Fundamental Rights and Gender Equality
The Indian Constitution has a "fundamental rights" chapter that guarantees various rights. Those of special importance to women are the Right to Equality in Article 14 and express prohibition against discrimination in Article 15[3].
Constitutional Commitments recognizing right to equality has been explicitly laid down under Article 14 of the Constitution of India.
Article 14 of the Constitution in general enshrines the principle of equality' Stating the general 'principle of equality' Article 14 declares that "the State shall not deny to any person equality before the law or equal protection of laws within the territory of India. Thus Article 14 guarantees to all persons, including women, the right to equality in law. The equality guarantee does not require that the law treats all individuals exactly the same,but it permits discrimination on the basis of reasonable classification. The classification should not be arbitrary and discriminatory[4].
Article 14 in addition to conferring equality of status in women, recognizes women as a class different from men as a class. In other words, legislation favouring women can be passed and would not be violative of Article 14.
In Madhu Kishwar and Others v. State of Bihar and Others, 16[5]: The petitioners who were members of Ho and Oraon tribes of Bihar challenged the vires of Chhota Nagpur Tenancy Act, 1908 on the ground that under the said Act the succession of property was confined to male line only. It was contented by the petitioner that the Act was violative of the Fundamental Rights to equality. The Court opined that as citizen of the country, the female members of these tribes were entitled to Constitutional guarantee given to them under Article 14. However, instead of deciding the case on merits the Court directed the State of Bihar to explore the possibilities of inheritance to female also.
In Air India v. Nargesh Meerza[6], The Court held that the termination of service on pregnancy was manifestly unreasonable and arbitrary and was, therefore, clearly violative of Article 14 of the Constitution. Having taken in service and after having utilised her services for four years to terminate her service if she becomes pregnant amounts to compelling the poor air hostess not to have any children and thus interfere with and divert the ordinary course of humane nature.
Article 15 refers to women as equal citizens. This Article runs as follows: "Article 15(1) says that the State shall not discriminate against any citizens on ground only of religion race, caste, sex, place of birth or any of them." Article 15 is a specific application of the principle expressed in Article 14. Thus in Radha Charan v. State[7], the Orissa High Court held Rule 6(2) of the Orissa Statutory Judicial Service rules, 1963 purporting todisqualify married women from being appointed as District Judges, was violative of Art. 15(1) as disqualification was on the ground of sex.
Article 15(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regards to:
(a) access to shops, public restaurants, hotels and places of public entertainment:
(b) The use of wells, tanks. bathingghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public.
Article 15(3) also allows for special provision for women and children by clarifying that "nothing in this Article shall prevent the State from making any special provisions for women and children." In other words, it enables the State to discriminatein favour of women. However, a question arises whether Article 15(3) authorizes discrimination against women? This question was answered in negative by Calcutta High Court in Mahadeb Jiew v. B.B. Sen[8]. P.B. Mukherjee, J. observed:
The words women and children used in Article 15(3) means making special provision in favour of women and children and not against them.
The special provision for women mentioned in Article 15(3) would not be interpreted to authorise a discrimination against women, because Article 15(3) did not use the expression 'discrimination against’ but used a different expression namely ‘special provision for'. The expression 'special provision for’ denotes provisions especially for women and that such special provision is 'for' i.e. in favour of women. The intention clearly was obviously to protect the interests of women and children. This gave a clear and coherent interpretation to Article 15(1) and (3) because the provision discriminating in favour of women, would necessarily discriminate against men and would therefore constitute an exception to the prohibition of discrimination on the ground of sex contained in Article 15(1). It is submitted that this view is correct and sound.
Therefore, according to the Court. Article 15(3) is an exception to Article15(1) so far as provisions for benefit of women are concerned.
The aforesaid survey of the cases at the High Court level indicates that the trend is uniformly in favour of interpreting Article 15(3) as referring only to matters beneficial to women. But the Supreme Court in a case Yousuf Abdul Aziz v. State of Bombay[9]," seems to give the exception an unbridled scope and operation. The Supreme Court remarked:
It was argued that the clause (3) should be confined to provisions which are beneficial to women we are unable to read any such restrictions into the clause.
It is submitted with due respect that this was not a sound judgment because it lacks reasons in its support and the framers of the Constitution who so ardently championed the cause of ameliorations or upliftment of the women folk of India should not have though of framing special laws under this clause which should be of a non- beneficial, character. The view of High Courts that special provision for women means ‘in favour of women' is the correct view.
Article 16 ensures equality of opportunity in matters relating to employment or appointment to any office under the State.
Many rules, regulations and practices which impose restrictions on women's employment have been found to violate the equal guarantees, but the approach of the Courts to equality and gender differences informing these decisions is divided and problematic. However some of the rules and practices which impose restrictions on women's employment have been upheld by the Courts.
In Raghubans Saudagar Singh v State of Punjab[10]. The rule, which made women ineligible for various posts in men's jail except for the posts of clerks and matrons, was upheld by the Punjab and Haryana High Court. The Court observed that the govt. rule barring women from serving as superintendents of men's jails does not discriminate on the basis of sex alone but was geared to efficiency and suitability.
It is submitted that this decision exhibits old prejudicial attitude towards fair sex. Today, when women are excelling in all types of professions, whether it is police.parachute units, pilots or drivers, there is no justification for such an attitude. Kiran Bedi has set an example for the same.
Another important case which highlights discrimination against women in govt. employment is CB. Muthamma v. Union of India[11], the Apex Court held that the provisions in the service rules requiring a female employee to obtain the permission of Government in writing before her marriage is solemnised and denying right to be appointed on ground that a candidate is a married women are discriminatory against women and that if a married man has a right, a married women, other things being equal, stands on no worse footing. The very decision also clarifies the position that it was not meant to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatic where the requirements of particular employment. The sensitiveness of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. It has been also made clear that save where the differentiation is demonstrable the rule of equality must govern.
It is submitted that the Supreme Court in the above two cases, namely Bombay Labour Union case and Muthamma case[12] has rightly advanced the socio-economic interests of women. But it is strange that why the government, which is under an obligation to protect the fundamental rights and to secure socio-economic justice for all, should defy the Constitution and its spirit.
Some cases have come up before the Courts where the employment rules, regulation and practices have been challenged due to preferential treatment to women tantamounting to a discriminatory treatment against men. The question raised in these cases was whether clause (3) of Article 15 can be invoked for construing and determining the scope of Article 16(2). The opinion of the Courts have been mixed. For example, in Shamsher Singh v. State[13]," the employment practices of the State Educational System were challenged as violating Article 16(2). The Educational System had two branches, one run exclusively by women, the other, exclusively by men. In the women's branch. Assistant District Inspectors were granted a special pay increase. The male petitioner challenged the pay increase as discrimination based on sex and thus violative of Article 16(2). The question referred to the full Bench of the Punjab and Haryana High Court was whether Article 15(3) could be invoked to interpret Article 16(2) and whether increase of pay in cases of females can be justified under Article 15(3). The High Court held that Articles 14, 15 and 16 constitute a single code. Article 14 is the genus and Articles 15 and 16 are the species. If Articles 15(1) and 15(2) cover the entire field of discrimination. Article 16 deals with public employment, specifically. There is an overlapping of provisions. Therefore, Article 15(3) could be invoked to determine the scope of Article 16(2) because Article 15(3) is deemed to be a special provision in the nature of proviso qualifying he general guarantees of Articles 14, 15(1), 15(2), 16(1) and 16(2). The petition was dismissed and the pay increase upheld.
In Walter Alfred Baid v. Umon of India[14], a recruitment rule making a male candidate ineligible for promotion in a predominantly female institution was declared un- constitutional.
The controversy regarding the interpretation of these two Articles was set at rest by Supreme Court in recent decision namely, Government of A.P. v. P. B. Vijay Kumar[15] by holding that Article 15(3) should be read harmoniously with Article 16 of the Constitution. The Supreme Court held that making special provisions in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3) is not whittled down in any manner by Article 16.
Therefore, it is submitted that the main purpose of incorporating Article 15(3) in the Constitution was to remove the socio-economic backwardness of women and to empower them in a manner that would bring effective equality between man and woman. The object of this Article is to strengthen and improve the status of women.
Article 19 guarantees the basic freedoms of speech and expression, movement, and peaceable assembly, and the right to for association or unions. Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Women workers have a right to lead a dignified and honourable life and liberty. A serious problem with respect to women worker, at place of work is sexual harassment. Sexual harassment is a violation of the Article 21 and Article 15 of the Indian Constitution.
In the case of Vishaka v. State of Rajasthan[16], The Court observed that in the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the content of International Convention and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19 (1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.
The Supreme Court observed that sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: (a) Physical contact and advances, (b) Demand or request for sexual favours, (c) Sexually coloured remarks, (d) Showing pornography, (e) Any other unwelcome physical, verbal or non- verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem.
The guidelines also cast an obligation on the employer to take adequate steps to prevent sexual harassment. These include notification, publication and circulation of prohibition of sexual harassment. It has been suggested that complaint mechanism should be created in the employer's organisation for redress of the complaint made by the victim, adequate to provide, where necessary, a Complaints Committee, a special counselor or other support services, including the maintenance of confidentiality.
. Article 23 guarantees right against exploitation. This Article provides that traffic in human beings (including women) and beggar and other similar form of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
It reveals from a critical analysis of various reported cases that the higher judiciary of the country has played a dynamic role in upholding the human right of women enshrined in the Constitution of India[17].
Directive Principles of State Policy and Gender equality
As far as part IV of the Constitution dealing with 'Directive Principles of State Policy' is concerned, there are a number of directives which show concern for women and children in order to ensure equal justice. As per the constitutional directives the State is under an obligation to promote the welfare of the people especially women and children by securing and protecting as effectively as possible the social order in which justice social economic and political shall pervade all the institution of life (Article 38)
Article 39, by virtue of clause (a) further casts on obligation upon the State to direct its policy towards securing to all the citizens including men and women equall, right to adequate means of livehhood.
Equal pay for equal work is one such directive principle, enshrined in Article 39(d), which provides that the State shall direct its policy towards securing that there is equal pay for equal work for both men and women. The fundamental rights relevant to Article 39(d) are Articles 14 and 16, which pertain to equal protection of laws and equality in matters of public employment respectively
The principle of 'equal pay for equal work' has been widely discussed by the Apex Court in various decisions. Initially, the Supreme Court had expressly de- recognised the principle from falling within the ambit of the fundamental right to equality. The position remained the same for almost two decades, and it was only in 1981 that the principle was recognised as a fundamental right[18].
In Kishori Mohanlal Bakshi v. Union of India[19], in this case a six judge Bench of the Apex Court held that the doctrine of equal pay for equal work was an abstract one and had no relation to the right to equality guaranteed under 14. By not recognising the same as a fundamental right, the Court had left too much scope for exploitation of the unemployed masses, especially women and casual labourers, at the hands of employers.
In Randhir Singh v. Union of India[20], in this case Chinnappa Reddy J. pointed out that "equal pay for equal work for both men and women means equal pay for equal work for everyone as between the sexes." He was of the view that equality clause of the Constitution would be meaningful to the vast majority of the people only if equal pay is given for equal work, otherwise it will lead to unrest impelling peace and harmony of the society. The Court removed the misconception that the principle of "equal pay for equal work" is an abstract doctrine and added a new dimension to the service jurisprudence but the fact remains that women are still paid unequal scales of pay and the principle of "equal pay for equal work" remains an ideal.
The ruling in Randhir Singh's case has been followed and strengthened by the Supreme Court in a catena of cases. The Supreme Court has emphasised in all those cases that Article 39(d) and like other provisions in the Directive principles are "conscience of our Constitution." They are rooted in social justice. They were intended to bring about socio-economic transformation in our society.
Clause (e) again enjoins upon the State to direct its policy in such a manner that health and strength of workers including definitely women and children are not abused and that they are not compelled to enter occupations and avocations unsuitable for to health, age and strength.
Article 42 directs the State to make provisions for securing just and humane conditions of work and for maternity relief. In order to give effect to this directive the state has passed the Maternity Benefit Act 1961.
Article 43 provides that the State shall endeavour to secure to all workers, both men and women, a living wage and a decent standard of life. Another very important Article of the Directive Principles of State Policy aims at ending the regime of personal and regional laws: "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of the India."
Article 46 directs the State to promote with special care the educational and economic interests of the weaker sections of the people. It is regarded to aim at improving the employment opportunities and conditions, inter-alia, of the working women.
In this context it will not be out of place to make a mention of Article 37 of the Constitution which lays down in clear terms that though the provisions contained part IV shall not be enforced by the Court but the principles laid down therein would nevertheless be fundamental in the governance of the country and it shall be the duty of the state to apply these principles.
A new part (Part IV-A) was added to the Constitution in 1976 lying dawn Fundamental Duties for the Citizens. One of such fundamental duties is to denounce practices derogatory of women. In order to empower the women further the Constitution of India by amendment 73rd and 74th provides for reservation of seats for women in Panchayats and Local Bodies. Further a move is on for providing similar reservation of seats for women in State Legislature and Parliament.
Why Constitutional Mission of Equalization is not achieved
However, the most sacred object, "the Constitutional mission of equalization," could not be achieved fully due to general ignorance of law, indifferent and hostile attitudes of law-enforcing agencies, economic backwardness and lack of community support for women seeking justice against discrimination, and disregard for the socioeconomic basis of the laws
Until the status of women in the family is changed-unless women strive to redefine their role within the family and revolt against traditions and customs which contribute to their sufferings - no amount of Constitutional guarantee can given them equality with men.
