CONSTITUTIONAL MATRIX FOR GENDER JUSTICE IDEALS - A REVIEW OF JUDICIAL VINDICATION IN INDIA.
Introduction: Gender conflict and male domination, as an ideology, has come to an end with the rise of women's movement and emergence of feminist ideology. Equal justice is the essence of democracy. [Nagaraj v. Union of India, AIR 2007 SC 71]. Therefore, the democratic ideology of the Indian Constitution promises to secure equally to all without any discrimination. But fair sex, to restore their status and dignity lost - since ancient times and to stand on the footing of equality, need some priority in enjoyment of the constitutional guaranty. Therefore, protection of freedom, justice, equality and dignity of women has been very clearly declared -- indefeasible constitutional objective. The Constitution of India has played a prominent role in shaping-up the feminist ideals of India. The judicial journey, from Muthamma to Vishaka also reinforced the feminist ideals enshrined in the Constitution. The paper explores the feminist dimensions of the Indian Constitution and also scrutinises the judicial dynamism concerned in India.
Indian Constitution - The Bedrock for Feminist Ideals: Granville Austin [The Indian Constitution - Cornerstone of Nation (1999) p. xiii] rightly observed that the Constitution of India is first and foremost a social document intended to achieve a social revolution. Accordingly, to bring a change in status of women, progressive ideals are elegantly incorporated in the Preamble, Fundamental Rights and Directive Principles of State Policy. These constitutional provisions provide legal matrix for the development of feminist ideals in India. [Madhukishwar v. State of Bihar, AIR 1996 SC 1864].
The Preamble begins with the words, "we the people of India..." which includes both men and women. it aims at rendering "equality of status and of opportunity" to every man and woman. The main objective of this provision is to give equal rights to both sexes in terms of the status and opportunity. The Preamble also assures "dignity of individuals" which includes dignity of women. Therefore, it is clear that the Preamble provides impetus to the constitutional feminism.
Equality of Sexes - A Basic Feature of the Indian Constitution: Article. 14 of the Constitution embodies the equality principle expressed in the Preamble. This Article guarantees to every person the right to 'equality before the law' and 'equal protection of the laws'. The twin expressions of this Article prohibit unreasonable discrimination, inter alia between men and women. Therefore, men are not given any priority over women, both should be treated equally. Equality of sexes is one of the basic principles of this Article. Therefore, women are accorded all social, political and economic rights equally with men.
To add more emphasis to equality clause, it has been further elaborated in Article. 15(1) of the Constitution. It provides that State shall not discriminate against any citizen on the ground of sex. It implies that there should not be any adverse or negative distinction. This provision explicitly prohibits gender discrimination. Therefore, women cannot be considered inferior to men, merely on the ground of sex. The Apex Court also, in Velamuri Venkata Sriprasad v. Kothuri Venkateswarulu, [AIR 2000 SC 434], very significantly held that equality status was integrated to the concept of basic structure of the Constitution and was an important dimension of gender justice.
Indian Judiciary, affirmatively confirming these equality principles, declared various anti-women laws and rules as violative of Articles. 14 and 15(1). The Supreme Court in C.B. Muthamma v. Union of India [AIR 1979 SC 1868; Bombay Labour Union v. International Franchises (Pvt.) Ltd., AIR 1966 SC 942], held a rule that prohibited married women to continue in IFS cadre discriminatory and violative of Article. 14. Similarly, in Air India v. Nargesh Meerza [AIR 1981 SC 1829; Bombay Labour Union v. International Franhise, AIR 1966 SC 942], the rule, which made the air hostess to retire upon their first pregnancy, was decalred unreasonable and arbitrary and hence violative of Article. 14. In Anju Garg v. Hotel Association of India, [AIR 2008 SC 663], Section. 30 of the Punjab Excise Act, 1914, which prohibits employment of women in hotels and bars serving liquor, was held violative of gender equality under Article. 14 of the Constitution. The Supreme Court in Githa Hariharan v. RBI [AIR 1999 SC 1149; Jijabai v. Pathan Khan, AIR 1997 SC 315] construed guardianship legislation in the light of Articles. 14 and 15 to the effect that mother was entitled to be natural guardian even during the life time of father. In Daniel Latifi v. Union of India, [AIR 2001 SC 3958], the Supreme Court applied equality principle under Articles. 14 and 15 of the Indian Constitution to expand the scope of maintenance for iddat period and to include maintenance even for future life of a Muslim woman. In a recent Supreme Court judgement also it is reiterated that a Muslim husband's liability arising from Section. 3 of the Muslim Women (Protection of Rights on Divorce) Act to pay maintenance, 'is not confined to the iddat period'. [See The Hindu dated 27th April, 2014, p. 10]. In another recent case, the Supreme Court recognised equal rights of women make-up artists in film industry.
In Mayadevi v. State of Maharashtra [(1986) 1 SCC 743], the requirement of husband's consent for wife's application for public employment was struck down by the Supreme Court by considering it as an anachronistic obstacleto women's equality and economic justice. In Vishaka case [Vishaka v. State of Rajasthan, AIR 1997 SC 3011; Apparel Export Promotion Council v. A.K. Chopra, AIR SC 625. Also see Medha Kotwal v. Union of India, AIR 2013 SC 93], the Apex Court gave a broader interpretation to the equality principle and held that the concept of 'gender equality' includes protection from sexual harassment and right to work with dignity. Therefore, the women's equality was upheld by the Supreme Court, while dealing with a variety of issues, in different cases. High Courts of various states also, in a catena of cases reiterated the gender equality clause. [Raghubans Saudagar Singh v. Punjab, AIR 1972 P & H 117; Vijayamma v. State of Kerala (1977) KLT 677; Smt. Savitri v. Bose, AIR 1972 All. 305; Ammini, E.J., v. Union of India, AIR 1995 Ker. 252; Pragati Verghese v. Cyril George, AIR 1997 Bom. 349; C. Rajakumari v. Commissioner of Police, Hyderabad, AIR 1998 A.P., 302; Miss R. Kantha v. Union of India, AIR 2010 Ker. 27; Jayalakshmi Ammal v. Kalieperumal, AIR 2014 Mad. 185]. The extensive judicial contribution added vigour to the gender equality principle.
Special Protection for Women - Not Discriminatory: The bare provisions of equality will not automatically afford equal justice for women without 'special attention'. Therefore, Article. 15(3) specifically permits the state to make special provisions for the progress of the women. Though this provision shows positive discrimination towards women, it is not violative of Articles. 14 and 15(1). The special treatment accorded to women is called 'protective discrimination'. Such protective discrimination is different from gender discrimination.
The importance of protective discrimination is well explained by the Supreme Court in Yusuff Abdul Aziz v. State of Bombay [AIR 1954 SC 321. Also see Sowmitri Vishnu v. Union of India, AIR 1985 SC 1618; Revathi v. Union of India, AIR 1988 SC 835]. In this case the Court held that the provision of Section. 497 of the Indian Penal Code is not unconstitutional, though the man only is punishable for adultery under this Section. The woman is exempted, though she is an abettor. The court opined that for the empowerment of women such protection is necessary in view of their existing sensitive position in Indian society.
Article. 15(3), which is considered as an exception to article. 15(1) [Anjali Roy v. State of W.B., AIR 1952 Cal. 825], calls for operation of the equality mechanism for the well-being of women. [Sri Ratna Kapur and Brenda Crossman, "On Women, Equality and the Constitution: Through the Looking Glass of Feminism" (1993) 1 NLSJ, 1. Cited in P. Ishwara Bhat, Law & Social Transformation in India, (EBC) 2009, p. 533]. Therefore, this provision should be given widest possible interpretation and application including reservation for women. Because, reservation is an important step in the direction of women empowerment. [Indira Sawhney v. Union of India, AIR 1992 SC 477. Also see Ashok Kumar Malpani v. State of M.P., AIR 2010 M.P. 64]. The Apex Court in Vijayakumar case [Govt. of A.P. v. P.B. Vijayakumar, AIR 1995 SC 1648. Also see Union of India v. K.P. Prabhakaran (1997) 11 SCC 638; VijayaLakshmi v. Punjab University (2003) 8 SCC 440; Gayatri Devi Pansari v. State of Orissa, (2000) 4 SCC 221], while dealing with the issue of women reservation in state services, declared that the power conferred upon the state by Article. 15(3) covers the entire range of state activities including employment under the state and education. The judgement makes a remarkable development in the sphere of gender justice law.
In Vijaykumar case, the Apex Court clearly indicated that Article. 15(3) does not restrict the nature or ambit of special provision which the state makes in favour of women. [See Miss Sheetal Mishra, Gender Justice : the Constitutional Perspective and the Judicial Approach, AIR 2006 p. 53]. Therefore, making law to provide maternity relief [Dattatreya v. State of Bombay, AIR 1952 SC 181; Municipal Corporation of Delhi v. Female workers, AIR 2000 SC 1274], granting special allowance to women employees [Shamsher Singh v. State of Punjab, AIR 1970 P & H 372] establishing institutions, and reservation of seats in colleges or employment or local body elections [Ashok Kumar Malpani v. State of M.P., AIR 2010 M.P., 64] for women is not violative of Article. 15(1) and is justified. [See also Satish Menon v. State of M.P., AIR 2009 M.P. 185; Dennison Paulraj v. Union of India, AIR 2009 (NOC) 2540 (Mad.)]. Similarly converting the women's limited ownership of property into full ownership also comes with the ambit of Article. 15(3). [Section. 14 of the Hindu Succession Act, 1955. See Thota Sesharatnamma v. T. Manikyamma (1991) 4 SCC 312]. Proactive approach of the judiciary could be clearly seen in V.D. Bhanot v. Savitha Bhanot (2012) 3 SCC 183, where the Apex Court has made the retorspective application of the Domestic Violence Act, 2005 to protect the right of the wife. The Court in this case viewed protection of the woman under Article. 15(3) of the Constitution. The Supreme Court in Ganduri Koteswaramma v. Chakiri Yanadi (2011) 9 SCC 788, explaining the objective of the Hindu Succession (Amendment) Act, 2005 observed, "the legislature has now conferred substantive right in favour of the daughter in order to uphold the gender equality". In this way, Indian Judiciary has played a positive role in widening the scope of the gender equality concept. It demonstrates the gender sensitive attitude of the Indian Judiciary.
Equal Opportunities of Employment - A Progressive Journey of Gender Justice Ideals: To make equality principle more meaningful, equal employment opportunities for women are also guaranteed by the fundamental law of the country in Article. 16. Creating equal opportunities of employment for women is the important limb of the concept of gender equality. [Government of Andhra Pradesh v. P.B. Vijaykumar, AIR 1995 SC 1648]. Therefore, women should not be denied of employment basing on gender. If any law is passed or executive action is taken to prevent the women from taking up the employment under the State, it would be violative of Article. 16. Support to this view can be found in decisions of the Supreme Court in the following cases.
In Mutthamma case [C.B. Muthamma v. Union of India, AIR 1979 SC 1868], when the constitutional validity of Rules. 8(2) and 18(4) of IFS rules were challenged, the Supreme Court held that these rules are violative of Articles. 14. 16 and 21 of the Constitution as these rules are prohibiting married women to enter the service and continue in the service. Similarly in T. Sudhakar Reddy v. Government of Andhra Pradesh [AIR 1994 SC 544; Also see Associate Bank Officers' Association v. SBI, AIR 1998 SC 32], when the validity of certain provisions of Co-operative Society Act and Rules, which benefit the women members, was challenged, the Court quashed the petition and upheld provisions in the interest of women.
Again in Air India Cabin Crew Association v. Yeshaswinee Merchant, AIR 2004 SC 187, the Apex Court held that Articles. 15 and 16 prohibits a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. Therefore, it is clear that the discrimination against women is withheld, whereas discrimination in their favour is upheld by the Apex Court.
Continuing in the employment is as significant as getting into the employment. Therefore, it is essential that the women at work place are safe and secure. Otherwise, equality and preference of women in employment guaranteed by these constitutional provisions would become a farce. [ Varsha Vahini, "Working Women; Critical Appraisal of Constitutional and Judicial Approach to Women Employment", Indian Socio-Legal Journal, 2011, p. 79]. By realising this fact, the Apex Court in Vishaka case has played a decisive role to ensure security of women at work place. In all these cases, the Apex Court clearly articulated a variety of women issues within the ambit of constitutional justice.
Right to Life Encompasses Dignity of Women: Judiciary used Article. 21 as a means to protect the dignity of women. The bare text of the Article. 21 provides protection of life and liberty. But the judicial interpretation brought protection of human dignity within the ambit of right to life. [Francis Coralie Mullin v. Administrator, UT of Delhi, (1981) 1 SCC 608]. Accordingly rape [Bodhisattwa Gautam v. Subrachakraborty, AIR 1996 SC 922; State of Punjab v. Ram Dev Singh (2004) 1 SCC 421; Railway Board v. Chandimadas, AIR 2000 SC 988], sexual harassment at workplace [Vishaka v. State of Rajasthan, AIR 1997 SC 3011. Also see Delhi Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14], infringement of right to privacy [Neera Mathur v. LIC, AIR 1992 SC 392; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264. The A.P. High Court in Rayala M. Bhuvaneshwari v. Nagaphanendra Rayala, AIR 2008 AP 98 held. the husband, recording the conversation of his wife with other, without her knowledge was illegal and infringement of her right to privacy] - even of the prostitute [State of Maharashtra v. Madhukar Narayan Mandikar, AIR 1991 SC 207], maintenance [Md. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945], indecent performance of beauty contest [C. Rajakumari v. Commissioner of Police, Hyderabad, AIR 1998 AP 302], right to take option for abortion [V. Krishnan v. G.Rajan (1994) 1 Mad.L.W. (Cri.) 16], sex selection - before or after conception [Vijaya Sharma v. Union of India, AIR 2008 Bom. 29], physical assault [Vajrash Venkatray Anvekar v. State of Karnataka, AIR 2013 SC 329] have been brought within the scope of Article. 21, as they violate the dignity of women. In Gautam Kundu case [Gautam Kundu v. State of West Bengal, 1993 3 SCC 418], the Supreme Court strengthened the women's right to dignity by considering the paternity test for checking chastity of women as violative of Article. 21. The Apex Court in State of West Bengal v. O.P. Lodha, AIR 1997 SC 2021, issued a writ of Habeas Corpus even against private individuals, by considering it as an appropriate remedy to protect the dignity of women. Judiciary in all these cases has purposefully widened the scope of Article. 21 to protect the dignity of women.
In Ankita Srivastava v. State of Uttar Pradesh, 2014 Lab.I.C 899, while dealing with the issue of compassionate appointment of a widow, the Apex Court held that re-marriage is a personal choice and the curtailment by employer even under the provisions of Dying in Harness Rules, 1974 is violative of Article. 21 of the Constitution. Further, in Arun Kumar Agarwal v. National Insurance Company Limited AIR 2010 SC 3426, the factor of 'personal services to family'is taken as criteria in assessing compensation for death of a housewife, who is victim of a road accident and raised the amount of compensation. The judiciary has recognised the invariable contribution made by women to their family. Therefore, judiciary has taken decisive role in giving such a favourable interpretation, which serves to ameliorate the status and conditions of women.
From the above discussion, it is evident that fundamental rights, with the inclusion of women's rights into them, have been engendered. Now, women empowerment is at the centre of constitutional mechanism. As it is rightly commented by Justice P. Sadhasivam, the Judiciary has attempted to venture into the critical role of a social reformer by upholding the rights of women. [See Women and Children - Role of Courts, 2013, Journal. 193]
Directive Principles - A Realised Justice: The Directive Principles of State Policy directs the State to protect women from all sorts of exploitation mostly at workplace. [Articles. 38, 39(a), 39(d), 39(e), 42, 46. Municipal Corporation of Delhi v. Female workers, AIR 2000 SC 1274 (Article. 42); Uttarakhand Mahila Kalyan Parishad v. State of Uttar Pradesh, AIR 1992 SC 1695 (equal pay & promotion); Mackinnon & Mackenzie v. Audrey D Costa, AIR 1987 SC 1281; Article. 39(d) Bombay Labour Union v. International Franchise, AIR 1966 SC 9421 (Maternity Relief)]. To achieve gender justice among women of various religions, it is directed to secure Uniform Civil Code (Article. 44). [Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. Also see Sarla Mudgal v. Union of India (1995) 3 SCC 635; Jordendiengdeh v. S.S. Chopra, AIR 1985 SC 935]. These directives are strictly not justiciable. But, the Apex Court through judicial activism has infused dynamism into these non-justiciable provisions and issued directions to the State to implement them. [See Jaspal Singh, "Rights of Women under the Indian Constitution: An Analysis", IBR xxxviii (1 & 2) (2011) 65. Randhir Singh v. Union of India, AIR 1982 SC 879; State of Uttar Pradesh v. Chaurasia (1989) 1 SCC 121; State of Madhya Pradesh v. Pramod Bhartiya (1993) 4 SCC 539]. For effective enforcement, these directives are given legislative shape. [Equal Remuneration Act, 1976; Workmen's Compensation Act, 1923; the ESI Act, 1948; The Minimum Wages Act, 1948; The Maternity Benefit Act, 1961; The Payment of Bonus Act, 1965; The Muslim Women (Protection of Rights and Divorce) Act, 1986]. These Directive Principles, as observed by Granville Austin ["Working a Democratic Constitution", Oxford University Press, New Delhi (1999) p. 669], have significant value in building the corpus of constitutional feminism in India.
Article. 51-A(e) imposes fundamental duty on every citizen to renounce the practices derogatory to the dignity of women. Indecent representation of women in the beauty contest was held violative of Article. 51-A(e) as it is derogatory to the dignity of women. [Rajkumari v. Commissioner of Police, Hyderabad, AIR 1998 A.P., 302]. Therefore, individual's legal duty to respect the dignity of women is also well determined by the Constitution. Articles. 243(D) and (T) provide reservation of seats for women in election of local bodies. These constitutional provisions greatly elevate the economic, social and political status of the women in the country.
Conclusion: It is submitted that the Constitution of India has provided dynamic ideals of gender justice. Judiciary also has shown concern by supplementing the constitutional goals. In fact, Judiciary has played a dynamic role to bring various women issues within the ambit of constitutional ideals by making liberal interpretation. Some of the issues which ensured for gender equality and protection of dignity of women are employment, education, marriage, divorce, termination of pregnancy, sex selection, protection from crimes, guardianship, inheritance of property, political participation and maintenance. Therefore, the scope of gender justice concept has been constantly widening to include a variety of rights of women. It indicates efficacious functioning of judiciary and legislative organs of the State for moulding the ideals of gender justice. When women are subjected to any discrimination, they can get recourse by using the constitutional provisions. Unfortunately, women in the country are unaware of their rights, because of illiteracy and oppressive social practices. So, there is a need for educating and awakening of women. Social sensitisation is also a need to realise constitutional values in the country.
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Challapalli Srinivas Chakravarthy
H. No. 12-13-302, St. No. 9,
Lane. No. 1, Flat. No. 203,
Satya Classic, Tarnaka,
Secunderabad- 500 017
Telangana State, India.
e-mail: chakkuresearchscholar13@Gmail.com
Cell; 09985732397
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To add more emphasis to equality clause, it has been further elaborated in Article. 15(1) of the Constitution. It provides that State shall not discriminate against any citizen on the ground of sex. It implies that there should not be any adverse or negative distinction. This provision explicitly prohibits gender discrimination. Therefore, women cannot be considered inferior to men, merely on the ground of sex. The Apex Court also, in Velamuri Venkata Sriprasad v. Kothuri Venkateswarulu, [AIR 2000 SC 434], very significantly held that equality status was integrated to the concept of basic structure of the Constitution and was an important dimension of gender justice.
Indian Judiciary, affirmatively confirming these equality principles, declared various anti-women laws and rules as violative of Articles. 14 and 15(1). The Supreme Court in C.B. Muthamma v. Union of India [AIR 1979 SC 1868; Bombay Labour Union v. International Franchises (Pvt.) Ltd., AIR 1966 SC 942], held a rule that prohibited married women to continue in IFS cadre discriminatory and violative of Article. 14. Similarly, in Air India v. Nargesh Meerza [AIR 1981 SC 1829; Bombay Labour Union v. International Franhise, AIR 1966 SC 942], the rule, which made the air hostess to retire upon their first pregnancy, was decalred unreasonable and arbitrary and hence violative of Article. 14. In Anju Garg v. Hotel Association of India, [AIR 2008 SC 663], Section. 30 of the Punjab Excise Act, 1914, which prohibits employment of women in hotels and bars serving liquor, was held violative of gender equality under Article. 14 of the Constitution. The Supreme Court in Githa Hariharan v. RBI [AIR 1999 SC 1149; Jijabai v. Pathan Khan, AIR 1997 SC 315] construed guardianship legislation in the light of Articles. 14 and 15 to the effect that mother was entitled to be natural guardian even during the life time of father. In Daniel Latifi v. Union of India, [AIR 2001 SC 3958], the Supreme Court applied equality principle under Articles. 14 and 15 of the Indian Constitution to expand the scope of maintenance for iddat period and to include maintenance even for future life of a Muslim woman. In a recent Supreme Court judgement also it is reiterated that a Muslim husband's liability arising from Section. 3 of the Muslim Women (Protection of Rights on Divorce) Act to pay maintenance, 'is not confined to the iddat period'. [See The Hindu dated 27th April, 2014, p. 10]. In another recent case, the Supreme Court recognised equal rights of women make-up artists in film industry.
In Mayadevi v. State of Maharashtra [(1986) 1 SCC 743], the requirement of husband's consent for wife's application for public employment was struck down by the Supreme Court by considering it as an anachronistic obstacleto women's equality and economic justice. In Vishaka case [Vishaka v. State of Rajasthan, AIR 1997 SC 3011; Apparel Export Promotion Council v. A.K. Chopra, AIR SC 625. Also see Medha Kotwal v. Union of India, AIR 2013 SC 93], the Apex Court gave a broader interpretation to the equality principle and held that the concept of 'gender equality' includes protection from sexual harassment and right to work with dignity. Therefore, the women's equality was upheld by the Supreme Court, while dealing with a variety of issues, in different cases. High Courts of various states also, in a catena of cases reiterated the gender equality clause. [Raghubans Saudagar Singh v. Punjab, AIR 1972 P & H 117; Vijayamma v. State of Kerala (1977) KLT 677; Smt. Savitri v. Bose, AIR 1972 All. 305; Ammini, E.J., v. Union of India, AIR 1995 Ker. 252; Pragati Verghese v. Cyril George, AIR 1997 Bom. 349; C. Rajakumari v. Commissioner of Police, Hyderabad, AIR 1998 A.P., 302; Miss R. Kantha v. Union of India, AIR 2010 Ker. 27; Jayalakshmi Ammal v. Kalieperumal, AIR 2014 Mad. 185]. The extensive judicial contribution added vigour to the gender equality principle.
Special Protection for Women - Not Discriminatory: The bare provisions of equality will not automatically afford equal justice for women without 'special attention'. Therefore, Article. 15(3) specifically permits the state to make special provisions for the progress of the women. Though this provision shows positive discrimination towards women, it is not violative of Articles. 14 and 15(1). The special treatment accorded to women is called 'protective discrimination'. Such protective discrimination is different from gender discrimination.
The importance of protective discrimination is well explained by the Supreme Court in Yusuff Abdul Aziz v. State of Bombay [AIR 1954 SC 321. Also see Sowmitri Vishnu v. Union of India, AIR 1985 SC 1618; Revathi v. Union of India, AIR 1988 SC 835]. In this case the Court held that the provision of Section. 497 of the Indian Penal Code is not unconstitutional, though the man only is punishable for adultery under this Section. The woman is exempted, though she is an abettor. The court opined that for the empowerment of women such protection is necessary in view of their existing sensitive position in Indian society.
Article. 15(3), which is considered as an exception to article. 15(1) [Anjali Roy v. State of W.B., AIR 1952 Cal. 825], calls for operation of the equality mechanism for the well-being of women. [Sri Ratna Kapur and Brenda Crossman, "On Women, Equality and the Constitution: Through the Looking Glass of Feminism" (1993) 1 NLSJ, 1. Cited in P. Ishwara Bhat, Law & Social Transformation in India, (EBC) 2009, p. 533]. Therefore, this provision should be given widest possible interpretation and application including reservation for women. Because, reservation is an important step in the direction of women empowerment. [Indira Sawhney v. Union of India, AIR 1992 SC 477. Also see Ashok Kumar Malpani v. State of M.P., AIR 2010 M.P. 64]. The Apex Court in Vijayakumar case [Govt. of A.P. v. P.B. Vijayakumar, AIR 1995 SC 1648. Also see Union of India v. K.P. Prabhakaran (1997) 11 SCC 638; VijayaLakshmi v. Punjab University (2003) 8 SCC 440; Gayatri Devi Pansari v. State of Orissa, (2000) 4 SCC 221], while dealing with the issue of women reservation in state services, declared that the power conferred upon the state by Article. 15(3) covers the entire range of state activities including employment under the state and education. The judgement makes a remarkable development in the sphere of gender justice law.
In Vijaykumar case, the Apex Court clearly indicated that Article. 15(3) does not restrict the nature or ambit of special provision which the state makes in favour of women. [See Miss Sheetal Mishra, Gender Justice : the Constitutional Perspective and the Judicial Approach, AIR 2006 p. 53]. Therefore, making law to provide maternity relief [Dattatreya v. State of Bombay, AIR 1952 SC 181; Municipal Corporation of Delhi v. Female workers, AIR 2000 SC 1274], granting special allowance to women employees [Shamsher Singh v. State of Punjab, AIR 1970 P & H 372] establishing institutions, and reservation of seats in colleges or employment or local body elections [Ashok Kumar Malpani v. State of M.P., AIR 2010 M.P., 64] for women is not violative of Article. 15(1) and is justified. [See also Satish Menon v. State of M.P., AIR 2009 M.P. 185; Dennison Paulraj v. Union of India, AIR 2009 (NOC) 2540 (Mad.)]. Similarly converting the women's limited ownership of property into full ownership also comes with the ambit of Article. 15(3). [Section. 14 of the Hindu Succession Act, 1955. See Thota Sesharatnamma v. T. Manikyamma (1991) 4 SCC 312]. Proactive approach of the judiciary could be clearly seen in V.D. Bhanot v. Savitha Bhanot (2012) 3 SCC 183, where the Apex Court has made the retorspective application of the Domestic Violence Act, 2005 to protect the right of the wife. The Court in this case viewed protection of the woman under Article. 15(3) of the Constitution. The Supreme Court in Ganduri Koteswaramma v. Chakiri Yanadi (2011) 9 SCC 788, explaining the objective of the Hindu Succession (Amendment) Act, 2005 observed, "the legislature has now conferred substantive right in favour of the daughter in order to uphold the gender equality". In this way, Indian Judiciary has played a positive role in widening the scope of the gender equality concept. It demonstrates the gender sensitive attitude of the Indian Judiciary.
Equal Opportunities of Employment - A Progressive Journey of Gender Justice Ideals: To make equality principle more meaningful, equal employment opportunities for women are also guaranteed by the fundamental law of the country in Article. 16. Creating equal opportunities of employment for women is the important limb of the concept of gender equality. [Government of Andhra Pradesh v. P.B. Vijaykumar, AIR 1995 SC 1648]. Therefore, women should not be denied of employment basing on gender. If any law is passed or executive action is taken to prevent the women from taking up the employment under the State, it would be violative of Article. 16. Support to this view can be found in decisions of the Supreme Court in the following cases.
In Mutthamma case [C.B. Muthamma v. Union of India, AIR 1979 SC 1868], when the constitutional validity of Rules. 8(2) and 18(4) of IFS rules were challenged, the Supreme Court held that these rules are violative of Articles. 14. 16 and 21 of the Constitution as these rules are prohibiting married women to enter the service and continue in the service. Similarly in T. Sudhakar Reddy v. Government of Andhra Pradesh [AIR 1994 SC 544; Also see Associate Bank Officers' Association v. SBI, AIR 1998 SC 32], when the validity of certain provisions of Co-operative Society Act and Rules, which benefit the women members, was challenged, the Court quashed the petition and upheld provisions in the interest of women.
Again in Air India Cabin Crew Association v. Yeshaswinee Merchant, AIR 2004 SC 187, the Apex Court held that Articles. 15 and 16 prohibits a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. Therefore, it is clear that the discrimination against women is withheld, whereas discrimination in their favour is upheld by the Apex Court.
Continuing in the employment is as significant as getting into the employment. Therefore, it is essential that the women at work place are safe and secure. Otherwise, equality and preference of women in employment guaranteed by these constitutional provisions would become a farce. [ Varsha Vahini, "Working Women; Critical Appraisal of Constitutional and Judicial Approach to Women Employment", Indian Socio-Legal Journal, 2011, p. 79]. By realising this fact, the Apex Court in Vishaka case has played a decisive role to ensure security of women at work place. In all these cases, the Apex Court clearly articulated a variety of women issues within the ambit of constitutional justice.
Right to Life Encompasses Dignity of Women: Judiciary used Article. 21 as a means to protect the dignity of women. The bare text of the Article. 21 provides protection of life and liberty. But the judicial interpretation brought protection of human dignity within the ambit of right to life. [Francis Coralie Mullin v. Administrator, UT of Delhi, (1981) 1 SCC 608]. Accordingly rape [Bodhisattwa Gautam v. Subrachakraborty, AIR 1996 SC 922; State of Punjab v. Ram Dev Singh (2004) 1 SCC 421; Railway Board v. Chandimadas, AIR 2000 SC 988], sexual harassment at workplace [Vishaka v. State of Rajasthan, AIR 1997 SC 3011. Also see Delhi Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14], infringement of right to privacy [Neera Mathur v. LIC, AIR 1992 SC 392; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264. The A.P. High Court in Rayala M. Bhuvaneshwari v. Nagaphanendra Rayala, AIR 2008 AP 98 held. the husband, recording the conversation of his wife with other, without her knowledge was illegal and infringement of her right to privacy] - even of the prostitute [State of Maharashtra v. Madhukar Narayan Mandikar, AIR 1991 SC 207], maintenance [Md. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945], indecent performance of beauty contest [C. Rajakumari v. Commissioner of Police, Hyderabad, AIR 1998 AP 302], right to take option for abortion [V. Krishnan v. G.Rajan (1994) 1 Mad.L.W. (Cri.) 16], sex selection - before or after conception [Vijaya Sharma v. Union of India, AIR 2008 Bom. 29], physical assault [Vajrash Venkatray Anvekar v. State of Karnataka, AIR 2013 SC 329] have been brought within the scope of Article. 21, as they violate the dignity of women. In Gautam Kundu case [Gautam Kundu v. State of West Bengal, 1993 3 SCC 418], the Supreme Court strengthened the women's right to dignity by considering the paternity test for checking chastity of women as violative of Article. 21. The Apex Court in State of West Bengal v. O.P. Lodha, AIR 1997 SC 2021, issued a writ of Habeas Corpus even against private individuals, by considering it as an appropriate remedy to protect the dignity of women. Judiciary in all these cases has purposefully widened the scope of Article. 21 to protect the dignity of women.
In Ankita Srivastava v. State of Uttar Pradesh, 2014 Lab.I.C 899, while dealing with the issue of compassionate appointment of a widow, the Apex Court held that re-marriage is a personal choice and the curtailment by employer even under the provisions of Dying in Harness Rules, 1974 is violative of Article. 21 of the Constitution. Further, in Arun Kumar Agarwal v. National Insurance Company Limited AIR 2010 SC 3426, the factor of 'personal services to family'is taken as criteria in assessing compensation for death of a housewife, who is victim of a road accident and raised the amount of compensation. The judiciary has recognised the invariable contribution made by women to their family. Therefore, judiciary has taken decisive role in giving such a favourable interpretation, which serves to ameliorate the status and conditions of women.
From the above discussion, it is evident that fundamental rights, with the inclusion of women's rights into them, have been engendered. Now, women empowerment is at the centre of constitutional mechanism. As it is rightly commented by Justice P. Sadhasivam, the Judiciary has attempted to venture into the critical role of a social reformer by upholding the rights of women. [See Women and Children - Role of Courts, 2013, Journal. 193]
Directive Principles - A Realised Justice: The Directive Principles of State Policy directs the State to protect women from all sorts of exploitation mostly at workplace. [Articles. 38, 39(a), 39(d), 39(e), 42, 46. Municipal Corporation of Delhi v. Female workers, AIR 2000 SC 1274 (Article. 42); Uttarakhand Mahila Kalyan Parishad v. State of Uttar Pradesh, AIR 1992 SC 1695 (equal pay & promotion); Mackinnon & Mackenzie v. Audrey D Costa, AIR 1987 SC 1281; Article. 39(d) Bombay Labour Union v. International Franchise, AIR 1966 SC 9421 (Maternity Relief)]. To achieve gender justice among women of various religions, it is directed to secure Uniform Civil Code (Article. 44). [Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. Also see Sarla Mudgal v. Union of India (1995) 3 SCC 635; Jordendiengdeh v. S.S. Chopra, AIR 1985 SC 935]. These directives are strictly not justiciable. But, the Apex Court through judicial activism has infused dynamism into these non-justiciable provisions and issued directions to the State to implement them. [See Jaspal Singh, "Rights of Women under the Indian Constitution: An Analysis", IBR xxxviii (1 & 2) (2011) 65. Randhir Singh v. Union of India, AIR 1982 SC 879; State of Uttar Pradesh v. Chaurasia (1989) 1 SCC 121; State of Madhya Pradesh v. Pramod Bhartiya (1993) 4 SCC 539]. For effective enforcement, these directives are given legislative shape. [Equal Remuneration Act, 1976; Workmen's Compensation Act, 1923; the ESI Act, 1948; The Minimum Wages Act, 1948; The Maternity Benefit Act, 1961; The Payment of Bonus Act, 1965; The Muslim Women (Protection of Rights and Divorce) Act, 1986]. These Directive Principles, as observed by Granville Austin ["Working a Democratic Constitution", Oxford University Press, New Delhi (1999) p. 669], have significant value in building the corpus of constitutional feminism in India.
Article. 51-A(e) imposes fundamental duty on every citizen to renounce the practices derogatory to the dignity of women. Indecent representation of women in the beauty contest was held violative of Article. 51-A(e) as it is derogatory to the dignity of women. [Rajkumari v. Commissioner of Police, Hyderabad, AIR 1998 A.P., 302]. Therefore, individual's legal duty to respect the dignity of women is also well determined by the Constitution. Articles. 243(D) and (T) provide reservation of seats for women in election of local bodies. These constitutional provisions greatly elevate the economic, social and political status of the women in the country.
Conclusion: It is submitted that the Constitution of India has provided dynamic ideals of gender justice. Judiciary also has shown concern by supplementing the constitutional goals. In fact, Judiciary has played a dynamic role to bring various women issues within the ambit of constitutional ideals by making liberal interpretation. Some of the issues which ensured for gender equality and protection of dignity of women are employment, education, marriage, divorce, termination of pregnancy, sex selection, protection from crimes, guardianship, inheritance of property, political participation and maintenance. Therefore, the scope of gender justice concept has been constantly widening to include a variety of rights of women. It indicates efficacious functioning of judiciary and legislative organs of the State for moulding the ideals of gender justice. When women are subjected to any discrimination, they can get recourse by using the constitutional provisions. Unfortunately, women in the country are unaware of their rights, because of illiteracy and oppressive social practices. So, there is a need for educating and awakening of women. Social sensitisation is also a need to realise constitutional values in the country.
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Challapalli Srinivas Chakravarthy
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