LONGISH TERM PAPER ON GENDER JUSTICE SUBMITTED BY NEHA PATEL (1st YR LLM SEM -1) UNDER THE GUIDANCE

OF PROFESSOR NUZHAT SHAIKH

SUBMITTED TO UNIVERSITY OF PUNE

DECLARATION

I hereby declare that the Longish Term Paper entitled "GENDER JUSTICE" submitted by me is the record of work carried out by me during semester 1 of First Year LL.M. Course for the academic year 2011-12 under the guidance of Professor NUZHAT SHAIKH and has not formed the basis for the award of any degree, diploma, associate ship, fellowship, titles in this or any other University or other institution of Higher Learning. I further declare that the material of this L.T.P. is my original work and I have not copied anything from any report of this nature. The material obtained from other sources has been acknowledged in this research work.

Place: Pune Date: (Neha Patel)

CERTIFICATE

This is to certify that the Longish Term Paper entitled "GENDER JUSTICE" submitted by Ms. Neha Patel is the record of work carried out during semester 1 of First Year LL.M. Course for the academic year 2011-12 under my supervision and guidance in conformity with the syllabus prescribed by University of Pune.

PLACE- PUNE GUIDE DATE-

ACKNOWLEDGEMENT

Firstly, I would like to thank my Principal Mr. Rasheed Shaikh for giving an opportunity to undertake this research work and successfully accomplishing the same.

I would like to thank my guide for their valuable guidance, inspiration and an encouragement in completing research work successfully.

Further I would like to thank as a researcher would like to thank all the background supporters, who have spent their valuable time for completing research work throughout my research.

(Ms. Neha Patel)

INDEX
CHAPTER-1 :- GENERAL INTRODUCTION

1.1 INTRODUCTION OF THE TOPIC 1.2 SIGNIFICANCE 1.3 HYPOTHESIS 1.4 RESEARCH METHODOLOGY
CHAPTER-2:- GENDER BIAS 2.1 -HISTORICAL TREND 2.2:- POST INDEPENDENCE SITUATION

CHAPTER-3:CONCEPT OF EQUALITY, A GANDHIAN WAY

CHAPTER-4:INDIAN CONSTITUTION ON GENDER JUSTICE

CHAPTER .5:- CONCLUSION

CHAPTER 6;- LIST OF CASES REFFERED

CHAPTER 1:- GENRAL INTRODUCTION

CHAPTER-1 INTRODUCTION TO THE SUBJECT

In the 1947 when INDIA got Independent, the condition of the country and its people was very worse. From day 1 of the Independence, all the reformers tried to improve the social conditions of the Country. And in that scenario their main concern was the Position of the Women in the society. The way women contributed in the Struggle of Freedom was a commendable task but the way she was being treated, was a matter of concern. When the constitutional Assembly was formed and they started doing their work for framing of the Constitution of India, they tried to cut down the difference line between the Man and the Woman by introducing the Concept of Equality and many other provisions relating to gender justice. As the time pass there came many other special Acts in the support of such provisions but based on the concept of Equality and gender justice.

1.2:- SIGNIFICANSE OF THE STUDY:The concept of Equality and Gender Justice evolved from the constitution and many times the Parliament or the State Assemblies used this concept to enact new laws or enactments. But have these provisions or enactments proved empowering? Have these enactments really made the Women stand on the same footings like a Man do? The significance of the study made for this research is this.

1.3:-HYPOTHESIS:The Indian Constitution and its Provisions regarding Gender Justice or in other words we can say that the provisions regarding the Abolition of In-equality between Man and

Woman have worked in the way the framers of the Constitution expected but there is a need to expose these provisions in better manner.

1.4:- RESEARCH METHODOLOGY:The basic method used for research is Doctrinal research method. Research, is a doctrinal research where the research is exhaustive research that has been carried out on a legal prepositions by way of analyzing the existing statutory provisions and the cases by applying the reasonable power and law and this have been achieved by original source of law . The researcher has used the documents such as the books, articles reviews of various jurists, the Indian bar review articles, the news paper articles, reference, the All India Reporters, the All India Journal and other allied materials as a primary source. And the internet accesses as the secondary source.

CHAPTER 2 GENDER BIAS

Women constitute half of the world's population and perform nearly 2/3rd of its work. They receive 1/10th of the world's income and less than 1/100th of the world's property. In India also the position is not different. According to the 2010 census women constitutes 45 % of the total population of the nation approximately, but still there is a scope for the improvement in their position in society and over-all.

Woman is being discriminated from a very long time. We can stress the links in ancient time also. In that era though she had some rights equal to the man but still she was treated like a slave. History agrees that woman made more courageous works done and that too very efficiently than a man can do but still she is inferior to the man.

Undoubtedly, the right to equality and all other HR are all applicable to men and women equally but in practice we are far away from it. At present when we boast for the modern civilization and scientific advancement, the denial of equality is a reality. The societal perception and Governmental indifference, however shows that how the mandate of equality contained in the Constitution is being violated in case of women.

2.1:- HISTORICAL TREND:History of India is of more than 5000 years and so the history of Woman. In many spiritual texts the status of the woman is dealt with. According to Shastra's and Purana's the, woman or the Girl Child is a symbol of Goddess. Manu went on to say that, "where the woman or the girl is respected there dwells the God." Woman is treated as the

symbol of the Goddess Laxmi, a goddess of Dhana (money) when she is born, Goddess Saraswati, a goddess of Dnyana (knpwledge) when it comes to intelligence and Goddess Kali, a goddess of Shakti (power) when it comes to anger/protection. After sitting on such high bench, she is still a servant without any say. In a purely Indian context, Indian woman have come a long way from the Vedic Period. There have been changes in every aspect of her life, yet she has to go miles before she rests.

Though the woman had lot of respect and dignity as far as the Historical period of India is concern she had many restrictions too. She was supposed to be the child of Destiny and so had to leave under some ones care always. By birth she was supposed to be under her father, in absence of father under her Brother, after marriage under her Husband and in old age under the Son. But she was a respected image in the society and that was the main concern for her.

In the historical period, if we check it and compare it with today's situation the condition of woman was very much dignified. Evidences show that in that period the age of marriage was quite high than that of today's for her. Remarriage was permitted. Sati was not the system to prevail. Even the chattels were supposed to be the property of the woman. She was treated as the Pride of the family and any wrong act of her or against her was treated as against the status of the family to whom she belongs.

Overall the condition of woman was quite good in the Vedic period and continued to be so till the 16th century, before the British came to India. The Kings who used to rule the India before Britishers, used to follow the Vedas to rule their Kingdom and accordingly the woman was respected. But in the period nearly about 16th century the worst era of

the woman's history started. The sati system was started again, Polygamy was permitted, and Age of marriage was very low. Even in some parts of the country like Rajasthan, Gujarat, MP, UP and some part of the north India practiced the Child Marriage system. She was not allowed to do anything except the household work. The Parda system was also in existence. She was supposed to hide herself from the view of other persons especially men. She was not less than a commodity. The inequality started here.

But even in such circumstances she was more active than the men in the freedom struggle of India. She worked day in and day out. Men were fighting from the front but she was supporting them from the back. Hiding them and herself too from the catch eyes of the British Forces and supporting the cause. The status of women in British India and the princely States was worse and the various practices like sati, widowhood, child marriage, female infanticide were all seen as reflective of the backwardness of Indian society and were therefore targeted for change. The role of women in the National Movement and the rise of the women's movement during the pre independence days ensured that the Constitution of India and Independent India would see a change for the better in the status of women.

2.2:- POST INDEPENDENCE ERA:India attained Independence on 15th August 1947 but it was not till the Constitution came into force on 26th January 1950 that the picture became clear regarding the structure of government and the rights of the citizens of India. The very fact that a parliamentary democracy in a republic prescribed guaranteed protection of the rights and status of the citizens of India irrespective of their social status. The makers of the

Indian Constitution were very realistic in their expectations and that explains the various safeguards that they built into the Constitution to protect the rights of the marginalized and vulnerable groups in society. The national movement had been characterized by the demand for equality irrespective of birth and status. Questions regarding untouchability, rights of the religious and linguistic minorities and women had gripped the minds of the freedom fighters. They realized that one cannot demand freedom from colonial rule without ending the exploitative practices and unequal treatment of various sections of the society in the name of culture, history and tradition. This explains the protection that they have guaranteed these groups in the Constitution. The Fundamental Rights enumerated in Part III of the Constitution are the bed rock on which the democratic and Republican character of the Indian State and society are based. The Constitution The objective of the Constitution as spelt out in the preamble is to ensure that justice, equality and liberty are achieved. How this is to be achieved has been spelt out in Part III dealing with Fundamental Rights and also in Part IV dealing with the Directive Principles of State Policy. While the Fundamental Rights are justifiable, i.e., enforceable through the judicial system the Directive Principles are non-justifiable.

Over all the condition of the woman in Post Independent era is still waiting for the ray of hope that whatever is guaranteed by the Constitution to her and what she deserves will be given to her one day.

CHAPTER 3 CONCEPT OF EQUALITY- A GAIVPHIAJX WAY

Man and woman both are equal and both play a vital role in the creation and development of their families in particular and society in general. Indeed, the struggle for legal equality has been one of the major concerns of the Woman's Movement all over the world. In India, since long back, women were considered as the oppressed section of the society and they were neglected for centuries. During the National Struggle for Independence Gandhi gave a call for emancipation of woman. He wrote, " I am uncompromising in the matter of women's right. The difference in sex and physical form denotes no difference in status. Woman is a competitor of the man and not inferior to him."

Gandhi was the greatest of the great thinkers of the Modern India who have drawn inspiration mostly from the Intellectual, cultural and religious traditions of India and tried to co-relate them with the social conditions of the nation. He was the visionary who saw what the India is and what is the need of time to get the India free from the British era. He knew that unless and until the gap between the face of India and the actual India exist freedom is a dream. So he went into the masses, felt their nerve and made matched their pulses with his own to the struggle of freedom which he named as 'Swarajya'. He learnt their language, ate their food, wore their clothes and slept with them in their houses to make them fill equal and their lies the concept of Equality of Gandhi.

Initially, Gandhi was carrying the concept of Equality between Upper cast people and Kshudras or dalits. The gap between these two classes was the matter of concern for all the freedom fighters. Without all the people are united for the Freedom against the Britishers it will take another 200years to get the Struggle fruitful. That's why all the Politicians and Social Reformers supported the Gandhi's concept of Equality. Gandhi himself marched almost all over the India gathering support for his movement Swarajya and making the people come together for the cause. And as a response to his call that time the upper cast and kshudras fought hand in hand against the British Company and made the dream of Swarajya come true.

In that struggle with the men, women fought with equal strength. Though she was not counted anywhere, her efforts and the contribution was not less than men. The movements of Gandhi like Bharat Chhodo (Quit India), Dandi March, Asahakar (Non Co-operation) etc. saw a great support from the women and they had large piece of share in the success of these movements. But still the position of the woman was the matter of concern for Gandhi too because she was still fighting, for the recognition, for her rights, for the status, for Equal treatment like that of man. That time Gandhi started giving opportunities to woman to represent India before the Commissions and the officers of the Company any gave them the chance to come front in the politics too. Gandhi told that time that the Bill of Fundamental Rights drafted by Motilal Neharu which is considered as a 1st Constitution of India, should consist the clause demolishing the un-equality between the Upper cast and Kshudras as well as between Men and Women.From that time the woman is fighting for the equal treatment in the men dominated society.

CHAPTER-4 INDIAN CONSTITUTION ON GENDER JUSTICE

Gender inequities throughout the world are among the most all-pervasive forms of inequality. Gender equality concerns each and every member of the society and forms the very basis of a just society and hence, the issue of' gender justice' is of enormous magnitude and of mammoth ramification engulfing an all-embracing and illimitable canvas. In the midnight of August 15, 1947, when India awoke to "life and freedom", most of its 170 million women scarcely knew what the 'Tryst with Destiny' was all about. Victims of poverty, ignorance and oppressive social institutions, they hardly knew their destiny and who controlled it. However, the stalwarts who led India to its independence were aware that if the new India of their dreams was to become a reality and not remain only a figment of imagination, it would need social engineering on a massive scale, in respect of the backward and oppressed sections of the society and above all, its women. Swami Vivekanand had aptly remarked:

".Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind. "

Being conscious of the need of the time, the framers and founding fathers of our 'compassionate' Constitution incorporated certain sacrosanct ideals in the form of comprehensive rights for women so as to metamorphose the abstract ideals into a concrete form, which would enable the up-liftment of the status of women in the male-dominated chauvinistic society.

The crucial question that arises for deliberation is, have the women been able to reap the benefits provided for them under the Constitution of India? The answer, unfortunately, is not encouraging. There is still a long way to go to achieve the goals enshrined in the Constitution. In spite of special constitutional guarantees and other legislations, crimes against women in the form of child marriages, rape, dowry, practice of Sati, trafficking of the girl child, prostitution, domestic violence and sexual harassment are on the increase. The review of the disabilities and constraints on women, which stem from socio-cultural institutions, indicates that the majority of women are still very far from enjoying the rights and opportunities guaranteed to them by the Constitution.

Justice K. Ramaswamy has also stated:

"Indian women have suffered and are suffering discrimination in silence. Self sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination"

In our society girls are socialized from their tender age to be dependent on males. Her existence is always subject to men. In her childhood she is under the protection of her father, after marriage under the protection of her husband and in old age at the mercy of her sons. The patriarchal system in India made women to live at the mercy of men, who exercise unlimited power over them. In order to ameliorate the condition of women in India Legislature enacted the large volume of enactments and many of these legislations were enacted in colonial period. Which are as follows:-

(1) 1829 (2) 1856 (3) 1870 (4) 1872 (5) 1891 (6) 1921 (7) 1929 (8) 1937 (9) 1954 (10) 1955 (11) 1956 (12) 1961 (13) 1981 (14) 1986 (15) 1987

Abolition of Sati; Widow Remarriage made legal; Female infanticide banned; Inter caste, intercommunity marriages made legal; Age of consent raised to 12 years for girls; Women get rights to vote in Madras province: Child Marriage Restraint Act was passed; Women get special rights to property; Special Marriage Act was passed; Hindu Marriage Act was passed; Suppression of Immoral Traffic in Women and Girls Act was passed; Dowry Prohibition Act was passed; Criminal Law Amendment Act was Passed; The Indecent Representation of Women (Prohibition) Act was Passed; Commission of Sati (Prevention) Act was passed.

Apart from these above mentioned laws there are some enactments pertaining to industry which contain special provisions for women such as: 1. The Workmen Compensation Act, 1921; 2. Payment of Wages Act, 1936; 3. Factories Act, 1948; 4. Maternity Benefit Act, 1961; 5. Minimum Wages Act, 1948: 6. Employees State Insurance Act 1948 and 7. Pensions Act, 1987.

In addition to this, the Constitution of India which is regarded as the supreme law of the land too gives special protection to women. "All human beings are born free and equal in dignity and rights. Discrimination against women violates the Principle of Equality of rights and respect for human dignity." This is the resolution passed by U.N. in declaration of elimination of discrimination against women. And this is the concept which the provisions of the Indian Constitution try to implement. There are many provisions which relates to the Equal treatment of Women, directly or indirectly. Let us deal with them one by one in brief.

4.2:- ARTICLE 14 OF THE INDIAN CONSTITUTION 4.3:- ARTICLE 15 OF THE INDIAN CONSTITUTION 4.4:- ARTICLE 16 OF THE INDIAN CONSTITUTION 4.5:- ARTICLE 23 OF THE INDIAN CONSTITUTION 4.6:- ARTICLE 39 OF THE INDIAN CONSTITUTION 4.7:- ARTICLE 42 OF THE INDIAN CONSTITUTION 4.8 - ARTICLE 44 OF THE INDIAN CONSTITUTION
4.9- ARTICLE 51 (A) (e) OF THE INDIAN CONSTITUTION 4.10- ARTICLE 243-D OF INDIAN CONSTITUTION

The very first page of any of the Book on the Constitution or the Original Constitution itself shows us the very beautiful and very well constructed an introductory Preamble to the Constitution. It is nothing but the introduction to the contents of the constitution and what the Constitution aims at. It was an issue for the debate whether it forms the part of Constitution or not? But in the year 1973 a landmark judgment came from the Hon'ble

Supreme Court in Keshavanad Bharati 's case which was reported in AIR 1973 SC 1461 and the Preamble was declared as the integral part of the Constitution and the expression Provisions of the Constitution do include the Preamble. The preamble to the constitution read as follows

WE THE PEOPLE OF INDIA having solemnly resolve to constitute INDIA into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and secure to all its citizens, JUSTICE, social, economic and political LIBERTY of thought, expression, belief, faith and worship EQUALITY of status and opportunity And to promote among them all FRATERNITY assuring the Dignity of the individual and the unity and integrity of the Nation.

IN OUR CONSTITUENT ASSEMBLY on the 26th days of November, 1949 hereby ADOPT, ENACT AND GIVE OURSELVES THIS CONSTITUTION. This is the preamble to the constitution which states what are the contents of the constitution and what constitution aims at?. In each and every line, each and every sentence of the preamble it is clear that our constitution guarantees so many rights to the individual without any discrimination on any ground.

And for our concern the most important statement is the 'EQUALITY of status and opportunity' and 'FRATERNITY assuring the Dignity of the individual'. The preamble

itself shows that our Constitution eliminates the un-equal treatment among the individuals in all respect and guarantees them the Dignity.

This part of the constitution speaks about the area which was in the minds of many social reformers but no one could do something productive as for the whole nation is concern. Raja Ram Mohan Roy, Maharshi Karve, Mahatma Phule, Ahillyabai Holkar, Gandhi and many others tried their level best to do Justice with the women the way they can. But the Constitution made it easy for them to reach the desired goal and the preamble is the key. As the basic feature of the constitution can't be amended and it is the basis for the working of the constitution the preamble and its provisions plays a very pivotal role. It guarantees the woman Equality of status in front of the men, Equality of the Opportunity in any manner whatsoever it may be. Moreover, it assures her the dignified life. The position of the woman like a slave or a commodity was washed away by this provision. She was brought into the main stream of the society.

4.2:- ARTICLE 14 OF THE INDIAN CONSTITUTION:Article 14 is one of the most important articles of the constitution. It speaks about the equality among un-equals and equal treatment to all in general manner. The Article read as follows "Equality before Law - the State shall not deny any person equality before law or equal protection of law within the territory of India." Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws within the territory of India. The first expression ' equality before law' which is taken from the English Common Law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special

privilege in favor of any individual. The second expression, 'the equal protection of the laws' is the essence and core of the right to equality under which the State is under an obligation to take necessary steps so that every individual, man and woman alike, is given equal respect which he or she is entitled to as a human being. This provision is based on the last clause of the first section of the Fourteenth Amendment to the American Constitution and directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favoritism or discrimination. It is, therefore, said that 'the equal protection of the laws' is a pledge of protection or guarantee of equal laws.

Though Article 14 permits reasonable classification, yet classification based on sex is not permissible. In the case of AIR India v/s. Nergesh Meerza, the Apex Court, while dealing with the fixation of different ages of retirement for male and female employees and the provision preventing the female employees from having child, expressed the view to the effect that the retirement of air hostesses in the event of marriage taking place within four years of service does not suffer from any irregularity or arbitrariness but retirement of air hostesses on first pregnancy is unconstitutional being violative of Articles 14 and 16 of the Constitution. It was considered that such a provision was callous, cruel and an insult to Indian womanhood. Therefore, such disability violates the equal protection of law and opportunity which is the cornerstone of our Constitution and legal system.

Payment of equal pay for equal work has also been justified under Article 14. Unequal pay for materially equal work cannot be justified on the basis of an artificial classification between the two kinds of work and employment. In the case of

Mackinnon Mackenzie and Co. Ltd. v/s. Audrey (D)' Casta, the question involved was getting of equal pay for equal work. Their Lordships ruled that when lady stenographers and male stenographers were not getting equal remuneration, that was discriminatory and any settlement in that regard did not save the situation. Their Lordships also expressed the view that discrimination between male stenographers and lady stenographers was only on the ground of sex and that being not permissible, the employer was bound to pay the same remuneration to both of them when they were doing practically the same kind of work.

In Madhu Kishwar v/s. State of Bihar, the Chotanagpur Tenancy Act, 1908 was challenged on the ground that the Act denied the right to succession to Scheduled Tribe Women to the tenancy lands and hence, it violates Articles 14, 15 and 21 of the Constitution. The Supreme Court, by admitting the petition, quashed the discriminative provisions of the Act and paved a way for tribal women to entitle their rights to tenancy lands along with men.

Article 14 has also been invoked to prohibit sexual harassment of working women on the ground of violation of the right of gender equality. Article 14 indeed contains important provisions for protecting the rights of women and the interpretation of this Article by the judiciary enables the establishment of equality between the sexes.

4.3:- ARTICLE 15 OF THE INDIAN CONSTITUTION:Article 14 embodies the general principle of equality before the law. A specific-application of the same principle is provided in Article 15. Article 15 concretizes and enlarges the scope of Article 14.

ARTICLE 15 reads as follows "Prohibition of discrimination on grounds of religion, race, sex, caste, place of birth.1. The State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. 2. No citizen shall, on grounds of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regards toa. Access to shops, public restaurants, hotels and places of public entertainment b. The use of wells, tanks, bathing ghats, roads and places of public resorts maintained wholly or partly out of the state funds or dedicated to the use of general public. 3. Nothing in this article shall prevent the State from making any special provisions for women and children. 4. for the advancement of any socially and educationally backward classes of citizens or for the schedule caste and the schedule tribe. 5. making any provision related to the admissions of any socially and educationally backward classes of citizens or for the schedule caste and the schedule tribe in educational institution including private educational institutions other than minority educational institutions mentioned in clause 1 of article 30."

Article 15 (1) prohibits the State from discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. In other words, all laws are to be applied to members of both sexes equally, and there is an express prohibition of discrimination on

the ground of sex. The right guaranteed in this clause of Article 15 is conferred on a citizen as an individual and is available against his being subjected to discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen generally. A law which deprived a female proprietress to hold and enjoy her property on the ground of her sex was held violative of Article 15.

Article 15(2) provides that no citizen shall, on the grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of the general public. Thus, by incorporating Articles 14 and 15, the status of women has been uplifted and a new life of equal rights at par with men has been accorded to them.

However, the provisions of non-discrimination on this account do not prevent the State from making any special provisions for women and children. The same has been laid down in Article 15 (3), which empowers the State to make special provisions for them. Thus it would be no violation of Article 15 if institutions are set up by the State exclusively for women or places are reserved for women at public entertainments or in public conveyances. The main object of Article 15 (3) is based on 'protective discrimination' keeping in viewjhe weak physical position of women. The reason is that "women's physical structure and the performance of maternal functions place her at a disadvantaged position 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 vigor of the race." This provision has enabled the State to make special statutory provisions

exclusively for the welfare of women. In the case of Dattatraya v/s. State of Bombay, the Bombay High Court held that the State can establish educational institutions for women only.

Again in YusufAbdul Aziz v/s. State of Bombay, the validity of Section 497 of the Indian Penal Code was challenged under Articles 14 and 15 (1) of the Constitution. Section 497 of the IPC, deals with the provisions relating to the offence of adultery, which only punishes man for adultery and exempts the woman from punishment though she may be equally guilty as an abettor. This section was upheld by the Supreme Court to be valid since the classification was not based on the ground of sex alone. The Court upheld the Section 497 of the IPC as valid by relying upon the mandate of Article 15 (3) of the Constitution. Even Section 354 of the IPC is not invalid because it protects the modesty only of women and Section 488 (now Section 125) of the Cr. PC. (Code of Criminal Procedure) is valid although it obliges the husband to maintain his wife but not vice versa. Similarly, Section 14 of the Hindu Succession Act, 1956 converting the women's limited ownership of property into full ownership has been found in pursuance of Article 15 (3).

When the matter relating to mother as natural guardian was questioned, the Supreme Court held that relegation of mother to inferior position to act as a natural guardian is violation of Articles 14 and 15 and hence, the father cannot claim that he is the only natural guardian. The guardianship right of women has undergone a sea change by this interpretation given by the Apex Court.

The scope of Article 15 (3) is wide enough to cover any special provision for women including reservation in jobs. Article 16 does not come in the way of such reservation. The two articles must be harmoniously construed. Women are a weaker section of our society for whose up-liftment Article 15 (3) is made which should be given widest possible interpretation and application subject to the condition that reservation should not exceed 50% limit as laid down in the case of Indra Sawhney v/s. Union of India. The Court has also upheld an Orissa Government Order reserving 30% quota for women in the allotment of 24 hours medical stores as part of self-employment scheme. Thus, the language of Article 15 (3) is in absolute terms and does not appear to restrict in any way the nature or ambit of special provisions which the State may make in favor of women or children.

4.4:- ARTICLE 16 OF THE INDIAN CONSTITUTION:Article 16 is an instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State. Explaining the relative scope of Articles 14, 15 and 16, Das, J. in Gazula Dasaratha Rama Rao v/s. State of A. P., AIR 1961 SC 564 said : "Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favor of citizens in some special circumstances."

Article 16 deals with the Equality of opportunity in matters of public employment, in general. It has 5 sub-clauses. Sub-clause (1) deals with the general provision regarding equal opportunity in Govt. jobs. Sub-clause (2) deals with discrimination on the ground of religion, caste, sex, race, descent, place of birth, residence or any of them. Sub-clause

(3) deals with making of any law by parliament in favor of any class or classes. Sub-clause (4) deals with provision made by Govt, in favor of BC's or OBC's or SC's or ST's or any other class as they may think fit. Sub-clause (5) deals with the appointment of any person on religious or denominational institution. Article 16(1) and (2) embody the general rule that the State shall provide equal opportunities for all citizens in matters relating to employment or appointment to any office under the State. There shall be no discrimination on the grounds of religion, race, caste, sex, place of birth, residence or any of them in providing employment. These provisions are an extension of the principle of equality before law and of the goal of 'equality of status and opportunity' as set in the Preamble of the Constitution. The import of these provisions is that a woman has the same rights in matters of employment under the State as a man and the State shall not discriminate against women on this count It was held in Rcmdhir Singh v/s. Union of India, AIR 1982 SC 879 that Article 16 operates equally against any such discriminative legislation or discriminative executive action. If any law is passed or any executive action is taken to prevent the women from taking up employment under the State, such law or executive action could be challenged under Articles 16(1) and (2). The principle of equal pay for equal work is also covered by equality of opportunity in Article 16(1). Difference in the pay scales and promotional avenues between male and female employees is also prohibited by Article 16 (2).

In the case of Miss C. B. Muthamma, IFS v/s. Union of India and others, the constitutional validity of Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 and Rule 18 (4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961 was challenged before the Supreme

Court. The impugned provision Rule 8 (2) requires a woman member of the service to obtain permission of the Government in writing before her marriage is solemnized and at any time after the marriage, a woman member of her service may be required to resign from the service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service. Further, Rule 18 (4) also runs in the same prejudicial strain, which provides that no married woman shall be entitled as a right to be appointed to the service. The petitioner complained that under the guise of these rules, she had been harassed and was shown hostile discrimination by the Chairman, UPSC from the joining stage to the stage of promotion. The Hon'ble Supreme Court held that these Rules are in defiance of Article 14, 16 and 21 and Krishna Iyer, J. pronounced : "That, our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity, viz; our women, is a sad reflection on the distance between the Constitution in the book and the law in action."

In the case of T. Sudhakar Reddy v/s. Government of Andhra Pradesh, the petitioner challenged the validity of Section 31 (l)(a) of the Andhra Pradesh Co-operative Societies Act, 1964 and Rule 22 C,. 22 A (3)(a) of the Andhra Pradesh Co-operative Societies Rules 1964. These provisions provide for nomination of two women members by the Registrar to the Managing Committee of the Co-operative Societies, with a right to vote and to take part in the meetings of the committee. The Andhra Pradesh High Court quashed the petition and upheld these provisions in the interest of women's participation in co-operative societies and opined that it will be in the interest of the economic development of the country.

In Government of Andhra Pradesh v/s. P.B. Vijaya Kumar, the legislation made by the State of Andhra Pradesh providing 30% reservation of seats for women in local bodies and in educational institutions was held valid by the Supreme Court and the power conferred upon the State under Article 15 (3) is so wide which would cover the powers to make the special legal provisions for women in respect of employment or education. This exclusive power is an integral part of Article 15(3) and thereby, does not override Article 16 of the Constitution.

At this juncture, it is also noteworthy to mention the case of Associate Banks Officers Association v/s. State Bank of India, wherein the Apex Court held that women workers are in no way inferior to their male counterparts, and hence there should be no discrimination on the ground of sex against women.

Recently, in Air India Cabin Crew Association v/s. Yeshaswinee Merchant, the Supreme Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favor. The Constitution does not prohibit the employer to consider sex while making the employment decisions where this is done pursuant to a properly or legally chartered affirmative action plan.

Further, in Vijay Lakshmi v/s. Punjab University, it has been observed that Rules 5 and 8 of the Punjab University Calendar, Vol. Ill providing for appointment of a lady principal in a women's or a lady teacher therein cannot be held to be violative of either Article 14 or Article 16 of the Constitution, because the classification is reasonable and it has a nexus with the object sought to be achieved. In addition, the State Government

is empowered to make such special provisions under Article 15(3) of the Constitution. This power is not restricted in any manner by Article 16. In this way, the Indian Judiciary has played a positive role in preserving the rights of women in the society.

4.5:- ARTICLE 23 OF THE INDIAN CONSTITUTION:The sweep of Article 23 in wide and unlimited and it strikes at "traffic in human beings and beggar and other similar forms of forced labour" wherever they are found. Article 23 is different from other fundamental rights guaranteed under part III of the constitution as it gives remedy against not only State but against other private citizens also. For centuries women have been humiliated, exploited, tortured and harassed in all walks of life physically, mentally and sexually. To safeguard and protect women against exploitation, Article 23 (1) of the Constitution of India prohibits traffic in human beings and beggar and other similar forms of forced labor. "Traffic in human beings" means selling and buying human beings as slaves and also includes immoral traffic in women and children for immoral or other purposes. To curb the deep rooted social evil of prostitution and to give effect to this Article, the Parliament has passed The Immoral Traffic (Prevention) Act, 1956. This Act protects the individuals, both men and women, not only against the acts of the State but also against the acts of private individuals and imposes a positive obligation on the State to take all measures to abolish these evil practices. Another evil practice of the Devadasi system, in which women are dedicated as Devadasi to the deities and temples, was abolished by the State of Andhra Pradesh by enacting the Devadasi (Prohibition of Dedication) Act, 1988. The Supreme Court has also held that traffic in human beings includes Devadasi and speedy

and effective legal action is needed to be taken to curb the system against brothel keepers.

Similar evil practices are prevalent in India such as selling the female infants and girls to foreigners under the guise of inter-country adoption and marriages. The Supreme Court accepted a letter as a writ petition, complaining of mal-practices indulged by nongovernment organizations and orphanages engaged in the work of offering Indian children, more specifically, female infants, in adoption to foreign parents. The Courts observed that in the guise of adoption, Indian children of tender age were not only exposed to the long dreadful journey to distant foreign countries at great risk to their lives, but in case they survive, they were not provided proper care and shelter and were employed as slaves and in the course of time they become beggars or prostitutes for want of proper care and livelihood. As there are no specific legislative provisions to regulate Inter-country adoptions, the Court laid down certain principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents or not? Further a direction was given to the Government to enact a law regulating inter-country adoptions, as it is their constitutional obligation under Articles 15 (3), 23, 24 and 39 (c) and (f) of the Constitution.

In several cases it has been held that any wage less than the minimum wage prescribed under the Minimum Wages Act 1948 is violative of article 23. On the same ground the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964 was held violative of Article 23 as it was excluding the applicability of the Minimum Wages Act, 1948. Even the practice of paying of paying the wages to the contractor

who is supplying the labor was held illegal and it was directed to pay the wages directly to the labors.

4.6:- ARTICLE 39 OF THE INDIAN CONSTITUTION:It is commonly known as Directive principles of the State of Policy. These are the directions given to the State that while framing their policies they should make it sure that their policies are directed towards the following areas a) Securing the citizens, men and women equally, have right to an adequate means of livelihood. b) Securing the ownership and control of material resources of the community and are distributed in common good of the society. c) Securing the operations of economic system and to prevent the concentration of wealth. d) Securing the equal pay for equal work irrespective of gender. e) Securing the health and strength of workers, men and women. Protecting the tender age children from abuse. f) f. Securing the childhood and youth from being exploited. g) Part IV of the Constitution from Articles, 3 to 51 contains what may be described as the active obligation of the State. The Directive Principles of State Policy are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws and to secure a social order in which social, economic and political justice shall inform all the institutions of national life. These Directives Principles are ideals which are based on the concept of 'Welfare State' and they fix certain goals; social and economic; for

immediate attainment by the Union and State Governments while formulating a policy or enacting a law.

According to Article 39(a), the State shall direct its policy towards securing the citizen men and women equally, have the right to an adequate means of livelihood and under Article 39 (d), the State shall direct its policy towards securing equal pay for equal work for both men and women. This Article draws its support from Articles 14 and 16 and its main objective is the building of a welfare society and an equalitarian social order in the Indian Union. To give effect to this Article, the Parliament has enacted the Equal Remuneration Act, 1976 which provides for payment of equal remuneration to men and women workers and prevents discrimination on the ground of sex. Further Article 39 (e) is aimed at protecting the health and strength of workers, both men and women.

But still we can find some different scenes in the actual conditions. Though the constitution guarantees the protection of health the no. of female dying due to non availability of medical facilities is increasing day by day. The no. of female children is more than that of male children who are malnutritioned. The same scenario can witnessed in case of industries where women are working. If we go through the list of industries where women workers are more than men then we will come to know how much reluctant we are regarding their health and physical conditions. Following is the list of areas/companies where women workers are more than the men workers and their percentage.

Description of Industry 1. Bidi Manufacturing

Percentage 58%

2. Cotton Textiles 3. Cotton Spinning 4. Mfg. of Match Boxes

55% 65% 68%

It is a harsh reality that women have been ill-treated in every society for ages and India is no exception. The irony lies in fact that in our country where women are worshipped as shakti, the atrocities are committed against her in all sections of life. She is being looked down as commodity or as a slave, she is not robbed of her dignity and pride outside her house but she also faces ill-treatment and other atrocities within the four walls of her house. They are considered as an object of male sexual enjoyment and reproduction of children. They are real dalits (downtrodden) of the society. They are discriminated at two levels, firstly they suffer because of their gender and secondly due to grinding poverty.

Women are deprived of economic resources and are dependent on men for their living. Women works are often confined to domestic sphere, she had to do all house hold works, which are not recognized and unpaid. In modern times many women are coming out to work but has to shoulder the double responsibility; one she has to work where she is employed and secondly she also has to do all the house hold works, moreover, she is last to be considered and first to be fired as she is considered to be less productive than her counterpart. Her general status in the family and in the society has been low and unrecognized.

From the cradle to grave, females are under the clutches of numerous evils acts as discriminations, oppressions, violence, within the family, at the work places and in the society.

The root causes of all the evils practices faced by the women are:
(1)

illiteracy, (2) economic dependence, (3) caste restrictions, (4) religious

prohibition, (5) lack of leadership qualities and (6) apathetic and callous attitude of males in the society.

In our society girls are socialized from their tender age to be dependent on males. Her existence is always subject to men. In her childhood she is under the protection of her father, after marriage under the protection of her husband and in old age at the mercy of her sons. The patriarchal system in India made women to live at the mercy of men, who exercise unlimited power over them. In order to ameliorate the condition of women in India Legislature enacted the large volume of enactments and many of these legislations were enacted in colonial period. Which are as follows:
(2) 1829, Abolition of Sati; (3) 1856 Widow Remarriage made legal; (4) 1870 Female infanticide banned; (5) 1872 inter caste, intercommunity marriages made legal; . (6) 1891 age of consent raised to 12 years for girls; (7) 1921 women get rights to vote in Madras province: (8) 1929 Child Marriage Restraint Act was passed; (9) 1937 women get special rights to property; (10)

1954 Special Marriage Act was passed;

(11) 1955 Hindu Marriage Act was passed; (12) 1956 Suppression of Immoral Traffic in Women and Girls Act was passed; (13) !961 Dowry Prohibition Act was passed; (14) 1981 Criminal Law Amendment Act was Passed; (15) 1986 The Indecent Representation of Women (Prohibition) Act was Passed; (16) 1987 Commission of Sati (Prevention) Act was passed.

Apart from these above mentioned laws there are some enactments pertaining to industry which contain special provisions for women such as: The Workmen Compensation Act, 1921; Payment of Wages Act, 1936; Factories Act, 1948; Maternity Benefit Act, 1961; Minimum Wages Act, !948: Employees State Insurance Act 1948 and Pensions Act ,1987.In addition to this, the Constitution of India which is regarded as the supreme law of the land too gives special protection to women.

The provision which deals with women rights are as follows:Article 14 expresses that? The State shall not deny to any person the equality before the law and equal protection of laws with in the territory of India?. Article 15(1) prohibits the State to discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth pr any of them. Article 15(3) permits the State to make special provisions for women and children. Article 16 provides that there shall be equality of opportunity for all citizens and they shall not be discriminated on the basis of religion, race, caste and sex. Article 39(a) of the Constitution provides that the state in particular direct its policy towards securing that citizen, men and women equally, have the right to an adequate means of livelihood. Article 39(e) of the Constitution provides 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 51(A) (e) of the Constitution provides that it will be the duty of every citizen to renounce practices derogatory to the dignity of women.

Further, Indian Penal Code, Criminal Procedure Code and Indian Evidence Act to have some provisions which provide protection and a sense of security to women. Recently the Government's piecemeal approach to protect women has taken a step forward enacting a law providing protecting women from domestic violence. With the establishment of National and State Human Right Commissions and National Commission for Women, gender issues are receiving greater attention.

The Indian Judicial System has independently and effectively intervened on the issue of women emancipation. For instance, in C. B. Muthamma V. Union of India the validity of the Indian Foreign Service (Conduct an discipline) Rules of 1961 was challenged which provided that a female employee to obtain a written permission of the Government in writing before her marriage is solemnized and at any time after a marriage a women member of the service may be required to resign from service. The Supreme Court held that such provision is discriminatory against women and hence unconstitutional. The Supreme Court made it clear that, we do not mean to universalize or dogmatize that men and women are equal in all occupation and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrated, the rule of equality must govern.

In Air India V Nargesh Mirza, the Supreme Court struck down the provision of rules which stipulated termination of service of an air hostess on her first pregnancy as it arbitrary and abhorrent to the notions of a civilized society. In Pratibha Ranu V Suraj Kumar the Supreme Court held that the stridhan property of a married women has to be placed in her custody, and she enjoys complete control over it, The mere fact she is living with her husband and using the dowry items jointly does not make any difference and affect her right of absolute ownership over them. Another landmark judgement was given by the Apex Court in the case of Gita Hariharan V Reserve Bank of India[4], in this case the Court interpreted section 6 of the Hindu Minority and Guardianship Act 1956 and held that the mother could act as the natural guardian of the minor during the father's lifetime if the father was not in charge of the affairs of the minor.

In Vishaka and others V State of Rajasthan, the Supreme Court held that sexual harassment of working women at her place of an employment amounts to violation of rights of gender equality and right to life and liberty which is clear violation of Article 14, 15 and 21 of the Indian Constitution. The Court further observed that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facts of gender equality including prevention of sexual harassment or abuse.

Further Supreme Court in this case said that, as there is no law relating to sexual harassment in India, therefore the provisions of International Conventions and norms are to taken into consideration, and charted certain guidelines to be observed at all work places or other institutions, until a legislation is enacted for the purpose.

In Apparel Export Promotion Council V A.K. Chopra, again Supreme Court reiterated Vishka ruling and said that attempts of sexual harassment of female results in violation of fundamental rights to gender equality enshrined under Article 14 an d21 of the Constitution. The Court further stated that international instrument such as the convention on the Elimination of All Forms of Discrimination against Women and the Beijing Declaration casts obligations on the state to take appropriate measures to prevent gender inequalities and protect the honour and dignity of women.

Apart from these cases there are many other cases in which the Apex Court had given the judgments, helping to give a dignified status to the women, for example Madhu Kishwar V State of Bihar, Gaurav Jain V Union of India, Delhi Domestic Working Women's Forum V Union of India, Bodhisathwa Gautam V Subhra Chakraborty.

In spite of having so many enactments dealing with women and judgments of the Supreme Court protecting women the downtrodden and poor conditions of women has not been improved and she still faces all types of atrocities and legislature and judiciary somewhat fails to provide respect to women in society.

After independence the founder father of the nation, wanted to reform the society and were keen to establish an egalitarian society. To achieve this end they used law as an instrument to check the gender discrimination, number of laws, were enacted to meet this end but due to strong patriarchal mentality and unfavorable social environment they failed to accomplish their goal. The social engineering through law was not fully achieved, while some rights enshrined under the enactments were enjoyed and accepted by the society most of them remained only in papers due to lack of public support.

Many evils are still practiced on women such as bigamy, child marriages are still in practice, dowry demands are still on rise, and women are still harassed for dowry. Malnutrition and illiteracy are growing at alarming rate, rape and molestation have become daily phenomenon, and moreover still we see women as commodity as one of the songs of the movie depicts her as Tu cheez badi hai mast mast.

It is said that the law without the public opinion is nothing but a bundle of papers. The gap between the men and women cannot be bridged by just enacting laws without any public support and opinion as social engineering laws are different from penal laws which are just related to injuries and punishment and are deterrent in nature but social engineering laws enacted to uplift the norms of the society and are progressive in nature and therefore it should be backed by the will of the people for whom it is enacted. It is also be clear that centuries old practice cannot be eliminated in one or two days it take much time. And when laws are enacted to bring radical change in society and are not backed by the will of the people or laws are ahead of public opinion then it has to face great resistance and opposition from the conservative thinking of the society and they are like dead law, which have no effect on society.

In India the most of the laws were not effective as they were ahead of public opinion and willingness of the people to change the society and give the women the status of equality in society too lacked, so in order to give women their respective position in the society strong public opinion should be created trough education, seminars and by taking the help of various other instruments of the society such as media etc, so that the people of the society should get educated about and change their centuries old thinking and willingly implement the laws enacted for the emancipation for women.

To improve the status of the women in the society the need of the hour is that laws should be enacted but they should be backed by strong public willingness and public opinion because so long as conservative social thinking remain deep rooted in the society laws will not be able to achieve their ends. It must be asserted that social reforms is in social thinking, behavior and law would be effective only if they are backed by major section of the society.

As it rightly said, by Wendell Phillips: Law is nothing unless close behind it stands a warm living public opinion.

Associate Professor National Law School of India University A look at the status of women in India today is a cause for concern.. Right from female foeticide, infanticide, child marriage, domestic violence, sexual violence, sexual harassment at the work place to the treatment meted out to elderly women makes any thinking person to wonder at the nature of the society.. Participation of women in the decision making bodies be they within the home, workplace or community is marginal, never reaching even 25% of the total population of women in India. At the same time women are seen as the bearers of Indian tradition and culture. Without enabling women to exist as citizens with political and economic power is it possible for them to safeguard the tradition and culture of this country?

The status of women in British India and the princely States was worse and the various practices like sati. widowhood, child marriage, female infanticide were all seen as reflective of the backwardness of Indian society and were therefore targeted for change. The role of women in the National Movement and the rise of the women's movement

during the pre - independence days ensured that the Constitution of India and Independent India would see a change for the better in the status of women. India attained Independence on 15th August 1947 but it was not till the Constitution came into force on 26th January 1950 that the picture became clear regarding the structure of government and the rights of the citizens of India. The very fact that a parliamentary democracy in a republic is prescribed guarantees protection of the rights and status of the citizens of India irrespective of their social status.

The makers of the Indian Constitution were very realistic in their expectations and that explains the various safeguards that they built into the Constitution to protect the rights of the marginalized and vulnerable groups in society. The national movement had been characterized by the demand for equality irrespective of birth and status.. Questions regarding untouchability, rights of the religious and linguistic minorities and women had gripped the minds of the freedom fighters. They realized that one cannot demand freedom from colonial rule without ending the exploitative practices and unequal treatment of various sections of the society in the name of culture, history and tradition. This explains the protection that they have guaranteed these groups in the Constitution. The Fundamental Rights enumerated in Part III of the Constitution are the bed rock on which the democratic and Republican character of the Indian State and society are based. In this paper attempt will be made to examine the rights guaranteed to women as citizens of India and the protection extended to them in the Constitution, the basic law of India. Effort will also be made to examine the protection extended to women since Independence through the various changes made in the laws relating to crime, marriage and divorce laws and also laws relating to property. This will enable us to appreciate the extent to which the Constitutional Mandate regarding equality, irrespective of the

gender of the individual, has been achieved. The Constitution The objective of the Constitution as spelt out in the preamble is to ensure that justice, equality and liberty are achieved. How this is to be achieved has been spelt out in Part III dealing with Fundamental Rights and also in Part IV dealing with the Directive Principles of State Policy. While the Fundamental Rights are justifiable, i.e., enforceable through the judicial system the Directive Principles are non-justifiable.

However, their importance lies in the fact that they are directory in nature and their sanction is political. There are six groups of fundamental rights which are available to every citizen of India irrespective of caste, class, race, religion and gender. In this paper we are concerned only with the question of gender. Articles 14-18 deal with the Right to Equality Article 14 expressly states that there shall be equal protection of the law and equality before the law. That is to say that whenever a woman approaches a law enforcement officer or the judicial court then she should receive the same protection as any man. None of the laws make a distinction between who commits a crime and against whom. If a stranger beats up a woman or her husband beats her up neither the Constitution nor the law make a distinction. Under the Indian Penal Code it is still a crime when the husband of a woman beats her up, injures or harms her in any way. When the Constitution guarantees equal protection of the law it simply means that when she approaches a police station to register her complaint the officer on duty has to record it as he would if a wealthy man from the upper caste were to come of the police station to register a first information report (FIR) against a stranger who had caused him physical harm or injury. This is what is meant by equal protection of the law and equality before the law. There cannot be a different standard of justice or even denial of justice on the basis of the gender of the complainant.

This right to equality is the touchstone against which all the laws and practices in India have to test. Any law or practice which is not in consonance with this provision of the Constitution can be challenged in a court of law as it would be unconstitutional and violative of a Fundamental Right guaranteed by the Constitution of India. Article 15 guarantees the right against discrimination. Reading the Right to Equality with this right will necessitate the striking down of any law or practice that is discriminatory in character. This is the context in which the Vishaka and Others v. the State of Rajasthan and Others (1987) case is noteworthy. The Supreme Court declared the offence of sexual harassment at the workplace as violative of the Right to Equality and Right Against Discrimination. However, notwithstanding the right to equality and the right against discrimination the members of the constituent assembly thought it necessary to provide for special protection for women in Article 15(3) of the Constitution. They realized that a mere formal equality and right against discrimination guaranteed in the Constitution would not safeguard the women from being exploited and treated unequally. The members were sagacious enough to realize that thousands of years of discrimination and subordination of women will not be ended by the mere guaranteeing of equality in the Constitution and therefore they inserted this article so that the State would be given the space to make laws, policies and programmes for the enhancement of the status of women and enable them to access their rights under the Constitution. It is in this context that the 74th amendment which provided for reservation for women in the panchayats was made possible. Such a special provision takes into consideration the practical reality of the inability of women to participate in the electoral process on an equal footing with the men. The prejudices and biases against women and their abilities hinder the election of women to the local bodies or the state and central legislatures.

Which means that though women are guaranteed equality under the Constitution they are unable to access this right by virtue of their actual position in society? By such a protection it enables women who desire to stand for elections and participate in the decision making processes to do so.

This was made possible by a Constitutional provision itself. The Right for equality of opportunity in matters of public employment is guaranteed in Article 16 of the Constitution. The second category of Fundamental Rights deals with Right to Freedom i.e., from Articles 19-22. Article 19 guarantees the freedom of Speech and expression, to assemble peaceably and without arms, to form associations and unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India and to practice any profession, or to carry on any occupation, trade or business. This civil right is essential for functioning as a human being in a democratic society. It has been considered as one of the most essential rights along with the Right to Equality. In the context of domestic violence and sexual harassment at the workplace this Fundamental Right of women is most often than not violated. Women are forced to change their jobs or seek transfers on account of Sexual Harassment. Married women subjected to domestic violence find that while the Constitution guarantees them the right to freely move throughout the territory of India their husbands and families dont recognize this right. Article 21 guarantees the Right to Life. The Supreme Court has in its interpretation widened the scope of this right by stating that the Right to Life means the right to live with dignity in the Bandhua Mukti Morcha v. Union of India (1984) case. The Right against Exploitation is guaranteed in Article 23. This expressly prohibits the trafficking of human beings. The other categories of rights deal with more specific issues like religious freedom and cultural and educational rights. However, the

most important of all the Fundamental Rights is the Right to Constitutional Remedies in Article 32. This right guarantees the enforcement of the Rights enumerated in Part III of the Constitution as Fundamental Rights by providing for the right to move the Supreme Court or the High Court through a Writ Petition for enforcement of any one of the Fundamental Rights. The Supreme Court has further strengthened this right through the Bandhu Mukti Morcha v. Union of India case by stating that the Court can allow any member of the public acting bona fide to espouse the cause of persons who on account of their poverty or disability are unable to do so.

Thus it is not only that the Constitution has guaranteed various rights to women as citizens of India so as to protect their interests as human beings and individuals but the Judiciary in the course of its functioning as another wing of our Government has interpreted the Constitutional provisions so as to enable the implementation of the rights and also to facilitate the access to these rights in various cases that have come before it in the form of writ petitions filed by individual s or groups. In addition to the Fundamental Rights various other provisions of the Constitution in Part IV that deals with the Directive Principles provide directions to the State in formulating policies and programmes in the interest of women. Some of these would be useful to consider here. Article 38 requires the State to secure a social order in which justice - social, economic and political - for the promotion of welfare of the people. It requires the State to strive to eliminate inequalities in status, facilities and opportunities. Clearly the intention of the makers of the Constitution was to ensure that equality would not be only of opportunity but in reality. Article 39 puts down the principles of policy to be followed by the State which include that the State should direct its policy toward securing the right to an adequate means of livelihood, that there is equal pay for equal work, that the

health and strength of workers men and women, are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 42 requires the State to make provision for securing just and humane conditions of work and for maternity relief. Article 46 requires the State to promote with special care the education and economic interests of the weaker sections of the citizens. Clearly then the objective is to strive towards a gender just society. The various special programmes and policies that have been formulated by the State since independence have had this objective. The fact that we are still very far from achieving this objective is not due to the lack of vision for an equal society as much as due to the absence of political will due to the failure to change society and the values that are deeply entrenched and which cannot be altered without changes in the processes of socialization which includes education, family and the media. In addition to these responsibilities that have been put on the State to safeguard the interests of the citizens, through an amendment made in 1976 Part IVA was included in the Constitution which deals with Fundamental Duties and article 51A(e) very specifically requires that the citizens of India renounce practices derogatory to the dignity of women. Thus even a cursory glance of Parts III, IV and IVA of the Indian Constitution will make it abundantly clear that the makers of our Constitution, the Legislature and the Judiciary have provided a fundamental law that takes into consideration the fact there can be no distinction made on the basis of the sex of a citizen which ensures that women will be treated equally under the law and are entitled to every single right as citizens of India. In addition taking into consideration the historical situation which reveals the discrimination that has been practiced on the basis of sex which has resulted in the subordinate status given to women in society special provision has been made to ensure that women will be able to access these rights.

The Constitution makers took into consideration the special needs of women as well thus requiring the State to protect the maternity of women as well even while providing them the right to pursue any employment or profession on par with a man. However, it must be remembered that guaranteeing a right in law does not ensure the ability to access the right in reality. The fact that the historical subjection of women has not been ended is constantly before us in the form of the reducing number of women in each census. It is falling at an alarming rate which is a matter of concern. Similarly crimes against women have been on the increase. Incidents of rape, sexual assault, sexual harassment, domestic violence, cheating etc have been growing not only in numbers but also in intensity and brutality. The statistics provided by the Crime Bureau of India brings this before us every year. These statistics only reveal the numbers of reported cases. One can easily imagine how much bigger the numbers would be if one were to take into accounting the numerous unreported cases. In addition, in the context of an expanding market economy, there has been the increasing objectification of women in the advertisements and the media. Parliament has from time to time either made amendments to the existing law or enacted new laws to address these various concerns. Women have huge responsibilities in relation to their families as they care and nurture but have low negotiating power at the same time. This results in neglect of their health and nutrition and access to health care is also restricted as women are most often unable to go to the primary health centres and hospitals leaving their responsibilities at home. It is, however, very important to realize that gender justice cannot be secured merely through laws and the legal system. Enacting gender just laws will not mean an end to the exploitation of and discrimination against women. Using law and the legal system can only be one of the many remedies to be used to change the unequal status of

women. Law is one of the mean of empowerment of women but it is very essential that we realize the limitations of law and not just hope that since we have a Constitution that guarantees equality and various laws to address the different kinds of atrocities against women that women now are enjoying equality. Society has to be changed; attitudes of people in society have to be altered before equality can become real for women. Central Legislations dealing with matters relating to women's interests various legislations have been enacted right from the 1950's. We will make just a quick survey of these various laws and then reflect on the reasons why these together with the Constitution have not succeeded in ensuring that gender justice is meted out.

To deal with the problems arising from the practice of giving and receiving dowry the Dowry Prohibition Act was passed in 1961 and amendments were made to it subsequently in 1983. Further amendments were made to the Indian Penal Code in 1986 by incorporating Section 304 B by which a new offence of dowry death was created. Anyone who commits dowry death would now be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Changes were also made in the Indian Evidence Act in 1983 and 1986 by which the rules relating to evidence in the context of death of a married woman within a period of seven years of her marriage were formulated through sections 113 A and 113 B. Essentially the sections refer to the presumption of cruelty or harassment before the death of a woman or in connection with any demand for dowry the Court shall presume that such person has abetted her suicide (S. 113 A) or caused the dowry death (S. 113 B). Further in 1983 Chapter XX A was added by an amendment which includes Section 498 A which basically deals with the crime of cruelty by husband or relatives of husband. The word cruelty has been defined. Two explanations are given

one which defines cruelty in general and another cruelty in the context of unlawful demand for any property or valuable security This is the first time that law has taken into consideration the problem of domestic violence. While till now the provisions of the Indian Penal Code that deal with injury, harm, wrongful confinement could have been used to address the problem the law enforcement officials, lawyers and judiciary could not reconcile themselves to the fact that a husband who commits any of these offences on his wife is committing a crime and therefore punishable. The prejudice in society against a wife seeking such remedy was clearly reflected in the attitudes of these law enforcement officers and as a consequence it became imperative to specifically address the issue of domestic violence which is so widely prevalent in society in order to secure to women justice and equality. The women's movement in India during the 1970s and 1980s forced the Government to take cognizance of these problems and to provide a remedy in law.

That is precisely what was attempted through these amendments. However, in reality there has been little change in the attitude of the law enforcement officials as there has hardly been any perceivable change in the status of women in society. Thus women continue to face the problem of domestic violence. One perceptible change is the recognition that domestic violence cannot be brushed aside as a problem between a husband and wife. If only the Government would use the media more effectively in driving home the message that wives are not the property of husbands to do what they please with them and that women are valued members of the nation we might see a reduction in the crime of domestic violence. There are enactments like the Indecent Representation of Women (prohibition) Act 1986 and' provisions in the Indian Penal Code to deal with obscenity like Sections 294 and 509. These try to address the

question of objectification of women and sexual harassment of women. Then there is the Commission of Sati (Prevention) Act of 1987, the Immoral Traffic (Prevention) Act of 1986 etc which have tried to end some of the traditional practices which have resulted from the subordinate status of women in society and 'which are exploitative in character. To specifically address the question of female foeticide the Parliament enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention) Act in 1994. This Act basically criminalizes the use of techniques like ultrasound to determine the sex of the foetus. This Act used together with the Medical Termination of Pregnancy Act 1971 effectively could lead to the ending of the practice of killing female fetuses. However, due to the negligent attitude of society and government towards the female in India there has hardly been any arrest even under this act leave alone any conviction. To protect working women the Maternity Benefit Act was passed in 1961. This is to enable women who are employed to be able to safeguard the health of the foetus and their own before and after childbirth. This is to ensure that employed women will not face any disadvantages in comparison with their male colleagues of the need for hospitalization and post natal care in the context of pregnancy while also ensuring that the new born baby will also not miss out on maternal care during this period. The Equal Remuneration Act of 1976 aims to provide for the payment of equal wages to men and women workers and for the prevention of discrimination against women when the work is the same or of a similar nature The Factories Act of 1948 provides through Sections 19 and 42 for proper toilet facilities for women employees while Section 48 provides for crA'ches so that women may be able to look after their young children. Section 66 provides that no woman is to work between 7 p.m. and 6 a.m. unless the State Government specifically makes rules otherwise in certain specific contexts. The last section has not always worked to the advantage of women when it comes to the

question of perks, increment and promotions as men are able to put in that extra work especially in certain industries like the Information Technology industry. That is the context in which the State Government of Karnataka wanted to exempt women in the IT industry from this provision of the Factories Act. With reference to inheritance, succession, laws relating to marriage and divorce, guardianship, custody, adoption etc since independence the State has been endeavoring to make the laws gender just. However, since the laws relating to these subject matters are considered to be derived from the religious beliefs and practices it has not been possible to completely ensure equality in these areas.

The Hindu Succession Act of 1956 gives male and female heirs equal rights of inheritance in acquired property while with reference to ancestral property daughters have no share except in a few states in Southern India like Karnataka and Andhra Pradesh wherein through amendment the State has guaranteed in law share for the female heirs even in the coparcenaries or inherited property. Under the Indian Succession Act which governs Christians sons and daughters get equal share in the property of their father after giving the wife one- third of the property. In Muslim law women generally inherit half of what their male counterparts do whether it is ancestral or acquired property. Muslim men and women can bequeath through a will only one-third of their property. The father is considered to the natural guardian of the child and only if the father has no objection during his lifetime can the mother act as the natural guardian. This too was provided through the interpretation of the Supreme Court in the Githa Hariharan case. Through amendments to the personal laws efforts have been made to ensure equal rights in marriage and divorce for men and women. However there are still a few provisions which continue to deal unequally with men and

women. Conclusion The legislative framework provided in the Constitution provides for equality in society between men and women. In order to fulfill this constitutional mandate the Parliament and the Judiciary have from time to time made laws and interpreted the existing ones that would guarantee gender justice. However since law, the legal system and society are closely interlinked it is not possible to enforce the rights provided in law without changes in social institutions, values and attitudes:' Social change cannot be brought about through law. It is only through the process of sensitizing various branches of the government and more importantly the members of society to the rights and concerns of women can gender justice become a reality. Law is only one method by which the various problems of women can be resolved. While law can empower women at one level it is not possible to completely the subordination of women or the discriminatory practices merely through the legal system. If it had been otherwise we should not have to worry about the falling numbers of women in the year 2004. After all we have the Constitution that guarantees various rights to women and enactments since then which have attempted to address various crimes against women. We have to recognize the limitation of law in bringing about change in society and in ending oppression of women.

Gender inequities throughout the world are among the most all-pervasive forms of inequality. Gender equality concerns each and every member of the society and forms the very basis of a just society and hence, the issue of 'gender justice' is of enormous magnitude and of mammoth ramification engulfing an all-embracing and illimitable canvas. In the midnight of August 15, 1947, when India awoke to "life and freedom", most of its 170 million women scarcely knew what the 'Tryst with Destiny' was all about. Victims of poverty, ignorance and oppressive social institutions, they hardly

knew their destiny and who controlled it. However, the stalwarts who led India to its independence were aware that if the new India of their dreams was to become a reality and not remain only a figment of imagination, it would need social engineering on a massive scale, in respect of the backward and oppressed sections of the society and above all, its women. Swami Vivekanand had aptly remarked:

"Jus! as a bird could not fly with one wing only; a nation would not march forward if the women are left behind. " Being conscious of the need of the time, the framers and founding fathers of our 'compassionate' Constitution incorporated certain sacrosanct ideals in the form of comprehensive rights for women so as to metamorphose the abstract ideals into a concrete form, which would enable the upliftment of the status of women in the male-dominated chauvinistic society.

The crucial question that arises for deliberation is: Have the women been able to reap the benefits provided for them under the Constitution of India? The answer, unfortunately, is not encouraging. There is still a long way to go to achieve the goals enshrined in the Constitution. In spite of special constitutional guarantees and other legislations, crimes against women in the form of child marriages, rape, dowry, practice of Sati, trafficking of the girl child, prostitution, domestic violence and sexual harassment are on the increase. The review of the disabilities and constraints on women, which stem from socio-cultural institutions, indicates that the majority of women are still very far from enjoying the rights and opportunities guaranteed to them by the Constitution. Justice K. Ramaswamy has also stated: a

"Indian women have suffered and are suffering discrimination in silence. Self sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination." [1-2]

It is indeed ironical that when Indian mythology places women on a very high pedestal and they are worshipped and honoured Goddess of learning is 'Saraswati', of wealth 'Laxmi', of power 'Parvati' and of energy or 'Shakti' 'Durga' we show no concern for her honour and her dignity. It is a sorry reflection mirroring the attitude of indifference of the society which results in a total negation of the human rights of women in which gender justice nosedives.

Despite this regression in the social and moral values, there is still a ray of hope in the midst of the darkness surrounding the realization of women's rights. Time and again the Indian judiciary has played a pro-active role by their positive interpretation of the various Constitutional provisions for women upholding, the validity of various legislations and laying down exhaustive guidelines to realize the concept of'gender justice' and gender equality. The Apex Court of our country has observed that democracy, development and respect for human rights and fundamental freedoms are inter-dependent and have mutual reinforcement. The human rights for women, including the girl child, are therefore, an inalienable, integral and indivisible part of universal human rights. All forms of discrimination on the grounds of gender is violative of fundamental freedoms or human rights.[3] In this way, the judiciary has laid down exhaustive guidelines in its various decisions to realize the concept of'gender justice' and gender equality.

Constitutional Safeguards for Women and the Liberal Interpretation of these provisions by the Judiciary : Our Constitution, the fountainhead of all laws and the Organic law of the land, recognizes equality of the sexes and prohibits discrimination on the basis of sex. It also provides legislation to be made to confer more rights on women by making special provisions. It has to be borne in mind that in the absence of equality of gender, human rights remain in the inaccessible realm. In most of the nations, women are ascribed a secondary role. This secondary role has to be metamorphosed to the primary one to bring women at an equal stratum with men. To achieve so, a different outlook in law has to be perceived. For this reason, various provisions have been engrafted in our Constitution.

The Preamble of the Constitution is "a key to open the mind of the makers of the constitution which may show the general purposes for which they made the Constitution."[4] It declares the rights and freedoms which the people of India intended to secure to all citizens. [5] The Preamble begins with the words "We, the People of India "which includes men and women of all castes, religions, etc. It wishes to render "Equality of status and of opportunity" to every man and woman. The Preamble again assures "dignity of individuals" which includes the dignity of women. On the basis of the Preamble, several important enactments have been brought into operation, pertaining to every walk of life family, succession, guardianship and employment which aim at providing and protecting the status, rights and dignity of women.

Fundamental Rights Guaranteed to women under the Constitution : Part III of the Constitution, consisting of Articles 12 to 35, relating to Fundamental Rights, is considered the 'heart' of the Constitution. The fundamental rights are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual status. As per Justice P. N. Bhagwati: "These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent."[6]

Article 14 Equality before Law : Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws within the territory of India. The first expression 'equality before law' which is taken from the English Common Law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. The second expression, 'the equal protection of the laws' is the essence and core of the right to equality under which the State is under an obligation to take necessary steps so that every individual, man and woman alike, is given equal respect which he or she is entitled to as a human being. This provision is based on the last clause of the first section of the Fourteenth Amendment to the American Constitution and directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favoritism or discrimination. It is, therefore, said that 'the equal protection of the laws' is a pledge of protection or guarantee of equal laws.

Though Article 14 permits reasonable classification, yet classification based on sex is not permissible. [7] In the case of AIR India v. Nergesh Meerza[8], the Apex Court, while dealing with the fixation of different ages of retirement for male and female employees and the provision preventing the female employees from having child, expressed the view to the effect that the retirement of air hostesses in the event of marriage taking place within four years of service does not suffer from any irregularity or arbitrariness but retirement of air hostesses on first pregnancy is unconstitutional being violative of Articles 14 and 16 of the Constitution. It was considered that such a provision was callous, cruel and an insult to Indian womanhood. Therefore, such disability violates the equal protection of law and opportunity which is the cornerstone of our Constitution and legal system.

Payment of equal pay for equal work has also been justified under Article 14. Unequal pay for materially equal work cannot be justified on the basis of an artificial classification between the two kinds of work and employment. [9] In the case of Mackinnon Mackenzie and Co. Ltd. v. Andrey (D)' Casta[10], the question involved was getting of equal pay for equal work. Their Lordships ruled that when lady stenographers and male stenographers were not getting equal remuneration, that was discriminatory and any settlement in that regard did not save the situation. Their Lordships also expressed the view that discrimination between male stenographers and lady stenographers was only on the ground of sex and that being not permissible, the employer was bound to pay the same remuneration to both of them when they were doing practically the same kind of work. In Madhu Kishwar v. State of Bihar, [11] the Chotanagpur Tenancy Act, 1908 was challenged on the ground that the Act denied the right to succession to scheduled tribe women to the tenancy lands and hence, it violates

Articles 14, 15 and 21 of the Constitution. The Supreme Court, by admitting the petition, quashed the discriminative provisions of the Act and paved a way for tribal women to entitle their rights to tenancy lands along with men.

Article 14 has also been invoked to prohibit sexual harassment of working women on the ground of violation of the right of gender equality. [12] Article 14 indeed contains important provisions for protecting the rights of women and the interpretation of this Article by the judiciary enables the establishment of equality between the sexes.

Article 15 Prohibition of discrimination on grounds of sex : Article 14 embodies the general principle of equality before the law. A specific application of the same principle is provided in Article 15. Article 15 concretises and enlarges the scope of Article 14. Article 15 (1) prohibits the State from discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. In other words, all laws are to be applied to members of both sexes equally, and there is an express prohibition of discrimination on the ground of sex. The right guaranteed in this clause of Article 15 is conferred on a citizen as an individual and is available against his being subjected to discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen generally. A law which deprived a female proprietress to hold and enjoy her property on the ground of her sex was held violative of Article 15. [13]

Article 15(2) provides that no citizen shall, on the grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing ghats, roads and places of

public resort, maintained wholly or partly out of State funds or dedicated to the use of the general public. Thus, by incorporating Articles 14 and 15, the status of women has been uplifted and a new life of equal rights at par with men has been accorded to them.

However, the provisions of non-discrimination on this account do not prevent the State from making any special provisions for women and children. The same has been laid down in Article 15 (3), which empowers the State to make special provisions for them. Thus it would be no violation of Article 15 if institutions are set up by the State exclusively for women or places are reserved for women at public entertainments or in public conveyances. The main object of Article 15 (3) is based on 'protective discrimination' keeping in view the weak physical position of women. The reason is that "women's physical structure and the performance of maternal functions place her at a disadvantaged position 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."[14] This provision has enabled the State to make special statutory provisions exclusively for the welfare of women. In the case of Dattatraya v. State of Bombay[15], the Bombay High Court held that the State can establish educational institutions for women only. Again in Yusuf Abdul Aziz v. State of Bombay[16], the validity of Section 497 of the Indian Penal Code was challenged under Articles 14 and 15 (1) of the Constitution. Section 497 of the IPC deals with the provisions of relating to the offence of adultery, which only punishes man for adultery and exempts the woman from punishment though she may be equally guilty as an abettor. This section was held by the Supreme Court to be valid since the classification was not based on the ground of sex alone. The Court upheld the Section 497 of the IPC as valid by relying upon the mandate of Article 15 (3) of the Constitution. Even Section 354 of the IPC is not invalid

because it protects the modesty only of women and Section 488 (now Section 125) of the Cr. PC. (Code of Criminal Procedure) is valid although it obliges the husband to maintain his wife but not vice versa.[17] Similarly, Section 14 of the Hindu Succession Act, 1956 converting the women's limited ownership of property into full ownership has been found in pursuance of Article 15 (3). [18]

When the matter relating to mother as natural guardian was questioned, the Supreme Court held that relegation of mother to inferior position to act as a natural guradian is violation of Articles 14 and 15 and hence, the father cannot claim that he is the only natural guradian. The guardianship right of women has undergone a sea change by this interpretation given by the Apex Court. [19]

The scope of Article 15 (3) is wide enough to cover any special provision for women including reservation in jobs. Article 16 does not come in the way of such reservation. The two articles must be harmoniously construed. Women are a weaker section of our society for whose upliftment Article 15 (3) is made which should be given widest possible interpretation and application subject to the condition that reservation should not exceed 50% limit as laid down in the case of Indra Sawhney v. Union of India. [20] The Court has also upheld an Orissa Government Order reserving 30% quota for women in the allotment of 24 hours medical stores as part of self-employment scheme.[21] Thus, the language of Article 15 (3) is in absolute terms and does not appear to restrict in any way the nature or ambit of special provisions which the State may make in favour of women or children.

Article 16 Equality of opportunity in matters of public employment: Article 16 is an instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State. Explaining the relative scope of Articles 14, 15 and 16, Das, J. said :

"Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances."[22]

Article 16(1) and (2) embody the general rule that the State shall provide equal opportunities for all citizens in matters relating to employment or appointment to any office under the State. There shall be no discrimination on the grounds of religion, race, caste, sex, place of birth, residence or any of them in providing employment. These provisions are an extension of the principle of equality before law and of the goal of 'equality of status and opportunity' as set in the Preamble of the Constitution. The import of these provisions is that a woman has the same rights in matters of employment under the State as a man and the State shall not discriminate against women on this count. It operates equally against any such discriminative legislation or discriminative executive action. If any law is passed or any executive action is taken to prevent the women from taking up employment under the State, such law or executive action could be challenged under Articles 16(1) and (2). The principle of equal pay for equal work is also covered by equality of opportunity in Article 16 (1).[23] Difference in the pay scales and promotional avenues between male and female employees is also prohibited by Article 16 (2). [24] In the case of Miss C. B. Muthamma, IFS v. Union of India and others,[25] the constitutional validity of Rule 8(2) of the Indian Foreign

Service (Conduct and Discipline) Rules, 1961 and Rule 18 (4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961 was challenged before the Supreme Court. The impugned provision Rule 8 (2) requires a woman member of the service to obtain permission of the Government in writing before her marriage is solemnized and at any time after the marriage, a woman member of her service may be required to resign from the service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service. Further, Rule 18 (4) also runs in the same prejudicial strain, which provides that no married woman shall be entitled as a right to be appointed to the service. The petitioner complained that under the guise of these rules, she had been harassed and was shown hostile discrimination by the Chairman, UPSC from the joining stage to the stage of promotion. The Hon'ble Supreme Court held that these Rules are in defiance of Article 14, 16 and 21 and Krishna Iyer, J. pronounced: "That, our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity, viz; our women, is a sad reflection on the distance between the Constitution in the book and the law in action."[26] In the case of T. Sudhakar Reddy v. Government of Andhra Pradesh,[27] the petitioner challenged the validity of Section 31 (l)(a) of the Andhra Pradesh Co-operative Societies Act, 1964 and Rule 22 C,. 22 A (3)(a) of the Andhra Pradesh Co-operative Societies Rules 1964. These provisions provide for nomination of two women members by the Registrar to the Managing Committee of the Co-operative Societies, with a right to vote and to take part in the meetings of the committee. The Andhra Pradesh High Court quashed the petition and upheld these provisions in the interest of women's participation in co-operative societies and opined that it will be in the interest of the economic development of the country. In Government of Andhra

Pradesh v. P.B. Vijaya Kumar,[28] the legislation made by the State of Andhra Pradesh providing 30% reservation of seats for women in local bodies and in educational institutions was held valid by the Supreme Court and the power conferred upon the State under Article 15 (3) is so wide which would cover the powers to make the special legal provisions for women in respect of employment or education.

This exclusive power is an integral part of Article 15(3) and thereby, does not override Article 16 of the Constitution.

At this juncture, it is also noteworthy to mention the case of Associate Banks Officers Association v. State Bank of India, [29] wherein the Apex Court held that women workers are in no way inferior to their male counterparts, and hence there should be no discrimination on the ground of sex against women. Recently, in Air India Cabin Crew Association v. Yeshaswinee Merchant, [30] the Supreme Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. The Constitution does not prohibit the employer to consider sex while making the employment decisions where this is done pursuant to a properly or legally chartered affirmative action plan. Further, in Vijay Lakshmi v. Punjab University,[31] it has been observed that Rules 5 and 8 of the Punjab University Calendar, Vol. Ill providing for appointment of a lady principal in a women's or a lady teacher therein cannot be held to be violative of either Article 14 or Article 16 of the Constitution, because the classification is reasonable and it has a nexus with the object sought to be achieved. In addition, the State Government is empowered to make such special provisions under Article 15(3) of the Constitution.

This power is not restricted in any manner by Article 16. In this way, the Indian Judiciary has played a positive role in preserving the rights of women in the society.

Article 19 (l)(g) Freedom of Trade and Occupation : Article 19 (l)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business. The right under Article 19 (l)(g) must be exercised consistently with human dignity. Therefore, sexual harassment in the exercise of this right at the work place amounts to its violation. In the case of Delhi Domestic Working Women's Forum v. Union of India[32] relating to rape and violence of working women, the Court called for protection to the victims and provision of appropriate legal representation and assistance to the complainants of sexual assault cases at the police station and in Courts. To realize the concept of'gender equality',-the Supreme Court has laid down exhaustive guidelines in the case of Vishaka v. State of Rajasthan[33] to prevent sexual harassment of working women at their workplace. The Court held that it is the duty of the employer or other responsible person to prevent sexual harassment of working women and to ensure that there is no hostile environment towards women at their working place. These guidelines were framed to protect the rights of working women to work with dignity under Articles 14, 19 and 21 of the Constitution. Their Lordship also observed :

"Each incident of sexual harassment of women at workplace results in violation of fundamental rights of' Gender Equality' and the 'Right to Life and Liberty."[34]

Article 21 Protection of life and personal liberty. Article 21 contains provisions for protection of life and personal liberty of persons. It states : "No person shall be deprived of his life or personal liberty except according to procedure established by law."

This short one sentence in which Article 21 has been couched has made long strides due to the judicial interpretation received at the deft hands of judges of the Apex Court. Article 21, though couched in negative language, confer on every person the fundamental right to life and personal liberty and it has been given a positive effect by judicial interpretation. "Life", in Article 21, is not merely the physical act of breathing. This has been recognized by the Courts. The Rig Veda[35] gives a subtle description of the mundane activity of speech. The soul (which, in the Rig Veda, is compared to a bird soaring high in the heavens) inspires or fills up the mind with speech. The "Gandharva" (the mind) carries it to the heart; and then, the luminous inspired speech takes shape in words that can be heard. One can pursue this imagery further. While the external mundane activities of life have their own place, they are the manifestations of an inner, unseen, unperceived activity which, indeed is the real "life" that a human being lives, it is true that judicial decisions on Article 21 do not embark upon such an analysis in depth. But the judiciary does take note to deal with the wide approach of the right to life.

In view of the global developments in the sphere of human rights the judicial decisions from time to time have played a vital role towards the recognition of affirmative right to basic necessities of life under Article 21. In the case of State of Maharashtra v. Madhukar Narayan Mandikar,[36] the Supreme Court has held that even a woman of

easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. This article has also been invoked for the upliftment of and dignified life for the prostitutes. The Supreme Court has placed emphasis on the need to provide to prostitute opportunities for education and training so as to facilitate their rehabilitation.[37] Sexual harassment at workplace is a violation of Article 21 of the Constitution and hence, the Apex Court of the Country, in the case of Vishaka v. State of Rajasthan,[38] has laid down detailed direction and guidelines on the subject which are to be strictly observed by all employers, public or private. Right to life is recognized as a basic human right. It has to be read in consonance with the Universal Declaration of Human Rights, 1948, the Declaration on the Elimination of Violence against Women and the Declaration and Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights to which India is a party having ratified them. The right to life enshrined in Article 21 of the Constitution also includes the right to live with human dignity and rape violates this right of women. [3 9]

Article 23 Right against exploitation and prohibition of traffic in human beings For centuries women have been humiliated, exploited, tortured and harassed in all walks of life physically, mentally and sexually. To safeguard and protect women against exploitation. Article 23 (1) of the Constitution of India prohibits traffic in human beings and begar and other similar forms of forced labour. "Traffic in human beings" means selling and buying human beings as slaves and also includes immoral traffic in women and children for Immoral or other purposes. [40] To curb the deep rooted social evil of prostitution and to give effect to this Article, the Parliament has passed The Immoral Traffic (Prevention) Act, 1956. [41] This Act protects the individuals, both men and women, not only against the acts of the State but also against

the acts of private individuals and imposes a positive obligation on the State to take all measures to abolish these evil practices, another evil practice of the Devadasi system, in which women are dedicated as devadasis to the deities and temples, was abolished by the State of Andhra Pradesh by enacting the Devadasis (Prohibition of Dedication) Act, 1988. The Supreme Court has also held that traffic in human beings includes devadasis and speedy and effective legal action should be taken against brothel keepers. [42]

Similar evil practices are prevalent in India such as selling the female infants and girls to foreigners under the guise of inter-country adoption and marriages. The Supreme Court - accepted a letter as a writ petition,[43] complaining of mal-practices indulged by nongovernment organizations and orphanages engaged in the work of offering Indian children, more specifically, female infants, in adoption to foreign parents. The Courts observed that in the guise of adoption, Indian children of tender age were not only exposed to the long dreadful journey to distant foreign countries at great risk to their lives, but in case they survive, they were not provided proper care and shelter and were employed as slaves and in the course of time they become beggars or prostitutes for want of proper care and livelihood. As there are no specific legislative provisions to regulate Inter-country adoptions, the Court laid down certain principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents. Further a direction was given to the Government to enact a law regulating inter-country adoptions, as it is their constitutional obligation under Articles 15 (3), 23, 24 and 39 (c) and (f) of the Constitution.

The Role of Directive Principles of State Policy in Protecting the Rights of Women. Part IV of the Constitution from Articles, 3 to 51 contains what may be described as the active obligation of the State. The Directive Principles of State Policy are fundamental in the governance of the country and it shall be the duty of the State of apply these principles in making laws an to secure a social order in which social, economic and political justice shall inform all the institutions of national life. These Directives Principles are ideals which are based on the concept of 'Welfare State' and they fix certain goals; social and economic; for immediate attainment by the Union and State Governments while formulating a policy or enacting a law.

According to Article 39(a), the State shall direct its policy towards securing that the citizens men and women equally, have the right to an adequate means of livelihood. [44] Under Article 39 (d), the State shall direct its policy towards securing equal pay for equal work for both men and women. [45] This Article draws its support from Articles 14 and 16 and its main objective is the building of a welfare society and an equalitarian social order in the Indian Union. To give effect to this Article, the Parliament has enacted the Equal Remuneration Act, 1976 which provides for payment of equal remuneration to men and women workers and prevents discrimination on the ground of sex. Further Article 39 (e) is aimed at protecting the health and strength of workers, both men and women.

A very important and useful provision for women's welfare and well-being is incorporated under Article 42 of the Constitution. It imposes an obligation upon the State to make provisions for securing just and humane conditions of work and for

maternity relief. Some of the legislations which promoted the objectives of this Article are the Workmen's Compensation Act, 1923, the Employees State Insurance Act, 1948, the Minimum Wages Act, 1948, the Maternity Benefit Act 1961, the Payment of Bonus Act, 1965, and the like. In the case of Dattatraya v. State of Bombay, [46] the Court held that legal provisions to give special maternity relief to women workers under Article 42 of the Constitution does not infringe Article 15 (1). Recently, in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll), [47] the Supreme Court held that the benefits under the Maternity Benefits Act, 1961 extend to employees of the Municipal Corporation who are casual workers or workers employed on daily wages basis. Upholding, the claim of non-regularized female workers for maternity relief, the Court has stated:

"Since Article 42 specifically speaks of just and humane conditions of work, and maternity relief, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of."[48]

Article 44 provides that the State shall endeavour to secure for the citizens, a Uniform Civil Code, throughout the territory of India. India comprises of diverse religions, faith and beliefs and each of these religious denominations are governed by their distinct personal laws which vary from one another. In matters relating to marriage, divorce, adoption, maintenance and succession, different personal laws have treated and placed women on different levels. Due to these variations, people are being tempted to convert from one religion to another in order to seek the benefit under the guise of those

personal laws. Placing , reliance on Article 44 by the Supreme Court in upholding the right of maintenance of a Muslim divorce under Section 125 of the Criminal Procedure Code has boomeranged resulting in a separate law of maintenance for Muslim female divorcee. [49] Later the Court again reminded the State of its obligation under this Article and issued direction to it to take appropriate steps for its implementation and inform the Court of these steps. In the case of Sarla Mundgal v. Union of India, [50] a Hindu husband married under Hindu Law and again married the second time by converting himself to Islam. As the State had not yet made any efforts to legislate the Uniform Civil Code, the Supreme Court directed the Government to report the measures taken for the implementation of Article 44 of the Constitution in the interest of unity and integrity and for the welfare and benefit of women.

Fundamental Duties towards woman enshrined in the Constitution : Article 51-A under Part IV-A of the Constitution of India lays down certain Fundamental Duties upon every citizen of India, which were added by the Forty-Second Amendment of the Constitution in 1976. The later part of Clause (e) of Article 51-A, which relates to women, gives a mandate and imposes a duty on Indian citizens "to renounce practices derogatory to the dignity of women". The duties under Article 51-A are obligatory on citizens, but it should be invoked by the Courts while deciding cases and also should be observed by the State while making statutes and executing laws.

Reservation of Seats for Women in Election to Local Bodies : The Parliament has succeeded in its efforts to provide for reservation of seats for women in election to the Panchayat and the Municipalities. Reservation of seats for

women in Panchayats and Municipalities have been provided in Articles 243 D and 243 T of the Constitution of India. Part IX and IX A have been added to the Constitution by the 73rd and 74th Amendment Acts with Articles 243, 243 A to 243 D and Articles 243 P 243 ZG[51]. According to Article 243 D (3), "not less than one-third, (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled up by direct election in every Panchayat, shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. Article 243 T (3) of the Constitution provides similar provisions for reservation of seats for women in direct election in every Municipality. Therefore, reservation of 33% of seats for women candidates to hold office and perform-all public functions at the Panchayat and Municipal level is within the constitutional mandate.

As an extension the 73rd and 74th Amendments to the Constitution, the Constitution (81st Amendment) Bill was introduced in the Parliament way back in 1996 to reserve one-third of seats for women in the Lok Sabha and the State Assemblies. However, this bill has not yet been brought in to shape due to political overtures.

Conclusion The issue of' gender justice' has been gaining ground in many an area for some centuries. Though the traditional view of gender injustice has been given quite a quietus and treated as an event of bygone days, yet the malady still remains, sometimes pouncing with ungenerous monstrosity giving a free play to the inferior endowments of nature in man thereby making the whole concept a ridicule anaesthetizing the entire edifice built in the last few decades. The ruthless exploitation of women not only exhibits how such treatment in an anathema to the concept of gender justice but also exposes the burial of the idea that is required to be nurtured, cherished and believed with a deep conviction and maintained with a sanguine resolve.

It is realized that despite the constitutional safeguard and the active judicial support towards the cause of women, changes in social attitudes and institutions cannot be brought about very rapidly. However it is necessary to accelerate this process of change by deliberate and planned efforts so that the pernicious social evil of gender inequality is buried deep in its grave. Laws written in black and white are not enough to combat the evil. The role of Courts and judges assume greater importance and it is expected that the Courts would deal with cases relating to woman in a more realistic manner. A socially sensitive judge is indeed better statutory armour in cases of crimes against women than the long clauses of penal provisions, containing complex exceptions and provisos.

Awakening of the collective consciousness is the need of the day. A problem as multifaceted as women's self-actualization is too important to be left to a single section of the society. This responsibility has to be shared by the State, community

organizations, legislators who frame the laws and the judiciary which interprets the Cnstitution and other laws in order to give a fillip to the legal reform in the field of gender justice and to usher in the new dawn of freedom, dignity and opportunity for both the sexes equally.

1 -2. Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864.

3. Valsamma Paul v. Cochin University and others, AIR 1996 SC 1011. 4. Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 856. 5. Sir Alladi Krishnaswami, 'Constituent Assembly Debates', Vol. 10, 41. 6. Maneka Gandhi v. Union of India, AIR 1978 SC 597. 7. Chitra Ghosh v. Union of India, AIR 1970 SC 35. 8. AIR 1981 SC 1829: 1981 Lab IC 1313. 9. State of M.P. v. Pramod Bhartiya, AIR 1993 SC 286. 10. AIR 1987 SC 1281: 1987 Lab IC 961. 11. AIR 1996 SC 1864. 12. Vishaka v. State of Rajasthan, AIR 1997 SC 3011; Apparel Export Promotion

Council v. A. K. Chopra, AIR 1999 SC 625.

13. A Cracknell v. State, AIR 1952 All 746. 14. Muller v. Oregon, 52 L.Ed. 551. 15. AIR 1952 SC 181: 1952 SCR 612. 16. AIR 1954 SC 321: 1954 Cri LJ 886. 17. Shahdad v. Mohd. Abdullah, AIR 1967 J & K 120; Girdhar Gopal v. State, AIR

1953 MB 147; Thamsi Goundan v. Kanni Ammal, AIR 1952 Mad 529.
18. Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312.

19. Mrs. Gita Hariharan v. Reserve Bank of India with Dr. Vandana Shiva v. Jayanta

Bandhopadhyaya, AIR 1999 SC 1149.

20. AIR 1992 SC 477. 21. Gayatri Devi Pansari v. State of Orissa, AIR 2000 SC 1531. 22. Gazula Dasaratha Rama Rao v. State of A. P., AIR 1961 SC 564. 23. Randhir Singh v. Union of India, AIR 1982 SC 879. 24. Uttarkhand Mahila Kalyan Parishad v. State of U. P., AIR 1992 SC 1695. 25. AIR 1979 SC 1868. 26. Id. at p. 1870. 27. AIR 1994 SC 544 28. AIR 1995 SC 1648. 29. AIR 1998 SC 32. 30. AIR 2004 SC 187 31. AIR 2003 SC 3331. 32. (1995) 1 SCC 14. 33. AIR 1997 SC 3011. 34. AIR 1997 SC 3011. 35. 10.177.2. 36. AIR 1991 SC 207, 211. 37. Gaurav Jain v. Union of India, AIR 1997 SC 3021. 38. AIR 1997 SC 3011. 39. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922; Chairman,

Railway Board v. Chandrima Das, AIR 2000 SC 988.

40. Raj Bahadur Singh v. Legal Remem-brancer, AIR 1953 Cal 522.

41. Formerly known as the Suppression of Immoral Traffic in Women and Girls Act,

1956.
42. Vishal Jeet v. Union of India, AIR 1990 SC 1412. 43. Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469. 44. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. 45. Randhir Singh v. Union of India, AIR 1982 SC 879; Mackinnon Mackenzie and Co.

Ltd. v. Andrey D'Kosta, AIR 1987 SC 1281; State of M.P. v. Pramod Bhartiya, AIR 1993 SC 286.
46. AIR 1952 SC 181: 1952 Cri LJ 955. 47. AIR 2000 SC 1274. 48. Id. At p. 1277. 49. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 954 : 1985 Cri LJ

875 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
50. AIR 1995 SC 1531. 51. The Constitution (Seventy-third Amendment) Act, 1992 and the Constitution

Seventy-fourth Amendment