Constitution of India and Affirmative Action for women

This post describes the constitutional protections for women's rights in detail before going on to describe the different affirmative legal rights that women have.

Content

  1. Introduction
  2. Constitution of India
    1. Overview of the Constitution
    2. Fundamental Rights and Directive Principles
    3. Right to Equality
    4. Right to Life
  3. Affirmative Action for Women
    1. Landmark Judgments on Women’s Rights
    2. Public Interest Litigation
  4. Summary 

Introduction

We'll examine the key elements of the Indian Constitution in this blog. Since it contains the aspirations of the Indian people who had fought against the colonial rule to achieve independence, the Constitution of India is not just a legal instrument but also a political one. The constitution, which promised to all of its residents liberty, equality, and fraternity as well as justice, social, economic, and political, was drafted as a result of the goals and ideals of the freedom struggle as well as the desire for self rule. Thus, the preamble to the Constitution represents a historical turning point in which the colonial subjects proclaimed themselves to be citizens of a sovereign republic and created a constitution for themselves. What precisely does the Indian Constitution provide, and how does it attempt to further justice through supporting women's rights? These aspects will be discussed and explained in this module.

Learning Outcomes

  • An explanation of the Indian Constitution's provisions
  • Understanding of the Indian Constitution's provisions on gender equality and affirmative action for women
  • List of key Supreme Court of India rulings pertaining to women's rights

Constitution of India

Did You Know?

Almost 250 of the 395 provisions in the Indian Constitution are drawn directly or indirectly from the 1935 Government of India Act, either in its entirety or with slight modifications.
Source - N.D. Arora

That there have been 101 amendments to the Constitution till September 2016
Source- https://en.wikipedia.org/wiki/List_of_amendments_of_the_Constitution_of_India

That Equality of the sexes was accepted by the Karachi Congress as early as in 1931 itself 
Source - Lotika Sarkar

Overview of the Constitution

The fundamental political and administrative foundation of Indian government is provided by the Constitution. It has 12 Schedules and 22 Parts. The Constitution establishes a federal unitary system that gives the central government more authority than the state governments. Additionally, it gives the Union Government the remaining authorities.

Some of the important parts of the Constitution are:

  • Part I- The Union and Its Territory 
  • Part II- Citizenship 
  • Part III- Fundamental Rights 
  • Part IV- Directive Principles of State Policy 
  • Part IVA- Fundamental Duties 
  • Part V- Union, 
  • Part VI- States; 
  • Part VIII- Union Territories; 
  • Part IX- Panchayats 
  • Part IX A- Municipalities; 
  • Part X- The Scheduled and Tribal Areas; 
  • Part XI- Relations between Union and States 
  • Part XII- Finance Property, Contracts and Suits 
  • Part XV- Elections 
  • Part XVI- Special Provisions relating to certain classes 
  • Part XVII- Official Language
  • Part XVIII –Emergency Provisions 
  • Part XIX- Miscellaneous  Part XX- Amendment
There are numerous chapters in many of the components. For instance, the section on the Union has chapters on the Executive with subsections on the President and Vice President, the Council of Ministers, the Attorney General of India, and Conduct of Government Business. It also has chapters on the Parliament, the Union Judiciary, the Union Judiciary, and the Comptroller and Auditor General of India. Thus, the chapter provides information about the Union Government's structure as well as the authority of each official. It also explains how the Parliament's legislative job must be carried out.

The Constitution has been altered 101 times, as was previously indicated, showing that it is not a fixed document. In the case of Keshavananda Bharati, the Supreme Court of India established the basic structural concept. This means that any element of the Constitution may be changed, but the fundamental framework of the Constitution must not be altered. The basic right to property was at issue in this case, according to Article 19. In a number of rulings over several years, the Supreme Court defined what basic structure is. The Preamble's objectives, the Rule of Law, the Principle of Separation of Powers, the Right to Personal Liberty (Article 21), the Right to Equality (Articles 14 and 15), the Right to Judicial Review (Articles 32 and 226/227), the Directive Principles of State Policy, and others are among them. The harmony between the Directive Principles and Fundamental Rights, Federalism, the idea of fair and democratic elections, government by parliament, restriction on the ability to alter the constitution under Article 368, Under the confines of the constitution, the judiciary's independence Individuals' rights to freedom and dignity, Secularism, national integrity, and national unity

Fundamental Rights and Directive Principles

The most significant portions of the Constitution from the perspective of citizenship rights are Part III, which outlines the fundamental right available to citizens, and Part IV, which establishes the state's policy. Fundamental Rights are justiciable (one can go to court for redress if they are violated), whereas Directive Principles of State Policy are not and must be implemented through legislation. This is the difference between Part III, which contains Fundamental Rights, and Part IV, which contains Directive Principles of State Policy. Another distinction between them is that whereas directive principles are economic, social, and cultural rights that belong to groups and communities, basic rights are primarily individual-centric civil and political rights. But over time, the Supreme Court of India has ruled that while interpreting fundamental rights, the Directive Principles would be incorporated. The court has ruled in a number of instances that there is no apparent discrepancy between the two and that they must be read harmoniously.

The fundamental rights can be exercised against the state, and laws that infringe them can be overturned. In this chapter, the term "state" has a very broad definition and refers to any branch of government, whether federal, state, or municipal. It comprises public sector businesses like railroads, colleges supported by the government, and public universities. Again, a law is extremely generally defined and includes orders, announcements, circulars, and guidelines issued by public authorities that influence people's rights. Therefore, it would be against the law for the police to not file a complaint, for a university to not follow admissions standards, and for a municipal body to not award a contract for building a road in accordance with government policy. In addition to this, it goes without saying that any law passed by the Parliament or a state legislature, or any section thereof, that violates fundamental rights, would be subject to legal challenge. Under Article 32 of the Constitution, which is also a basic right, one may immediately petition the Supreme Court for a violation of their fundamental rights. They may also do so through the High Court under Article 226 of the Constitution. The solution is known as a writ petition. A writ is a directive or order issued by the Supreme Court or the High Courts.

Writs are frequently filed when there is no other accessible remedy. For instance, if a government employee is fired, he or she may seek relief from the appropriate court under labour, industrial, service, or administrative law. In this instance, it is not possible to apply for a writ of certiorari to nullify the termination order without first going to the appropriate court. A writ of mandamus shouldn't be filed right away if the police refuse to file a FIR (First Information Report) when someone goes to report a crime because I have the option of going to the Superintendent of Police and filing a FIR with her or him as well as bringing a private complaint before a Magistrate. If there is no legal provision for an appeal against a lower court order, a writ may nonetheless be issued. What essential principles underpin gender equality and affirmative action for women?

Right to Equality 

The fundamental right, guaranteed by Article 14 of the Constitution, is the right to equality. In India's territory, the Article guarantees that everyone is treated equally before the law and is given the same level of legal protection. All people, including noncitizens, are entitled to exercise this freedom. The right against discrimination in Article 15 must be taken into consideration while interpreting Article 14's reference to equality. Article 15 specifies that the state shall not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth, or any of them. Article 15 additionally provides that nothing in the article shall prevent the state from providing particular provisions for women and children in addition to this limitation on the state. The state is allowed to make reservations in public employment for economically disadvantaged persons who, in the state's opinion, are not appropriately represented in its services, according to a similar provision for affirmative action in Article 16.

In a number of decisions that have been reaffirmed throughout the years, the Supreme Court of India has ruled that equality includes more than just formal equality. It also includes substantive equality. As a result, it follows that different classes of people must be handled differently and that equality does not imply the same or similar treatment for all people. The classification of various groupings, however, must pass the following two evaluations:
  1. The classification must be founded on an intelligible differential which distinguishes those who are grouped together from the others
  2. The differential must have a rational relation to the object sought to be achieved by the law under challenge.
As a result, the classification should be accurate and not random. Additionally, it must pass the test of the two natural justice principles, which are:
  • No one should be condemned unheard which includes adequate opportunity to be heard 
  • No one should be a judge in his own cause or that the decisions of the state should be unbiased
All acts should fulfil these criteria.

Right to Life

The right to life and personal liberty guaranteed by Article 21 of the Constitution is another crucial freedom that has been utilised as a justification for affirmative action. In a number of rulings, the Supreme Court has ruled that life does not just refer to animal existence. In the Maneka Gandhi case, it was decided that the words "No person should be deprived of his life or personal liberty except in accordance with a process provided for the law" also included substantive justice. This means that any governmental action or statute must pass the equality test under Article 14 in order to pass the equality test under Article 21. This means that it is necessary to consider the legislation's content or substance in order for it to be constitutionally legitimate. It is not sufficient for all state actions to be legal (as in following the rules provided by law), as this would not satisfy the equality test.

Affirmative Action for Women

As a result, the Constitution mandates that the state can promote women through affirmative action. In addition to the clauses in the Fundamental Rights mentioned in the preceding sections, Article 39 (d) requires the state to pass legislation ensuring equal pay for equal work, and Article 42 stipulates maternity benefits. The Dowry Prohibition Act of 1956, the Prevention of Immoral Trafficking Act of 1986, the Maternity Benefit Act of 1961, the Equal Remuneration Act of 1976, the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation) Act of 2002, the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act of 2013 and the Protection of Women from Domestic Violence Act of 2005 are just a few of the laws that have been passed to In addition, the Indian Penal Code was changed in 1983 (by adding Section 498A, which is considered cruelty to a wife), 1986 (by adding Section 304B, which is a punishment for dowry death), and in 2013. (bringing in other specific sexual offences apart from increasing the punishment for sexual offences and expanding the definition of rape). Aside from this, legal amendments have added a reservation for women in Panchayat and Municipal elections.

Landmark Judgments on Women’s Rights

Aside from legal changes, the state has taken other affirmative action for women in the form of reserving employment for women, and the courts have overturned laws or government actions that discriminated against women. For example, one rule that required airhostesses to retire when they got married was overturned. Another rule that required women to lose their jobs upon marriage was also overturned. In addition to this, the courts supported women's right to equal compensation for equal work. In the Anuj Garg case, the Supreme Court overturned a law that forbade women from selling alcohol in bars, and in the Bar Dancers ruling, it overturned a provision that forbade women from dancing in establishments that provided alcohol. The Supreme Court overturned the regulation prohibiting women from registering as make-up artists in the film industry in Charu Khurana's case. The Supreme Court ruled in the landmark case Vishaka v. State of Rajasthan that sexual harassment at work constituted discrimination against women and issued rules that were necessary for all public and private sector organisations up until the state passed a statute addressing the issue. This ruling outlined a thorough policy as well as the definition of sexual harassment and the steps an employer must take in the event of an incident. Additionally, it required the employer to take proactive measures to stop sexual harassment.

In addition to these rulings regarding the workplace, the Supreme Court has also made rulings regarding the weaker group of women, including the right of women who are awaiting trial to be kept in separate police cells and to receive medical attention, the right of women who are housed in protective custody to better living conditions, and the right of mentally ill women who are detained in jails to be released. In R.D. Upadhyay's case, the Supreme Court instructed the prisons to allow children of women prisoners to live with their mothers in prison until they turned 6 years old, after which time they were also granted the right to receive visits from their children. In addition, the Supreme Court instructed the prisons to provide special medical care and diets for pregnant women prisoners, lactating mothers, and children of women prisoners, as well as to set up nurseries and daycare centres outside of the prison grounds.

A mother whose son was slain while in police custody and a woman who was raped by railway police in a train station were both given compensation orders by the Supreme Court for violations of their fundamental rights. The Supreme Court provided specific instructions in Delhi Domestic Worker's Forum regarding how rape cases should be investigated and the victim's access to legal counsel, psychosocial support, and financial compensation. The Supreme Court instructed the police not to summon women to the police station for questioning in Nandini Satpathy's case.

In addition to these concerns, the Supreme Court has ruled that mothers, like dads, are also the guardians of their children. The Court also considered whether various personal laws were constitutional, but declined to consider the petition on the grounds that it was a matter of policy and not one for the courts to determine, including the issue of the Uniform Civil Code. See Flavia Agnes for a more in-depth examination of the efforts taken for gender justice through affirmative action, and see Kalpana Kannabiran for a critical assessment of judicial intervention in cases involving gender discrimination.

Public Interest Litigation

Public Interest Litigation, also known as PIL, is a type of social action litigation that has been one of the main weapons for affirmative action in India. The main rule of litigation is that the party who has suffered a violation of rights must seek redress. The locus standi rule is another name for this. PIL was developed as an exception to this locus standi norm, however, in recognition of the fact that many individuals whose fundamental rights are violated are unable to approach a court, particularly the Supreme Court, in order to seek remedy. In order to ensure that justice is served to those who need it the most, the Court employed this remedy that was developed by the American Supreme Court in the 1950s. Since the 1970s, the Supreme Court has engaged in this form of litigation, which has grown over time and contributed to the growth of fundamental rights. A PIL must either be filed by a public-spirited individual or organisation fighting for the rights of those who cannot approach the court directly because of poverty, disability, or other social or economic impediments and are unable to enforce their rights, or where no one has been legally injured but a public interest. The Court even converted letters written to it into petitions in addition to newspaper reports. PIL is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest. The Supreme Court explained the significance of PIL by holding that "PIL... is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses who constitute the low visibility area of humanity.

Ideas to Consider

  1. PIL is a form of writ filed before the High Court or the Supreme Court and all the rules applicable to writs apply to PIL
  2. If the court comes to a conclusion that the PIL is misused i.e. it is private interest masquerading as public interest or is a frivolous writ it can impose a penalty on the Petitioner and can also direct action to be taken against the Petitioner
  3. The Supreme Court has laid down strict guidelines to entertain PILs and to curb those that it considers extraneous and not genuine
As many of the judgements discussed above are the outcome of PIL, PIL has been utilised to increase the reach of women's rights in India and achieve gender equality. Affirmative action in India has used this as well as legislation as a key tactic. It is a double-edged sword, though, as it allows anybody to approach the court and is rather judge-centric, opening the door for even men to use it to advocate against women's rights, as seen in the recent cases contesting the legality of Section 498A. So, it needs to be handled carefully.

Summary

His blog examines the fundamental rights, which ensure gender equality and give an overview of the system, as well as the constitutional provisions that address gender equality. It then looks at some of the major rulings that have made this constitutional promise a reality before listing some of the laws that have been passed by the Parliament to carry out this promise.

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