgrounds, particularly
those belonging to the Brahmin community. Even Brahmin females were denied educational
opportunities. However, the present scenario reflects a significant shift. Upon the birth of a
girl child, society now encourages parents to prioritize her education. Government initiatives,
such as the Bhagya Laxmi scheme, provision of mid-day meals, free books, and uniforms,
further incentivize education for girls. Consequently, there is a growing interest among
parents to educate their daughters. While female literacy rates have steadily increased over
the decades due to these efforts, they still lag behind male literacy rates.

1.1.5 Social Transformation through Empowerment

The term "empowerment" inherently implies the presence of "power." Women's
empowerment denotes the elevation of their status within the societal power framework. This
represents a pivotal concept driving change among women. An empowered woman is
characterized by her capability and authority to make impactful decisions, whether in
economic, social, or political realms. Political empowerment, specifically, is crucial for the
comprehensive development of a nation. Datta defines political empowerment of women as

7 Ibid

6
the "attainment of the capacity and the implementation of necessary strategies by women to
effectively and professionally wield their authority, benefiting both their personal
advancement and societal progress."

1.1.6 Social Transformation through Employment

Concerning women's employment, the majority find themselves working in the unorganized
or informal sector. This trend stems from the undervaluation and lack of recognition of their
household labor, which often goes unpaid and unnoticed. Domestic chores undertaken by
women are often perceived as routine responsibilities rather than significant contributions,
while men's work is typically seen as essential and deserving of recognition. Under the
influence of patriarchal norms, women encounter inequality manifested in their assigned
tasks and lower wages. Additionally, the absence of support services like hostels, daycare
facilities, and maternity care exacerbates their challenges. Gender biases stemming from
patriarchal systems further compound their situation, resulting in discrimination against girls
in areas such as healthcare, nutrition, and education. Consequently, girls experience lower
educational attainment, poorer health outcomes, and inadequate nutrition, hindering not only
their personal development but also their active involvement in societal progress. 8

1.1.7 Social Transformation through Politics

In contemporary India, women are now occupying prominent positions such as President,
Prime Minister, Speaker in the Lok Sabha, and Leader of the Opposition. However,
throughout Indian history, women have not held significant administrative or political roles.
Even today, female participation in politics remains notably lower than that of men. This can
be attributed to lower rates of involvement in voting, public administration, and public
discourse, as well as a lack of supportive environments within the political sphere. The 19th
century witnessed substantial changes in the social, economic, and political standing of
women in India. Those women engaged in politics predominantly belong to the urban elite,
while poorer women are typically confined to domestic life. Interestingly, a higher percentage
of women from rural and impoverished backgrounds participate in voting compared to their
urban and educated counterparts. 9

8 Sally Falk Moore, Law as a process, (1993) Routeledge and Kegan Paul, London
9Civil Rights Protection Act of 1956 was passed to reinforce the declaration made in Article 17 of Indian Constitution,
which made Untouchability a penal offence. Glanville Austin in his celebrated work “Indian Constitution, the
cornerstone of Nation” has written in this context, that Indian constitution is more of a social than political document

7
1.2 Review of Literature
Thoroughly examining existing literature is crucial for any research endeavor, providing a
foundational background to aid researchers in crafting and analyzing their work. This section
presents a review of available literature relevant to the proposed study. Many non-
governmental organizations have undertaken the empowerment of impoverished women by
organizing them into groups and enhancing their capabilities through microcredit programs.
Providing financial credit to women and assisting in establishing small enterprises are seen as
strategies for reducing poverty and promoting economic empowerment. It is essential to
survey relevant literature when addressing a research problem, situating the study in context
by acknowledging the volume of published work, particularly focusing on the period from
2000 to 2012.

In this study, literature concerning Self-Help Groups (SHGs), microfinance, microcredit,

livelihood finance, care economy, and their relationship with poverty reduction and women's
empowerment, particularly among tribal women, has been examined. Professor Dastgir Alam
(Alam, 2008) discusses in his paper, "Women in Labor Market: An Aspect of Social Justice,"
the historical lower share of women in the Labor Force Participation Rate (LFPR). Social
justice, defined as participation in various human activities, both social and economic, is a
critical consideration. Women's LFPR can serve as a vital indicator for economic
independence and confidence, contributing to a fair society. However, the study highlights
challenges, including male dominance leading to women occupying lower-paying jobs,
especially in rural and urban markets. The educational scenario is also unfavorable, with
illiterate women dominating the labor market.

Dutta (2002) acknowledges both the successes and failures of government initiatives aimed at
improving women's conditions in India. Despite efforts, problems such as poverty, illiteracy,
poor health, unemployment, and malnutrition persist. Poverty, in particular, hinders proper
education for women, as parents prefer their daughters to work rather than attend school.
Parvathi and Karthikeyan (2002) emphasize the role of education in human resource
development and empowerment. They argue that education is a potent force for
empowerment, providing the necessary knowledge to achieve it.

Shahla Ezazi (2009) explores the status of women's studies in Iran and its societal impact,
providing a historical overview of the women's movement in Iran. She analyzes the

8
discipline's position in universities, gender approaches, research methodologies, and the
contributions of universities to addressing women's issues. Ezazi concludes that although the
women's movement in Iran has achieved some demands, there are still objectives to be
fulfilled.
Muhammad Yunus (2004) discusses in his article, "Grameen Banks, Micro Credit, and
Millennium Development Goals," the development of microcredit initiated by the Grameen
Bank in Bangladesh. The Microcredit initiative caters to the financial and societal
requirements of the underprivileged, particularly women, in accordance with the Millennium
Development Goals.

1.3 Objectives of Study

The ongoing research initiative aims to achieve multifaceted objectives, including the
formulation and advancement, in collaboration with other organizations, of educational
training and action programs tailored specifically for women, especially those grappling with
economic challenges. The endeavor actively engages in activities aligned with the goals of
CWDS to foster attitudinal shifts and catalyze changes that encourage the effective
involvement of women across all societal strata. Central to its mission is the challenge to the
prevailing ideology of male dominance and the subordination of women, seeking to empower
women with equal access to and control over diverse resources encompassing material,
human, and intellectual assets. The research is committed to eradicating discrimination and
all forms of violence against women and female children, while concurrently establishing and
fortifying partnerships with civil society, with a distinct emphasis on women's organizations.
Upholding constitutional and legal provisions to safeguard women's rights is paramount, as is
the cultivation of a positive societal image of women, recognizing their substantial
contributions in the social, economic, and political spheres. Additionally, the research focuses
on developing critical thinking skills, nurturing decision-making abilities, and promoting
collective action among women, with a specific emphasis on facilitating informed choices.
Actively advocating for the integration of women in all facets of life, the research also
prioritizes providing information, knowledge, and skills to empower women for self-
employment opportunities.

9
1.4 Hypothesis
Hypothesis 1:
The socio-economic factors, including ignorance, illiteracy, and economic instability,
significantly contribute to the vulnerability of women in India, leading to a higher likelihood
of experiencing domestic violence.
Hypothesis 2:
The lack of awareness about existing legal provisions, coupled with the ineffectiveness of
these provisions, contributes to underreporting and the perpetuation of domestic violence in
India, highlighting the crucial role legal literacy plays in addressing and preventing such
crimes.

1.5 Research Questions

Q 1. How have historical and socio-legal developments in India contributed to the
empowerment and social transformation of women, particularly in the context of
constitutional provisions and legal mechanisms?
Q 2. What role has education played in the social transformation of women in India, and how
can further advancements in educational programs contribute to women's empowerment?
Q 3. To what extent does employment, especially in the unorganized or informal sector,
impact gender inequalities and contribute to the socio-economic empowerment of women in
India?
Q 4. How effective are existing legal provisions, including those related to self-help groups,
microfinance, and microcredit, in addressing poverty reduction and promoting economic
empowerment among women, with a focus on the period from 2000 to 2023?
Q 5. What are the key challenges and opportunities in the implementation of constitutional
and legal provisions aimed at gender justice in India, and how can these challenges be
addressed to enhance women's rights and social transformation?
Q 6. How does the National Commission for Women (NCW) contribute to women's
empowerment in India, and what are the potential areas for improvement in its role and
functions?
These research questions aim to explore various facets of the intersection between feminism,
the Indian Constitution, and social transformation, offering a comprehensive understanding of
the challenges and opportunities in the context of women's empowerment in India.

10
1.6 Research Methodology
1.6.1 Research Design:
E.A. Schuman has explain that, the search design is not a highly specific plan to followed
without deviation, but rather a series of guide post to keep one headed in the right directions,
“In the present study the search is designed with the following contests.”
 Nature of the study
 Types of the study
 Method of Data Collections
 Source of Data collection.
 Analysis and interpretation of Data

1.6.1.1 Nature of the study:

The study's nature is "Analytical," as the researcher presently analyzes the study's problem.
The study is of a Doctrinal nature, where the doctrinal researcher examines a legal
proposition by analyzing existing statutory provisions using reasoning. Doctrinal research
relies exclusively on secondary sources of data and does not involve fieldwork. The current
study is both exploratory and diagnostic in its formulation.

1.6.1.2 Type of study:

The current research is categorized as "doctrinal research," signifying an investigation
conducted on a legal proposition through the analysis of existing statutory provisions and
cases, employing reasoning power. One significant merit of this approach lies in validating
hypotheses through a firsthand examination of authoritative sources. The present study
employs this method due to its rich information content, facilitating the researcher in
acquiring knowledge.

1.6.1.3 Method of Data Collections:

The research relies on secondary data collection methods, utilizing a process that involves
reviewing diverse sources such as books, legal cases, enactments, and various online
websites. The researcher has gathered information for the current study by perusing a range
of materials, encompassing pertinent case statutes, reports, and articles from various journals

11
and periodicals. In essence, the researcher has employed a secondary data collection approach
to gather the necessary information.

1.6.1.4 Source of Data Collection:

Given that the current investigation is doctrinal research, the information has been gathered
utilizing a secondary method of data collection. The researcher opted for a pertinent and
burgeoning subject for the research, resulting in the study relying on the compilation of
relevant materials from various books by distinguished authors from different libraries.
Additionally, relevant cases and commentaries, along with information from newspapers,
were considered.
Primarily, the researcher accessed pertinent websites related to the topic for data collection.

1.6.1.5 Analysis and Interpretation of Data:

This study involves initially gathering data from secondary sources, which will then undergo
necessary editing to format it appropriately for the creation of a qualitative research project.
Following the editing process, a thorough analysis of the data will be conducted, leading to
the derivation of interpretations.

12
 CHAPTER II
INDIAN PARADIGM AND SOCIAL TRANSFORMATION

2.1 Preliminary remarks

Over five thousand years, Indian society has traversed a diverse array of political and social
landscapes, witnessing fluctuations in human accomplishments concerning societal well-
being, economic prosperity, and cultural advancements. These experiences have yielded
valuable insights into the dynamics of social transformation and the role of law within it.
Throughout this journey, a set of cultural values gradually solidified, leaving an indelible
mark on the legal framework. Spanning traditional, colonial, and developmental eras, the
Indian legal system boasts a rich tapestry of experiences concerning the societal aspects of
law. This chapter delves into several key themes meriting critical examination. These include
society's enduring collective pursuit of justice and welfare, the evolution of a multicultural
ethos emphasizing mutual tolerance and legal pluralism, the assimilation and challenges
posed by English law, the delicate balance between tradition and change, particularly in
preserving positive cultural elements while advocating reforms, the legal system's responses
to economic and social injustices, whether colonial or indigenous, and a sociological
exploration of the foundations and functions of law within society. Understanding the
dynamics of law-society interactions across different stages of Indian societal evolution,
along with the underlying context and social ramifications, proves invaluable. While the
present legal framework reflects the experiences and institutions of the recent past, the
ongoing socio-cultural milieu continues to exert influence on legal development. Examining
the legal system's past competencies and challenges in adapting to social change offers
insight into its historical evolution. 10

10 Upendra Baxi distinguishes social history of Indian law from legal history, and considers the former as

indispensable for the maturation of concern with sociology of p. 20. law in India. See, Upendra Baxi,
Toward a Sociology of Law (Satavahana, Delhi 1986)

13
Furthermore, gaining a sociological understanding of the foundation and functioning
of law will elucidate the rationale behind the evolving approaches and outcomes of
law. Examining analyses conducted by Indian sociologists on the patterns and
trajectory of social change, as well as the strategies employed for managing change,
is expected to provide insight into the role and challenges of law within the dynamic
landscape of social transformation. The objective of this chapter is to unravel this
evolutionary process.

2.2 Law and social transformation in ancient India

This section emphasizes the extent to which the ancient Indian legal system was geared
towards promoting social happiness, the principles guiding the approach to justice regarding
collective duties and rights, and the evolution of meaningful relationships between law and
society. In particular, the interpretation of ancient texts and the adaptation of customs and
their evolving forms should be viewed as the crucible of change.

2.2.1 The legal system's social dimension

During ancient India's early era, which was primarily influenced by religion, the concepts of
religion, morality, and legal obligation were deeply intertwined. They stemmed from the idea
of righteousness (known as rta), which naturally dictated their relationships and mutual
support. Any wrongdoing was viewed as a sin, and appropriate penance or penalties were
assigned to rectify it in a fair and proportional manner. 11 Although the blending of norms was
inevitable, over time, there was a refinement in legal principles by incorporating support
from ethical principles and prevalent customs. 12 Dharma played a fundamental role in
upholding social order, promoting general well-being, advancing humanity, and ensuring
social stability. 13 It denoted the principles adhered to by those versed in the Vedas and those
sanctioned by the conscience of the virtuous who were free from animosity and excessive
attachment. It stressed the importance of adhering to the rule of law. The Brihahadaranyak
Upanishad proclaimed, "There is nothing superior to dharma. Even a weak individual hopes
to overcome a strong one through the power of dharma, just as he overcomes injustice with

11 P.N. Sen, General Principles of Hindu Law (Allahabad Law Agency, Delhi 1984) at pp. 342-44.
12 J.D.M. Derrett, Religion, Law and the State in India (Faber & Faber, London 1968) at p. 97, see also, Werner
Menski, Hindu Law Beyond Tradition and Modernity (Oxford University Press, New Delhi 2003) at p. 78
13 PV. Kane, History of Dharmashastra, Vol. III (2nd Edn., Bhandarkar Oriental Research Institute, Poona 1973) at

PO. 2-5.

14
the assistance of the King." Arising from societal consensus rather than from an authoritative
figure dictating the law, it engaged every Hindu in an ongoing process of reconciling
individual desires with the welfare of the community. In essence, it served as a mechanism
for self-disciplined organization, as expressed by Menski.

The evolution of law paralleled the advancement of the community's culture, evident in the
acknowledgment of the fourfold sources of law: dharma (righteousness), vyavahara
(practice), charitra (custom), and rajasasana (royal decree), with each successive source
superseding the preceding ones. However, in practice, royal decrees often reflected reason or
fairness and mirrored the community's perspective rather than simply conveying the ruler's
orders. Dharma, understood as a form of divine justice or intervention, determined the
relative suitability of each source of law. Respectable customs, or sadachara, were elevated to
the status of enforceable practices. 14
It should be recognized that the sense of obligation associated with a custom is not merely a
conceptual construct, but rather a genuine compelling force stemming from the need to
uphold and enhance communal existence. Additionally, the regulations pertaining to kula,
jati, sreni, and puga, or the social and local groups and collective units (samuha) conventions,
were enforceable against the respective entities. 15 While it was generally expected that
customs adhere to shastras and also complement them, the significance of sastrakaras in
rearticulating the law based on social customs was notable. For instance, Vijnanesvara
authored a respected commentary on Yajnavalkya Smriti, interpreting various verses
considering social customs and principles of justice. He introduced the secular concepts of
sapinda and svatva (property), potentially broadening the rights of women significantly. 16
Derrett observes that commentators demonstrated immense creativity by making
modifications to the law without changing its text. He emphasizes the importance of caring
for the welfare (yogakshema) of vulnerable individuals such as the helpless, elderly, visually
impaired, disabled, mentally ill, widows, orphans, those afflicted by illnesses and disasters,
and pregnant women. This care involves providing them with essential provisions including

14 Manu, 1-108, 11-6, IV-178, Yaj, 1-7

15 JD.M. Derrett, supra, n. 3 at p. 157, Manu, VIIl-411, Gautama, X1-21-2
16 I.S Pawate, Daya-Vibhaga: Or the Individualisation of Communal Property and mmunalisation of Individual

Property in Mitakshara Law Cnd Edn, Karnataka University, Dharwar 1975) at p. 1; see also, P. Ishwara Bhat,
"Protection against Unjust Enrichment and Undeserved Misery as the Essence of Property Right Jurisprudence
in Mitakshara" (2006) 48 JILI.

15
food, shelter, clothing, and medicine tailored to their specific needs.17 It is by fulfilling
positive duties that the King can assert his role as a creator of the era, rather than allowing
the era to define his kingship. 18 Both the corporate and religious realms have taken on the
responsibility of bridging the divide by actively contributing through philanthropy and social
initiatives.19 Numerous aspects of justice were recognized in ancient India. The correlation
between truth and justice is evident in the administration of justice. "Satya entails speaking
the truth, while dharma involves putting truth into practice." 20 Dharma represents the path of
life that transforms the truth, as understood by individuals with insight, into action that aligns
with those truths. Viveka, or reason, serves as the instrument of justice by employing a sense
of fairness and an unbiased approach. Justice is also found in fulfilling one's own duties. As
the Bhagavadgita states, "By being devoted to one's own duty, a person achieves
perfection."21 The theory of karma embodies another aspect of justice. By emphasizing that
"one reaps what one sows," it encourages individuals to engage in good deeds, counteract
negative actions, and strive for moral improvement to elevate their life's circumstances.
Karma, viewed as a principle of communal justice, advocates for societal ethics that unite the
entire community, as emphasized by Tilak. Legal justice, as well as justice in coordinating
economic activities and desires for pleasure, highlights the importance of economic justice
and social welfare. 22 Bodhisattva dedicates themselves and their followers to alleviating the
suffering of all living beings, serving as a remedy for the sick, providing nourishment to the
hungry and thirsty, offering protection to the vulnerable, guiding those who are lost, and
shining light in times of darkness. 23 In general, profound contemplations regarding justice
provided a foundational framework for both the legal system and society. The legal system's
emphasis on adhering to varnasrama dharma and its gradual favoritism towards males led to
hierarchical structures and principles governing the determination of penalties and access to
justice. Instances of caste-based differentiation in the imposition of penalties for offenses like
adultery, assault, and murder, as well as gender-based discrimination in property rights,
justice administration, and public entitlements, reflect this hierarchical arrangement in

17 Mahabharata, Shanti parva 24-25, 86.

18 Ibid, at pp. 69-79.
19 See infra, at pp. 81-83.

20 Satyam vada dharmamchara; regarding law of evidence in ancient India see, Rama Jois, supra, n. 16 at pp. 411-

25.
21 II-51.
22 B.G. Tilak, Gita Rahasya (Tr.), B.S. Sukthankar (2nd Edn.) at p. 664. India, Vol. II (Ramakrishna Mission, Calcutta 1937,
2001) at pp. 159-61.
23 Vidhushikhara Bhattacharya, "Buddhism in relation to Vedanta" Cultural History of India, Vol. I (Ramakrishna Misson,

Calcutta 1937, 2001) at pp. 559, 573. Also see, Itivuttaka Sutra, Dhammapada, Ch. 24.

16
contrast to the detailed procedural rules and principles of substantive justice. The Buddhist
tradition, however, challenged this anomaly by advocating for equality and safeguarding the
collective interests of people engaged in various fields of commerce, while also promoting
the idea of non-exploitation.24

2.2.3 The approach of collective duties and rights

In ancient Indian jurisprudence, the fundamental approach centered on the faithful and
altruistic fulfillment of duties, upon which the framework for human rights and welfare was
constructed. This perspective sensitized the relationships between groups and their members,
as well as interactions within the groups, emphasizing the importance of duty in achieving
collective benefits. Collective duties encompassed responsibilities of groups, their members,
and the populace as a whole. The concept of duty provided ethical justifications and rational
elements of efficiency within the legal system. Principles of distributive justice, welfare, and
equal liberties for all were envisioned and implemented through this approach, establishing
them as social virtues supported by moral philosophy. 25
The basis of collective rights and responsibilities in the Vedas and Upanishads lies in a
shared perspective and fair legal safeguards. Rigveda states that no individual holds
superiority or inferiority; rather, all are regarded as siblings. The emphasis is on advancing
the common good and achieving progress together. 26 It also spoke to individuals, urging
them, "May there be unity in your decisions, hearts, and thoughts. May the resolve to live in
harmony together be steadfast within each of you."27 The Atharvaveda introduced a profound
philosophy of collectivism, stating, "All have equal rights to food and water. The burdens of
life are shared equally by all. Living harmoniously and supporting each other is akin to the
interconnected spokes of a chariot wheel." This concept aligns with the idea of vasudaiva
kutumbakam, emphasizing unity. The Yajurveda stressed the importance of love for all
communities as a means to earn affection. The Ishopanishad advocated for collective well-
being, asserting that sacrifice and selfless work are the true entitlements to material things. It
also emphasized viewing the interests of others as one's own, fostering a sense of unity.

24 Indra Deva and Shrirama, "Growth of Traditional Legal System: The Perspective of Change through the Ages" in Indra
Deva (Ed.), Sociology of Law (Oxford University Press, New Delhi 2005) at pp. 324, 331.
25 Р.В.Gajendragadkar, "The Historical Background and Theoretic Basis of Hindu Law", 2, The Cultural Heritage of India

(Ramakrishna Mission, Calcutta 2001 rept.) at p. 425; D.N. Tripathi, "Social Justice and Traditional Indian Thinking" in
B.R. Purohit and
Sandeep Joshi (Ed), Social Justice in India (Rawat Publications, Jaipur 2003) at p. 84; PV. Kane, History of Dharmashastra
(Bhandarkar Oriental Research Institute, Poona 1973) at p. 97.
26 Rigveda, V-60v.

27 Ibid, X-191v

17
Welcoming and attending to guests were traditional practices, with householders eating only
after guests and dependents were cared for. The Bhagavadgita highlighted duty over rights,
stating that one's actions are their duty and that the results are not to be claimed as rights.
Emphasizing prompt and appropriate duty performance ensured better protection of rights.
Gandhi echoed this sentiment, teaching that the rights we deserve and preserve stem from
dutiful actions. 28

2.23.1 Family, the cradle of collectivism

As the fundamental and most intrinsic form of human organization, the family had the
potential to act as a nucleus for collective action. The Joint Hindu family, once prevalent
throughout India but now mostly limited to two generations, comprised all undivided
descendants of a common ancestor along with their female dependents. They shared common
living spaces, residences, and kitchens in an atmosphere characterized by love and affection.
In ancient India, where spirituality influenced every facet of life, family life was enriched
with the values of collective responsibility. The relationship between spouses was based on
mutual obligations stemming from the sacrament of marriage. Sacred laws mandated
reverence for elders, affection toward the younger ones, and protection of the vulnerable.
Overall, the legal institution of the Joint Hindu family stood as a prominent indigenous
arrangement for communal living and an effective system of social security. The
interconnectedness where each individual's life was intertwined with another's provided both
emotional and rational support for the collective existence of the family. However, the
decline in women's rights concerning family property was a regrettable development that
contradicted the essence of collectivism and instead reflected patriarchal norms.

2.2.3.2 Associations: the schools of collectivism

The extensive history of corporate existence in India has contributed significantly to various
aspects including philanthropy, religion, education, healthcare, and professional
development. Over time, a structured legal framework has evolved to govern voluntary
organizations. These legal principles, outlined in texts such as Smritis, delineate detailed
provisions regarding their democratic setup, adherence to purpose, operational and financial
transparency, and equitable consideration of collective and individual interests. These laws
regulated a wide array of entities including urban associations (naigama), merchant and

28 М.К. Gandhi, Harijan, 8-6-1947.

18
artisan guilds (shreni and gana), non-Vedic adherents (pakhandis), as well as Buddhist and
Jain associations (sanghas). Additionally, they governed the administration of temples and
shrines, ensuring proper management and accountability. 29

These organizations engaged in extensive charitable work, provided diverse services, and
addressed social needs. 30 U.N. Ghosal observed that guilds and other organizations
collectively initiated charitable endowments and accepted funds from the public for the same
purpose. Sometimes, merchant guilds imposed tolls on various goods for similar objectives.
According to Smritichandrika, agreements were made by various groups for distributing
responsibilities among householders, landowners, and individuals to prevent minor calamities
like droughts or threats from thieves or government oppression, and to carry out various
religious acts. Their communal existence was strictly governed by legal principles. As stated
by Katyayana, members of these groups were expected to fulfill their duties diligently and
follow the rules of their respective groups, while also complying with Royal Edicts unless
they conflicted with their duties. R.C. Majumdar highlights the spirit of cooperation prevalent
in ancient Indian society across various domains. Guilds comprising professionals, service
providers, and traders played a vital role in the economic sector. In the realm of religion,
Buddhist sanghas introduced religious corporatism. Groups of Buddhist monks would settle
in viharas during the rainy season, leading to the establishment of permanent monastic
communities. Due to either indigenous republican practices or the absence of designated
successors, a form of internal democracy, division of labor, and hierarchical governance
evolved over time. The maxim "sangham sharanam gachchami" (Let me take refuge in the
association) exemplified the voluntary yet strong loyalty of mendicants to the sangha.
Educational institutions established by the sanghas thrived due to the presence of
monasteries.

2.233 Charitable institutions, the shelters of collectivism

In ancient India, the spiritual development of individuals had a positive impact on human
relationships. Temples and mutts were significant religious institutions among Hindus.

29Katyayana makes this kind of classification. Kat, 678-81. For a general discussion see, M. Rama Jois,
Legal and Constitutional History of India, Vol. I (N.M. Tripathi, Bombay 1984) Ch. 10 at pp. 174-86.
30Historical evidences about the flourish of associations can be seen in Nasik Inscriptions in Epigraphica India, Vol. VIII
at p. 88, Mathura Inscriptions in Epigraphica India, Vol. XXI at pp. 55, 61, Junnar Buddhist Cave Inscriptions, "Indore
Copperplate" etc. The guilds of weavers, oilmen, potters, watermen, flour makers, bamboo workers and of merchants
are traceable. They acted not only as community bankers but also provided

19
According to Raghunandan, the concept of an image of the Supreme Being, devoid of
physical form and attributes, representing pure spirit and singular existence, was established
for the benefit of worshippers. The Gautama Dharma Sutra (500 BC) mentions temples and
emphasizes the principle of the indivisibility of sacrifices, as well as the provision of
prepared food and water for religious purposes. The central idea conveyed is that establishing
a communal space for public worship is commendable, and it is the responsibility of both the
ruler and the populace to maintain it. 31 Implemented in reality, the shared responsibility for
temples led to a magnificent manner in which they operated as hubs for social welfare,
learning, healthcare, and cultural activities. 32
Sri Shankaracharya and others initiated the practice of establishing mutts to disseminate
religious philosophy, aiming to bestow collective spiritual benefits upon their community
members by imparting spiritual knowledge and facilitating religious observance. The
preference for collectivism over individualism also permeates the domain of endowments.
Two main types of endowments exist: Ista, which involves dedications for conducting
specific personal religious rituals regularly, and Purtta, which encompasses dedications such
as stepwells, wells, ponds, temples, food distribution, shelters, hospitals, and educational
institutions.33 As per Manu, individuals should consistently engage in sacrificial rituals
(ishta) and acts of philanthropy (purta) without fatigue, believing that offerings and
charitable deeds conducted with conviction and rightfully earned wealth yield boundless
benefits. He advises one to wholeheartedly practice the duty of generosity (danadharma) to
the best of their ability, joyfully contributing through both sacrifices and charitable acts
whenever they encounter deserving recipients for their gifts. 34 Yajnavalkya has listed
different acts of charity, among which are assisting tired guests, caring for the sick, showing
reverence to deities, and offering shelter to travellers.35
The concept of obligation to the community is mirrored in the formal act of offering. This
act, known as dedication (pratista), comprises two crucial components: intention (sankalpa),
and the verbal and practical declaration of dedication (utsurga). Donations to hospitals

31 Sukra Niti, Ch. IV v. 9.

32 Romila Thapar, A History of India, Vol. I (Penguin Books, Middlesex 1966, 1991) at pp. 189 -91, 210-11. 51 B.К.
Mukherjea, supra, n.59 at pp. 23-323. 52 Ibid, at pp. 326-28.
33 B.K. Mukherjea, supra, n. 59 at pp. 12-13, 50-51; Mahabharata, Atri 44; Parashargrihya sutra, Apararka, at p. 29.
34 Manu, Vol. IV at pp. 226-27.

35 Yaj, Vol. I at pp. 209-10.

20
(arogya shala) and educational establishments (patashala) were esteemed as the highest form
of giving (atidan). 36
In ancient texts, principles were established to prevent the suffering of the donor's family due
to gifts, and to ensure gifts were given only to deserving individuals or worthy causes. Under
the influence of Buddhism, humanitarian efforts were promoted, particularly aimed at
alleviating suffering associated with old age, illness, grief, physical pain, and despair. 37
Donating to monasteries became easy as the sangha enjoyed a kind of perpetual existence to
support the entire community of Buddhist monks. Influenced by Buddhism, King Ashoka
established lodging houses and medical facilities for the welfare of humans and animals and
appointed officials to oversee charitable activities.

The significant economic downturn of the 1930s dealt a blow to the ideal of individualism.
Social realities came to the forefront, revealing that beneath the noble ideals of the laissez-
faire philosophy lay the dark side of capitalism. As Julius Stone stated, "The mistaken belief
that a laborer, reliant on daily wages, opposes legislative protection for his wage and working
conditions in the same way as a large commercial or industrial corporation opposes
restrictions on its free negotiations is now widely acknowledged" (Social Dimensions of Law
& Justice).

The truth is that the working class was a product of the industrial revolution just as much as
fundamental rights were. As capitalism peaked, it became clear that in practice, funda mental
rights only benefited the capitalist class, while for the working class, they held no real
significance. The economic downturn exposed the reality that although the ideology of
laissez-faire prevailed, its outcome was a society divided between the privileged and the
disadvantaged. Capitalism, once a force against feudal vested interests, now harbored its
own. Regrettably, as President Roosevelt remarked, "One third of our population, the
majority of whom are in industry and agriculture, are poorly fed, clothed, and housed" (one
speech to the nation).

Let's examine the foundational principles of Indian society throughout its ancient, medieval,
and modern eras, which underpin the idea of fundamental rights in India. The notion of

36 where Nandi Puran is cited to the effect that a man by the gift of the means offreeingfrom disease, becomes the
giver of everything.
37 B.K. Mukherjea, supra, n. 59 at pp. 19-20.

21
outlining policies concerning the social and economic responsibilities of the state is not alien
to India. B.A. Selectore highlights that the formulation of what we now understand as rights,
even in a modern context, can be traced back to Kautilya's time. Kautilya categorized these
rights into civil, economic, and legal realms. In the fourth century B.C., Kautilya's
Arthashastra explicitly mandates that the king must ensure maintenance for orphans, the
dying, the infirm, the afflicted, and the helpless. Furthermore, the king is obligated to provide
sustenance for both mothers and their offspring. Noted historian U.N. Ghoshal identifies
several civil rights enjoyed by individuals in ancient India, which are documented in the
Smritis. These rights were either explicitly acknowledged or understood through dharma or
inferred from the concept of duties. The Indian tradition has deep roots in the recognition and
exercise of rights since ancient times.

The political vacuum created by the death of Aurangzeb in 1707 was ultimately filled by the
British after they won the battle of Plassey in 1757. During the intervening period the British
established a new legal and political order, in certain respects largely based on their own and
in others greatly modified to suit Indian conditions and their own interests. It was primarily
the English officialdom that ruled the country to the entire exclusion of Indians from the
position of influence and authority. The British had come to India as traders to make profits
out of Eastern trade. The attainment of political power led them to drain as much wealth from
India as possible. With this object in view they started to exploit the country economically
and attacked Indian economy in various ways. Consequently some of the economic
consequences of the British rule were disintegration of rural economy and decline of trade
and industry. The British authority recognized and regulated India's economy in the interest
of British trade and industry and organized a modern administrative system to guarantee
order and security. But no one felt any responsibility for the welfare of the people. The
Indian officials who had administrative responsibility had no effective power to enforce their
decision. The whole system continued to be exploited to further their commercial interests.
However, till 1813 they did not interfere in the religious and cultural life of the country, but
after 1813 they took active steps to transform the social and cultural life of the Indians.
Because of the industrial revolution which had begun in the middle of the eighteenth century,
the British wanted to make India a big market for their goods. Science and technology also
opened new vistas of human progress. The eighteenth and nineteenth centuries witnessed a
great ferment of new ideas in British and Europe which influenced the British outlook
towards the problem of India. The great French Revolution of 1789 with the message of

22
liberty, equality and fraternity generated powerful democratic sentiments and unleashed the
force of modern nationalism. The three outstanding characteristic of new thought were
rationalism or faith in reason and science, humanism or love of man, and confidence in the
capacity of man to progress.

The framers of the Constitution faced a three-fold problem, while framing the provisions
relating to fundamental rights, namely, first, the difficulty of defining what fundamental
rights were and preparing a list of the same; second, classification of rights into justiciable
and non-justiciable and third, devising effective protection for the rights defined therein.
The last problem could be solved by allowing the more easily definable rights to be enforced
in the ordinary courts and keep the rest out of their purview. Finding it difficult to come to
conclusion with regard to the first two problems, Govind Vallabh Pant moved a resolution in
the Constituent assembly on 24 January 1947 for appointment of an Advisory Committee to
work out a practical solution to the problem. The first meeting of the Committee was held on
27 Fabruary 1947 and Vallabh Bhai Patel was unanimously electedas its Chairman.
Subsequently the Advisory Committee constituted five sub-committees, one of which was
the sub-committee on Fundamental Rights. (C.A.D.)

Following the demise of Aurangzeb in 1707, a void in political leadership emerged,

eventually filled by the British subsequent to their victory in the battle of Plassey in 1757.
Throughout this interim period, the British instituted a fresh legal and political framework,
drawing heavily from their own systems while adapting to Indian circumstances and their
own interests. Predominantly, it was the English bureaucratic class that governed the nation,
marginalizing Indians from positions of influence and authority. Initially arriving in India as
traders aiming for profit from Eastern commerce, the British, upon attaining political
supremacy, focused on extracting wealth from the region. This involved various forms of
economic exploitation, resulting in detrimental effects on the rural economy and commercial
activities. British control over India's economy was orchestrated to benefit their own trade
and industry, accompanied by the establishment of a modern administrative apparatus to
ensure stability. However, there was a glaring absence of accountability towards the welfare
of the populace within this system. Indian administrators lacked the authority to enforce
decisions effectively, perpetuating a structure geared towards advancing commercial
interests. Although until 1813, there was minimal interference in India's religious and
cultural affairs, thereafter, active measures were taken to reshape these aspects of Indian

23
society. The British, driven by the industrial revolution and advancements in science and
technology, aimed to exploit India as a significant market for their goods. Furthermore, the
intellectual climate in Britain and Europe during the eighteenth and nineteenth centuries,
marked by ideas stemming from the French Revolution, emphasized notions of liberty,
equality, and fraternity. These philosophical underpinnings underscored a shift in British
perspectives towards India's challenges, characterized by rationalism, humanism, and a belief
in progress.

The framers of the Constitution encountered a triple challenge when formulating the
provisions concerning fundamental rights. Firstly, they grappled with the task of defining
what constituted fundamental rights and compiling a comprehensive list thereof. Secondly,
they faced the dilemma of categorizing rights into justiciable and non-justiciable categories.
Finally, they endeavored to devise effective safeguards for the rights delineated within the
Constitution.

To address the final challenge, a solution was proposed: to enable the enforcement of more
easily definable rights through ordinary courts while excluding others from their jurisdiction.
However, arriving at conclusions regarding the initial two challenges proved challenging.
Consequently, Govind Vallabh Pant presented a resolution in the Constituent Assembly on
24 January 1947, advocating for the establishment of an Advisory Committee to tackle this
issue practically.

The Advisory Committee convened its inaugural meeting on 27 February 1947, with Vallabh
Bhai Patel unanimously chosen as its Chairman. Subsequently, the Committee formed five
sub-committees, one of which focused on Fundamental Rights.

The sub-committee on Fundamental Rights convened its first meeting on 27 February 1947,
electing J.B. Kriplani as its Chairman. During discussions, Alladi Krisha Swami Ayyar
emphasized that citizen's rights enshrined in a constitution should consist of guarantees
enforceable in courts of law, referencing relevant provisions from the United States
Constitution to support his argument. Others, such as M.R Masani, advocated for excluding
rights that couldn't be legally enforced, proposing the establishment of an independent
supreme judicial authority to adjudicate laws infringing fundamental rights.

24
Professor K.T. Shah underscored the importance of coupling rights with corresponding
obligations on citizens, particularly emphasizing social and economic rights as indispensable,
constituting obligations of the State. K.M. Munshi echoed similar sentiments, advocating for
the inclusion of writs in the Constitution, with Rajkumari Amrit Kaur concurring.

Harnam Singh, drawing upon the Russian Constitution, advocated for the inclusion of both
justiciable and non-justiciable rights in India's new Constitution.

In a note submitted to the sub-committee, K.M. Munshi observed that many general
declarations and international documents had proven ineffective in curbing the expanding
power of modern states, citing the Weimar Constitution as an example. He emphasized that
in India, such general precepts might not be universally comprehended or applied,
particularly in regions where feudal notions still prevailed.

There was a discernible reluctance towards incorporating mere principles into the
constitution, as seen indirectly in some drafts on fundamental rights submitted to the sub-
committee. These drafts not only listed various rights—political, economic, and social—but
also included policy precepts under the title "Fundamental Rights." For instance, Munshi's
draft mentioned rights such as the right to employment, fair wage conditions, and free
primary education for all citizens, accompanied by a legal obligation for the government to
provide such education. Similarly, Ambedkar's draft proposed clauses aiming to establish
state socialism in key economic sectors through constitutional law, ensuring that its
implementation wouldn't rely solely on the Legislature's discretion.

Despite discussions, the sub-committee concluded its meeting without a final decision on
whether non-justiciable rights should be included in India's new constitution. Eventually,
they resolved to differentiate between enforceable fundamental rights and provisions
outlining fundamental principles of social policy meant to guide the government.

During its second meeting from March 24 to March 31, 1947, the sub-committee reviewed
proposals, suggestions, and memoranda on fundamental rights from various sources,
including public bodies, individuals, and its own members. Notably, Alladi Krishna Swami
Ayyar emphasized the distinction between justiciable and policy-oriented rights, a view
gradually accepted by other members.

25
On March 27, 1947, the sub-committee determined that certain clauses recommending rights
like the right to work, primary education, and fair wages were not justiciable and therefore
couldn't be included in the chapter of enforceable rights. After careful examination, the
subcommittee concluded that delineating between principles of social policy and enforceable
rights was crucial before incorporating fundamental rights into India's future constitution.

During the meeting on March 30, 1947, the sub-committee focused on formulating positive
rights, drawing inspiration from Rau's draft, various precedents, and notably, the Irish
Constitution. They swiftly drafted provisions emphasizing the state's role in promoting
social, economic, and political justice, incorporating elements from Munshi's draft and
articles from Lauterpacht's International Bill of the Rights of Man.

It is evident that even amid the differentiation of these two types of rights, the members of
the Assembly aimed to accord significant importance to these directives. They perceived
them as crucial for the welfare and systematic advancement of society. This sentiment is
further illustrated in Professor Shah's letter dated April 1947, wherein he acknowledges the
differentiation between justiciable and non-justiciable rights but expresses concern that the
latter might be regarded merely as unenforceable aspirations. Regarding the right to
employment, Professor Shah suggests that although it is deemed non-justiciable, it could be
actualized if the state assumes the responsibility to provide employment opportunities for all
qualified citizens. He advocates for a comprehensive national plan to ensure a decent
standard of living for every member of society. Professor Shah emphasizes that the principles
categorized as non-justiciable should not be construed as mere policy guidance but rather as
fundamental objectives requiring active implementation by both governmental entities and
the Union. The sub-committee, recognizing the fundamental nature of these principles,
revised the opening clause of its report to underscore their importance. Although these
principles are not subject to judicial review, they remain fundamental, and it is the state's
obligation to incorporate them into legislation. The sub-committee, drawing inspiration from
the Irish Constitution and considering the unique complexities of Indian society, adopted a
balanced approach, distinct from both the U.S. Constitution and other European counterparts.
The sub-committee's report on Fundamental Rights was referred to the Minorities sub-
committee for review. The Minorities sub-committee suggested revisions to the clause

26
proposing a uniform civil code, advocating for its voluntary adoption rather than mandatory
enforcement.

The Advisory Committee convened on April 21 and 22, 1947, to deliberate on the final Draft
Report presented by the sub-committee on Fundamental Rights and the Interim Report of the
sub-committee on Minorities. The Interim Report focused solely on rights enforceable in
courts, following the Chairman's recommendation on April 21, 1947. Non-justiciable rights
were not extensively discussed by the Advisory Committee. It was proposed that clause 23
concerning compulsory free education be moved from part I to part II, which outlined
fundamental governance principles.

Certain extremist religious and communal factions persistently seek to provoke societal
members, pushing them towards conflict and religious strife, disregarding their social and
constitutional rights and duties. Additionally, disparities in racial, social, geographical, and
climatic customs, as well as a lack of nationalistic sentiment and commitment to national
progress, have fueled controversies between rights and directive principles.

I believe this controversy reflects a clash between individualistic and collectivistic

approaches, akin to a struggle between conservative and modern societal paradigms. We
must now strive to strike a balance to achieve the goal of a Welfare state in contemporary
India, upholding the principles of social justice and human rights.

The concept of the Welfare State, founded on principles of social justice and human rights,
draws from various origins. The French Revolution introduced ideals of liberty, equality, and
fraternity. Utilitarian philosophy, championed by Bentham and his followers, advocated for
the greatest happiness for the greatest number. Bismarck and Beveridge contributed ideas of
social insurance and security, while Fabian Socialists promoted public ownership of key
industries and services. Tawney emphasized equality and condemned avarice, while the
Webbs proposed measures to eradicate poverty and improve societal foundations.

However, there exists no explicit or overarching philosophical framework or ideology that

serves as the foundation for the numerous policies and programs intended to comprise the
welfare state. The term "Welfare State" gained widespread usage following the year 1945.
The state's role has expanded beyond mere law enforcement; it is now actively involved in

27
promoting the well-being of all its citizens. The concept of the "Welfare State" signifies a
view of the state as a proactive force for advancing social welfare, in contrast to the laissez-
faire notion of the state. The welfare state is committed to the welfare of society as a whole;
it aims to maintain or enhance living conditions for those enjoying a comfortable lifestyle,
while also raising the standard of living for those falling below an acceptable national
minimum, without favoring any particular interests.

The true objective of our constitution is to establish a Welfare State. The directive principles
of State Policy outlined in Part IV of our Constitution mandate that the state endeavor to
promote the welfare of the people by ensuring and safeguarding, to the best of its ability, a
social order infused with justice, encompassing social, economic, and political dimensions
throughout all national institutions. There should be no conflict between these objectives.

Justice Iyer has remarked that the Indian Constitution seeks to liberate the people from
imperial injustices and prioritize justice as the foremost requirement. Recognizing the
historical manipulation of law to serve the interests of dominant societal elements, our
founding fathers wisely incorporated qualifiers such as "social," "economic," and "political."
However, legal terminology is flexible and subject to varying interpretations, particularly in
the hands of politically inclined judges. In American history, during the Dred Scott era,
Supreme Court justices, influenced by their racial biases, denied slaves their human rights.
Similarly, there have been instances where judges have tailored meanings and judgments to
align with the biases of the ruling class. India is no exception to this trend.

Therefore, in formulating the fundamental rights and directive principles, our founding
fathers drew not only from their observations of global events but also from their own
historical experiences. The distinction between fundamental rights and directive principles
serves to address administrative and practical challenges, ensuring that directives are
actionable upon the citizens' demands.

The discussion above makes it clear that the main aim of the current study is to identify the
optimal approach for maintaining harmonious relations between the rights and directives
outlined in Parts III and IV of the Constitution. It's crucial to develop a universally
acceptable framework for future reference concerning these rights and directive principles.
Resolving present issues requires a comprehensive understanding of the essence and scope of

28
Parts III and IV, considering human rights and social justice principles across all branches of
government. Rather than pitting rights against directives, or fostering discord between them,
the emphasis should be on interpreting both in tandem. This approach ensures the promotion
of social justice and human rights in all matters or endeavors, without granting unilateral
priority to either rights or directives in the future.

29
 CHAPTER 3

PROTECTION OF THE HUMAN RIGHTS OF WOMEN UNDER

INTERNATIONAL LAW

Human rights encompass women's rights. Various international agreements and national
laws, such as the United Nations' International Covenant on Civil and Political Rights,
International Covenant on Economic, Social and Cultural Rights, Universal Declaration of
Human Rights of 1948, and the UN Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), alongside provisions in the Indian Constitution
and legislative enactments, safeguard the rights of women. Entities like the National Human
Rights Commission and the National Commission for Women actively work to protect
women's rights. Court directives, like those outlined in the Vishakha case, address issues like
sexual harassment in the workplace. National policies, missions, and awards further empower
and protect women's rights.

The status of women reflects the greatness of a civilization, with India's ancient culture
granting them an honorable place. Historical influences, including British colonialism,
initially challenged women's equality, countered by movements led by figures like Raja Ram
Mohan Roy and Mahatma Gandhi. Recognizing women's development as crucial, there's a
call for comprehensive governmental and societal action, ensuring gender-equitable policies
and programs. The Ministry of Women and Child Development spearheads efforts to
promote and protect women's human rights. Empowering women in all spheres of life, free
from violence and discrimination, aligns with the vision of human dignity and development.
India's commitment to international human rights conventions underscores its dedication to
ensuring women's equality and rights.

Human rights encompass the entitlements of all individuals, irrespective of gender. Both men
and women possess equitable access to these entitlements, with no tolerance for
discrimination in their exercise. Throughout history, women have endured prolonged
deprivation of equal rights. The notion of "human rights philosophy" gained traction only in
the latter half of the 20th century, with the prominence of "gender equality" and "equal
rights" for women emerging notably after the 1970s. Upon its independence and subsequent
UNO membership, India prioritized human rights, integrating many into its constitution

30
drafted in 1949. This constitution contains numerous provisions mandating gender equality
and prohibiting discrimination based on sex. In 1993, the Indian Parliament enacted the
Protection of Human Rights Act, leading to the establishment of the National Human Rights
Commission, tasked with safeguarding human rights. Women also have recourse to the
NHRC to lodge complaints when their constitutional, legal, and human rights are infringed
upon.

3.1 Protection of the human rights of women under international law

Since its establishment, the United Nations has prioritized gender equality as a cornerstone of
human rights. Enacted in 1945, the UN Charter includes among its objectives the
reaffirmation of belief in fundamental human rights, the dignity and value of every
individual, and the equal rights of both men and women. Additionally, Article 1 of the
Charter asserts that one of the UN's purposes is to advocate for respect for human rights and
basic freedoms "without distinction as to race, sex, language, or religion." This prohibition of
gender-based discrimination is reiterated in Articles 13 (pertaining to the General Assembly's
mandate) and 55 (concerning the promotion of universal human rights). In 1948, the
Universal Declaration of Human Rights was adopted, similarly emphasizing the equal
entitlement of both women and men to its rights "without distinction of any kind, such as...
sex..." During the drafting of the Declaration, there was extensive debate over the usage of
the term "all men" versus a gender-neutral alternative. Ultimately, the Declaration was
ratified using the terms "all human beings" and "everyone" to unequivocally convey its
universal applicability to individuals of all genders.

3.1.1 International Human Rights Instruments

Following the adoption of the Universal Declaration, the Commission on Human Rights
initiated the drafting of two human rights treaties: the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Alongside the Universal Declaration, these treaties constitute the International Bill of Human
Rights. The stipulations within these covenants, alongside other human rights treaties, carry
legal obligations for the States that endorse or accede to them. States that ratify these treaties
periodically provide reports to expert bodies, which then issue recommendations regarding
the necessary measures to fulfill the obligations outlined in the treaties. Additionally, these
bodies responsible for monitoring treaties offer authoritative interpretations, and, if agreed

31
upon by the States, they also address individual complaints alleging violations. 38 Both
Covenants utilize identical language to prohibit discrimination based on various factors,
including sex (art. 2), and to ensure that men and women possess equal rights to enjoy all the
rights outlined within them (art. 3). The International Covenant on Civil and Political Rights
safeguards a range of entitlements, including the right to life, freedom from torture and
slavery, liberty and security of the person, due process in legal proceedings, equality before
the law, freedom of movement, thought, conscience, and religion, association, as well as
various rights related to family, children, citizenship, political participation, and the rights of
minority groups to preserve their culture, religion, and language. The International Covenant
on Economic Social and Cultural Rights secures rights such as the right to work, form trade
unions, marry, maternity and child protection, an adequate standard of living, health,
education, and cultural and scientific rights. In 1967, Member States of the United Nations
adopted the Declaration on the Elimination of Discrimination against Women, affirming that
discrimination against women violates human dignity and urging States to eradicate
discriminatory laws, customs, regulations, and practices while establishing legal protections
for gender equality. Shortly thereafter, in 1979, the General Assembly adopted the
Convention on the Elimination of All Forms of Discrimination against Women, recognizing
that despite existing instruments, women still lack equal rights compared to men.

The Convention elucidates the essence and significance of discrimination based on sex, and
delineates the responsibilities of States to eradicate discrimination and attain substantive
equality. Like other human rights treaties, only States bear obligations upon ratification.
Nonetheless, the Convention delineates State duties to combat not just discriminatory
legislation, but also customs and practices, as well as discrimination against women by
private entities. Within this broad framework, the specific duties of States to eradicate
discrimination against women across political, social, economic, and cultural domains are
delineated in 16 substantive articles. The Convention encompasses both civil and political
rights (such as the right to vote, to engage in public life, to obtain, alter, or retain nationality,
equality before the law, and freedom of movement) and economic, social, and cultural rights
(such as the right to education, employment, health, and financial access). Additionally, the

38For more information on the human rights treaty system, see OHCHR, Fact Sheet No. 30: The United Nations
Human Rights Treaty System and OHCHR, Fact Sheet No. 7: Individual Complaint Procedures under the United
Nations Human Rights Treaties.

32
Convention underscores specific issues like trafficking, particular groups of women like rural
women, and specific contexts where women encounter heightened risks to their full
enjoyment of human rights, such as marriage and family life.

Such discrimination encompasses any form of differential treatment based on gender that:

 Intentionally or unintentionally puts women at a disadvantage;

 Hinders society from recognizing women's rights both privately and publicly;
 Restricts women from exercising the human rights and fundamental freedoms they are
entitled to.

The Convention delineates various methods by which State parties should eradicate
discrimination. These methods include enacting appropriate legislation to prohibit
discrimination, ensuring legal protection of women’s rights, refraining from discriminatory
actions, safeguarding women against discrimination from any entity, and revising or
abolishing discriminatory laws, regulations, and penal provisions. The Convention recognizes
that achieving equality may necessitate affirmative action by the State to enhance the status
of women. To expedite actual gender equality across all aspects of life, States are authorized
to implement temporary special measures as long as inequalities persist. Consequently, the
Convention goes beyond mere formal equality, aiming for equal opportunities and outcomes.
Temporary special measures are deemed both legal and imperative to accomplish these
objectives. Ideally, these measures should be rescinded once equal status is attained. Notably,
the Convention introduces new, substantive clauses compared to other instruments addressing
equality and non-discrimination. Article 5 mandates that in addition to acknowledging
women’s legal equality and fostering their practical equality, States should also strive to
dismantle social, cultural, and traditional norms that perpetuate harmful gender stereotypes.
Moreover, States should endeavor to establish a comprehensive societal framework that
facilitates the realization of women’s full rights.

The Convention on the Rights of the Child (Article 2) and the Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families (Article 7) also forbid
discrimination based on gender. The Convention on the Rights of Persons with Disabilities
(Article 6) acknowledges the various discriminations experienced by women with disabilities

33
and mandates State parties to tackle this by implementing "all appropriate measures to ensure
the complete development, progress, and empowerment of women" in the exercise of their
human rights. In its general recommendation No. 25 (2000) concerning the gender-related
aspects of racial discrimination, the Committee on the Elimination of Racial Discrimination,
responsible for overseeing compliance with the International Convention on the Elimination
of All Forms of Racial Discrimination, also acknowledges the gender aspects of racial
discrimination and commits to "endeavoring in its efforts to consider gender-related factors
or issues that may be connected with racial discrimination." The Committee against Torture,
which monitors the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, also consistently addresses matters concerning violence against
women and girls.

3.2 Regional Instruments

In addition to international human rights standards, regional human rights treaties, too,
include crucial provisions aimed at promoting and protecting women’s human rights. 39 The
African (Banjul) Charter on Human and Peoples’ Rights was ratified by the Organization of
African Unity in 1981. Article 2 of the Charter prohibits discrimination on any basis,
including gender, in the enjoyment of the rights it guarantees. Article 18 specifically outlines
the duty of African States to "eliminate all forms of discrimination against women and ensure
the protection of women's and children's rights as outlined in international declarations and
conventions." The Charter's Protocol on the Rights of Women in Africa (Maputo Protocol)
was enacted in 2003.

The Charter of the Organization of American States incorporates a non-discrimination

provision in its Chapter II, Article 3(l), while the American Convention on Human Rights
includes such provision in Article 1. Furthermore, in 1994, the Organization adopted the
Inter-American Convention on the Prevention, Punishment, and Eradication of Violence
against Women (Belém do Pará Convention).

39 Regional human rights treaties also have oversight mechanisms to assess compliance with their provisions by the
States that have ratified them. These include the African Commission on Human and Peoples ’ Rights, the
InterAmerican Commission on Human Rights and the Inter-American Court of Human Rights, the Council of Europe
and the European Court of Human Rights. Some of their work is highlighted in this publication

34
The European Convention on Human Rights and Fundamental Freedoms prohibits
discrimination on any basis, including gender, in the enjoyment of rights enshrined in the
Convention (Article 14). Since 1998, individuals have been able to lodge complaints with the
European Court of Human Rights alleging violations of the Convention. In 2011, the Council
of Europe adopted a new Convention on preventing and combating violence against women
and domestic violence (Istanbul Convention).

Regional political organizations, such as the Association of Southeast Asian Nations, the
South Asian Association for Regional Cooperation, the Economic Community of West
African States, and the Southern African Development Community, have also adopted
protocols, resolutions, and declarations concerning women's human rights.

3.3 Global
Women’s rights have been central to a series of global conferences that have led to
significant political commitments towards women’s human rights and equality. Commencing
in 1975, coinciding with International Women’s Year, the World Conference on the
International Women’s Year took place in Mexico City, resulting in the World Plan of Action
and the declaration of 1975–1985 as the United Nations Decade for Women. Subsequently, in
1980, Copenhagen hosted another international conference on women, during which the
Convention on the Elimination of All Forms of Discrimination against Women was
introduced for signature. The third World Conference on Women was convened in Nairobi,
while the Committee on the Elimination of Discrimination against Women commenced its
operations in 1982. These three global conferences witnessed remarkable activism from
women worldwide and laid the foundation for subsequent conferences in the 1990s focusing
on women’s rights, notably the Fourth World Conference on Women held in Beijing in 1995.
Furthermore, the rights of women belonging to specific groups, such as older women, ethnic
minority women, or women with disabilities, have been addressed in various other
international policy documents such as the International Plans of Action on Ageing (Vienna,
1982 and Madrid, 2002), the Durban Declaration and Programme of Action (2001), and the
World Programme of Action concerning Disabled Persons (1982).

3.3 A. Vienna Declaration and Programme of Action

In 1993, the World Conference on Human Rights convened in Vienna with the aim of
assessing the existing human rights infrastructure. Advocates for women's rights mobilized to

35
ensure the comprehensive inclusion of women's human rights on the global agenda,
encapsulated by the slogan "Women's Rights are Human Rights." Particularly focusing on the
issue of violence against women, activists from civil society organized tribunals to highlight
violations of women's rights, which had previously been overlooked due to their association
with the private sphere, societal taboos, or acceptance as an inevitable aspect of women's
lives. The conference achieved success in adopting the Vienna Declaration and Programme
of Action, affirming that "the human rights of women and of the girl-child are an inalienable,
integral, and indivisible part of universal human rights" (para. 18), with significant emphasis
on eradicating all forms of gender-based violence. Notably, the Programme of Action also
urged for "the elimination of any conflicts that may arise between women's rights and the
detrimental impacts of certain traditional or customary practices, cultural biases, and religious
extremism" (para. 38).

3.3.B International Conference On Population And Development

The 1994 International Conference on Population and Development marked a significant
advancement for women's rights. Although the conference primarily addressed population
issues, attendees in Cairo recognized that the subject extended beyond mere demographics to
encompass individuals' lives. The Program of Action outlined various aspects crucial to
women's human rights, such as gender equality, family dynamics, reproductive health,
contraception, women's well-being, immigration, and female education. Emphasizing a
foundation in human rights, the Program asserted that promoting gender equality,
empowering women, eradicating violence against them, and ensuring their reproductive
autonomy were pivotal to population and development initiatives. Furthermore, the
conference notably affirmed reproductive rights, emphasizing individuals' freedom to
determine the number, spacing, and timing of their children, along with access to
comprehensive sexual and reproductive health services. Specific targets were established,
including universal education, reducing mortality rates for infants, children, and mothers, and
ensuring universal access to reproductive healthcare by 2015. Subsequent conferences have
convened to evaluate progress toward these objectives, yet persistent inequalities and
accountability deficits remain formidable obstacles to their fulfillment.

3.3 C. Beijing Declaration and Platform for Action

Adopted during the Fourth World Conference on Women in September 1995, the Beijing
Declaration and Platform for Action concentrated on 12 key areas regarding the realization of

36
women’s human rights and outlined a plan for women’s empowerment. It builds upon the
outcomes of the preceding three world conferences on women, marking a significant
milestone in explicitly affirming women’s rights as human rights. The Platform for Action
delineates a set of strategic goals aimed at eradicating discrimination against women and
attaining gender equality. It encompasses global political and legal approaches grounded in a
human rights framework. The Platform for Action stands as the most comprehensive
manifestation of States’ pledges to uphold the human rights of women.

Subsequent evaluations of the implementation of the Beijing Declaration and Platform for
Action have shown that despite notable advancements in certain aspects of women’s human
rights, "discriminatory legislation, along with harmful traditional and customary practices,
and negative gender stereotypes persist," especially within family, civil, penal, labor, and
commercial laws or regulations. Both the 2005 and 2010 assessments of the Platform
concluded that neither de jure nor de facto equality had been achieved in any country
worldwide, with the 2010 evaluation acknowledging that even in cases where legal reforms
had been enacted, their enforcement often remained ineffective.

3.3 D. Millennium Development Goals

In the year 2000, the global community set forth eight development goals to be met by 2015,
encompassing objectives regarding gender equality, women's empowerment, and the
reduction of maternal mortality. Seven of these goals are accompanied by specific targets to
gauge advancement. Despite their human rights shortcomings, the Millennium Development
Goals represent a significant political commitment that has mobilized international support
for addressing some of the world's most pressing issues. Concerning women's rights, one of
the Millennium Development Goals aims to advance gender equality and empower women.
However, its associated target focuses solely on eliminating gender disparities in education
by 2015. While ensuring girls' access to education is crucial for achieving gender equality,
this narrow target falls short of adequately measuring progress in empowering women.
Additionally, the goal includes indicators related to the proportion of women in non-
agricultural wage employment and national parliaments, but lacks specific benchmarks or
deadlines. Critical issues such as violence against women and discriminatory legislation
remain unaddressed. The Millennium Development Goal also seeks to reduce the maternal
mortality ratio by three quarters between 1990 and 2015. Unfortunately, it was revealed
during the 2010 High-level Plenary Meeting of the General Assembly on the Millennium

37
Development Goals that this goal was the furthest off track compared to others, despite the
availability of knowledge and tools to ensure safe pregnancy and childbirth experiences for
women. In response, in 2010, the Secretary-General launched the Global Strategy for
Women's and Children's Health, outlining essential actions to enhance the health of women
and children worldwide. Integrating human rights and gender equality throughout the
Millennium Development Goals and the post-2015 development agenda is crucial for
achieving significant progress.

3.3 E. United Nations Conference on Sustainable Development

The United Nations Conference on Sustainable Development, commonly known as
"Rio+20," convened Heads of State and Government in Brazil in 2012. The purpose was to
evaluate advancements made since the groundbreaking 1992 United Nations Conference on
the Environment and Development held in Rio de Janeiro. At "Rio+20," nations reaffirmed
their commitment to sustainable development, agreeing to establish a set of sustainable
development goals and instituting a high-level political forum on the subject. Of particular
significance, the resulting document, titled "The Future We Want," reiterated States' pledges
to uphold "women’s equal rights, access, and opportunities for participation and leadership in
the economy, society, and political decision-making." It also made explicit mentions of
expediting the fulfillment of commitments outlined in the Convention on the Elimination of
All Forms of Discrimination against Women, the Beijing Platform for Action, and the
Millennium Declaration. Additionally, the document emphasized that "gender equality and
the effective participation of women are crucial for comprehensive action on all aspects of
sustainable development," and urged the annulment of discriminatory laws while ensuring
women's equitable access to justice. 40

3.4 United Nations bodies

3.4 A. The Human Rights Council and Its Mechanisms
The Human Rights Council serves as the primary intergovernmental entity within the United
Nations dedicated to advancing and safeguarding human rights. Comprising 47 States elected
by the General Assembly, the Council has consistently convened specialized discussions on
women's rights and the integration of gender perspectives since its establishment in 2006.
Over the years, both the Council and its predecessor, the Commission on Human Rights, have

40 General Assembly resolution 66/288, annex.

38
issued numerous resolutions urging States to fulfill their commitments concerning women's
rights. These deliberations and resolutions play a crucial role in ensuring the continued
prioritization of women's rights on the global stage. Moreover, the Human Rights Council
possesses the authority to convene special sessions to address instances of human rights
violations and emergencies. Such sessions have, on occasion, provided opportunities for
examining violations specifically related to women's rights. For example, the special session
on Darfur, Sudan, resulted in a report by the High-Level Mission detailing concerns
regarding rape, sexual violence, and the lack of access to justice for these offenses. 41 The
special session on the Democratic Republic of the Congo also led to reports on the situation
there which expressed particular concern about sexual violence and gender inequality 42.

3.4 .B. The Security Council

The United Nations Security Council has passed a series of resolutions specifically
addressing women, peace, and security. In 2000, the Security Council unanimously approved
Resolution 1325, which urged for greater involvement of women in all aspects of preventing
and resolving conflicts, as well as incorporating a gender perspective into all United Nations
peace and security endeavors, including the negotiation and implementation of peace
agreements. Resolution 1325, along with subsequent Security Council resolutions and United
Nations Secretary-General Reports on the same subject, also call upon all parties involved in
conflicts to take special measures to safeguard women and girls from gender-based violence
during armed conflicts. Simultaneously, these resolutions recognize the crucial role women
play in peace processes as catalysts for positive change.

3.4.C. The Commission on the Status of Women

The Commission on the Status of Women was established by a resolution of the United
Nations Economic and Social Council in 1946. Its purpose is to provide recommendations
and reports to the Council regarding the advancement of women's rights across various
spheres including politics, economics, civil rights, social issues, and education. Additionally,
the Commission is tasked with addressing urgent problems concerning women's rights. It
convenes annually to discuss priority themes and releases agreed conclusions that assess
progress, identify gaps and challenges, and offer concrete recommendations to governments,

41 (A/HRC/4/80, para. 39
42A/HRC/10/59, paras. 35–42, and A/HRC/13/63, paras. 26–34 12
(A/HRC/19/68 and A/HRC/19/69).

39
international organizations, civil society, and other stakeholders. Resolutions on women's
rights-related matters are also adopted by the Commission. Over time, it has played a pivotal
role in advancing women's rights globally, contributing significantly to important
international legal and policy frameworks such as the Convention on the Elimination of All
Forms of Discrimination against Women, the Declaration on the Elimination of Violence
against Women, and the Beijing Declaration and Platform for Action.

Historically, the conceptualization of human rights often overlooked the experiences of

women who frequently encountered violence, discrimination, and oppression. Consequently,
the human rights framework failed to adequately address women's experiences until relatively
recently. The efforts of activists, human rights mechanisms, and states have been
instrumental in expanding and adapting the human rights framework to incorporate the
gender-specific dimensions of human rights violations, thus enhancing protection for women.

Ensuring women's human rights effectively necessitates a comprehensive understanding of

the societal structures and power dynamics that shape and influence women's ability to
exercise their human rights. These power structures permeate all facets of life, spanning legal
and political realms, economic and social policies, as well as familial and community
dynamics.

The subsequent sections delve into key concepts essential for safeguarding and promoting
women's human rights.

3.6 The Human Rights Framework in Practice

Acknowledging that women make up half of the global population and are entitled to equal
human rights as men, this publication does not aim to cover all human rights issues affecting
women. It focuses on key areas such as political participation, sexual and reproductive health
rights, adequate living standards, violence against women, migration, conflict and crisis, and
access to justice. Throughout these areas, education and family dynamics are particularly
relevant and are consistently addressed.

The right to education is upheld in various international agreements, including the

International Covenant on Economic, Social and Cultural Rights, the Convention on the
Rights of the Child, the Convention on the Elimination of All Forms of Discrimination

40
against Women, and the Convention on the Rights of Persons with Disabilities. These
instruments not only advocate for nondiscrimination and free primary education but also
necessitate addressing specific barriers faced by girls and women, such as early marriages,
pregnancies, child labor, and violence.

Achieving gender equality in education requires both financial investment and continuous
awareness efforts highlighting the importance of girls’ education. Similarly, the right to
equality in marriage and family life is recognized in multiple human rights treaties, yet
women often experience disparities in the private sphere compared to men. Issues such as
forced marriage, unequal guardianship and adoption rights, restrictions on nationality transfer
to children, and unequal legal capacity persist in many countries.

To address these disparities, the Convention on the Elimination of All Forms of

Discrimination against Women calls for measures to eliminate discrimination in all aspects of
marriage and family relations. This includes ensuring equal rights to enter marriage with free
consent, choose a spouse, share responsibilities during marriage, and access personal rights
like choosing a family name or profession. Additionally, the convention emphasizes
prohibiting polygamous marriages, which undermine women's equality and can have adverse
emotional and financial effects on them and their dependents.

Women Human Rights Defenders

The Declaration on the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognized Human Rights and Fundamental
Freedoms, also known as the Declaration on Human Rights Defenders, acknowledges the
crucial role of human rights defenders, including women defenders, and delineates the rights
of all human rights defenders and the duties of States.

The Special Rapporteur on the situation of human rights defenders has highlighted the unique
obstacles faced by women human rights defenders and those advocating for women’s rights
or gender issues (A/HRC/16/44). Women human rights defenders encounter similar risks to
other defenders, but they also face gender-specific threats and violence due to their gender.
The reasons for this are varied and intricate, depending on the particular context in which
each woman works. Often, the activism of women human rights defenders challenges
traditional societal views on family and gender roles, leading to hostility from both the public

41
and authorities. Consequently, they are marginalized and shunned by community leaders,
religious groups, families, and communities who perceive their work as a threat to religion,
honor, or culture.

Furthermore, their advocacy efforts, such as promoting women’s rights or gender equality,
make them targets for hostility. Their families are also subjected to threats and violence in an
attempt to deter women human rights defenders from continuing their work. The Special
Rapporteur on the situation of human rights defenders has acknowledged that women
defenders are more vulnerable to certain forms of violence, discrimination, exclusion, and
condemnation compared to their male counterparts. Thus, it is imperative to bolster
protection mechanisms and both local and international responses to address their specific
challenges.

The Special Rapporteur has suggested that States should ensure that protection programs for
human rights defenders incorporate a gender perspective and cater to the particular needs of
women human rights defenders. This includes promptly investigating instances of
intimidation, threats, violence, and other abuses against them, whether perpetrated by State or
non-State actors. However, in practice, women human rights defenders often lack effective
protection mechanisms.

While the State holds the primary responsibility to safeguard defenders when they face
threats or attacks, the international community and United Nations presence on the ground
also have a duty to support and protect them, adhering to principles of confidentiality, non-
harm, and informed consent.

The right to a nationality

The participation of women in public and political spheres is closely tied to their ability to
assert their citizenship and nationality-based rights. The Convention on the Elimination of All
Forms of Discrimination against Women urges nations to ensure that women have equal
rights to obtain, alter, or retain their nationality, regardless of their marital status or their
spouse's nationality. Additionally, it mandates that women receive equal treatment to men
concerning the nationality of their offspring. The committee underscores the significance of
nationality for full societal engagement, highlighting its impact on fundamental rights such as
voting, candidacy for public positions, access to public services, and choice of residence.

42
Article 15 demands that women be granted equal legal rights and capacities as men in civil
matters. Restrictions in this regard severely hinder a woman's ability to support herself and
her dependents. The committee expresses concern over the numerous reservations to articles
9, 15, and 16, urging nations to withdraw these reservations and enact legislation aligning
with these articles.

3.8 Women’s Right to an Adequate Standard of Living

The International Covenant on Economic, Social and Cultural Rights articulates the
entitlement to sufficient food, clothing, and shelter, alongside the ongoing enhancement of
living conditions, as integral components of the right to a satisfactory standard of living for
oneself and one's family (Article 11). The entitlement of women to land, property,
sustenance, water, sanitation, employment, and social protection is inherently interconnected
with the pursuit of a satisfactory standard of living. These entitlements are safeguarded by
international human rights law, which ensures the enjoyment of these entitlements on an
equitable basis with men, devoid of discrimination. Women's access to essential services,
education, and productive assets is crucial for the realization of the aforementioned
entitlements.

Land, property, housing

Securing land, housing, and property rights is fundamental to ensuring women's equality and
overall well-being. Women's access to and control over these assets significantly impact their
living conditions, especially in rural areas, where they are crucial for daily survival, economic
stability, and physical safety for both women and their children. Despite the pivotal role of
these rights, women disproportionately lack secure tenure, often because property titles are
registered under men's names—typically the father, husband, or brother. In cases of
separation, divorce, or widowhood, men or their families typically retain rights to the
property, leaving women homeless or subject to sharing without control or ownership rights.

Land and housing access are regulated by land tenure systems, defining relationships among
individuals and groups regarding land. Tenure can take various forms, such as rental
accommodation, cooperative housing, or ownership, but regardless of type, everyone should
have security against forced eviction and harassment. Discriminatory laws and lack of control
over property exclude women from decision-making processes typically led by male

43
landowners, reinforcing their economic dependence on men and increasing vulnerability to
violence.

Cultural and religious practices, along with customary laws, often intersect with statutory
laws, sometimes undermining national legislation, particularly in rural areas. These practices
frequently restrict women's access to or control over land, property, and housing, typically
tying it to male relatives. Customary laws often influence the interpretation of statutory laws
to the detriment of women's rights, as decision-making forums are predominantly male-
dominated. Gender bias in official administrations further marginalizes women from
participating in policies and programs concerning housing and land.

Women facing various forms of discrimination, such as older women, women with
disabilities, those living with HIV/AIDS, or those from minority or indigenous communities,
encounter additional hurdles in obtaining land and property. In certain areas, widows, often
elderly women, are unjustly accused of infecting their husbands with HIV, leading their in-
laws to use this as a pretext to dispossess and expel them. Consequently, these women lose
access to vital resources needed to cover their medical expenses.

The Universal Declaration of Human Rights ensures the right to property for all individuals
irrespective of gender (Article 17.1 and 2), the right to adequate living standards, including
housing and livelihood security (Article 25), and equal marital rights (Article 16). The
International Covenant on Civil and Political Rights, through its broad anti-discrimination
clause (Article 26), guarantees legal equality and prohibits gender-based discrimination,
extending to laws and policies regarding property, housing, and land rights. Similarly, the
International Covenant on Economic, Social and Cultural Rights affirms the right to decent
housing (Article 11). Furthermore, the Convention on the Elimination of All Forms of
Discrimination against Women urges States to eliminate discrimination against rural women,
ensuring their access to suitable living conditions, including housing (Article 14.2). It also
mandates States to combat discrimination against women concerning marriage and family
matters, ensuring equal property rights for spouses (Article 16.1).

The Beijing Platform for Action commits States to enact legislative and administrative
reforms granting women equal economic rights, including land and property ownership and
control, credit access, inheritance, natural resources, and technology. The 1996 United

44
Nations Conference on Human Settlements (Habitat II) and its Istanbul Declaration and
Habitat Agenda outline an action plan on rights, emphasizing women's rights in human
settlement development. It obligates States to provide legal land tenure security and equal
land access for all, including women and impoverished individuals.

Women are disproportionately affected by forced evictions, which violate their security of
tenure and housing rights. Evictions are permissible only under rare, strictly defined
circumstances according to international law. States must take measures to protect women
from eviction, such as granting land and housing titles to them. They must also assess the
gender-specific impact of evictions and ensure women's equal access to information,
consultation, and participation throughout the process. In the event of eviction, women
should receive equal remedies and compensation, without facing discrimination or gender-
based violence. Women must be co-beneficiaries of compensation packages, and widows or
single women should receive individual compensation entitlements.

Violence against women and their right to housing

Research has illustrated the connection between domestic violence and women's entitlement
to suitable housing, a point consistently emphasized in the reports of the Special Rapporteurs
on violence against women and on the right to adequate housing. When women's right to
appropriate housing is inadequately safeguarded, they become more susceptible to violence.
Domestic violence has emerged as a primary factor leading to women's (and frequently their
children's) homelessness, compelling many women to remain in abusive relationships in an
attempt to avoid homelessness.

3.8 Violence against Women

The Declaration on the Elimination of Violence against Women defines "violence against
women" as any act of gender-based violence resulting in, or likely to result in, physical,
sexual, or psychological harm or suffering to women. This includes threats, coercion, or
arbitrary deprivation of liberty, whether in public or private life. Since the early 1990s, there
has been increasing attention to violence against women in human rights discussions.
However, it required a prolonged and persistent effort by the women's rights movement to
urge the international community to address violence against women as a human rights issue.
Gender-based violence is now recognized as a significant violation of human rights globally,
posing threats to human development, international peace, and security.

45
Initially, the agenda for the 1993 World Conference on Human Rights in Vienna did not
include discussions on women or gender aspects of human rights. It was the women's rights
movement that highlighted the issue of violence against women during the conference,
leading to the acknowledgment in the Vienna Declaration that the elimination of violence
against women in both public and private life is a human rights obligation. Consequently, the
General Assembly adopted the Declaration on the Elimination of Violence against Women in
December 1993, marking the first international instrument dedicated to this issue. The
declaration recognizes violence against women as a violation of women's rights and
freedoms, reflecting historically unequal power relations between men and women. States are
urged to condemn violence against women and strive for its eradication.

In 1994, the Commission on Human Rights appointed a Special Rapporteur on violence

against women, tasked with investigating its causes and consequences. This mandate
facilitated the development of human rights standards to address contemporary challenges
and emerging issues related to violence against women. Through research, the Special
Rapporteur significantly advanced concepts and legal frameworks concerning women's
human rights and violence against women. The Fourth World Conference on Women
reaffirmed the conclusions of the Vienna World Conference, emphasizing violence against
women as one of the 12 critical areas of concern.
The Convention on the Elimination of All Forms of Discrimination against Women does not
explicitly address violence against women. However, the Committee, through its general
recommendation No. 19 (1992) on violence against women, asserted that such violence is
directed at women because of their gender or disproportionately affects them. This type of
violence significantly hinders women's ability to enjoy their rights and freedoms on an equal
basis with men. The adoption of this general recommendation played a crucial role in paving
the way for the recognition of this issue at the Vienna World Conference.

Women in every country, regardless of their status, class, age, caste, or religion, experience
violence in various aspects of their lives. Whether at home, in the workplace, on the streets,
in government institutions, or during times of conflict or crisis, violence against women
persists. This violence spans across the entire lifespan of a woman, affecting girls as well as
older women.

46
3.12 Impact of Migration and Displacement on the Enjoyment of Women’s
Rights
The principle of universality in international human rights law suggests that States, whether
they are countries of origin, transit, or destination, hold the responsibility of safeguarding the
rights of migrants within their borders. While nations retain the sovereign right to determine
entry and residency conditions within their territories, they are also obliged to uphold, defend,
and fulfill the human rights of all individuals under their jurisdiction, irrespective of
nationality, origin, gender, age, or immigration status.

Migration impacts every country, either as a source, transit point, or destination, sometimes a
combination of these roles. Over 200 million people currently reside outside their home
countries, driven by motives ranging from seeking better economic prospects to escaping
persecution. Notably, female migrants constitute half of the global migrant population and
surpass male migrants in developed nations. Migrants significantly contribute to both their
home and host countries' economies through remittances and labor, enriching societies with
cultural and demographic diversity.

Historically, immigration has been predominantly viewed through an economic lens, as a

consequence of globalization or a remedy for unemployment and poverty. This perspective
has, to some extent, led to immigrants being treated as commodities rather than individuals
entitled to rights. An exclusively economic assessment overlooks the intrinsic human worth
of migrants and their inherent right to a dignified life.

Female migration carries both positive and negative implications. It presents opportunities for
advancing gender equality by empowering migrant women, many of whom migrate
independently and become primary breadwinners for their families. However, migration also
exposes women to increased vulnerabilities, including discrimination and violence. Women
and children migrants are particularly susceptible to various forms of exploitation, especially
those in irregular situations. Female migrants often find themselves in unregulated sectors
like domestic work, lacking protection under local labor laws and institutions.

Irregular migrants frequently face administrative detention, where women may be at risk of
sexual violence from male detainees or guards. Recognizing this risk, the Special Rapporteur
on the human rights of migrants urged States to prioritize the situation of detained migrant

47
women. Recommendations include ensuring women detainees are separated from men and
supervised by female officers to prevent sexual violence. Pregnant women and breastfeeding
mothers should not be subjected to detention.

A significant milestone was the 1990 adoption of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families by the
General Assembly. This Convention reaffirms rights already enshrined in major human rights
treaties, extending protection to all individuals regardless of migration status. It covers
various aspects of migrants' lives and imposes obligations on States to facilitate safe, fair, and
legal migration conditions. States are tasked with addressing irregular migration situations
and providing migrants, particularly women, with essential information regarding their rights
under the Convention.

The rights of migrants have been addressed in various international conferences, such as the
1994 International Conference on Population and Development in Cairo and the 2001 World
Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in
Durban, South Africa. These conferences emphasized the importance of addressing the root
causes of migration, particularly poverty, and highlighted that migration policies should not
be based on racism, racial discrimination, xenophobia, or related intolerance.

Furthermore, documents like the Programme of Action of the International Conference on

Population and Development, the Beijing Declaration and Platform for Action, and General
Assembly resolution 58/143 on violence against women migrant workers have urged States to
enhance the protection of migrant women's rights. The Beijing Platform for Action
specifically calls on States to ensure the full realization of human rights for all women
migrants, including migrant workers, and to introduce measures for their empowerment and
integration into the labor force.

The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) safeguards migrant women from discrimination and obliges State parties to ensure
their enjoyment of human rights on an equal basis with men. However, in some countries of
origin, women encounter discriminatory restrictions or bans on migration, leading them to
resort to irregular or informal channels, exposing them to abuse by agents, smugglers, and

48
traffickers. Limited access to reliable information and education further heightens their
vulnerability.

In transit countries, women face various forms of abuse, including sexual and physical
violence by escorts or agents. Upon reaching the country of employment, migrant women
often find themselves in gender-insensitive work environments, where societal norms dictate
limited job options, predominantly in domestic work and certain forms of entertainment.
Unfortunately, these sectors often lack regulation, leaving women without legal protection.

Women migrants may encounter multiple and intersecting forms of discrimination, including
xenophobia, racism, and gender-based discrimination. Older migrant women face additional
challenges as they often struggle to learn the local language, secure employment, and access
essential health services. Moreover, older women who remain in their home countries are
significantly impacted by migration, as they frequently assume the responsibility of caring for
the children left behind by migrant parents.

Due to discrimination, women migrant workers frequently experience lower wages, endure
substandard working conditions, and lack access to necessary health services, including
reproductive health care. Domestic workers, in particular, are highly vulnerable to physical,
sexual, and other forms of abuse by their employers. Additionally, many migrant women
encounter limited access to justice in their destination countries.

Those in irregular migration situations are especially susceptible to abuse, isolation, and
restricted access to health services and legal recourse. Overall, the challenges faced by
women migrants underscore the urgent need for comprehensive support systems and policies
that address their unique vulnerabilities and rights.

3.13 . Women’s Human Rights in Conflicts and Crises

Sexual and gender-based violence in conflict and post-conflict environments
In times of armed conflict or political turmoil, violence against women manifests in extreme
ways. Over the past decade, there has been significant international focus on the connection
between gender-based violence and conflict situations. Conflict profoundly impacts women's
ability to exercise their human rights, whether they are civil and political rights or economic
and social rights.

49
Despite heightened global endeavors to address gender-based violence in conflict and post-
conflict scenarios, women continue to endure such violence, including rape, sexual slavery,
abduction or trafficking, coerced pregnancies or miscarriages, and sexual harassment such as
forced nudity, strip searches, and other degrading acts in conflict and post-conflict contexts.
Research indicates that while men and boys also suffer from gender-based violence, women
constitute the vast majority of those affected. The Committee on the Elimination of
Discrimination against Women acknowledged in its general recommendation No. 19 (1992)
that "wars, armed conflicts, and territorial occupations often result in increased prostitution,
trafficking of women, and sexual assault against women, necessitating specific protective and
punitive measures." Both state and non-state actors perpetrate such violence. Rape and sexual
violence are routinely employed by all parties involved in conflicts as tactics of warfare, with
the intention of intimidating and degrading the opposition. Furthermore, instances of
domestic violence and sexual abuse escalate significantly during conflicts.
Violence against women, whether during or after conflicts, can be viewed as an extension of
the discrimination they face during peacetime. Conflict exacerbates existing patterns of
gender-based discrimination and exposes women and girls to heightened risks of sexual,
physical, and psychological violence. The root causes of violence, both in times of peace and
conflict, remain consistent: historically unequal power dynamics between men and women,
along with systemic misogyny.

Structural factors like gender-based discrimination and a patriarchal value system contribute
to the perpetuation of violence against women and girls. Additionally, conflict exacerbates
this violence, leading to higher levels of acceptance of violent behavior. Even after conflicts
end, deeply ingrained inequalities persist, prolonging the suffering of women and girls. The
consequences of violence, including medical, physical, psychological, and socioeconomic
impacts, persist long after the cessation of conflict. The stigma surrounding sexual violence
remains pervasive, both during conflicts and in their aftermath.

In post-conflict societies, violence against women and girls escalates due to the breakdown of
law enforcement, the proliferation of small arms, the collapse of social and familial
structures, and the normalization of sexual violence as an extension of pre-existing
discrimination. Until the 1990s, wartime sexual violence was often overlooked as an
international crime, with it being seen as an assault on morality rather than a distinct and
serious offense. However, since the 1990s, international legal institutions have made

50
significant strides in defining and prosecuting gender-based crimes during conflict. Landmark
decisions by the International Criminal Tribunal for the former Yugoslavia and the
International Criminal Tribunal for Rwanda have established wartime rape and sexual
violence as war crimes, crimes against humanity, acts of torture, or constituent acts of
genocide, provided all necessary elements of the crime are met.

51
 CHAPTER 4
RELEVANT CONSTITUTIONAL PROVISIONS AND DEVELOPMENTS FOR
GENDER JUSTICE
4.1 INTRODUCTION:
Despite women's significant contributions across all aspects of life and their
esteemed position in societies worldwide, they often endure silently, belonging to a class
disadvantaged by numerous barriers and obstacles. India, known for its paradoxes,
exemplifies this reality. Even though women are revered as embodiments of Shakti, they
still lack empowerment. Enhancing women's empowerment in legal, social, political, and
economic spheres is imperative. However, achieving empowerment and equality hinges on
society's gender sensitivity towards women's issues. The global intensification of women's
rights movements is evident through various Conventions passed by the United Nations.

Gender equality has often eluded constitutional provisions guaranteeing equality

before the law or equal protection of the law. This discrepancy arises from the perception
that equality is only applicable between equals, with judges historically failing to
recognize the equality between men and women, rendering gender equality legally elusive.
As noted by Dicey, the Constitutional theories of Rule of Law and fundamental rights were
initially formulated to safeguard individual liberty and constrain State power, with gender
issues initially overlooked.

In India, the Constitution makers, cognizant of women's challenges, incorporated

specific provisions addressing them. While the Constitution mandates gender equality in
various articles, it also permits positive discrimination in favor of women and children to
address their historical disadvantage. However, the constitutional imperatives laid out by
the Founding Fathers require proactive State action to gain socio-legal momentum.

The Constitution serves as a nation's foundational document, endowed with

special legal sanctity, delineating the framework and functions of the State's organs. It
outlines the principles guiding these organs' operations, aiming to establish legal norms,

52
 social philosophies, and economic values through a delicate balance between individual
rights and societal interests, thereby achieving communal objectives. 4344

Framers of the Constitution and Their Notion towards Gender Justice

The process of drafting the Constitution began before India's independence, with the inaugural
meeting of the Constituent Assembly taking place on December 9, 1946. Over the course of nearly
three years, lasting 2 years, 11 months, and 17 days, the framers meticulously crafted the
Constitution. The Cabinet Mission proposed that assembly members be chosen indirectly by
provincial legislative assembly members, resulting in the election of 292 members, 93 of whom
hailed from provinces. Notable figures among the framers included Dr. Ambedkar, Pandit Nehru, Dr.
Rajendra Prasad, Sardar Patel, Maulana Azad, Acharya Kriplani, and Pandit Govind Pant. On
December 13, 1946, Pandit Nehru presented the Constitution's objectives, marking India's transition
to a sovereign, independent, and republican state governed by the Constitution. Central to the draft
Constitution was the guarantee of justice (social, economic, and political), equality of status and
opportunity, equality before the law, and various freedoms, tempered by the principles of law and
public morality. Dr. Ambedkar, in his role as chairman of the drafting committee, championed
provisions for gender equality, reflecting his longstanding advocacy for women's rights in India. Dr.
Rajendra Prasad emphasized the importance of education for girls, particularly those from
marginalized communities, and advocated for their inclusion in various facets of governance. Pandit
Nehru highlighted the importance of individual liberties and gender equality, acknowledging the
historical societal constraints on women's empowerment. Through their collective efforts, these
leaders endeavored to ensure that women's rights under the Indian Constitution were on par with
those of men. Additionally, several legislative acts were enacted to safeguard women's rights,
including the Child Marriage Restraint Act, the Special Marriage Act, the Hindu Succession Act, the
Dowry Prohibition Act, the Equal Remunerations Act, the Protection of Rights on Divorce Act, the
National Commission for Women Act, and the Special Marriage Act.

43 http://shodhganga.inflibnet.ac.in/bitstream/10603/3804/10/10_chapter%204.pdf access on
44 /11/2018

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4.1.1 Preamble

The Preamble encapsulates the essence of the Constitution, embodying the aspirations and
objectives of the populace. It begins by affirming that the Constitution is a collective
creation of the people of India, transcending barriers of caste, creed, religion, or gender.
The framers of the Constitution recognized that mere territorial unity was insufficient;
lasting unity necessitated a foundation of social, economic, and political justice, equally
accessible to all. Central to this notion is the pursuit of equality in status and opportunity
for every citizen, including women, ensuring their rights are on par with those of men, both
in terms of status and opportunities.

4.1.2 Political Rights

Despite women's significant participation in the freedom struggle and their equal political
rights under the Constitution and law, their representation in politics remains
disproportionately low. Only seven women were members of the Constituent Assembly,
and this number has dwindled further over time. Their presence in the Lok Sabha falls far
short of expectations. Consequently, there has been a call for the reservation of 33% of
seats for women in the Lok Sabha and Vidhan Sabhas. The political empowerment of
women has been addressed by the 73rd and 74th Amendments, which reserve seats for
women in Gram Panchayats and Municipal bodies. Factors such as illiteracy, lack of
political awareness, physical violence, and economic dependence inhibit women from
actively participating in the political processes of the country.

4.1.3 Economic Rights

A series of laws have been enacted to ensure equal rights for both women and men, guided
by the principles outlined in fundamental rights and Directive Principles of State Policy.
However, there remains a significant lack of awareness regarding economic rights among
women. Legislation has been put in place to address issues such as wages, maternity
benefits, equal pay, and property/succession, aiming to provide necessary protection in
these domains.

54
4.1.4 Social justice

In the pursuit of achieving social justice for women, one pivotal advancement has been the
codification of certain personal laws within our nation, which presents a significant
challenge in this endeavor. Within the realm of criminal justice, the impartiality of the law
sometimes disadvantaged women who were accused, as it placed a substantial burden on
the prosecution, particularly evident in cases such as rape and dowry disputes.

Certain critical areas like domestic violence and sexual harassment in the workplace were
previously overlooked and neglected. These instances of gender insensitivity were
addressed by the judiciary and integrated into legally binding decisions to address societal
imbalances.

Despite ongoing aspirations for a Uniform Civil Code, its realization remains elusive,
notwithstanding the court's various directives. Nonetheless, the enactment of specific
legislations like the Pre-Natal Diagnostic Techniques (Prevention of Misuse) Act and the
Medical Termination of Pregnancy Act serves to safeguard justice and human rights from
the very inception.

However, the mere existence of these laws is not sufficient; their effective implementation,
along with enhanced gender sensitivity and legal awareness, are crucial for realizing the
constitutional vision of ensuring dignity for every individual, regardless of gender,
community, or place of birth.

4.2 Fundamental Rights:

Part III of the Constitution, encompassing Articles 12-35, stands as the core of our
Constitution. Human rights, inherent to every individual by virtue of their humanity, have
been enshrined as enforceable constitutional or fundamental rights in India. The architects
of the Constitution were cognizant of the historical unequal treatment and discrimination
faced by women and thus incorporated both general and specific provisions aimed at
uplifting their status.

In the case of Maneka Gandhi v. Union of India (AIR 1978 SC 597), Justice Bhagwati
articulated: "These fundamental rights embody the fundamental values cherished by the

55
people of this nation since ancient Vedic times, and they are designed to safeguard the
dignity of the individual and foster conditions wherein every human being can realize their
fullest potential."

4.2.1. Article 14 guarantees that the State shall not deny equality before the law and
equal protection of the laws;
Article: 14 Equality before Law
The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.
4.2.2. 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;
Article: 15 Prohibition of discrimination on grounds of religion, race, cast, sex, or place of
birth

(1) The state shall not discrimination against any citizen on grounds only of religion,
race, cast, sex, or place of birth or any of them.
(2) Nothing in this article shall prevent the State from making any special provision for
women and children.
Accordingly Article 15(1) 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. The State in the field of Criminal Law, Service Law, Labour Law, etc. has
resorted to Article 15(3) and the Courts, too, have upheld the validity of these protective
discriminatory provisions on the basis of constitutional mandate,
4.2.3. Article 16 provides for equality of opportunity in matter of public employment’
Article: 16 Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the state.
(2) No citizens shall, on grounds only of religion, race, cast, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the state.

56
The Constitution inherently offers equal opportunities for women, as it applies to
all individuals regardless of gender. However, the Courts acknowledge that these
provisions only ensure theoretical equality for women. They have not effectively
bridged the gap to achieve practical equality as intended by the Constitution. There
remains a significant disparity between women's constitutional rights and their real-
life experiences. While women are now employed in roles traditionally dominated
by men, there are still instances where doubts persist regarding their abilities and
competence. This lingering skepticism about their capacity to handle assigned tasks
reflects a broader issue.

In the case of C.B. Muthumma v. Union of India, Ms. Muthamma, a senior

member of the Indian Foreign Service, filed a writ petition alleging unlawful and
unconstitutional denial of promotion to Grade I. She highlighted several
discriminatory rules within the civil service. Ms. Muthamma faced discouragement
from the Chairman of the UPSC when she expressed interest in joining the Foreign
Service. Additionally, she was required to sign an undertaking agreeing to resign
upon marriage, as per Rule 18 of the Indian Foreign Service (Recruitment, Cadre,
Seniority and Promotion) Rules, 1961. Rule 8(2) of the Indian Foreign Service
(Conduct and Discipline) Rules, 1961, mandated that a female member of the
service seek government permission before marriage, with the possibility of
resignation if her family responsibilities were deemed to interfere with her duties.
Despite constitutional provisions prohibiting discrimination based on various
grounds, including gender, Ms. Muthamma faced discrimination throughout her
career.

The Supreme Court, represented by V.R. Krishna Iyer and P.N. Singhal, JJ.,
acknowledged Ms. Muthamma's plight, suggesting that the ideals of Articles 14
and 16 of the Constitution seemed more mythical than real in her case. They
criticized the persistence of gender bias in service rules even decades after India's
independence. The Court highlighted the indifference of the executive branch in
eliminating discriminatory practices from the institutional framework. This
indifference not only affects high-ranking officials but also undermines the access

57
 to justice for ordinary citizens, particularly those who cannot afford expensive legal
proceedings.

Commenting further on the discriminatory rules the Court said:

"Discrimination against woman, in traumatic transparency, is found in this rule.

If a woman member shall obtain the permission of government before she marries. The
same risk is run by government if a male member contracts a marriage. If the family and
domestic commitments of a woman member of the service is likely to come in the way of
efficient discharge of duties, a similar situation may arise in thecase of a male member.
In these days of nuclear families, intercontinental marriages and unconventional
behaviour, one fails to understand the naked bias against the gentler of the species."
Expressing its opinion on Rule 18 of the Indian Foreign Service (Recruitment, Cadre,
Seniority and Promotion) Rules, 1961, the Court observed:
"At the first blush this rule is defiance of Article 16. If a married man has a right,
a married woman, other things being equal, stands on no worse footing. This misogynous
posture is a hangover of the masculine culture of manacling the weaker sex forgetting
how our struggle for national freedom was also a battle against woman's thralldom.
Freedom is indivisible, so is justice. That our founding faith enshrined in Articles 14 and
16 should have been tragically ignored vis-à-vis half of India's humanity, viz. our women,
is a sad reflection on the distance between Constitution in the book and Law in action.
And if the executive as the surrogate of Parliament makes rules in the teeth of Part III,
especially when high political office, even diplomatic assignment has been filled by
women, the
Striking down the rules as violating the principle of quality, it was said:

"We do not mean to universalize or dogmatise that men and women are equal in
all occupations and all situations and do not excludethe need to pragmatise where the
requirements of particular employment, the sensitivities of sex or the handicaps of either
sex may compel selectivity. But save where the differentiation is demonstrable the rule of
equality must govern."
In case of Air India v. Nargesh Meerza 45Nargesh 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

45 ((1981) 4 SCC 335),

58
 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."
However, this argument given by the Court came in for criticism that as the requirements
of age and family planning were warranted by the population policy of the State and once
the State had fixed the age of , i.e. 18 years, the reasoning advanced for upholding the
rule was a camouflage for the real concern.
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. The impugned
Regulation 4 provided that an air hostess would retire from the service of the corporation
upon attaining the age of 35 years or on marriage, if it took place within 4 years of
service, or on first pregnancy, whichever occurred earlier. Under Regulation 7, the
Managing Director was vested with absolute discretion to extend the age of retirement
prescribed at 45 years. Both these regulations were struck down as violative of Article 14,
which prohibits unreasonableness and arbitrariness.
In Sarita Samvedi v. Union of India 46the 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

46(1996 (2) SCC 380), 9

(1995 (4) SCC 520

59
 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.
Reservations of seats for women in local bodies or in educational institutions have been
upheld. The Supreme Court in Govt. of A.P. v. P.B. Vijayakumar, 9 held that reservation
to the extent of 30% made in the State Services by the Andhra Pradesh Government for
women candidates was valid. The Division Bench of the Supreme Court emphatically
declared that the power conferred upon the State by Article 15(3) is wide enough to cover
the entire range of State activity including employment under the State. The power
conferred by Article 15(3) is not whittled down in any manner by Article 16.
In Madhu Kishwar v. State of Bihar 47, 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”.
4.2.4 Gender equality becomes elusive in the absence of right to live with dignity.
Article 21 Protection of life and personal liberty.

“No person shall be deprive of his life or personal liberty except according to
procedure established by law.
Denial of right of succession to women of Scheduled Tribes amounts to deprivation of
their right to livelihood under article 21; Madhu kishwar v. state of bihar, ((1196) 5 SCC
125).

47 (1996) 5 SCC 145}

60
 In Vishaka v. State of Rajasthan 48the 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."

4.2.5 Article 23 prohibits trafficking in human beings and forced labour; Article 23 of
the Constitution specifically prohibits traffic in human beings. Trafficking in human
beings has been prevalent in India for a long time in the form of prostitution and
selling and purchasing of human beings.
23. Prohibition of traffic in human beings and forced labour.—

(1) 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.
(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purposes, and in imposing such service the State shall not make any discrimination
on grounds only of religion, race, caste or class or any of them. In Gaurav Jain v. Union
of India 49the 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.

48 (AIR 1997 SC 3011),

49 (1997 (8) SCC 114),

61
4.3 Directive Principles Of State Policy
However, the Directive Principles of State Policy, though not legally binding in any court
of law, play a vital role in the governance of the country and contribute to the welfare of
the populace, including women. These provisions are articulated in Part IV of the
Constitution. While Fundamental Rights guarantee individual rights, the Directive
Principles of State Policy address societal needs.

4.3.1 Article: 39 certain principles of policy to be followed by the state.

The State shall, in particular, direct its policy towards securing -

(a) That the citizen, men and women equally, have the right to an adequate
means of livelihood;
(d) That there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to
enter avocations unsuited to their age or strength;
Article 39(a) mandates that the State should focus its policies on ensuring that all citizens,
regardless of gender, have equal access to sufficient means of livelihood. Article 39(d)
mandates the State to ensure that men and women receive equal pay for equal work. To
fulfill this mandate, the State enacted the Equal Remuneration Act, 1976. Article 39(e)
specifically prohibits the State from exploiting the health and strength of workers,
irrespective of their gender.

4.3.2 Article: 42 Provision for just and humane conditions of work and maternity
relief.—
The State shall make provision for securing just and humane conditions of work
and for maternity relief.
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, Beedi and Cigar Workers (Conditions of
Employment) Act, etc.

62
 4.3.3 Uniform Civil Code
Article 44 Uniform civil code for the citizens.—
The State shall Endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
Article 44 mandates the State to establish a Uniform Civil Code for all citizens across
India, aiming particularly at ensuring gender justice. While the State has yet to take steps to
implement such a code, the judiciary has acknowledged the importance of consistency in
civil laws concerning marriage, inheritance, adoption, divorce, maintenance, and others.
However, being a directive, it lacks enforceability in a court of law. Notably, Shri K.M.
Munshi, a proactive member of the Assembly, argued that if personal laws regarding
inheritance, succession, etc., are viewed as religious tenets, achieving gender equality
would remain elusive.

4.3.4. Fundamental Duties

Parts IV-A, comprising solely of Article 51-A, were introduced into the constitution through
the 42nd Amendment of 1976. This Article marks the first instance where a set of eleven
fundamental duties for citizens is explicitly outlined.

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”
4.3.5. Article: 243 D Reservation of seats. (73 rd Amendment - w.e.f. 1-6-1993)
Seats must be set aside for the Scheduled Castes and Scheduled Tribes in each Panchayat.
The number of reserved seats should proportionally reflect the population of these groups
in the Panchayat area. Furthermore, not less than one-third of the total reserved seats must
be allocated for women from these communities. Additionally, at least one-third of all seats
to be filled by direct election in every Panchayat must be reserved for women, including
those from Scheduled Castes and Scheduled Tribes, with a provision for rotation among
constituencies.

63
Chairperson positions in village and higher-level Panchayats shall also be reserved for
Scheduled Castes, Scheduled Tribes, and women, as per state legislation. The allocation of
these reserved positions should align with the population demographics of the respective
communities in the state. Furthermore, a minimum of one-third of Chairperson positions at
each level must be reserved for women, with rotation among Panchayats.

These reservations for seats and Chairperson positions, except those for women, shall
expire after the specified period in Article 334. However, states retain the authority to enact
provisions for reservations favoring backward classes in any Panchayat.

4.3.6. Article: 243 T Reservation of seats. (74 th Amendment - w.e.f. 1-6-1993)

243T. Reservation of seats.—

(1) Seats must be allocated for the Scheduled Castes and Scheduled Tribes in each
Municipality. The number of reserved seats should roughly reflect the proportion of the
SC/ST population to the total population of the municipality. These reserved seats may
rotate among different constituencies within the Municipality.

(2) At least one-third of the total reserved seats mentioned in clause (1) must be set aside
for women from the Scheduled Castes or Scheduled Tribes.

(3) At least one-third of the total number of seats to be filled by direct election in each
Municipality, including those reserved for SC/ST women, must be reserved for women.
These seats may rotate among different constituencies within the Municipality.

(4) The position of Chairpersons in the Municipalities will be reserved for Scheduled
Castes, Scheduled Tribes, and women according to laws enacted by the State Legislature.

(5) The reservation of seats as per clauses (1) and (2), and for Chairpersons (excluding
women) as per clause (4), will end after the specified period in Article 334.

(6) The provisions of this Part do not prevent State Legislatures from reserving seats in any
Municipality or Chairperson positions in favor of backward classes.

64
4.3.7. Article: 243 G. Powers, authority and responsibilities of Panchayats Read with
Eleventh Schedule.
243G. Powers, authority and responsibilities of Panchayats -Subject to the
provisions of this Constitution, the Legislature of a State may, by law, endow the
Panchayats with such powers and authority as may be necessary to enable them to
function as institutions of self-government and such law may contain provisions for the
devolution of powers and responsibilities upon Panchayats at the appropriate level,
subject to such conditions as may be specified therein, with respect to-
(a) The preparation of plans for economic development and social justice;
(b) The implementation of schemes for economic development and social justice
as may be entrusted to them including those in relation to the matters listed in the
Eleventh Schedule.

4. 4 Role of Judiciary in Empowerment of Women

Discrimination undermines individuals because any form of discrimination hampers

human potential. Anything that limits human capability must be recognized as
disempowering. It's widely accepted that discrimination, especially regarding personal
status, robs individuals of the opportunity to lead dignified lives worthy of human beings.
Thus, any measure of justice that restores lost dignity serves as a tool for empowerment. In
India's democracy, the judiciary has played a crucial role in upholding justice in cases of
discrimination against women since independence. Women's upliftment and development
have been central to constitutional mechanisms, as well as the agendas of politicians, the
media, civil society institutions, and the judiciary. Constitutional provisions such as the
right to equality outlined in Articles 14, 15, and 15(3), along with provisions like 42, 45,
46, and the mandate for 33.3 percent reservation for women in rural and urban local
bodies, aim to empower women on equal footing with men. Various rural and urban
development schemes and specific programs for women and children implemented since
independence reflect political commitment to improving the social and economic status of
women. Efforts were made to bring about critical social changes, aiming for social equality
between men and women, especially through social reform laws addressing issues faced by
Hindu women in marriage, divorce, succession, adoption, and guardianship matters. While
the judiciary addressed the inadequacies of these laws, political and electoral
considerations hindered similar reforms in the personal laws of Muslim and Christian

65
communities, leaving them vulnerable to discrimination and injustice despite a
constitutional mandate under Article 44 for a uniform civil code. Over the past five
decades, courts, supported by liberal constitutional provisions, international human rights
instruments advocating for women, and a growing women's movement, have played a
significant role. However, critiques argue that more could have been achieved if judges
were more inclined, and that the judicial system as a whole failed to fully embrace
emerging standards of equity and equality for women, resulting in many women facing
unequal treatment and limited access to the principle of equal justice under law in
subordinate courts.

It must be clearly understood that the judiciary plays a crucial role in ensuring gender
justice. According to Justice V.R. Krishna Iyer, while judges cannot create law, they
interpret it within defined boundaries, sometimes contributing to legal evolution. However,
legislative action is essential for substantial societal transformation. The judiciary's
actions, though commendable, cannot substitute for legislative functions.

The Supreme Court, particularly since the emergence of Public Interest Litigation (PIL),
has interpreted laws in line with contemporary societal norms. Recognizing the limitations
of legislation to foresee all future scenarios, the Court adapts legal interpretation to address
emerging issues. In landmark cases like Madhu Kishwar v. State of Bihar, the Court
highlighted the historic discrimination against women, emphasizing the need for gender
equality.

Indian judiciary, especially in recent decades, has demonstrated sensitivity towards gender
issues, as noted by former Chief Justice R.C. Lahoti. However, this sensitivity should be
institutionalized rather than solely relying on individual judges. Although discerning court
rulings' impact on women's social, economic, and political empowerment is challenging,
researchers have attempted to categorize apex court judgments under broad and specific
headings to better understand the Court's stance on women's empowerment.

Socio-economic Empowerment of Women and Judicial Attitude

The legislature has enacted numerous laws aimed at women's welfare, particularly
following the post-emergency period. However, these laws alone are insufficient without

66
 broader interpretation, a task reserved for the judiciary. The Supreme Court has taken a
leading role in safeguarding individual rights through Public Interest Litigation (PIL) and
even initiating suo moto actions. Its judgments have significantly contributed to
safeguarding the status of Indian women, effectively becoming part of the legal framework
and prompting the government to shift its focus from welfare to empowerment. In the case
of Gaurav Jain v. Union of India, the Supreme Court stated that socio-economic
empowerment of women is a constitutional obligation of the state, emphasizing society's
responsibility in preventing women from falling victim to circumstances such as
trafficking and prostitution. The court highlighted the constitutional duty of the state to
ensure the economic empowerment, social justice, and dignity of women, urging both the
judiciary and the executive to work together for the enforcement of fundamental rights.

This study aims to examine the evolving approach of the judiciary towards women's
issues, moving from a strict interpretation of written laws to considering their spirit. The
judicial treatment of various socio-economic issues concerning women is analyzed, noting
the court's recognition of the need for gender equality across all aspects of life. Initially
focused on emancipating women from patriarchal practices, the judiciary later
acknowledged the importance of empowering women while interpreting legislation. The
attitude of the Indian judiciary towards women's rights is discussed in detail below.

(1) Bigamous Marriages I

In Bhau Rao v State of Maharashtra, 50 The court stated that anyone entering into a second
marriage while the first marriage remained valid could face legal repercussions if the
second marriage was conducted with proper ceremonies and in the correct manner,
meaning it was properly solemnized. The court clarified that 'solemnize' in the context of
marriage refers to celebrating the union with appropriate ceremonies and following the
required procedures, as defined by the Shorter Oxford Dictionary. Consequently, unless
the marriage is conducted with proper ceremonies and in the correct manner, it cannot be
considered solemnized. Therefore, according to section 17 of the Act, it is crucial for a
marriage falling under section 494 IPC to have been conducted with proper ceremonies
and in the correct manner. This ruling by the court was criticized for its impact on the first

50 AIR 1965 SC 1564. Also see Hindu Marriage Act, 1955 and Indian Penal Code, 1860 section 494.

67
 wife, as it essentially sealed her fate. The man's deliberate avoidance of rituals and
ceremonies in his second marriage to exploit the law does injustice to both the first and
second wives, causing suffering for both women.

The second woman is excluded from inheriting property from her spouse due to legal
entitlement. Men take advantage of women's vulnerabilities when they marry them, often
due to poverty, parental pressure, or deceit. The Supreme Court's emphasis on the literal
definition of 'solemnize' from the Shorter Oxford Dictionary has overridden the intent and
policy of the Act. In the case of Priya Bala v Suresh Chandra, the court ruled that even if a
husband admits to marrying a second wife in a civil case, it doesn't constitute enough
evidence for bigamy unless the marriage was solemnized. This stance was reaffirmed in
Gopal Lai v State of Rajasthan. Consequently, many accused males evade punishment in
bigamy cases. The Supreme Court's restrictive interpretation of section 17 of the HMA
disregards the societal goals of the provision, leading to the persistence of bigamy among
Hindus, openly or covertly. Due to the economic dependence of the first wife and children
on the husband, the aggrieved wife is often deterred from initiating legal action. Some
exploit loopholes in existing laws, while others resort to fraudulent conversions to Islam.
Judges tend to defer responsibility to lawmakers, arguing that penal provisions should be
strictly interpreted. In Yamunabai v Anantrao, the Supreme Court ruled that a second wife
wasn't entitled to maintenance as the marriage was invalid under Section 125 of the Code
of Criminal Procedure, 1973. Critiquing this judgment, Jaya Sagade argued that the Court
prioritized the literal interpretation of the law over its spirit and legislative intent, failing to
acknowledge the social realities and hardships faced by second wives. 51 Regarding
whether a Hindu man can enter into a second marriage after converting to Islam while his
first marriage is still valid, the court ruled against it and emphasized prosecution under
Section 17 of the Hindu Marriage Act along with Section 494 of the Indian Penal Code.
The Supreme Court, in Lilly Thomas v. Union of India, clearly established that a Hindu
cannot exploit religious freedom to marry another woman after converting to Islam. The
court asserted that religion, faith, or devotion cannot be easily changed, and adopting
another religion for personal gain constitutes religious bigotry. Thus, if a person adopts
another religion merely to facilitate a second marriage and abandon their previous spouse,

51 See, Jaya Sagade, Law of Maintenance: An Empirical Study^ (1996), p. 83.

68
 they cannot benefit from this exploitation. Marriage is considered a sacred institution
under every personal law, including Hindu law, and must be upheld.

Violence Issues
The right to life include the right to dignity. Through its five decades of existence, the
Supreme Court has had occasion to address this important issue. We shall pause in our
odyssey for a moment and take a quick look at how the apex court has dealt with violence
and dignity issues affecting women. It was in the cradle of the civil liberties consciousness,
that the Supreme Court's decision in Mathura case 52 ignited the first indigenous legal
battle for gender justice. Mathura, a 16 year-old tribal girl was raped by two policemen
within the premises of a police station. The Sessions Court acquitted the policemen on the
ground that since Mathura had eloped with her boyfriend she was 'habituated to sexual
intercourse' and hence she could not be raped.
The court further held that Mathura was of 'loose morals' and that the sexual intercourse
was with her consent. The high court convicted the policemen and held that mere passive
or helpless surrender induced by threats or fear cannot be equated with desire or will and
hence cannot be deemed as consent. The Supreme Court stepped in to set aside the
conviction and exonerate the police stating that since Mathura has not raised any alarm and
since there were no visible marks of injury on her body, allegations of rape were untrue.
As such, the basis was that there was insufficient evidence that the prosecutrix resisted the
sexual intercourse. The review petition that was filed was dismissed and the judgement
remains to this day as testimony to the insensitivity to the rights of women.
This decision generated heated discussion. Law Commission had earlier made certain
recommendation in its 42 nd Report in 1971; apparently nothing was done so far as sexual
offences were concerned. The Government, keeping in view the discussion, requested the
Law Commission to give another report in this regard and the Commission did it in its 84 th
report in 1980. Some of its recommendations were accepted and Criminal Law
Amendment Act, 1983 was passed. This amendment has substituted Section 375 and 376
in IPC in place of old ones, and further has inserted Section 376A to 376D 53 in IPC. It has
further amended the Evidence Act by inserting a new Section 114A 54 that has shifted the

52 Tukaram v. Stale of Maharashtra (1979) 2 SCC 143.

53 Section 376A, intercourse by a man with his wife during the separation, 376B, intercourse by public servant with a
woman in his custody, 376C, intercourse by superintendent of Jail, remand home, etc., 376D,intercourse by any
member of the management or staff of a hospital with any woman in that Hospital.
54 Presumption as to absence of consent of woman for sexual intercourse.

69
 burden on the accused in rape case in certain circumstances. It has also amended Section
327 of the Cr. P.C. by inserting subsection (2) and (3) which gives power to the Court to
conduct rape case trial in camera. The Court can also prohibit any person to print or
publish any matter in relation to proceeding in the Court without its previous permission.
Section 228-Awas also inserted in the IPC providing punishment for disclosing identity of
the rape victim. 55 Unfortunately the court has on many occasion approached rape as man's
uncontrollable lust rather than as an act of sexual violence against women. In Phul Singh v
State of Haryana 56, the sentence for the rape of a young girl by her cousin was reduced on
the basis that: Young overpowered by sex stress in excess. Hyper sexed Homo sapiens
cannot be rehabilitated by humiliating or harsh treatment. As part of the curative course for
the prisoner should be designed to rid his aphrodisiac overflow and restore him into safe
citizenship. The accused in barely 22 years. He has a young wife and farm to look after.
Given correctional course his erotic aberrations may wither away. Taking an overall view
of the criminal and familial factors involved, the societal proneness to sex and people's
abhorrence of released prisoners, sentence is reduced. Similarly, in another case, the
Supreme Court held with regard to uncorroborated evidence that it is essential to consider
human psychology and behavioural probability when assessing the credibility of the
victim's version. 57
However, despite such obstacles, post Mathura the Court has gradually begun to
demonstrate remarkable sensitivity to issues of sexual violence against women. A case in
point was Bharwada Bhogibhai Hrijibhai v State of Gujarat, 58 where the Court held that in
the Indian context, refusal to act on the testimony of the victim of sexual assault in the
absence of corroboration is 'adding insult to injury'. The Court went on to ask: 'Why should
the evidence of the girls or a woman who complains of rape or sexual molestation be
viewed with the aid of spectacles tinged with doubt or disbelief? To do so is to justify the
charge of male chauvinism in a male dominated society.' There have also been setbacks
such as the controversial Suman Rani Rape case 59 where the Supreme Court reduced the
mandatory minimum sentence of ten years imposed on two police officers found guilty of
raping a young woman on the basis of the 'peculiar facts and circumstances of the case

55 Two more Law Commission Reports namely 156th and 172nd regarding rape for consideration of the Government.
56 (1979) 4 se c 413.
57 See, Krishnalal v. Slate of Haryana{]9W) 3 SCC 159.

58 (1983)2 SCC 217.

59 See, Premchand v State ofHaryana (1989) Supp 1 SCC 286.

70
 coupled with the conduct of the victim girl ...'. these 'peculiar facts' referred to the
argument of the accused that the victim was a woman of questionable character and easy
virtue with lewd and lascivious behaviour.30 To the apex court's credit, the march of the
law of rape in the past two decades has been spectacular. The Court has gradually come
around to the view that corroboration of the evidence of the victim of rape was not
essential.60 J Ahmadi, J, emphatically stated: To insist on corroboration except in rarest of
rare cases is to equate a woman who is victim of lust of another with an accomplice to a
crime and thereby insult womanhood. It would be adding insult to injury to tell a woman
that her story of woe will not be believed unless it is corroborated in material particulars as
in the case of an accomplice to a crime. The Court has sometimes taken a practical and
pragmatic view of the complex issues that arise in the context of rape, such as 'penetration'.
In Madan Gopal Kakad Naval Dubey & Another 61 it held that even slightest penetration
without rupturing the vagina would constitute rape. This judgement has gone a long way in
convicting in cases of child rape. Prior to this judgement, all such cases were being dealt
with as a relatively minor offence under section 354 of the Indian Penal Code. Often
technicalities and the letter of the law prevail over the spirit of justice. But the Supreme
Court in State of Kamataka v.Mahabaleshwar36 scotched the prospect of a technicality
overriding the demands of justice. Ratnavelu Pandian, J, observed: 'Merely because a
victim is dead and consequently could not be examined can never be a ground to acquit an
accused if there is evidence otherwise available proving the criminal act of the accused
concerned'. Further, in another judgement, the Court held that a conviction could rest even
on the sole testimony of the victim, if credible. 62 The Court has come down heavily on
judgements that have cast a stigma on the character of the victims. 38 In Delhi Domestic
Working Women's Forum v Union of India, 63 the apex court filled a serious lacuna in the
Indian Legal System that is lack of sufficient provisions to award compensation to victims
of rape‟s.64 The Court laid down guidelines for assisting the rape victims. The facts

60 Interestingly, the Supreme Court has never addressed the question of the constitutionality of section 155(4) of the
Indian Evidence Act, 1872, which enables the previous sexual history of the prosecutrix to be brought in evidence to
impeach her testimony. 31See, Stale of Maharashtra v.
Chandraprakash KeM'alchand Jain, (1990) 1 SCC 55
61 (1992) 3 se c 204 36 AIR

1992 SC 2043.
62 See, Kamel Singh v. Slate of Madhya Pradesh, (1995) 5 SCC 518 38 See, The
State of Punjab v. Gurmil Singh & Ors, (1996) 2 SCC 3 84.
63 (1995)1SCC14

64 The law in other countries ensure that victims of rape are enabled to get compensation specifically. Though section

357 (3) of CrPC contemplates the grant of such compensation, the provision is rarely invoked and even if granted, it is

71
 brought before the court in this case related to rape of six women by army jawans on a
train. The court suggested, broadly, legal assistance at the police station, information on
the rights of representation available to the women, preservation of the anonymity of the
victim, keeping in the police station a list of advocates willing to act in these cases,
authorising the advocate to act within the police station with respect to questioning of the
victim without delay, and the setting of Criminal Injury Compensation Board which would
provide for compensation to the victim, whether or not a conviction had taken place. The
court also ordered that the scheme for compensation and rehabilitation of the victims be
focused on by the National commission for Women and a time period of six months for the
scheme was set. 65 The case of Bodhisattva Gautam v Chakraborthy 42is one in which the
Supreme Court yet again used provisions of criminal law to deal with a difficult situation.
The appellant, Bodhisattva Gautam, had persuaded women to have sexual intercourse with
him on a promise of marriage. He then went through a fake form of marriage with her. She
was twice pregnant and on each occasion he compelled her to undertake an abortion. He
then abandoned her on the plea that he was never lawfully married to her. In these
circumstances, she lodged a complaint against him under section 312, 420, 493, 496 and
498A of the IPC. He applied to the High Court to quash the prosecution which it refused to
do. The appeal to the Supreme Court resulted in a historic judgement where the court took
suo moto notice of the fact in the complaint, and issued a notice to him to show cause why
he should not be compelled to pay maintenance to a women he had cheated.
The Constitution (73 rd Amendment) Act 1992 and the Constitution (74 th Amendment) Act
1992 added Article 243-D and 243-T to the Constitution, making provisions for
reservation of not less than one third of the total seats for women in the Constitution of the
Panchayat and the Municipalities, respectively. The object of these provisions is to raise
the political status of our womenfolk and the removal of imbalance in the participation of
men and women in political life. These provisions would be protected under Article 15(3).
In Gayatri Devi Panjari v. State of Orissa,'66 upheld the policy of government to give
preference to women while allotting shops on merit in addition to 30 percent observation
for women in that regards. The Court opined that reserved for any category cannot be

totally inadequate. The victims suffer medical and psychological injuries, loss of job and prospects, and are rarely
compensated for these losses.
65 Criminal Procedure Code, Amendment 2008, incorporated provisions for Compensation Board to victim of

crimes, section 357-A. 42 (1996)1 se c 490. 43 AIR 2000 SC 988

66 AIR 2000 SC 1531.

72
 taken as a ceiling and the government could, prefer women over men ever if there was
reservation for women since the policy of reservations aims at ensuring the minimum
while the policy of preference aims at facilitating the empowerment of the disadvantages
sections of the people.
The Supreme Court delivered a very significant judgment when it averred in Velamuri
Venkata Sirprasad v. Kothuri Venkateshwarlu 67 that equality of status was integrated to the
concept of basic structure of the constitution and was an important dimension of gender
justice.
In Union of India v. K.P. Prabhakaran, 68 reservation to women in relation to the post of
enquiry/reservation clerks in reservation office at Madras, Bombay, Calcutta and Delhi by
Railway Administration was given judicial approval.

Equal Pay for Equal Work

The judiciary has acknowledged the economic disadvantage faced by Indian women
through various judgments. In several cases, the Supreme Court has emphasized that
economic empowerment is a fundamental human right for women. Previously, the right to
livelihood received little attention. The Supreme Court adopted the principle of equal pay
for equal work to broaden the scope of fundamental rights such as those outlined in
Articles 14 and 21, giving them greater depth and significance. In the case of Randhir
Singh v. Union of India, the court interpreted the principle of 'equal pay for equal work' by
considering Articles 14 and 16 alongside the directive principle in Article 39(d). This
principle ensures that individuals working for the same employer receive the same pay for
identical work. The court affirmed that this principle is not merely abstract but substantive.
Although not explicitly declared a fundamental right in the Constitution, it is a
constitutional objective outlined in Article 39(d).

This principle applies to cases where unequal pay scales are based on arbitrary or irrational
classifications, even if individuals perform identical work for the same employer. The
court observed that previously, the equality clauses of the Constitution, along with other
articles guaranteeing fundamental and other rights, were often invoked by privileged
classes. However, due to increasing social and political awareness and the proactive stance

67 Appeal (civil) 425 of 1982

68 (1997) ! se c 638

73
of the court, underprivileged individuals are now asserting their rights and seeking court
intervention with faith and confidence. The court emphasized that for the majority of
people in India, the equality clauses of the Constitution hold meaning only if they are
linked to the work they do and the pay they receive. The concept of equal work leading to
equal pay imbues these equality clauses with substance. Although the case in question did
not pertain directly to gender, the court's use of the term 'person' implies that it
encompasses both men and women, as explicitly stated in the Constitution. This was
further clarified in the case of Olga Tellis v. [Incomplete sentence, needs further context]

The Bombay Municipal Corporation was affirmed as a constituent of the right to life by the
Supreme Court under Article 21. The Supreme Court exhibited a liberal stance in
interpreting the Equal Remuneration Act of 1976, aimed at ensuring equal pay for both
male and female employees. The Act stipulates that employers must not pay male and
female workers differently for the same work. Amended in 1987 to enforce stricter
penalties and to prohibit discrimination not only in initial hiring but also in any aspect of
employment such as promotions, training, or transfers. Despite this legislation, women
continue to face discrimination in employment and terms of service. In the case of
Mackinnon Mackenzie and Co. v. Andry D'costa, the court ruled that discrimination occurs
when men and women performing similar work are paid differently. It emphasized the
necessity of proper job evaluation before further inquiries into alleged sex discrimination.
If two jobs in an establishment are deemed equal through non-discriminatory criteria, yet
are paid differently based on the sex of the employees, it constitutes sex discrimination.
The court found M/s. Makenzine guilty of discriminating against Andry D'costa by paying
her lower wages as a female stenographer. The company's argument that male and female
stenographers performed different duties was dismissed by the Court, asserting that both
roles were equal.

Political Empowerment of Women and Judicial Attitude

In the case of Dattatry Motiram v. State of Bombay, the challenge was against the
provision in the Bombay Municipal Borough Act, 1925, which reserved seats for women
in municipal elections. The argument presented was that while favoring a specific gender
is acceptable, it should not solely be based on gender but on other factors as well.

74
Additionally, it was contended that Article 15(3) should only allow special provisions for
women that don't discriminate against men.

However, the court dismissed this argument, stating that the state can indeed favor women
over men due to the combined effect of clauses (1) and (8) of Article 15. Conversely, it
cannot favor men over women. Therefore, the legislation in question does not violate
Article 15(1) because of Article 15(3). The court also emphasized that women are still
more disadvantaged compared to men, and it's the duty of the state to uplift women to the
same level as men.

The judiciary's proactive stance in ensuring political rights is evident in Rama Chandra v.
State of Bihar, where the validity of Section 5(l)(v)(9) of the Bihar Panchayat Samities and
Zila Parishad Act 1961 was upheld. The court justified this by stating that granting women
the right to participate in politics is crucial for elevating their status in society to that of
men. The court, in its support for women, boldly stated:

"Women have participated in the freedom struggle and have been elected to various
bodies, including Parliament and State Legislatures. However, they cannot yet be
considered equal to men in these matters."

The Supreme Court's words in the aforementioned case highlight that despite legislative
efforts, women in India still struggle to fully benefit from statutory provisions, leaving
them far from fully integrating into national life.

In the case of Om Narayan Agarwal v. Nagar Palika, Sahajanpur, the Supreme Court ruled
that the nomination of one or two women members on the Municipal Board under the U.P.
Municipalities Act is in accordance with Article 15(3) of the Constitution. Similarly, the
Supreme Court of India, as per the provisions of Article 243 D and T, affirmed the legality
of reserving certain positions exclusively for women. Furthermore, in the case of
Kasambai F. Ghanchi v. Chandubai D. Rajput, it was determined that a Municipal
Councilor from a Backward class, elected from an unreserved seat, could contest the
election for the post of president of the Municipality, even if it was reserved for a
backward class candidate under the Gujarat Municipalities (Reservation of Scheduled
Caste, Scheduled Tribes, Backward Class, and Women for Office of President) Rule 1994.

75
 Conclusion
The preceding discussion emphasizes the significant role played by the Courts in
safeguarding women across all spheres due to their vulnerability. This judicial activism
should persist as an ongoing process, as historically, the judiciary's policymaking has been
crucial for human rights, especially as governmental regulatory powers expand into society.
Consequently, the judiciary's acknowledgment and enforcement of various women's rights,
including those against gender discrimination, sexual harassment, stalking, domestic
violence, termination of pregnancy, sexual health, and female genital mutilation, have
become legally enforceable. Given the Constitution of India's emphasis on gender justice and
the judiciary's pivotal role in upholding fundamental rights, the focus should be on enhancing
judicial performance to fulfill the constitutional mandate of justice for women. This involves
not only landmark judgments but also the overall adjudicatory practices and women's
participation within the legal system. Designating 2005 as a year for judicial excellence
signaled an opportunity for the Indian courts to advance gender justice in line with
constitutional promises and equal justice under the law. In summary, while the judiciary
initially focused on limited government and fundamental rights, the past three decades have
seen a significant shift towards empowering women in various aspects, demonstrating the
evolving role of the Indian judiciary.

76
 CHAPTER 5
LEGISLATIVE TRENDS

In ancient India, women held an equal standing with men across various spheres of life.
References from the Rig-Veda indicate that women typically married after reaching maturity
and likely had the freedom to choose their own spouses. Equality in status and rights was
prevalent during the early Vedic era. However, around 500 B.C., there was a decline in
women's status, exacerbated by the Islamic invasion of Babur and the subsequent Mughal
Empire, as well as the influence of Christianity. Although certain reform movements like
Jainism permitted women's inclusion in religious orders, overall, Indian women faced
confinement and limitations. The custom of child marriages is believed to have emerged
around the sixth century. Efforts by Bhakti movements aimed to restore women's status and
challenge oppressive practices. Traditional customs such as Sati, Jauhar, and Devadasi,
prevalent in certain communities, have been outlawed and are mostly obsolete in modern
India, although sporadic instances persist in remote regions. Some communities still observe
purdah, and child marriage remains prevalent in rural areas despite being prohibited by
current Indian legislation.

During the British Raj, reformers such as Ram Mohan Roy, Ishwar Chandra Vidyasagar, and
Jyotirao Phule advocated for women's advancement. In 1917, the first women's delegation
petitioned the Secretary of State for women's political rights, with backing from the Indian
National Congress. The All India Women's Education Conference convened in Pune in 1927
emerged as a pivotal organization in the push for social reform. The passing of the Child
Marriage Restraint Act in 1929 mandated fourteen as the minimum age for girls to marry.
Despite Mahatma Gandhi's own marriage at thirteen, he later advocated against child
marriages and encouraged young men to marry widows. Presently, women in India actively
engage in various domains including education, sports, politics, media, arts, culture, service
sectors, and science and technology.

5.1 Hindu Law

Following Independence, radical reforms were introduced by the codified Hindu Law to enhance the
status of Hindu women. While Hindu women held esteemed positions during Vedic times, they later
faced numerous social limitations. They were primarily viewed as homemakers, confined to domestic
duties, and expected to be submissive, lacking equal partnership in life. The Hindu Marriage Act of

77
1955 underwent amendments in 1964 and further enhancements with the Marriage Laws Amendment
Act of 1976, alongside the implementation of the Child Marriage Restraint Act of 1978. These
legislative actions significantly improved the position of Hindu women within the framework of
Hindu Law, granting them newfound status and recognition in society. Notably, the Hindu Marriage
Act of 1955 introduced provisions for divorce, enabling wives to seek legal separation on broader
grounds compared to men.

5.1.1 Rule of Monogamy

According to the Hindu Marriage Act, it's now restricted for a Hindu individual to have more
than one living spouse simultaneously. Monogamy denotes the allowance of having only one
spouse at a time. This law not only prohibits bigamy but also declares bigamous marriages as
invalid and punishable offenses under sections 494 and 495 of the Indian Penal Code, 1860.
Section 5(i) of the Hindu Marriage Act specifies that neither party should have a living
spouse at the time of marriage. The Supreme Court ruled in Priya v. Suresh that a second
marriage cannot be established solely by the admission of the parties; essential ceremonies
and rites must be proven to have occurred. In Yamuna Bai v. Anantha Rao, the Supreme
Court held that a husband's failure to disclose his previous marriage while treating another
woman as his wife is irrelevant, and the principle of estoppel cannot be used to circumvent
the law's provisions. The general principle of matrimonial law states that a party to a void
marriage is entitled, without needing court intervention, to marry someone else, as the
marriage is not legally recognized. An innocent party to a bigamous marriage may seek a
court declaration that the marriage is null and void. 69

5.1.2 Divorce
Every situation has its contrasting aspects, akin to how marriage represents one side of the
spectrum while divorce embodies the other. Divorce denotes the legal dissolution of a marital
union, granting both parties the right to enter into matrimony once more. In ancient India, the
concept of divorce was nonexistent, as Hinduism regarded marriage as a sacred sacrament,
binding husband and wife in a spiritual union across present and future lives. The notion of
divorce was introduced to India with the arrival of Islam and was formalized by colonial
rulers. The inaugural legislation regarding divorce in India was crafted by Whitely Stokes and

69 Section 11, The Hindu Marriage Act, 1955

78
received official endorsement on February 26, 1869, known as the Indian Divorce Act 1869,
subsequently amended in 2001 under The Indian Divorce (Amendment) Act 2001.

The Hindu Marriage Act of 1955 established marriage as a civil contract, although it retained
its sacramental and societal significance. While divorce was generally prohibited under strict
Hindu law, certain communities, particularly in the lower social strata, permitted it through
customary practices. The introduction of divorce provisions in new legislation was met with
considerable resistance, reflecting a deep-seated reluctance towards such provisions. Notably,
some ancient texts, though not explicitly addressing divorce, outlined circumstances under
which a woman could remarry, such as in cases where the husband was missing, deceased,
retired from worldly affairs, impotent, or dishonored. Narada, for instance, stipulated that
under these five circumstances, a woman could seek another husband. 70

5.1.3Common grounds for divorce

Section 13(1) of the Act delineates the common reasons for divorce. These include adultery,
cruelty, desertion, conversion, unsoundness of mind, venereal disease, incurable leprosy,
renunciation of the world, presumption of death, and failure to comply with a decree of
restitution of conjugal rights. In addition to these grounds, a Hindu wife has recourse to
special grounds. These encompass remarriage by the husband, the husband being guilty of
rape, sodomy, or bestiality, non-resumption of cohabitation by the spouses despite a decree
for maintenance of the wife, and reaching puberty. These special grounds were introduced by
the Marriage Laws (Amendment) Act, 1976, which amended Sections 10 and 13 of the Hindu
Marriage Act. Consequently, a Hindu wife is endowed with specific grounds against the
husband, positioning her advantageously compared to a Muslim or Christian wife.

5.2 Additional Grounds for Divorce available to wife

1. Husband having more than one wife living:

2. If a husband has multiple living wives after this Act comes into effect, one of the wives
has the option to file for divorce according to clause (i) of sub-section (2) of Section 13 of the
Act. The only condition for a wife seeking divorce under this provision is that the other wife

70 Narada Smiriti XII,37

79
must be alive at the time of filing the petition, regardless of whether the petitioner knew about
the other wife's existence and whether the husband was not guilty of cruelty. The notion that
delays might suggest condonation, connivance, or indifference to marital wrongs is not relevant
in cases falling under Section 13(2)(i) of the Act. The right to divorce granted to the first wife
by Section 13(2)(i) is not contingent upon her behavior before the Act commenced. It is not
necessary to directly prove the existence of the first wife at the time of the second marriage;
this fact can be inferred from other evidence presented in the case.
3. Rape, sodomy or bestiality: Under Section 13(2)(ii) of the Act, a wife is empowered
to file for divorce if she has been subjected to rape, sodomy, or bestiality by her husband. Rape
is defined in Section 375 of the Indian Penal Code as the act of a man having sexual intercourse
with a woman against her will, without her consent, under coercion, by impersonating her
husband, or with a minor under sixteen years of age. Sodomy refers to carnal copulation with
a member of the same sex or with an animal, while bestiality involves sexual intercourse
between a human and an animal. However, an exception exists where no rape is recognized if
the wife is over fifteen years old. To prove these offenses, the wife must provide evidence
either through witnesses or admission by the husband, such as a guilty plea during trial. Despite
being criminal offenses, mere conviction is insufficient grounds for divorce. In divorce
proceedings, the wife must establish these offenses anew. If the wife was a willing participant,
her testimony requires corroboration.
4. Non-resumption of cohabitation: The 1976 Amendment to the Act stipulated that if
a decree for the maintenance of a wife under Section 18 of the Hindu Adoption and
Maintenance Act 1956, or an order for maintenance of a wife under Section 125 of the Cr.P.C.
1973, has been issued against the husband, the wife can file for divorce under two conditions.
First, she must have been living separately, and secondly, there should be no resumption of
cohabitation between her and her husband for at least one year since the issuance of such decree
or order.
Marriage before attainment of the age of fifteen years: A wife has the right to file for
divorce if she was married before reaching the age of fifteen, provided she has rejected the
marriage after turning fifteen but before turning eighteen. However, the petition can be filed
after she turns eighteen. Regardless of whether the marriage has been consummated, a girl can
seek divorce. If there is no school certificate available, parents can serve as reliable witnesses
regarding their children's date of birth. Horoscope entries may serve as evidence for date of
birth, and the credibility of the person who authored it can be established through examination.

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Maintenance under Hindu law:
The rationale behind granting permanent alimony to the wife appears to stem from the
acknowledgment that if the institution of marriage, once considered indissoluble, is to be
dissolved for the greater good of society, then it is also imperative, in the interest of public
welfare, to ensure that the wife is not left without support, thereby risking her resorting to
disreputable means of survival.

A fundamental aspect of a joint Hindu family is the entitlement to maintenance. The head of
the family is obligated to provide for its members, with daughters being entitled to
maintenance until marriage. Similarly, wives are entitled to maintenance throughout their
marriage, akin to mothers who are maintained by their children. Even widows have the right
to claim maintenance.

Maintenance encompasses essential needs that are reasonable and includes not only food,
clothing, and shelter but also amenities required for a comfortable and respectable standard of
living. Women are granted the right to maintenance under various statutes such as the Hindu
Marriage Act, Hindu Adoption and Maintenance Act, and Criminal Procedure Code.

Maintenance under the Hindu Marriage Act, 1955

1. Maintenance pendente-lite:

Section 24 of the Hindu Marriage Act provides for the granting of maintenance pendente-lite
and expenses of proceedings to either spouse, while Section 25 contains similar provisions
regarding the payment of permanent alimony and maintenance. The purpose of Section 24 is
to ensure that neither party to a proceeding suffers due to financial difficulties during its
pendency. This relief can be sought by either the petitioner or the respondent, without any
inherent bias from Parliament. The inclusive nature of Section 24, which allows relief for
both husband and wife, indicates the legislature's intention to avoid any such bias. The aim is
to offer financial aid to the financially disadvantaged spouse to sustain themselves during the
proceedings and to adequately support their legal representation, preventing undue hardship
due to lack of funds. Section 24 grants significant rights to the applicant during the pendency
of the case. While the allowance of temporary alimony is at the discretion of the court, a
broad interpretation of Section 24 is warranted to ensure that the financially disadvantaged
spouse is protected. The court's decisions should be guided by principles such as the parties'

81
positions and status, reasonable needs of the claimants, their respective incomes, and the
obligations of the opposite party towards other dependents.

2. Permanent Alimony and Maintenance:

Under Section 25 of the Hindu Marriage Act, 1955, courts have the authority to instruct the
opposing party, either at the time of decree or thereafter, to provide maintenance to the
petitioner. The court considers the status of the opposing party when determining the amount
of maintenance to be awarded. Additionally, the court is empowered to revoke or adjust the
order at any later stage as necessary.

Section 25 lays down as:

―25. Permanent alimony and maintenance-

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on application made to it for the purpose by either the wife
or the husband, as the case may be, order that the respondent shall pay to the applicant for her
or his maintenance and support such gross sum or such monthly or periodical sum for a term
not exceeding the life of the applicant as, having regard to the respondent‘s own income and
other property, if any, the income and other property of the applicant [the conduct of the parties
and other circumstances of the case], it may seem to the court to be just, and any such payment
may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this
section has remarried or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it
may at the instance of the other party vary, modify or rescind any such order in such manner
as the court may deem just.
The section was amended by Section 17 of the Marriage Laws Amendment Act, 1976, before
which the liability to pay maintenance was restricted to the period during which the applicant
remained unmarried. The words ―while the applicant remains unmarried‖ were omitted.

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Maintenance under the Hindu Adoption and Maintenance Act, 1956
The right of a wife to claim maintenance is an incident of the status of matrimony and if the
relationship of husband and wife is established as a matter of course the wife is entitled to
maintenance. Section 18 of the Act confers a statutory right on a Hindu wife to live separately
without forfeiting her claim for maintenance during the lifetime of her husband if living
separately on the grounds provided therein.
Section 18 runs as follows:

―18. Maintenance of wife:

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband during her
lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting
her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and
without her consent or against her wish, or of willfully neglecting her; (b) if he has treated her
with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or
injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other
cause justifying her living separately.
(3) A Hindu wife shall not be entitledto separate residence and maintenance from her husband
if she is unchaste or ceases to be a Hindu by conversion to another religion.‖
And Maintenance, has been defined under Section 3(b) of the Act which says,

―Maintenance includes-

i. in all cases, provision for food, clothing, residence, education and medical attendance and
treatment; ii. in the case of an unmarried daughter also the reasonable expenses of and,
incident to her marriage.‖
Under Hindu law, the liability to maintain others arises in some cases from the mere
relationship between the parties, independent of possession of any property. It does not rest

83
upon contract but arises out of jural relation between the parties. This liability is personal or
absolute and in the cases where it depends altogether on the possession of property it is called
limited liability.
The following persons are entitled to maintenance under the Hindu Adoption and
Maintenance Act, 1956.
Wife;

Widowed daughter-in-law;

Children and aged parents;

Dependents as enumerated in Section 21 of the Act.

A. Wife’s Right to Maintenance while living separately:

Section 18 of the Hindu Marriage Act grants a legal entitlement to a Hindu wife for
maintenance under normal circumstances, which includes living with her husband or living
separately in exceptional situations. A wife's primary obligation to her husband is to fulfill
her marital duties and reside under his care and protection. Therefore, typically, a wife does
not have the right to live separately from her husband unless she can demonstrate that his
misconduct, refusal to support her in their shared residence, or other valid reasons compel her
to do so. However, subsection (2) of Section 18 outlines specific circumstances where a wife
may live apart from her husband without forfeiting her right to maintenance. Even before the
enactment of the Hindu Adoption and Maintenance Act, married Hindu women were granted
the right to separate residence and maintenance under the Hindu Married Woman's Rights to
Separate Residence and Maintenance Act, 1964, based on similar grounds.

According to Section 18(2), a Hindu wife can claim maintenance from her husband even
while living separately in the following cases:
(a)If he is guilty of desertion,

(b)If he treats her with cruelty,

(c)If he is suffering from a virulent form of leprosy

(d)If he has another wife living,

(e)If he keeps a concubine in the same house,

(f)If he is converted to another religion,

84
 (g)If there is any other cause justifying her living separate

It is thus clear that the above list is not exhaustive but only illustrative in nature.
There are however certain conditions under which a Hindu wife shall not be entitled to
separate residence and maintenance. These are:
a) When she ceases to be a Hindu by conversion,

b) When she is unchaste,

c) When she is living separately without any cause justifying the same, and
d) When the separate living is by agreement between the husband and wife and
wife forfeits her claim for maintenance. Such an agreement is valid and
enforceable provided that it has not been entered into by fraud, coercion, force
or mistake.
B. Wife’s Right to have Interim Maintenance:

There exists a divergence of opinions among various High Courts regarding whether
interim maintenance can be provided to a wife in a lawsuit seeking maintenance under the
mentioned section. However, there is a clear inclination towards granting interim
maintenance.

In the case of Sangeeta Piyush Raj v. Piyush Chaturbhuj, the Bombay High Court ruled
that nothing prohibits a court from issuing an order for interim maintenance under
Section 18. To ensure true justice, the court can utilize its authority under Section 151 of
the Civil Procedure Code to award interim maintenance based on a petition filed under
this section. Failure to do so would defeat the entire purpose of the enactment due to the
typical delays in case resolution, causing significant hardship to the applicant who may
lack means of sustenance until the final decree.

Similar sentiments are echoed by the Orissa and Delhi High Courts. The Orissa High
Court, in Purusottam's case, stated that the right to seek maintenance in a lawsuit is a
substantive right under Section 18 of the Act. Since no specific form is prescribed to
enforce this civil right, the civil court, exercising its inherent power, can grant
maintenance.

85
 Considering the husband's status, the wife should be granted maintenance pendente-lite,
despite the absence of a separate provision in the Hindu Adoption and Maintenance Act,
1956 for such interim maintenance. Neelam Malhotra v. Rajinder Malhotra established
that the husband remains obligated to maintain the wife even if they are living separately.
With lawsuits under Section 18 of the Act often taking decades to resolve, it would be
unjust to compel the wife to endure starvation until a decision is made. Such a stance
would contradict the very purpose and essence of Section 18 of the Act. It is established
jurisprudence that a court empowered to grant substantive relief is competent to provide it
on an interim basis, even in the absence of an explicit provision in the statute

.C. Woman’s Right regarding Adoption under Hindu Law:

Under Hindu Law, adoption is regulated by The Hindu Adoption and Maintenance Act, 1956.
Adoption holds significance among Hindus but is not recognized by Muslims, Christians, and
Parsis. Previously, only males could be adopted, but the Act now allows for the adoption of
females as well.

According to the Act, any mentally sound male Hindu who is not a minor has the authority to
adopt a son or daughter. However, if he has a living wife, he can only adopt with her consent,
unless certain conditions are met. These conditions include if the wife has completely
renounced the world, ceased to be a Hindu, or has been declared legally incompetent by a
court. If the person seeking adoption has multiple living wives, the consent of all wives is
required unless one of them is exempted from providing consent due to specific reasons
outlined in the Act. 71
Under the old Hindu law, the power of a female Hindu to adopt a son was restricted. The Act
has provided the right, to a widow, an unmarried woman as well as a divorced woman, to
adopt a child.72 Section 8 runs as follows:
Any female Hindu –

a. who is of sound mind

71 Section 7 of the Hindu Adoption and Maintenance Act, 1956

72 Section 8 of the Hindu Adoption and Maintenance Act, 1956

86
 b. who is not a minor, and

c. who is not married, or if married, whose marriage has been

dissolved or whose husband is dead or has completely and finally renounced the
world or has ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind, has the capacity to take a son or daughter in
adoption.
Where the woman is married it is the husband who has the right to take in adoption with the
consent of the wife.
Section 9 prescribes the capacity of a person to give a child in adoption to another. It states:
1. No person except the father or mother or guardian of the child shall have the
capacity to give the child in adoption.
2. The father alone if he is alive shall have the right to give in adoption, but such
right shall not be exercised except with the consent of the mother unless the mother has
completely and finally renounced the world or has ceased to be a Hindu, or has been declared
by a court of competent jurisdiction to be of unsound mind.
3. The mother may give the child in adoption if the father is dead or has completely
and finally renounced the world or has ceased to be a Hindu, or has been declared by a court
of competent jurisdiction to be of unsound mind.
4. Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by a court of competent
jurisdiction to be of unsound mind or where the parentage of the child is unknown- the guardian
of the child may give the child in adoption with the previous permission of the court. The court
while granting permission shall be satisfied that the adoption is for the welfare of the child and
due consideration will be given to the wishes of the child having regard for the age and
understanding of the child. The court shall be satisfied that no payment or reward in
consideration of the adoption except as the court may sanction has been given or taken.
Other conditions for a valid adoption:

a. if the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son‘s son or son‘s son living at the time of adoption.
b. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son‘s daughter living at the time of adoption;
c. if the adoption is by a male and the person to be adopted is a male, the adoptive father
is at least twenty one years older than the person to be adopted;

87
d. if the adoption is by a female and the person to be adopted is a male, the adoptive
mother s at least twenty one years older than the person to be adopted;
e. the same child may not be adopted simultaneously by two or more parents; the child to
be adopted must be actually given and taken in adoption with an intent to transfer the child
from the family of birth.
f.
5.3 Muslim Law
Within the framework of Muslim Personal Law, which remains uncodified due to various
well-known factors, women occupy a subordinate position to men. Despite repeated
directives from the Supreme Court, Muslim Personal Law still lacks codification. Certain
specific rights are afforded to Muslim women under this law. Marriage is perceived as a
contract that binds women more tightly than men, as men are allowed multiple wives and
easier dissolution of the marriage. In contrast, Muslim women have limited options for
exiting a marriage contract compared to their Hindu counterparts, who possess additional
grounds for divorce. Muslim law permits divorce initiated by the wife, which falls into three
categories: Talaaq-i-tafweez, Lian, and dissolution under the Muslim Marriages Act of 1939.

Delegated divorce, known as Talaaq-i-tafweez, is acknowledged within both Shia and Sunni
communities. In this practice, a Muslim husband can grant his wife or another individual the
authority to pronounce divorce on his behalf. This delegation can be either absolute or
conditional, temporary or permanent. While a permanent delegation is reversible, a temporary
one is not. It is essential for the delegation to explicitly specify the person receiving the
power and the purpose behind it. Delegating the power of divorce to his wife, as noted by
Faizee, provides a significant means for a Muslim wife to attain independence without
resorting to legal intervention, and it is becoming increasingly common in India. Typically,
this type of delegated divorce is outlined in prenuptial agreements.

Another form of divorce, known as Lian, occurs when a husband falsely accuses his wife of
unchastity or adultery, leading to character defamation. In such cases, the wife has the right to
seek divorce on these grounds. However, Lian is only applicable in situations where the
husband voluntarily and aggressively makes false allegations of adultery. Conversely, if the
husband responds to the wife's misbehavior with accusations of infidelity, it cannot be
considered a false charge of adultery under Lian, and divorce cannot be granted on this basis.

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Dissolution of Muslim Marriages Act 1939: Qazi Mohammad Ahmad Kazmi introduced a
bill in the Legislature on April 17, 1936, addressing a specific issue. However, it wasn't until
March 17, 1939, that the bill was enacted into law, resulting in the Dissolution of Muslim
Marriages Act 1939. Section 2 of this Act outlines the grounds upon which a Muslim woman
can seek a divorce. These grounds include:

The husband's whereabouts have been unknown for a period of four years: If a husband goes
missing for four years, his wife has the right to petition for the dissolution of their marriage.
The husband is considered missing if neither the wife nor anyone with relevant knowledge
about his whereabouts can locate him.
Section 3 states that if a wife files for divorce under this provision, she must provide the
names and addresses of all potential legal heirs of the husband. The court then issues notices
to these individuals, requiring them to appear and testify if they have any information
regarding the missing husband. If no one can provide any information, the court may issue a
decree after six months, effectively dissolving the marriage. However, if the husband
reappears before the six-month period expires, the court will nullify the decree, and the
marriage remains intact.

In cases where a husband has neglected or failed to provide maintenance for his wife for a
duration of two years, it becomes a legal obligation for him to do so. If he fails in this duty,
the wife has the right to seek divorce on these grounds. This neglect could stem from either
deliberate disregard or the husband's inability to financially support his wife. Regardless of
the reason, the outcome remains the same. However, it's important to note that the husband's
responsibility to provide maintenance is contingent upon the wife fulfilling her own marital
duties. Therefore, if the wife chooses to live separately without reasonable justification, she
forfeits her entitlement to judicial divorce based on the husband's failure to maintain her
under Muslim law.

Another grounds for judicial divorce is when the husband receives a sentence of
imprisonment for seven years or more. In such cases, the wife can seek divorce once the
sentence becomes final, meaning after the appeal period for the husband has elapsed or if the
husband's appeal has been rejected by the highest court.

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A third ground for divorce is when the husband fails, without valid reason, to fulfill his
marital obligations for a period of three years. While the Act specifies various marital
obligations of the husband under Muslim law, this clause pertains to those obligations not
covered elsewhere in the Act.

Lastly, if the husband was impotent at the time of marriage and remains so, the wife can seek
divorce on these grounds. However, she must provide evidence that the husband was
impotent at the time of marriage and has remained so. The court is obligated to grant the
husband one year to rectify his impotence if he requests it, but if he does not, the court can
proceed with the divorce decree without delay.

If the husband has been mentally ill for two years, has leprosy, or has a severe sexually
transmitted disease, his insanity must have lasted for two years before the lawsuit. However,
the law does not specify whether the mental illness must be treatable or untreatable. Leprosy
can manifest in various forms, whether curable or not. Venereal disease affects the
reproductive organs and must be incurable according to the law, regardless of its duration.
Even if the wife is the source of the disease, she can still seek a divorce on these grounds.

A woman can repudiate her marriage if she was married off before turning fifteen and rejects
it before turning eighteen, provided the marriage was unconsummated. Additionally, cruelty
from the husband can include habitual emotional abuse, association with disreputable women,
attempts to coerce immoral behavior, interference with property rights, obstruction of
religious practices, or unfair treatment compared to other wives as prescribed by the Holy
Quran.

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5.4 Under Christian & Parsi Law
5.4.1 Christian Law
The Indian Divorce Act of 1869 contains provisions regarding alimony pendente-lite and
permanent alimony in Sections 36 and 37. Section 36 addresses alimony pendente-lite and
outlines its provisions.
1. Alimony Pendente-Lite
In any legal action governed by this Act, regardless of whether it is initiated by a husband or
a wife and irrespective of whether she has obtained a protection order, the wife has the right
to file a request for alimony while the legal proceedings are ongoing.
Upon receiving such a petition, it must be served to the husband, and if the court verifies the
accuracy of the claims made therein, it has the authority to issue an appropriate order
requiring the husband to provide alimony to the wife during the duration of the legal
proceedings, as it deems fair.
The clause within this section specifying that the amount of alimony during the legal
proceedings should not exceed one-fifth of the husband's average net income for the three
years preceding the date of the order, and that it should continue until the decree for
dissolution or nullity of marriage is finalized, has been removed by Section 21 of the Indian
Divorce (Amendment) Act, 2001.
Permanent Alimony
Section 37 of the Indian Divorce Act, which addresses permanent alimony, grants the court
the authority to issue an order for the payment of a lump sum amount as permanent
maintenance. Under this section, the husband can request a modification of the payment order
based on his financial circumstances. Initially, Section 37 read as follows (prior to the 2001
Amendment Act):

"The High Court may, if it deems appropriate, upon granting a decree absolute dissolving a
marriage, or upon confirming a decree of judicial separation obtained by the wife, and the
District Judge may, if he deems appropriate, upon confirming any decree dissolving a
marriage, or upon granting a decree of judicial separation obtained by the wife, direct that the
husband shall, to the satisfaction of the court, provide the wife with either a lump sum of
money or an annual sum of money for a period not exceeding her lifetime, taking into
consideration her financial situation (if any), the husband's ability to pay, and the behavior of

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both parties; and for this purpose, may arrange for the execution of a suitable document by all
necessary parties."

Following the 2001 Amendment, as per Section 22, the portion of Section 37 beginning with
"The High Court ... the husband shall" was replaced with the following:

"In cases where the wife obtains a decree dissolving the marriage or a decree of judicial
separation, the district court may order that the husband shall..."

Power to order monthly or weekly payments

In each instance governed by Section 37, the court has the authority to issue an order
requiring the husband to provide the wife with monthly or weekly payments for her
maintenance and sustenance, as deemed reasonable by the court. However, if the husband
becomes unable to make these payments due to any reason later on, the court is empowered
to either cancel or adjust the order, or temporarily halt the payments wholly or partially, and
subsequently reinstate the order either in full or in part, as deemed appropriate by the court.

Payment to Trustee
Under Section 38 of the Indian Divorce Act, 1869, it is specified that the court, in every
instance where it issues a decree or order for alimony, may instruct that the payments be
made directly to the wife or to a trustee chosen on her behalf, subject to the court's approval.
The court is also empowered to impose any terms or conditions that it deems appropriate and
may appoint a new trustee as necessary, if it is deemed expedient by the court.

5.4.2 Parsi Law

The regulations concerning maintenance are outlined in the Parsi Marriage and Divorce Act,
1936. These regulations underwent substitution in Sections 39 and 40 through the
Amendment Act of 1988.

Section 39 of the Parsi Marriage and Divorce Act, 1936, concerning provisions for
alimony pendente-lite states:
"In any lawsuit under this Act, if the court finds that either the wife or husband lacks
sufficient independent income to support themselves and cover the necessary expenses

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of the suit, it may, upon the request of either party, instruct the defendant to provide
financial support to the plaintiff for the duration of the suit. This support may include
covering the expenses of the suit and providing a weekly or monthly allowance deemed
reasonable by the court, considering both the plaintiff's and defendant's incomes." 73

Permanent Alimony and Maintenance

The clauses concerning permanent alimony and maintenance are outlined in Section 40 of the
Parsi Marriage and Divorce Act, 1936. This section stipulates that any court empowered by
this Act may, either during the issuance of a decree or subsequently, upon application by
either the wife or the husband, decree that the defendant must provide the plaintiff with a
suitable sum for their maintenance and support. This sum could be a lump sum or a periodic
payment, not surpassing the lifespan of the plaintiff, and is determined based on various
factors. These factors include the defendant's income and assets, as well as the plaintiff's
financial situation, the behavior of both parties, and other relevant circumstances.
Additionally, the court has the authority to alter or annul such orders if there are changes in
the circumstances of either party. Moreover, if the court finds that the party benefiting from
the order has remarried or, if the beneficiary is the wife, has engaged in unchaste behavior, or
if the beneficiary is the husband, has had extramarital relations, the court may, upon the
request of the other party, modify or revoke the order accordingly.

5.5 Maintenance under the Special Marriage Act, 1954

The Special Marriage Act of 1954 offers a unique marriage option accessible to any
individual in India and to all Indian citizens abroad, regardless of their religious beliefs. The
Act also outlines the accompanying legal remedies within its provisions. Sections 36 and 37
of the Special Marriage Act, 1954, specifically address matters concerning maintenance and
alimony.
1. Alimony Pendente Lite
Section 36 of the Special Marriage Act stipulates that in any legal proceedings pertaining to
restitution of conjugal rights, judicial separation, nullity of marriage, or divorce, if it becomes
evident to the district court that the wife lacks adequate independent income to sustain herself
and cover the necessary expenses of the proceedings, the court may, upon the wife's request,

73 As amended by Amendment Act of 1988 (Act 5 of 1988)

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direct the husband to bear the expenses of the legal process. Additionally, the court may order
the husband to provide a reasonable weekly or monthly sum to the wife during the
proceedings, taking into account the husband's income.

2. Permanent Alimony and Maintenance

Section 37 outlines the regulations regarding permanent alimony and maintenance. According
to this section, any court with jurisdiction over petitions for restitution of conjugal rights,
judicial separation, nullity of marriage, or divorce may, either at the time of decree or
subsequently upon application, direct the husband to provide maintenance and support to his
wife. This support may be in the form of a lump sum or periodic payments, for a duration not
exceeding her lifetime. The court's decision on the amount and duration of support considers
factors such as the wife's and husband's property, the husband's financial capability, the
conduct of both parties, and other relevant circumstances, aiming for a fair outcome.74
According to Section 37(2) of the Special Marriages Act, if the district court determines that
there has been a change in circumstances for either party subsequent to issuing an order under
Section 37(1), it has the authority, upon request of either party, to alter, adjust, or annul said
order in a manner deemed fair by the court. Concerning the provision for maintenance
contingent upon the wife's chastity, Section 37(3) of the SMA specifies that if the district
court finds evidence that the wife, for whom an order has been granted under this section, has
remarried or is not maintaining a chaste lifestyle, it reserves the right, at the husband's
request, to amend, adjust, or revoke such an order in a manner deemed equitable by the
court.75
5.6 Maintenance under Section 125, Cr.P.C.

It's clear from the previous pages that various personal laws address maintenance differently.
The Code of Criminal Procedure, 1973, which is a secular code, presents a comprehensive
framework for the upkeep of spouses, children, and elderly parents. These provisions are
outlined in Sections 125-128, Cr.P.C. Proceedings under this section are civil in nature,
focusing on remedying civil rights rather than punitive action. The objective of Chapter IX of
Cr.P.C. is to swiftly address liability through a summary procedure to prevent vagrancy. The
primary aim is to provide social justice to women and children, averting destitution and

74 Subs. By Act 68 of 1976, Section 35

75 Subs. By Act 68 of 1976, Section 36

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vagrancy by compelling those capable of supporting others to do so. These provisions offer
quick relief to those in distress, aligning with the social objective. They uphold the innate
responsibility of individuals to support their spouses, children, and parents as long as they
cannot support themselves. Regardless of personal laws governing individuals, these
provisions are applicable and enforceable. This section embodies a measure of social justice
within the Constitutional framework, falling under the purview of Article 15(3) bolstered by
Article 39 of the Constitution of India.

The following provisions under Sections 125-127 have been made: ―125.

Order for maintenance of wives, children and parents —

(1) If any person having sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury, unable
to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,

A Magistrate of the first class may, upon proof of such neglect or refusal, order such person
to make a monthly allowance for the maintenance of his wife or such child, father or mother,
at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct: Provided that the Magistrate may order the father of
a minor female child referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female child, if married,
is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this subsection, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate considers reasonable, and to pay
the same to such person as the Magistrate may from time to time direct:

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Provided also that an application for the monthly allowance for the interim maintenance and
expenses for proceeding under the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of notice of the application to such person.
For the purpose of this section ‗wife‘ includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.

Code of Criminal Procedure (Amendment) Act, 2001

It was noted that individuals seeking relief from the court often endured lengthy waiting
periods, spanning several years. Consequently, there was a recognized need for the
implementation of specific provisions within the Criminal Procedure Code (Amendment) Act
of 2001.

Provision for interim Maintenance Allowance:

During the ongoing legal proceedings, the Magistrate has the authority to mandate the
provision of interim maintenance allowance and reasonable expenses related to the case for
the aggrieved party. The previous limit of five hundred rupees has been abolished due to the
consistent increase in the cost of living, rendering the maintenance of a maximum limit
unjustified. Maintaining such a ceiling would necessitate frequent revisions to accommodate
inflation, which would be unnecessarily time-consuming. Consequently, adjustments were
made to eliminate the cap on maintenance allowances.

There exists no conflict between Section 125 of the Criminal Procedure Code and the Hindu
Adoptions and Maintenance Act of 1956. The two laws serve different purposes. Section 125
offers a swift legal remedy applicable to all individuals regardless of their personal laws.

Need for Uniform Civil Code in India

The intersection of personal religious laws and the necessity for a Uniform Civil Code poses
a significant issue concerning secularism and religious freedom in India. While secular law
now oversees substantive areas such as crime, commerce, and economy, guided by principles
of 'justice, equity, and good conscience,' personal religious laws persist within the private
realm of individuals. Certain personal laws, notably those of the Hindu community, have
been codified into statutes, with amendments reflecting contemporary needs. Meanwhile,
other religious groups adhere to their traditional forms of law. India encompasses five main
sets of family laws corresponding to the religions practiced by its diverse communities:

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Hindu law for Hindus, Buddhists, Jains, and Sikhs; Muslim law for Muslims; Christian law
for Christians; Parsee law for Parsees; and Jewish law for Jews. However, many clauses
within these personal laws have gained notoriety for their discriminatory treatment of women.
Below is a brief overview of how women's rights are compromised under different personal
laws.

Marriage: The universal right of individuals, regardless of gender, to enter into marriage by
their own free will and choice of partner is acknowledged globally. Nevertheless, Indian
personal laws exhibit deficiencies in this regard. For instance, within Muslim law, there
seems to be allowance for a guardian to arrange the marriage of a minor ward. While there
exists a provision known as the "option of puberty" (the right to annul a marriage upon
reaching puberty), it is notably limited for women. Similarly, under Hindu law (specifically
the Hindu Marriage Act of 1955), it is not solely lack of consent, but rather consent obtained
through deceit, coercion, or compromised due to mental incapacity, that renders a marriage
void. Fortunately, the Special Marriage Act of 1954, considered one of the most progressive
legislations in Indian family law, circumvents the restrictions on inter-religious marriages
imposed by personal laws. Polygamy remains a contentious issue in contemporary society
where monogamy, fidelity, and family well-being are the prevailing ideals. While polygamy
was once prevalent in Hindu society, modern legislation, such as the Hindu Marriage Act of
1956, expressly prohibits bigamy (encompassing both polygamy and polyandry), with the
Penal Code deeming it a criminal offense. In contrast, Muslim personal law acknowledges
and permits polygamous unions. Although some argue that polygamy is largely outdated in
the Indian context and practiced by a minority of Muslims, it is important to acknowledge
that such a practice, albeit limited, fosters discord and religious tensions within society.
Instances of abuse of this practice, sanctioned under Islamic law, have been recorded in the
past. Often, individuals of other faiths convert to Islam in order to enter into multiple
marriages. While courts scrutinize the sincerity of such conversions to determine the validity
of subsequent marriages, this phenomenon engenders conflict and compromises the rights of
those involved.

Divorce: In traditional Hindu law, divorce was not acknowledged, but the modern legal
framework, particularly the Hindu Marriage Act of 1956, permits it. This act primarily
outlines fault-based grounds that either spouse can utilize to seek divorce.

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Islamic law, on the other hand, has a notable and controversial feature regarding divorce,
which is the concept of unilateral divorce. This allows a husband to divorce his wife without
cause, reason, or court intervention, even in jest, intoxication, or without the wife's presence,
by simply uttering the repudiation formula. However, Muslim law does grant women the
right to seek divorce under specific circumstances, as outlined in the Dissolution of Muslim
Marriages Act of 1939. Under this modern law, a wife can seek divorce through judicial
intervention based on a limited number of acceptable reasons.

Despite the moral disapproval of divorce in Islam and the Prophet's condemnation of it,
unilateral divorce remains prevalent in many countries, including India, depriving women of
relief.

Maintenance: Under Indian law, the right to maintenance is civil in nature but it is also
placed under the criminal code and can be pursued therein. Under Hindu law, a wife has a
right to be maintained during her lifetime as per the provisions of the Hindu Adoptions and
Maintenance Act, 1956. In what can be called an attempt to reinforce the conservative idea of
a Hindu wife, an ―unchaste‖ wife is not entitled to separate residence and maintenance.
As far as Muslim law is concerned, many interpretations of the Shari‘a do not grant divorced
women a right to maintenance from their former husband‘s beyond the three-month waiting
period following the divorce, called the iddat period. In India, the Dissolution of Muslim
Marriages Act, 1939 denies divorced Muslim women the right to claim maintenance. In the
famous Shah Bano judgment, the judiciary attempted to get rid of this anomaly by explicitly
bringing such Muslim women under the purview of the secular Code of Criminal Procedure,
1973 (wherein a wife is entitled to claim maintenance against the husband on the ground of
the husband‘s neglect or refusal to maintain her). Shah Bano case 76 was a classic conflict
situation between the secular criminal code and religious personal law. In this case, an old
Muslim woman had been divorced by her husband who invoked the Muslim personal law to
deny maintenance to his wife. The Supreme Court, however, applied and interpreted the
secular law, the Criminal Procedure Code, to grant maintenance. Though the judiciary is to be
commended for giving a humane and holistic meaning while applying the relevant provisions,
the judgment is often criticized for entering into a discourse of the Quran, taking pains to

76 (1985) 3 SSC 62

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explain that the secular law was not in conflict with the Quran and in the process, sidelining
the constitutional question of examining the personal law of husband on the anvil of equality
and deciding the dispute as an equality issue. The deliberate use of Quran and the endeavors
to interpret it in a particular manner evoked the wrath of the Muslim conservatives, who
stressed community fears of the loss of freedom of religious practice. Finally, the
Government, yielded to pressure from the orthodox members of the Muslim community and,
without any consultation, passed the Muslim Women‘s (Protection of Rights in Divorce) Act,
1986, in spite of protest from progressive Muslims and feminists. This Act ostensible protects
women but in reality protects the husband by not requiring him to pay maintenance.

5.4 Article 44 and the Supreme Court

Article 44 of the Indian Constitution mandates the State to ensure a Uniform Civil Code for
all citizens across India. The term "civil code" encompasses the entirety of laws governing
property rights and personal affairs, including marriage, divorce, alimony, adoption, and
inheritance. The primary objective of this code is to foster national unity by resolving
ideological disparities. Its aim is to standardize regulations across communities, which are
presently governed by diverse personal laws. Over the past two decades, the Supreme Court
has consistently stressed the need to initiate measures for implementing a uniform civil code
through various legal cases.

In Ms. Jorden Diengdeh v. S.S. Chopra 77 the Supreme Court held “……the law relating to
judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time
has now come for a complete reform of the law of marriage and make a uniform law
applicable to all people irrespective of religion or caste…We suggest that the time has come
for the intervention of the legislature in these matters to provide for a uniform code of
marriage and divorce…‖
In Sarla Mudgal v. Union of India 78 the Supreme Court directed the Union Government
through the Secretary to Ministry of Law and Justice, to file an affidavit by August 1995
indicating the steps taken and efforts made, by the Government towards securing a uniform
civil code for the citizen of India.

77 AIR 1985 SC 934

78 1995) 3 SCC 635

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In John Vallamattam v. Union of India 79 a three Judges Bench of the Supreme Court has
again expressed regret for non-enactment of Common Civil Code.
In Mohd. Ahmed Khan v Shahbano Begum 80 the Supreme Court has ruled that a Muslim
husband is liable to pay maintenance to the divorced wife beyond the iddat period. The court
has regretted that Article 44 has remained ―dead letter‖ as there is ―no evidence of any
official activity for framing a common civil code for the country. The court has emphasized:
A common civil code will help the cause of national integration by removing disparate
loyalties to laws which have conflicting ideologies‖
In another landmark judgement in Danial Latifi V Union of India 81 A Five Judge
Constitution Bench of the Supreme Court has discussed the problem of Muslim divorce
women. Liberally interpreting Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act 1986, the Court has ruled that a Muslim divorced woman has right to
maintenance even after iddat period.
In Shabana Bano v. Imran Khan 82 , the Supreme Court held that Muslim women could not
be deprived of the benefit of Section 125 of Cr.P.C. ―Even if a Muslim woman has been
divorced, she would be entitled to claim maintenance from her husband under section 125
Cr.P.C. after the expiry of the period of iddat as long as she does not marry.‖
As recently on February 8, 2011, Justices Dalveer Bhandari and A.K. Ganguly of the
Supreme Court were hearing petitions filed by the National Commission for
Women’s Delhi chapter, which sought the formulation of uniform marriageable age because
different stipulations in different statutes had created confusion. The Bench observed that the
government‘s attempts to reform personal laws did not go beyond Hindus, who, it said, had
been more tolerant of such initiatives. ―The Hindu community has been tolerant to these
statutory interventions. But there appears a lack of secular commitment as it has not happened
for other religions.‖
Not much progress has been made towards achieving the ideal of a Uniform Civil Code
which still remains a distant dream. The only tangible step taken in this direction has been the
codification and secularization of Hindu law. The codification of Muslim law still remains a

79 2003)6 SCC 611

80 (1985) 3 SSC 62

81 2001) 7 SCC 840

82 AIR 2010 SC 305

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sensitive matter. India is a secular country where the Constitutional philosophy reigns
supreme.

5.6 Legal Provisions for Women Empowerment In India

Laws concerning women are divided into two main categories:

A. Indian Penal Code Rape (Sec. 376 IPC): Any individual who commits rape shall face
rigorous imprisonment, ranging from seven years to life, along with a fine. Kidnapping &
Abduction for various purposes (Sec. 363-373): Anyone involved in abducting a minor for
begging, or kidnapping minors/women for prostitution or illicit intercourse, may face
imprisonment up to ten years and a fine. Homicide for Dowry, Dowry Deaths, or attempted
dowry deaths (Sec. 302/304-B IPC): If a woman dies due to burns, bodily injury, or under
abnormal circumstances within seven years of her marriage, and it's proven that she faced
cruelty or harassment by her in-laws or husband related to dowry demands, it's termed as
"dowry death". The perpetrator of dowry death could face imprisonment ranging from seven
years to life. Torture, both mental and physical (Sec. 498-A IPC): A husband or his relatives
subjecting a woman to cruelty may face imprisonment up to three years and a fine.
Molestation (Sec. 354 IPC): Anyone assaulting or using criminal force against a woman with
the intention to outrage her modesty may face imprisonment up to five years and a fine.
Sexual Harassment (Sec. 509 IPC): Anyone intending to insult a woman's modesty through
words, gestures, or actions, or intruding upon her privacy, may face imprisonment up to three
years and a fine.

5.7 Conclusion
In the context of a democratic system, our legal framework, developmental strategies, plans,
and projects have aimed towards the progression of women across various domains. Since the
Fifth Five Year Plan (1974-78), there has been a noticeable shift in the approach towards
women's issues, moving from mere welfare to active development. In recent times, the
empowerment of women has gained recognition as a pivotal concern in determining their
status. The establishment of the National Commission for Women through parliamentary
legislation in 1990 was aimed at safeguarding women's rights and legal entitlements. The
73rd and 74th Amendments (1993) to the Indian Constitution have ensured the reservation of
seats for women in local governing bodies such as Panchayats and Municipalities, thereby

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laying a solid foundation for their involvement in local decision-making processes. India has
also ratified various international treaties and human rights conventions, committing to
ensuring equal rights for women. Notably, the ratification of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) in 1993 holds
significance in this regard. The women's movement, along with a vast network of non-
governmental organizations with substantial grassroots presence and deep understanding of
women's issues, has played a significant role in inspiring initiatives for women's
empowerment. However, there remains a considerable gap between the objectives outlined in
the Constitution, legislation, policies, plans, programs, and the actual situation regarding the
status of women in India.

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 CHAPTER 6
CONCLUSION AND SUGGESTIONS
When analyzing the development of family laws within a patriarchal societal framework, it
becomes evident that discrimination against women is inherent. The preservation of caste,
class, and clan purity is upheld through stringent control over sexuality. This control is
enforced through punitive measures and the denial of economic rights. This investigation
aimed to identify whether, historically, there were opportunities for women to assert property
rights within these constraints and whether legal interventions during colonial and
postcolonial eras expanded these opportunities. The examination of historical trends was
crucial in understanding the necessary legal reforms to address the prevalent poverty and
destitution among women. Additionally, the potential of contemporary uniform legal codes to
address these issues was explored.

The study unveils a nonlinear history of women's rights, with religious and customary laws
representing one extreme and statutory reforms gradually progressing towards the other. This
history is intricate, with various social, economic, and political forces at play, shaping and
constraining women's rights. Despite certain protective measures within Indian feudalism,
particularly during the smriti and post-smriti periods, women's rights were contingent upon
societal hierarchies. While these measures did not align with modern notions of equality, they
reflected a concept of equity. For instance, Hindu women's rights over specific categories of
property, known as stridhana, exemplify this protective approach.

In a caste-based social structure, women's rights were intertwined with caste hierarchies.
Women in higher castes were subject to strict codes of sexual conduct to uphold caste purity
and ensure property inheritance through legitimate offspring. Conversely, women from lower
castes were exempt from certain moral codes. The labor and sexuality of marginalized
women, as well as their male counterparts, were often exploited by higher castes. Property
ownership was uncommon among marginalized communities, making issues of inheritance
less relevant. The concept of maintenance primarily applied to non-working dependent
women, not to working-class women who contributed to household income.

During the pre-colonial era, Islamic jurisprudence aimed to safeguard women's economic
rights within the framework of contractual marriages. Given that Arabs were predominantly

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traders, they regulated all economic and social transactions through contracts. Similarly,
marriage alliances were structured with specific provisions in the contract to safeguard
women, considered the weaker party. Women were empowered to negotiate premarital
agreements and set conditions within the marriage contract. Moreover, specifying a fixed
amount for future security for the wife was crucial in Muslim marriages. As marriage was a
contractual agreement, setting high "mehr" amounts acted as a deterrent against arbitrary
divorce by the husband.

While Hindu and Islamic jurisprudence held this stance, colonial interventions need to be
understood within the context of customary, caste-based, non-state arbitration forums existing
before colonial rule. All legal systems, including Hindu, Islamic, and Roman, contained
discriminatory provisions. During the colonial and post-colonial periods, these discriminatory
measures within Hindu and Islamic legal systems were emphasized for political reasons. The
portrayal of Hindus as barbaric justified colonial interventions pre-independence, while post-
independence, depicting Muslims as backward, pre-modern, and polygamous served Hindu
communal interests. Negative aspects of these systems were highlighted through judicial
decisions and sensationalized media reports, overshadowing the protective measures for
women, rendering them obsolete.

The colonial state's interventions in family law are often seen as liberating Indian women
from practices like sati, female infanticide, and marital rape of child brides. It's also believed
that women's property rights are a Western concept introduced by the British during their
modernization efforts. However, this overlooks the fact that Roman law and English common
law contained anti-women biases, which influenced India through Anglo-Saxon
jurisprudence, undermining traditional legal systems that provided women economic security.
Traditional systems were reshaped into linear, formal structures, exerting greater patriarchal
control over women and their property rights.

Colonial interventions also led to the formation of distinct and antagonistic religious
communities among Hindus and Muslims, each governed by their own personal laws
modeled after canon law. The legal system is rooted in ancient scriptures interpreted through
a Western lens, which were never intended to be applied as strict legal principles within an
adversarial legal framework. This translation significantly altered the nature of customary
Hindu law, particularly impacting women's property rights. As society was streamlined, many

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women's customary rights were disregarded due to their inability to meet the British courts'
legal standards for proving custom. Paradoxically, this legal process solidified the identities
of Hindu and Muslim communities through litigation over property disputes.

The transformation of easily accessible non-state judicial mechanisms, which provided swift
resolutions based on community interventions, into an English court model made justice
adversarial, costly, and slow. With a hierarchical court system, decisions of the Privy Council
became legal precedents, halting the development of localized laws tailored to community
needs. Ideas of justice, fairness, and morality became conduits for the introduction of English
laws and principles into India.

During the nationalist movement, efforts were made to reclaim women's rights. The Hindu
Married Women's Right to Property Act and the Application of Shariat Act, enacted in 1937,
aimed to rectify property rights undermined by Privy Council rulings. However, within a
shifting socio-economic and political landscape, these legislations offered only limited relief.

The Constitution, with its emphasis on equality, instilled hopes for gender justice. The
challenge faced by the newly independent state was to adapt feudal family laws to
accommodate the needs of women within a modern democracy. However, the Hindu law
reforms following independence seemed more focused on standardizing the culturally diverse
Hindu community through state-regulated laws than on expanding women's rights.
Consequently, essential women's rights entrenched within customary laws were
compromised. The resulting enactments were a blend of English and shastric laws,
embodying their worst biases.

For instance, although the Hindu Marriage Act introduced divorce, it failed to ensure
economic security for divorced women beyond minimal maintenance. The concept of
maintenance offered protection only within a feudal property framework where property was
inalienable and marriages were indissoluble. The widespread destitution of Hindu women
post-reform suggested that they may have traded the rights to residence and economic
security for the right to divorce, leading to destitution.

Traditionally, Hindu women had a specific economic right known as stridhana. The smriti
law extensively deliberated its definition, evolving character throughout a woman's life, and

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her authority over it. Post-smriti commentators sought to broaden its scope and reinforce its
foundation. However, the Hindu Marriage Act overlooked the nature of stridhana and a
woman's control over it in her new role as a divorcee, possibly influenced by nationalist
leaders trained in English law, which they regarded as a reform model, disparaging traditional
legal systems. Thus, the Hindu Marriage Act mimicked the English Matrimonial Causes Act
poorly, stripping Hindu law of its protective measures in favor of formal equality. Even the
traditional right to maintenance was extended to husbands, a departure from both scriptural
and customary Hindu law principles.

The concept of monogamy, influenced by Western and Christian beliefs, didn't align well
with the diverse cultural norms of Hindu society. While the law failed to effectively
discourage polygamy, it inadvertently reinforced male dominance by stripping women in
informal unions of their customary entitlements. The widely touted right of inheritance was
undermined by allowing Hindu men to discretely pass on property through wills. Unlike
Islamic law, which restricted bequests to protect women's interests, Hindu law, modeled after
English law, emphasized individual rights, facilitating the transition from feudalism to
capitalism by enabling property to be liquidated and traded. Consequently, women's rights to
maintenance and inheritance became fleeting in the new economic framework. Despite these
shortcomings, these legal reforms were hailed as symbols of India's modernization.
Subsequently, efforts to reform family law focused on critiquing Muslim personal law.
However, this critique extended beyond Hindu nationalist groups to encompass the judiciary,
legal scholars, and the media. While polygamy and arbitrary divorce were highlighted as
significant issues impacting women, the escalating instances of wife murders and suicides
among Hindu women underscored the shortcomings of reformed Hindu law. Yet, the
discourse on the Uniform Civil Code continued to champion codified Hindu law as a model
for women's empowerment, ignoring the correlation between rising rates of suicide, murder,
and destitution among Hindu women and the revised laws, which led to communal tensions
surrounding the demand for the code.

Despite the aim for consistency, over the ensuing decades, efforts were made to implement
uniform laws to safeguard the interests of Hindu and Muslim men. Examples of this trend
include the adaptation of the Special Marriage Act in 1976 to align with Hindu principles and
the enactment of the Muslim Women's Act in 1986, following the controversy surrounding
Shah Bano. Notably, while the Muslim Women's Act drew severe criticism for allegedly

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favoring one community, the changes to the Special Marriage Act a decade prior largely
escaped scholarly and media attention, except for sporadic protests.

Judicial remarks on gender issues in recent years have perpetuated communal

misunderstandings, exacerbating divisions. Such comments, coupled with negative publicity,
have alienated even progressive factions within the Muslim community. In the politically
charged atmosphere following the Babri Masjid incident, advocating for a Uniform Civil
Code came to be seen as a betrayal of identity politics and minority rights. These
developments have complicated efforts to reform family law.

Women's rights are further complicated by various factors. Within a legal system
characterized by adversarial, protracted, daunting, and costly processes, the limited rights
granted by statutes often remain elusive for most women. Consequently, these legal
provisions fail to alleviate gender imbalances. In the push for reforms, the impact of existing
laws on individual women or broader categories of women has not been adequately assessed.
The adversarial system, based on formal equality, has proven ineffective. Without relocating
statutory measures within informal, affordable, and accessible legal frameworks guided by
interventionist principles, even the most well-intentioned and equitable statutes will remain
ineffective.

The economic changes initiated in the 1990s, leading to the opening of Indian markets, have
widened disparities between various social groups: rich and poor, urban and rural, privileged
and underprivileged. It's foreseeable that amidst escalating inequalities, gender disparities
would also increase. While joint family setups were common in feudal societies and nuclear
families in capitalist ones, single-women households are becoming prevalent in post-capitalist
societies. Statistics indicate that a significant portion of Indian households are led by women,
many of whom live below the poverty line. Any proposed reforms in family laws aimed at
reshaping gender dynamics within marriages must acknowledge these social, political, legal,
and economic realities. However, the proposed Uniform Civil Code drafted by legal scholars
appears to overlook contextualizing women's rights within this intricate landscape. The model
for reform, the Hindu Marriage Act, is rooted in outdated English principles. Since most
matrimonial laws in India, except for Muslim law, are derived from English marriage laws,
the focus of reforms seems to be on modernizing the Islamic family law, leaving behind other
traditions. Despite the stated goal of achieving gender justice, the primary emphasis of these

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reforms seems to be on achieving uniformity. While uniformity is advocated for national
integration and standardization of family laws across religious communities, its compatibility
with India's culturally diverse and unevenly modernized Hindu society remains unexplored.
The Hindu Marriage Act, which acknowledges diverse customary marriage and divorce
practices, seems to have been disregarded by fervent reformers. Despite intending to bring
Hindu law under state regulation, the act allows Hindus to conduct marriages and divorces
according to their customs without involving state or religious institutions.

The Hindu Succession Act also showcases various regional differences. Initially established
in 1956, the central statute upheld the Hindu male coparcenaries or joint family property
ownership, thereby excluding women from inheriting ancestral property. Their right to equal
inheritance was limited solely to self-acquired property of Hindu males. However, in 1976,
Kerala abolished joint family holdings under a leftist land reform scheme. Following suit,
Andhra Pradesh granted women coparcenary rights in 1984 through a state amendment, later
adopted by Tamil Nadu and Karnataka in 1990 and 1994, respectively. Maharashtra
introduced a women's policy in 1994, granting women recognition as coparcenars.

The southern states, accustomed to granting women property rights under customary law,
accepted these amendments without much resistance. Conversely, northern states neither
implemented such provisions nor saw central amendments to this effect. Notably, Haryana
attempted in 1987 to abolish Hindu women's property rights under self-acquired property of
Hindu males, citing concerns over land fragmentation, but the bill failed to receive
presidential assent. This reflects the cultural diversity inherent in Hindu law.

The Indian Constitution exhibits internal inconsistencies regarding family laws. While Article
1d mandates a Uniform Civil Code, legislative authority over family law resides in the
concurrent list (Entry 5, List of the Seventh Schedule), granting power to both central and
state legislatures. Enforcing rigid, uniform family laws would tip the balance of power toward
the center, affecting intergovernmental relations, especially with the northeastern states
protected by specific constitutional guarantees.

This study contextualizes women's rights within national political developments, revealing
that these rights are often secondary to hidden political agendas. Post-independence, while
newly sovereign states typically enact comprehensive family codes to redefine authority,

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India's independence, marked by a bloody partition, prioritized assuring minorities of cultural
identity and political stability. Hence, personal laws persisted, with family law reforms
primarily benefiting the majority community, initiated only after the Congress party's
resounding victory in the 1952 elections under Prime Minister Nehru's leadership.

Hence, the balance between these segments of the constitution can only be robustly
maintained if any law enacted that conflicts not just with fundamental rights but also with
directive principles is deemed void and unconstitutional. Chief Justice Chandrachud has
echoed this sentiment, advocating that any law conflicting with either fundamental rights or
directive principles, or both, should be nullified as unconstitutional. Both aspects should be
treated equally. P. Sarojani Reddy observed that in conflicts between recognized individual
rights and directive principles, the latter should prevail for the general interest of the
community. During discussions on the Constitutional 1st Amendment Bill in Lok Sabha, Dr.
B.R Ambedkar remarked (on 11-5-1951) that the directive principles were essentially a series
of provisions embodying simplicity in their doctrine of implied power. He suggested that the
Court should endorse and support legislation furthering the purposes of directive principles.
Therefore, any conflicts between these two sets of rights should be resolved while upholding
the fundamental spirit of the constitution, emphasizing the preamble's objectives. The
Judiciary can achieve this synthesis by prioritizing the rights of the community over
individual rights. This can only be possible if the judiciary adopts a liberal and harmonious
approach, aiming to achieve the preamble's objectives through a balance between
fundamental rights and directive principles. However, if the State wishes to implement
directive principles, it may need to infringe upon the property rights of individuals in whose
hands the means of production, wealth, and material development are concentrated. Adopting
a harmonious construction approach would imply implementing directive principles without
compromising fundamental rights, especially the right to property. Consequently, property
rights, no longer considered fundamental rights, become even more potent than before. This
essentially establishes a rule that not only renders the implementation of economic policies
impossible but also perpetuates the property rights of those in possession, contrary to the
Constitution's socio-economic justice policy. Certain judicial pronouncements paved the way
for socio-economic legislation, leading to amendments in the Constitution. The 17th
Constitutional Amendment Act was challenged before the Supreme Court in the case of
Saijan Singh v. State of Rajasthan. It was argued that fundamental rights were immutable and
not subject to amendment, as any amendment would significantly impede individual rights

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within society. However, the Court held that while fundamental rights may be regarded as
unchangeable, their proper interpretation in line with the values enshrined in the Directive
Principles of State Policy satisfies the need for dynamic adaptation. The Court emphasized
the doctrine of harmonious construction, advocating for the interpretation of directive
principles through fundamental rights and their application in governance. This approach not
only considers directive principles in legislation but also resolves disputes between the two
sets of rights by interpreting the former in light of the latter, representing an improvement
over previous Supreme Court rulings.

But a severe jolt came to the position in the decision of Golak Nath v. State of Bombay 13 by
Supreme Court. The Supreme Court was called upon to consider earlier case law of Shankari
Prasad and Sajjan Singh and Constitutional validity of 1st, 4th and 17th amendment act. The
Court observed that the actions taken under amendments were not illegal even if it is found
that these amendments are unconstitutional. But it was also observed that Parliament would
have no power to amend the constitutional rights in future. In other words the decision of the
court was prospective in operation. It did not affect the past legislation. It was also observed
that constitutional amendment is law within the meaning of Article 13 of Constitution. Hence
no law shall be valid if it violates the fundamental rights or any part thereof. The Court also
made reference about the directive principles of the policy and observed that the fundamental
rights and directive principles form an integrated scheme and self-contained code to meet out
the need of the society. It was also observed that directives should be reasonably enforced
without violating the fundamental rights. However, the Court hesitated to equate directive
principles with Fundamental rights. It emphasized that fundamental rights are transcendental,
inviolable, and sacred, thus unamendable. Consequently, the Court failed to grasp the true
significance of directive principles. Notably, in the dissenting opinion of Justice Hidayatullah
in Sajan Singh's case, it was aptly noted that "the rights of society are made permanent and
they are placed above most of the rights of the individual." However, the impact of this
precedent was later nullified by the decision in Keshvanand Bharti v. State of Kerala. This
precedent also did not provide a clear opinion on the relationship between fundamental rights
and directive principles.

Criticism has been directed towards this decision as being politically misguided and
obstructive to socio-economic justice and authority. It is noteworthy that the judiciary should
support measures aimed at advancing socio-economic legislation for the common good, even

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if they appear to infringe on the rights of a few individuals, as these measures are necessary
for societal welfare. Thus, the restriction of the rights of a few individuals in the broader
interest of such measures is a commendable step, which also benefits the welfare of the
judiciary.

Furthermore, cases such as "Bank nationalization" and Privy purse cases severely undermined
the implementation of socio-economic justice policies by excessively prioritizing
fundamental rights. Consequently, the entire framework of the National policy of
socialization and social justice, to prevent conflicts detrimental to the common good, was
affected by various judicial decisions from 1967 to 1971. It is argued that the Court took a
highly legalistic and technical approach towards individual rights, neglecting the importance
of Directive principles of State Policy. Additionally, the Supreme Court's interpretation of the
right to property was seen to undermine the provisions of article 39 (B) and (C) of the
Directive Principles, overlooking the fact that the implementation of progressive economic
policies in Part IV aims to establish a welfare state. Subsequently, the 24th, 25th, and 26th
Amendment Acts were introduced to override and nullify the impact of the Golaknath case.

The revised Article 368 granted Parliament extensive powers to alter the constitution. A new
provision, Article 31C, was introduced to establish the precedence of directive principles,
particularly Article 39 (B) and (C), over fundamental rights, aiming to mitigate conflicts
between the two. This amendment limited the scope of judicial review by prioritizing
directive principles over fundamental rights outlined in Articles 14, 19, and 31, and by
exempting certain matters from court jurisdiction. Essentially, Article 31C operated similarly
to Articles 31A and 31(B) and the ninth schedule of the Constitution. Hindustan Times
criticized Article 31C in an editorial dated 297-71, labeling it as a sweeping piece of
legislation. Renowned jurist M.C. Chagla questioned the rationale behind this amendment,
expressing concerns about its potential to protect laws that violate fundamental rights.
However, it can be argued that the purpose of Article 31C is narrow yet significant, aiming to
safeguard laws that curb monopolies and promote equitable distribution of wealth and
resources. Chagla's apprehensions may have been overstated, as Article 31C merely seeks to
align fundamental rights with the objectives of directive principles outlined in the
Constitution. This does not imply subordination of fundamental rights to directive principles.
Similarly, Article 31(C) does not blatantly disregard the constitutional mandate of human
rights, nor does it favor the interests of a select few over the broader society. Rather, its

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enactment represents a synthesis between social justice and individual freedoms, striving to
harmonize liberty, equality, and the pursuit of social welfare.

The decision of Keshvanand Bharti 83 which is the latest and most important judgment of the
Supreme Court, is still the foundation of the relationship between fundamental rights and
directive principles. In this case the Supreme Court upheld the supremacy of economic and
social directive principles over article 14, 19 and 31 of the fundamental rights In assessing the
validity of Article 31(C), the court seems to have asserted its dominance in prioritizing
directive principles over fundamental rights. This ruling was subsequently upheld in the case
of Narendra Prasad v. State of Gujarat. The court argued that the complete and absolute
enjoyment of one's rights within an organized society must be balanced against the broader
social forces at play, necessitating a harmonization of interests. Although not legally
enforceable, directive principles play a crucial role, as outlined in Article 37, by imposing
obligations on the State when formulating laws governing human affairs and conduct. In the
case of Mumbai Kaur v. Abdul Bhai Fazula, the court examined whether a customary bonus
was a condition of employment beyond mere profits, concluding affirmatively. It emphasized
that social justice principles, including employee entitlements, can manifest in various forms,
with profit-based bonuses being just one example. The 42nd Constitutional Amendment Act
of 1976, based on the Swaran Singh Committee's report, introduced significant changes to
Parts III and IV of the Constitution. Of utmost significance was the provision granting
supremacy to directive principles over fundamental rights, aligning with the preamble's
aspiration for social and economic justice. This amendment mirrored Dr. B.N. Rau's original
proposal in the Constituent Assembly, which prioritized laws implementing directive
principles over fundamental rights, albeit Rau's amendment was not incorporated into the
constitution due to the prevailing interpretation that rights under Part III should align with
directive principles.

This amendment altered the stance established by Rau in the constituent assembly and
Jawaharlal Nehru's concepts, while introducing the 1st and 4th Constitutional Amendment
Act in Parliament. Essentially, the social philosophy outlined in Part IV should serve as a
guiding principle for interpreting both Part IV and the entire constitution. However, the
Minerva Mill case rendered ineffective the alterations made in Article 31(C) by the 42nd

83 (1) (1973 S.С.С. 225).

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Amendment Act of 1976, emphasizing the supremacy of Directive Principles over
fundamental rights. The Court, through a majority ruling, concluded that these alterations
jeopardized the fundamental features of the constitution and annulled the legal position
established by the Keshvanand Bharti case. Consequently, Parliament was drawn into the
fray. Article 31(C) wasn't struck down outright, but the 1976 attempt to broaden the scope of
Article 31(C) was invalidated. However, Justice P.N. Bhagwati delivered a minority opinion
in this case. He emphasized the significance of Directive Principles in democratic India,
asserting that a normal democracy cannot exist without social and economic justice for the
common man. He argued that the Directive Principles nurture the provision of fundamental
rights. Thus, it's evident that Directive Principles hold a lofty position in the Constitutional
framework, with fundamental rights intended to operate within the framework of the socio-
economic structure envisaged by the Directive Principles. This approach is crucial for the
millions of impoverished masses lacking even the basic necessities of life. The learned Judge
advocated for giving greater importance to the Directive Principles in Part IV, suggesting that
prioritizing fundamental rights over them would undermine the fundamental nature of the
constitutional governance, as outlined in Article 37, thereby weakening the true spirit of the
constitutional scheme. This decision has been criticized severely in the e of Waman Rao v.
Union of India. 84 This finding also made some of the findings of Keshavanand Bharti's case
clear.
The Sanjeeva Coke Manufacturing Co. Ltd’s 8586 case has also criticised the verdict of the
Minerva Mill's case. The majority Judges in Sanjeeva Coke Manufacturing Lid.'s case. opined
that there was no necessity of giving any verdict in Minerva Mill's Case over the validity of
Article 31 (C). The Court has exceeded its jurisdiction in deciding this matter. Nonetheless,
the ruling of the Minerva Mill's case remains valid in legal literature. Additionally, the
Second Minerva Mills case affirmed this conclusion in 1986. Therefore, upon examination of
the aforementioned provisions, case law, and legal opinions, it is evident that the judiciary
has yet to resolve the perceived conflict between fundamental rights and directive principles.
This issue seems to stem from the phrase "shall not be enforceable" as stated in Article 37.
This wording has led the judiciary to interpret that directive principles are subservient to
fundamental rights. The framers of the constitution never foresaw such a conflict arising
between constitutional obligations regarding fundamental rights and directive principles. If

84 AIR 1981 S.С. Page 271.

85 AIR 1983 S.C. Page 239.
86 AIR S.C.

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such a conflict does arise, the constitution does not provide a clear solution, as it was not
anticipated by its makers. Thus, the resolution depends on two factors: first, socio-political
solutions through legislative and executive actions, and secondly, judicial solutions through
court decisions. These two factors and their solutions are interdependent and complementary
to each other. They should mutually respect one another to achieve the objectives of the
constitution, particularly Parts III and IV, in line with the spirit of the Constitution and Indian
culture. To prevent the possibility of such conflicts, Parliament should develop a similar
modus operandi, even if it seems unlikely. Had the views of Dr. B.N. Rau been incorporated
earlier, this issue might never have arisen. The directive principles could be made more
comprehensive and detailed and given enforceability. Article 37 could be amended to provide
enforceability to Part IV of the Constitution, similar to fundamental rights. It is also
conceivable that Part III of fundamental rights could be amended to include further
restrictions on the enjoyment of fundamental rights in light of directive principles.

The limitations on the enjoyment of fundamental rights may be specifically detailed in Part
III of the Constitution. It should be clarified that restrictions imposed on fundamental rights
in light of directive principles should not be considered unreasonable or void, as this would
conflict with fundamental rights. The judiciary is expected to interpret the law with a socio-
logical and liberal approach rather than solely a logical and technical one. The Supreme
Court's restriction on the scope of Article 31(C) is criticized for potentially undermining the
Constitution's basic features based on outdated legal reasoning. Fundamental rights and Part
III are not necessarily the Constitution's basic features; instead, they operate within the
framework of democratic socialism outlined in the preamble and directive principles. Critics
argue that the Constitution merely pays lip service to fundamental rights without truly
embodying them. Over the past 50 years, various shortcomings have emerged, with many
fundamental rights, such as freedom of the press and the right to education, being overlooked.
Extraordinary provisions, such as preventive detention laws, have curtailed fundamental
rights post-enforcement of the Constitution. Critics also highlight the technical legal language
in Parts III & IV, which may be inaccessible to the average person and place more emphasis
on rights over duties. Achieving a balance between rights and duties is essential, as fulfilling
duties ensures the protection of rights. The inclusion of rights such as the right to information,
right against expulsion from the country, and right to privacy in the Constitution of Nepal

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underscores the need to adapt to societal advancements by enshrining these rights in law.
Justice Iyer's observation further emphasizes the importance of maintaining this balance. 87

The pressing task of the day involves dynamic legislative action, purposeful judicial reforms,
and the efficient streamlining of administration to improve our socio-economic conditions.
Additionally, we must consider judicial solutions. The Courts are constitutionally obligated to
uphold any existing laws that seek to fulfill the commitment to social justice outlined in
Article 38 of the Constitution's preamble. Therefore, judges must understand that they are not
infallible or detached from society but rather active participants in our national progress.
They must ensure that the state works towards being a welfare state, not one that bids
farewell to poverty. Judges today must take into account the social and economic policies of
the state when interpreting laws. They must remember their role as citizens entrusted with
contributing to social and economic progress. It's not sufficient for them to merely administer
legal justice; they must also consider broader societal goals. While the judiciary shouldn't
exceed its boundaries, it's also unwise for a non-elected few to dictate terms to elected
representatives who are better equipped to understand the needs of their constituents.

The preceding discussion highlights the proactive role the Courts are playing in implementing
directive principles alongside fundamental rights. The Court acknowledges the importance of
directive principles in tandem with fundamental rights for the common man's social and
economic development. The real challenge lies in assessing how effectively the Court has
facilitated the attainment of social and economic justice. Recent pronouncements from the
Supreme Court of India underscore its recognition of directive principles as reasonable
restrictions on fundamental rights in the public interest. To prevent conflicts between rights,
it's advisable for the Court to give due consideration to directive principles when interpreting
fundamental rights. These principles, reflecting the nation's social philosophy, cannot be
disregarded. Furthermore, the Court should consider directive principles when interpreting
terms like "public interest," "due process," "reasonable restriction," and "public purpose." It's
hoped that the judiciary will continue to be guided by these directives in interpreting
fundamental rights and the constitution. If there's a failure in achieving the expected success,
then Parliament or the legislature shouldn't hesitate to mandate the judiciary to follow these
principles in interpreting constitutional or legal provisions, particularly concerning the

87 Book- Three decades of Constitutional experience Page 17.

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relationship between fundamental rights and directive principles of State Policy. Therefore,
it's advisable for the legislature or parliament to amend Article 31(C), expanding and
updating it to provide a clearer understanding of the relationship between the two sets of
rights.

The Directive Principles need direct enforceability to fulfill the objectives outlined in the
Constitution's preamble. A proposed addition to Article 31 (C) should ensure that Parts III
and IV are interpreted, applied, and enforced jointly rather than separately going forward.
They must be treated equally to achieve the aims of the preamble. It should be explicitly
stated that all authorities under the Indian Constitution are mandated to enforce and uphold
these Directive Principles when creating laws, rules, judgments, orders, or other executive
and administrative actions in public or official capacities. Additionally, the judiciary must be
obliged to apply and interpret laws, executive actions, administrative orders, or government
policies in alignment with the advancement of directive principles and the fulfillment of the
preamble's purposes. The litmus test should be whether a particular law, action, or policy
serves the objectives of the preamble or advances human rights and social justice principles,
regardless of its compatibility with fundamental rights.

It's essential to note that any law, policy, or order aimed at fulfilling the preamble's purposes
inherently advances the principles of human rights and social justice. Directive principles are
an integral part of the preamble's profound wisdom and are automatically intertwined with
human rights and social justice. Moreover, the interests of the common people should take
precedence over the privileges of a select few in society for the greater welfare of all. While
the interests of the privileged should not be disregarded, they should empathize with the
common folk. All directive principles should be implemented and interpreted within the
framework of fundamental rights, and vice versa, to harmonize the objectives of the
constitution's preamble. This approach must be adaptable to changing times, circumstances,
and locations, and it should be binding on all constitutional and legal authorities in India. A
departure from a purely legalistic and technical approach is necessary to align with the
societal realities.

It is now imperative for legislatures to establish specific time limits for various welfare
programs outlined in the directive principles. A national committee, comprising independent
members, judges, politicians, and social workers, should be appointed to oversee these

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programs. This committee, devoid of executive authority, would be responsible for
periodically reporting to parliament on the successes and failures of these programs. Its
primary function would be to assess the effectiveness of all social and economic programs
introduced by the legislature and executive in furthering the directive principles and the
preamble's objectives.

Similar committees should also be established at the state and district levels. Additionally,
there is a pressing need to instill discipline and commitment to constitutional values among
the populace. The time has come to shift our focus from rights to duties, echoing the
teachings of Lord Krishna in the Holy Book "Gita". Individuals at all levels of society must
be conscious of their duties. Only then can the state effectively implement directive principles
aimed at achieving social justice for the impoverished masses.

Therefore, our efforts should not only be directed towards achieving but surpassing the goal
of Indianizing the system within the framework of the ancient ideal of a welfare state. We
acknowledge that the current situation is challenging, as noted by Justice H.R. Khanna, and
the future poses even greater difficulties. 88

In contemporary India, I perceive that the challenges we face surpass those

encountered during our struggle for independence. Back then, we didn't grapple with
conflicting interests or scarcity to manage, nor did we contend with power-sharing.
These are realities we confront now, and the allure of temptation is formidable. May
we possess the wisdom and resilience to transcend these challenges and continue
serving our liberated nation.

As the century draws to a close, envisioning a unified nation, eradicating poverty and
illiteracy, abolishing communal and caste divisions, and fostering harmonious
relationships domestically and internationally becomes conceivable. These aspirations
are embedded in India's modern outlook. Only through awakened human
consciousness can we materialize these aspirations by actively participating in nation-
building. These aren't fanciful notions but attainable human potentials, akin to human
development, which nourish both human and animal populations.

88 Making of the Indian Constitution.

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In this context, Swami Vivekananda imparted a poignant and fruitful message. During
his discourse on the Mission of Vedanta in 1893 in Kumbakonam, he issued a
resounding call of hope to our people. He urged every individual, irrespective of caste
or background, to recognize their inherent strengths and weaknesses. He advocated for
embracing the profound belief in the boundless potential and capacity within each soul
to achieve greatness and goodness. Let us echo his exhortation to awaken from the
trance of inadequacy, for no soul is truly feeble. The soul is omnipotent, boundless,
and omniscient. It is imperative to awaken and assert this divine essence within.
Encourage self-realization, for therein lies the path to empowerment. By awakening
dormant souls, we shall witness the emergence of power, glory, and virtue. I conclude
with hopeful anticipation:
"To redeem the tryst with destiny India made after the British quit and
independence dawned, we need a new justice system, a progressive
jurisprudence and commitment to the compassionate culture which spans from
the Vedas to Buddha and from Buddha to the Mahatma."
Justice V.R. Krishna Iyer

******

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 BIBLIOGRAPHY

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 Dr. S.R. Myneni: Women & Law, 2002, Asia Law House, Hydrabad
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Statutes
 Convention on the Elimination of All Forms of Discrimination against Women
 [CEDAW]
 Indian Penal Code, 1860
 Juvenile Justice Act, 1986
 National Commission for Women Act, 1990 (20 of 1990)
 The Beedi & Cigar Workers (Condition of Employment) Act, 1966
 The Bonded Labour System (Abolition) Act, 1976
 The Child Labour (Prohibition & Regulation) Act, 1986

 The Child Marriage Restraint Act, 1929 (19 of 1929)

 The Christian Marriage Act, 1872 (15 of 1872)
 The Cinematography Act, 1952
 The Code of Criminal Procedure, 1973
 The Commission of Sati (Prevention) Act, 1987 (3 of 1988)
 The Constitution of India
 The Contract Labour (Regulation & Abolition) Act, 1979
 The Dowry Prohibition Act 1961 (28 of 1961) The Employees’ State Insurance Act, 1948
 The Equal Remuneration Act, 1978 The Factories Act, 1948
 The Family Courts Act, 1984
 The Foreign Marriage Act, 1969 (3 of 1969) The Guardians and Wards Act, 1860 (8 of 1890)
 The Hindu Adoption & Maintenance Act, 1956 The Hindu Marriage Act, 1955 (28 of 1989)
 The Hindu Minority & Guardianship Act, 1956 The Hindu Succession Act, 1956

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  The Immoral Traffic (Prevention) Act, 1956 The Indecent Representation of Women
 (Prohibition) Act, 1986
 The Indian Divorce Act, 1969 (4 of 1969)
 The Indian Evidence Act, 1872 (yet to be reviewed)
 The Indian Succession Act, 1925 (39 of 1925)

Newspapers, Magazines & Other References

 Decisions of the Supreme Court of India [online] www.indiankanoon.org
 Economic & Political Weekly [online] www.epw.org
 Frontline
 India Today

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 ABBREVIATION

BPA: Beijing Platform for Action

CAT: United Nations Committee against Torture

CEDAW: Convention on the Elimination of all Forms of Discrimination against Women

CERD: Committee on the Elimination of Racial Discrimination

CERD: Convention on the Elimination of Racial Discrimination

CESCR: The Committee on Economic, Social and Cultural Rights

CRC : Convention on the Rights of the Child Faskh: Judicial annulment of marriage.

FNC: Federal National Council

GCC: Gulf Cooperation Council

Hadith: Saying; Traditions of the Prophet Muhammad.

HR: Committee Human Rights Committee

HRC: Human Rights Council

ICCPR: International Covenant on Civil and Political Rights ICESCR: International Covenant on
Economic, Social and Cultural Rights

ICCPR-OP1: First Optional Protocol to the International Covenant on Civil and Political Rights

ICRMW: International Convention on the Protection of the Rights of All Migrant Workers

IHRRI: The International Human Rights Indicator

Ijtihad: Juridical reasoning of a qualified Islamic legist.

ILO: International Labour Organization

Khul: Divestiture; Discharge of marriage initiated by the wife.

NGOs: Non-governmental organizations

OP-CEDAW: Optional Protocol to the Convention on the Elimination of Discrimination against

Women

UAE: United Arab Emirates

UDHR: Universal Declaration of Human Rights ii UN: United Nations

UNGA: United Nations General Assembly

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