"You can tell the condition of a nation by looking at the status of its
women".... Jawaharlal Nehru
Women who constitute half a human population have been discriminated harassed
and exploited irrespective of the country to which they belong, un-mind of the
religion which they profess and oblivious of the timeframe in which they
live. Everywhere women are confronted with many challenges. In all societies
to a greater or lesser degree women and girls are subjected to physical, sexual
and psychological abuse that cuts across lines of income, class and culture.
Unfortunately, India is one of the few countries where offences against women
have been increasing in tremendous way. In fact since ages the status and the
position of women in India is a controversial subject, as it reflects the
contradictory and the paradoxical nature of the Indian society. In one way
people offers prayers to women as goddess, more over Indian tradition and the
culture says that "yatra nari pujyante tatra ramante devta". But at the same
time and in other side women are considered to be in the secondary position and
they are put to atrocities even before birth till death.
In mean time constitutional law and ordinary law through judiciary has been
working as a savior of women from atrocities and also giving helping hand in
numerous ways for perk up status of women in all spears of their life.The
status of women in our country has risen to the present level which may not be
up to the mark but still satisfactory is because of active judiciary as well as
public spirited people who successfully manoeuvred the status of women of our
country to the present level. The unbiased and independent judiciary has always
played the role of a true Guardian of justice. Since independence many a times
the judiciary has pro-actively interpreted and amplified the ambit of
legislative provisions in favour of the unprivileged half of the society, i.e.,
the women of our country.
The position of women in India in different periods
From the Vedic age to till today, status and position of women has been changing
with the passing of time.Historical studies and the scriptures indicate that
Indian woman enjoyed a comparatively high status during the early Vedic period,
later, the condition and status of women in India declined with the passage of
time. During the medieval period, woman was given a position subordinate to
man. Law and religion did not recognize the equality and equal rights of man and
woman. Finally, when the British came in to contact with the Indian people in
the latter half of the 18th century, the position of Indian woman had
deteriorated to the lowest level. Ideologically, women were considered a
completely inferior species, having no significance, no personality. But because
of contributions made by many social reformers like Raja Ramohan Rai, Veresa
Lingam, Ishwar Chandra Vidyasagar, Vivekananda, Jyothira Phule, Anne Besant,
Mother Teresa, Mahatma Gandhi, Nehru, Dr. B. Ambedkar, Vinoba Behave etc.
British government introduced some laws for the protection of women like the
widow remarriage Act, 1856, Civil Marriage Act, 1872, Married women’s property
Act, 1874, The Child Marriage Restraint Act, 1921, The Prevention of
Prostitution Act, 1923, The Hindu Inheritance Act, 1929, Sati Prohibition and
more importantly special provisions for women protection in Indian Penal Code,
After independence, Indian government passed several general as well as special
laws especially constitutional provisions for protection of women to safeguard
and to empower women in India. The improvement in women’s position and status
became further evident when immediately after the independence, Indian women
made their mark by becoming Governors, Cabinet ministers, and
ambassadors. Several measures were taken by the Government of India to assign
equal status to women in the economic, political and social fields.
The rights available to woman in India can be classified into two categories,
namely as constitutional rights and legal rights. The constitutional rights are
those which are provided in the various provisions of the constitution, which is
the basic law of the land. The legal rights, on the other hand, are those which
are provided in the various laws. The Constitution of India pledges equality of
status and opportunity to men and women.Being a custodian of constitution
apex court has been trying to fulfill constitutional objectives by numerous
pronouncements in several cases.
Finally it will be evident from history that the atrocities against women are
since time immemorial. And at the same time protection of women from atrocities
is also as old as atrocities against women in the form of religion, custom,
ethical, moral values and through social movements, national and international
legal protections etc. but among all these the significant role has been playing
by law through judiciary as a savior of women from atrocities in modern era.
Legal safeguards not only protect women from atrocities, violations etc but also
empowering women in social, economical, educational, political fields.
Constitutional rights and safeguards toWomen - Concept of Protective
The constitution of India not only granted equal status to women par with men,
but also empowers the state to adopt measures of positive discrimination in
favour of womenfor neutralizing the cumulative socio economic, education and
political disadvantages faced by them. Constitutional framers also empowered the
state to make special laws, policies, plans and programmes with in a democratic
polity for advancement of women in all spheres. The framers of constitution
aimed to provide justice, liberty and equality irrespective of gender, it can be
witnessed in Preamble, Fundamental Rights, Directive Principles of state policy,
Fundamental duties and in other provisions.
The preamble is the key to open the mind of the makers. Constitutional framers
aimed to provide justice, liberty and equality to people irrespective of gender,
status, religion, creed and cast etc. by this one can understand that framers
would like to establish a society with gender equality, which directly or
indirectly tries to uphold the women empowerment.
The rights and safeguards enshrined in the constitution for women in India
1.The right to equality and equal protection of laws [Article 14]
2.The state shall not discriminate against any citizen of India on the
ground of sex [Article 15(1)].
3.The state is empowered to make any special provision for women. In other
words, thisprovision enables the state to make affirmative discrimination in
favour of women [Article15(3)].
4.No citizen shall be discriminated against or be ineligible for any
employment or office under the state on the ground of sex [Article 16(2)].
5.Traffic in human beings and forced labour are prohibited [Article
6.The state to secure for men and women equally the right to an adequate
means of livelihood [Article 39(a)].
7.The state to secure equal pay for equal work for both Indian men and
women [Article 39(d)].
8.The state is required to ensure that the health and strength of women
workers are not abusedand that they are not forced by economic necessity to
enter avocations unsuited to theirstrength [Article 39(e)].
9.The state shall make provision for securing just and humane conditions
of work and maternityrelief [Article 42].
10.The State to promote with special care the educational and economic
interests of the weaker sections of the people and to protect them from social
injustice and all forms of exploitation [Article 46].
11.The State to raise the level of nutrition and the standard of living of its
people [Article 47].
12.It shall be the duty of every citizen of India to renounce practices
derogatory to the dignity ofwomen [Article 51-A(e)].
13.One-third of the total number of seats to be filled by direct election in
every Panchayat shallbe reserved for women [Article 243-D(3)].
14.One-third of the total number of offices of chairpersons in the Panchayats
at each level shallbe reserved for women [Article 243-D (4)].
15.One-third of the total number of seats to be filled by direct election in
every Municipalityshall be reserved for women [Article 243-T(3)].
16.The offices of chairpersons in the Municipalities shall be reserved for
women in such manneras the State Legislature may provide [Article 243-T(4)].
17.The elections to the House of the People and to the Legislative Assembly of
every State shall be on the basis of adult suffrage; that is to say, every
person who is a citizen of India and who is not less than eighteen years of age
irrespective of gender, status etc entitle to be a voter. [ Article 325and
Article 14ensures that the state shall not deny to any person equality before
law. It prohibits class legislation but permits reasonable classification. This
is a very important provision which provides equal legal protection to women
against any women basedcrime. Article 15 (1)prohibits discrimination against
any citizen based on religion, race, caste, sex or place of birth while Article
15 (3) permits ‘protective discrimination’ in favour of women according to which
state can make special provision for women and the scope of this article is wide
enough to cover the entire range of state activity including employment. Article
16(2)of constitution of India ensures equal employment opportunity to every
citizen of India. Article 42 empowers the state to make laws for women workers
and by which it can provide special maternity relief to women. Like, above with
the help of fundamental rights and directive principles of state policy state
can provide protective discrimination towards women, which will not infringe
general equality. The reason behind this is physical structure and performance
of maternal functions of women place her at a disadvantage in the struggle for
subsistence and her physical well being becomes an object of public interest and
care in order to preserve the strength and vigour of the race makers has given
these safeguards to women. It is evident from numerous pronouncements of the
Role of Judiciary for empowering women
All provisions of the Constitution and all laws enacted by the legislature get
their real meaning and import through the process of judicial interpretation.
The Constitutional mandate and the various laws providing for protective
discrimination in favour of women relating to several aspects of their social,
economic and political life have come up before the courts. Through various
devices like judicial review, judicial activism, social action litigation and
the duty of enforcement of fundamental rights the superior Courts in India have
evolved a gender jurisprudence which has given substance and life to the
constitutional scheme of protective discrimination in favour of women. Below is
detailed overview of the judicial approach in various cases, where the Courts
have successfully delivered their verdict to strengthen position of women.
1.Judicial Approach in the matters relating to Education:
Education is a part of the development of the personality of all in general and
woman in particular. In P. Sagar v. State of Andhra Pradesh,The Andhra
Pradesh High Court observed that Article 15(3)is an exception engrafted to
clause (1) of the Article 15. Thus, in view of the Article 15(3) reservation for
women cannot be denied. Similarly, the reservation for sports women does not
offend the provisions of Articles 15(1) and 29(2) of the Constitution.
In Padmaraj Samarendra v. State of Bihar,allotment of some seats for girl
students in Medical Colleges was challenged on the ground that it is solely
based on sex. The Court while justifying the allotment of seats for girl
students held as reasonable and it cannot be said to be discrimination on the
ground of sex alone.
2.Judicial Approach in the matters of Employment:
In Miss C.B, Muthamma, I.F.S v. Union of India,In Air India v. Nergesh
Meerza and other, In A.N. Rajamma v. State of Kerala,the Court
upholding the principle of equality of status put the female employees at par
with male employees and struck down the various rules as unconstitutional.
In Vijay Lakshmi v. Punjab University,court held that appointment of lady
Principal in Women’s college or a lady teacher therein, cannot be held to be violative of Articles 14 and 16 of the Constitution, because classification is
reasonable and it has a nexus with the object to be achieved. More over it is a
precautionary, preventive and protective measure based on public morals and
particularly in view of the young age of the girl students to be taught.
In a plethora of cases such as Peoples Union for Democratic Rights v. Union of
India, Randhir Singh v. Union of India, Sanjit Roy v. State of
Rajasthan, Uttarakhand Mahila Kalyan Parishad v. State of Uttar
Pradesh and Mackinnon Mackenzie and Co. Ltd. v. Andrey D’ Costa etc
cases Judiciary has played an active role in enforcing and strengthening the
constitutional goal of "equal pay for equal work" enshrined in Article 39(a),
which implicit in Article 14 and 16 of the Constitution. The court has
brought the equal remuneration within the contours of fundamental right of
In several cases court has held that the State is competent under Arts. 15(3),
16(2) and 16(4) of the Constitution to give preference to women in government
jobs where they are equally meritorious but more suited than men. The Court made
it clear that giving preference to women is only an affirmative action and not a
reservation which normally implies a separate quota which is reserved for a
special category of person who are less meritorious.
Moreover, court also accepted that under Factories Laws, the State prohibits the
appointment of women in the factories in certain categories, i.e., on the
dangerous and hazardous machinery, the working hours are also restricted for the
women and the State prohibits women in working in the night times.
Finally court held that allotment of seats in buses, educational institutions
for ladies is also not gender discrimination, but is a protective discrimination
keeping in view of the weak physical structure of women, and social safety in
-Prevention of sexual abuse at work places
Vishaka v. State of Rajasthan, Supreme Court had framed guidelines and
norms for protection of working women at work place, and it held that it is the
duty of the employer to protect women from sexual abuse, which are later
parliament, recognized and enacted Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013.
3. Humanitarian approach of the Judiciary towards sex-workers and sexually
In Budhadev Karmaskar v. State of West Bengal, Court held that generally,our society views prostitutes as women of low character but, refuse
to look at their situation from their perspective. The bench in this case must
be appreciated not just for recognizing their right under Article 21 and
directing the state and central governments to act for their welfare but also,
to understand their perspective and impoverished situation. Not only this, but
the bench acted quite actively and gave the directions to Central and State
government to prepare schemes for giving technical/vocational training to sex
workers and sexually abused women in all cities in India.
4. Judicial role in Stop Acid attacks, regulate and restrict the sale of
In Laxmi v. Union of IndiaOn account of increase in number of acid attacks
on women in the past few years, Supreme Court in order to curb these gave
directions to Home Secretary, Ministry of Home Affairs associating the
Secretary, Ministry of Chemical & Fertilizers to convene a meeting of the Chief
Secretaries/concerned Secretaries of the State Governments and the
Administrators of the Union Territories to curb and restrict the sale of acid
throughout the country.
Acid attacks on women and girls in 2013 and 2014 have been 56 and 47 in number
respectively as per the statistics of acid survivors’ organization.Acid
attack on a women is equal to taking away her identity from her and such rampant
increase in this heinous crime was leading to terror amongst women and Supreme
Court took a vital step and certainly led to the empowerment of women to an
extent and was an important step towards the safety of women in country. the
Supreme Court issued several directions for the protection of acid attack
victims such as: minimum 3 Lakh Rupees compensation for victims, adequate
publicity of victim compensation schemes, private hospitals must not refuse
treatment to victims, and full treatment must include medicines, food, bedding
and reconstructive surgeries.
5. Role of judiciary in upholding special provisions for women in criminal
In Yusuf Abdul Aziz v. State of Bombay,Supreme Court held that under
section 497 of IPC man only be punished for offence of adultery and woman will
be exempted though she may be equally guilty as an abettor was valid. It is
reasonable classification under Article 14 and it was saved by virtue of Art.
15(3). In a Sowmithri Vihnu v. Union of India, the court held that the
contemplation of the law, evidently, is that the wife, who is involved in an
illicit relationship with another man, is a victim and not the author of the crime. In
Revathi v. Union of India, the court held that that Section 497
of the Indian Penal Code is so designed that a husband cannot prosecute the wife
for defiling the sanctity of the matrimonial tie by committing adultery. Thus
the law permits neither the husband of the offending wife to prosecute his wife
nor does the law permit the wife to prosecute the offending husband for being
disloyal to her. Thus both the husband and the wife are disabled from striking
each other with the weapon of criminal law.
6. Judicial approach in recognizing women guardianship rights:
In Githa Hariharan v. Reserve Bank of Indiaetc apex court struck down those
rules and regulations even legislative Act which were causing for gender bias.
Held that even a mother can be a legal guardian to her children whether father a
live or not. In ABC v. The State (NCT of Delhi)theSupreme Court declared
landmark judgment saying that an unwed mother is not bound to disclose the name
of child’s father and also, she would have all the rights as a guardian to child
under guardianships rights. She need not take father’s consent for guardianship
rights. Not only it was necessary to protect the child from social stigma but,
also to protect mother’s fundamental right. It was certainly an avant-garde
verdict on gender quality.
7.Judiciary presumed live-in-relationship for long term as deemed
In Dhannulal and ors. v. Ganeshram and ors,it was held that continuous
cohabitation of a couple together that is, ‘live-in relationship’ would raise
the presumption of marriage unless otherwise proven.In this matter, the woman
had been living with a man as his wife for around 20 years until his death in
the same house with the respondent-relatives who alleged that she was only a
mistress and not the legally wedded wife.The woman clearly failed to prove that
she was the legally wedded wife of deceased but, the bench still held that she
was eligible to inherit the property.
8. Role of judiciary in recognizing women’s rights in the context of
maternity benefit in case of surrogacy:
In P Geetha v. Kerala Livestock Development Board Ltd, the petitioner, who
became a mother through surrogate procedure, was not granted maternity leave by
the Respondents on the ground that birth of the child was not under normal
circumstances. The High Court held that while granting maternity leave, women
could not be discriminated merely because the baby was obtained through
9.Judiciary conferring property rights on women par with men:
Property is one of the important endowments or natural assets to accord
opportunity, source to develop personality, to be independent, thus effectuating
the right of equal status and dignity of person to women. In Pratap Singh v.
Union of India, Jagannathan Pillai v.
Kunjithapadam Pillai, ThotaseshaRathamma v. Thota Manik yamma,C. Masilamani Muddaliar v. Idol of Sri Swaminathaswami, and
Velamuri Venkata Siva
Prasad v. Kothuri Venkateswarluetc cases Judiciary emphasised on gender
equality as the prime consideration in interpretation of statutes conferring
property rights on women, has encouraged legislation in this regard. The Supreme
Court paved way for other courts to follow it as a precedent while deciding
cases of women’s right to property.
Finally, now the Hindu Succession (Amendment Act), 2005 recognized coparcenary
property rights of women.
10.Role of judiciary in safeguarding rape victim:
-Rape is an offence against right to privacy and dignity of women
In Delhi Domestic Working women’s Forum v. Union of India,in Bodhisathwa Gautam v. Subhra Chakraborty, and in
Chairman, Railway Board v. Chandrima
Das, etc cases court held that women also have the right to life and
liberty; they also have the right to be respected and reacted as equal citizens.
Their honour and dignity cannot be touched or violated. They also have the
right to lead an honorable and peaceful life. Rape is a crime against basic
human rights and is also violative of the victim’s most cherished of the
fundamental rights, normally, the right to life and privacy contained in
constitution under Art. 21 and court had provided compensation to rape victims.
-Two finger test, it’s like getting raped once again
In Lillu @ Rajesh & Anr vs State of Haryana,For the first time, the Supreme
Court in this case realized the agony and trauma of a rape victim who had to go
through two finger test give her character certification and after analyzing
through various precedents, held that it is violation of victim’s right to
privacy and dignity. Court held that medical procedures should not be carried
out in a manner that constitutes cruel, inhuman, or degrading treatment and
health should be of paramount consideration while dealing with gender-based
violence. The State is under an obligation to make such services available to
survivors of sexual violence. Proper measures should be taken to ensure their
safety and there should be no arbitrary or unlawful interference with her
-Rape is not a compoundable offence
With regard to determination of rape cases, in State of Madhya Pradesh v. Madan
Lal, the Supreme Court once again clarified that rape cases cannot be
compromised or mediated, as rape is a non-compoundable offence. The Court held
that compromise in rape cases would be against the victim’s honor and dignity,
which are sacrosanct. Bench also held that allowing compromise is not a good
sign to society and"such an attitude reflects lack of sensibility towards the
dignity, the elan vital, of a woman."
11. Role of Judiciary in safeguarding right to freedom of women:
Articles 19 to 22 of The Constitution of India provide a detailed scheme of
Right toFreedom.Article 19 (1)guarantees 6 freedoms for citizens with
reasonable restrictions and Article 21provides for Right to life and personal
liberty of each and every person in India which includes Right to live with
human dignity, right to livelihood, right to work, right to privacy, right
against sexual harassment etc.
-Virginity test is violative of right to privacy
In Surjit Singh Thind v. Kanwalji Kaur, apex court held that allowing the
medical examination of a women’s virginity violates her right to privacy under
Art. 21 of the Indian Constitution.
-Women has right to choose her partner without any compulsion
In Ravi Kumar v. State, Lata Singh v. State of Uttar Pradeshand in
Singh v. State of Uttar Pradesh, it was held that Right to Marriage is an
essential part of the right under Art.21 and that people have the right to
choose their partners without any compulsion. For there, it also held that "This
is a free and democratic country, and once a person becomes a major he or she
can marry whosoever he/she likes. If the parents of the boy or girl do not
approve of such inter-caste or inter-religious marriage the maximum they can do
is that they can cut off social relations with the son or the daughter, but they
cannot give threats or commit or instigate acts of violence and cannot harass
the person who undergoes such inter-caste or inter- religious marriage.
-Recognizing sex selection and female feticides as offence against
right to life of women
In CEHAT v. UOI and others the Supreme Court had given several directions
regarding sex selextion and sex selective abortion and for proper implement of
Pre-Natal Diagnostic Techniques Act by saying that female foeticide as a heinous
act and an indicator of violence against women.
The Indian Parliament also enacted Medical Termination of Pregnancy Act,
1971,The Indecent Representation of Women (Prohibition) Act,
1986,Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994,Protection of Women from Domestic Violence Act, 2005and
many more laws to protect the women life and liberty.
But in fact "Freedom cannot be achieved unless the women have been emancipated
from all forms of oppression".
12.Judicial approach in protection of women from exploitation:
Right against exploitation is recognized under Article 23 and 24 of the
Constitution of India. Article 23prohibits "traffic in human beings and beggar
and other similar forms of labour". The expression "traffic in human beings is
evidently a very wide expression including the prohibition of traffic in women
for immoral or other purposes. Alsothe Suppression of Immoral Traffic in Women
and Girls Act, 1956has been enacted with the object of inhibiting or abolishing
the immoral trafficking of women and girls. Articles 21 & 23also impose the
duty on state to identify, release and rehabilitate freed bonded labourers.
In Gaurav Jain v. Union of India,the Supreme Court held that the children
of the prostitutes have the right to equality of opportunity, dignity, care,
protection and rehabilitation so as to be part of mainstream social life.
Besides above there are several issues in like recognizing right to get
maintenance by women not only under personal law but also under criminal
procedure code irrespective of their religion, a step motherand
adoptive motheris also able to get maintenance , a women, who for long term
in live-in-relationalso able to get maintenance because of judicial verdict
Finally one can say that in India there are so many laws by legislatures, rules
by administrator and judicial pronouncements and more importantly individual as
well as group women organizations continuous affords for women protection and
empowerment but too little justice to her because of lack of unawareness,
un-interest among women and people in society. It is the need of the hour to
have aware and empowered women. An empowered woman not only protects herself but
also protect people around her. So, it is time to break silence; women should
fight for her place in this male dominated society. It should be start from
family itself. The mindset and the patriarchal views that have engulfed Indian
people mindset since ages should be change then only the real fruits of law will
be enjoyed by women.
"A woman with a voice is, by definition, a strong woman." – Melinda Gates
*Assistant Professor, Smt. V.D. Siddartha Law College, Kanuru, Vijayawada,
Krishna District, Andhra Pradesh, India. E-mail: [email protected]
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