Introduction

Indian polity has always tried to cope with the contemporary need-based development of
laws. The judiciary has also attempted to meet the challenges as per the needs, either by
precedents, advisories, directions or suggestions etc. The Supreme Court in one of the
cases observed that ―it is well accepted by thinkers, philosophers and academicians that
if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and
political justice, the golden goals set out by the Preamble of the Constitution, are to be
achieved; the Indian polity has to be educated and educated with excellence.1

This is because the Constitution is not to be construed merely as a law, but as the
machinery by which laws are made. The Constitution is a living and organic thing which,
of all instruments has the greatest claim to be constructed broadly and liberally.

India has pledged itself to gender equality through several Articles of the Constitution.
This assignment aims to discuss some of the important developments in the Indian
Constitution with relation of protection of women.

Constitution and Protection of Women

Article 14 and 16 of the Constitution intend to remove social and economic inequality to
make equal opportunities available. In reality the right to social and economic justice
envisaged in the Preamble and elongated in the Fundamental Rights and Directive
Principles of the Constitution, in particular Articles 14, 15, 16, 21, 38, 39 and 46 are
envisaged to make the equality of the life of the poor, disadvantaged and disabled citizens
of the society, meaningful.

Further the Preamble which is invoked to determine the ambit of both Fundamental
Rights and Directive Principles as observed by the Supreme Court in Various cases
embraces all the new laws after make Constitution.

This reason, the Government organs owe origin to the Constitution and derive their
authority from and discharge their responsibilities within the framework of the
Constitution.

The Supreme Court in some cases held that the social justice enables the courts to
uphold legislations to remove economic inequalities, to remove economic inequalities, to
provide a decent standard of living to the working people and to protect the interests of the

1
The Status of Women: A reality check, www.swayam.info.
weaker sections of the society.
 The democratic socialism aims to end poverty, ignorance, disease, and inequality of
opportunity. This socialistic concept ought to be implemented in the true spirit of the
Constitution. Article 14 is to be understood in the light of directive principles. Articles 14
guarantees equal treatment to persons who are equally situated.

Clause (3) of Articles 15, which permits special provision for women and children,
has been widely resorted to and the courts have upheld the validity of special measures in
legislation or executive orders favouring women. For example, special seating
arrangement for women in buses and trains is not unconstitutional. Similarly, reservation
of some seats for women in college or establishment of educational institution exclusively
for women is not hit by Article 15. Article 15(3) recognizes the fact that the women in
India have been socially and economically handicapped for centuries and, as a result
thereof, they cannot fully purpose participate in the socio- economic activities of the
nation on a footing of equality. The purpose of Article 15(3) is to eliminating this socio-
economic backwards of women and to empower them in such a manner as to bring about
effective equality between men and women. The object of Article 15(3) is to strengthen
and improve the status of women. Article 15(3) thus relieves the state from the bondage
of Article 15(1) and enables it equality to women.

The scope of Article 15(3) is wide enough to cover the entire range of state activity
including that of employment. Article 15(3) is a special provision in the nature of proviso
qualifying the general guarantees contained in Articles 14, 15(1), 15(2), l6(1) and 16(2).

A doubt has been raised whether Article 15(3) saves any provision concerning
women, or saves only such a provisions as in their favour. 66 The better view would appear
to be that while the state can make laws containing special provisions for women and
children, not discriminate against them on the basis of their gender only. This appears
to be the cumulative effect of Articles 15(1) and 15(3). Although there can be no
discrimination in general on the basis of sex, the constitution itself provides for special
provision being made for women and children by virtue of Article 15(3).

66
Mukherji, J., in Mahadeb v. Dr. Sen, AIR 1951 Cal 563. Also, Anjali v. State of West Bengal, AIR 1952
Cal 825; Cf. Bose, J.
 According to Section 497 of Indian Penal Code the offence of adultery can be
committed only by men and not by women and therefore women cannot be prosecuted
even as abettors. This section makes special provision for women and is valid under
Article 15(3).67 Section 497 of Criminal Procedure Code, 1898 (Section 437 of Criminal
Procedure Code, 1973) prohibits release of a person accused of a capital offence on bail
except women, children under age of 16 years or sick or infirm persons. In Choki v. State
of Rajasthan,68 the Court has held it valid on the ground that it makes special provision
for women and therefore, it is protected under Article 15(3). In particular, provisions in the
criminal law, in favour of women, or in the procedural law discriminating in favour of
women have been upheld.

In Walter Alfred Baid, Sister Tutor (Nursing) Irwin Hospital v. Union of India,69 a
rule making male candidates ineligible for the post of Senior Tutor in the School of
Nursing was held to be violative of Article 16(2) and was not saved by Article 15(3). The
Delhi High Court took the view that the matter relating to employment falls under
Article 16 and not under Article 15(3). ―The equality of opportunity in the matter of
employment between the sexes and the corresponding prohibition against discrimination is
absolute in nature and no exception has been carved out of it in Article 16 unlike in Article
15." The Court refused to read Article 15(3) into Article 16 so as to restrict the scope of
the prohibition contained in Article 16(2).

On the other hand, the Punjab & Haryana High Court took a different view in
Shamsher Singh v. State of Punjab.70A rule granting a special allowance to the women
principals working in a wing of the Punjab Educational Services was challenged on the
ground that their male counterparts were not given the same benefit although both
performed identical duties and were part of the same service. The constitutional validity of
the rule was challenged under Article 16(2).

The High Court upheld the impugned rule under Article 15(3), holding that
even though the discrimination was based on the ground of sex, it was save d by Article
15(3). The court ruled that Article 15(3) could be invoked for

67
Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.
68
AIR 1957 Raj. 10.
69
AIR 1976 Del 302.
70
AIR 1970 P & H 372.
construing and determining the scope of Article 16(2). According to the court Article
15(3) extends to the entire field of state activity, including the field of public employment
which has been specifically dealt with in Article 16. The Court stated that if a particular
provision squarely falls within the ambit of Article 15(3), it cannot be struck down merely
because it may also amount to discrimination solely on the basis of sex. ―Article 14, 15
and 16, being the constituents of a single code of constitutional guarantees,
supplementing each other, clause (3) of Article 15 can be invoked for construing and
determining the scope of Article 16(2).‖ The Court however ruled that ―only such special
provisions in favour of women can be made under Article 15(3), which are reasonable
and do not altogether obliterate or render illusory the constitutional guarantee enshrined in
Article 16(2).‖

The most significant pronouncement on Article 15(3) is the Supreme Court case
Government of Andhra Pradesh v. P. B. Vijay Kumar,71 The Supreme Court has ruled in the
instant case that under Article 15(3), the State may fix a quota for appointment of women
in government services. Also, a rule saying that all other things being equal, preference
would be given to women to the extent of 30% of the posts was held valid with reference
to Article 15(3). It was argued that reservation of posts or appointments for any backward
class is permissible under Article 16(2) but not for women and so no reservation can be
made in favour of women as it would amount to discrimination on the ground of sex in
public employment which would be violative of Article 16(2). Rejecting this argument, the
Supreme Court has ruled that posts can be reserved for women under Article 15(3) as it is
much wider in scope and covers all state activities. While Article 15(1) prohibits the State
from making any discrimination inter alia on the ground of sex alone, by virtue of Art.
15(3), the State may make special provisions for women. Thus, Article 15(3) clearly carves
out a permissible departure from the rigours of Article 15(1).

The Court has emphasized that an important limb of the concept of gender equality
is creating job opportunities for women. Making special provisions for women in respect
of employment or posts under the state is an integral part of Article 15(3). ―To say that
under Article 15(3), job opportunities for women cannot be created would be to cut at
the very root of the underlying inspiration behind this

71
AIR 1995 SC 1648.
Article. Making special provisions for women in respect of employment or posts under the
state is an integral part of Article 15(3). This power conferred by Article 15(3) is not
whittled down in any manner by Article 16.

What does the expression ―special provision‖ for women mean? The ―special
provision‖ which the state may make to improve women‘s participation in all activities
under the supervision and control of the state can be in the form of either affirmative
action or reservation. Thus, Article 15(3) includes the power to make reservations for
women. Talking about the provision giving preference to women, the Court has said that
this provision does not make any reservation for women. It amounts to affirmative action.
It operates at the initial stage of appointment and when men and women candidates are
equally meritorious. Under Article 15(3), both reservation and affirmative action are
permissible in connection with employment or posts under the state. Article 15 is
designed to create an egalitarian society. The Supreme Court has explained the relationship
between Articles 15 and 16 as followings Article 15 deals with every kind of state action
in relation to Indian citizens. Every sphere of state activity is controlled by Article 15(1)
and, therefore, there is no reason to exclude from the ambit of Article 15(1) employment
under the state. Article 15(3) permits special provisions for women. Articles 15(1) and
15(3) go together. In addition to Article l5(1), Article 16(1) places certain additional
prohibitions in respect of a specific area of state activity, viz., employment under the
state. These are in addition to the grounds of prohibition enumerated under Article 15(1)
which are also included under Article 16(2). The Court has observed:

―Therefore, in dealing with employment under the state, it has to bear in mind l both
Articles 15 and 16 the former being a more general provision and the latter, a more specific
provision. Since Article 16 does not touch upon any special provision for women being made
by the state, it cannot in any manner derogate from the power conferred upon the state in
this connection under Article 15(3). This power conferred by Article 15(3) is wide enough to
cover the entire range of state activity including employment under the state.‖

It may be noted that Article 16(2) is more limited in scope than Art. 15(1) as it is
confined to employment or office under the state. The prohibited grounds of discrimination
under Article 16(2) are somewhat wider than those under Article 15(2)
because Article 16(2) prohibits discrimination on the additional grounds of descent and
residence apart from religion, caste, sex and place of birth.

The Constitution provides equal opportunities for women implicitly as they are
applicable to all persons irrespective of sex. However, the Courts realize that these Articles
reflect only de jure equality to women. They have not been able e Aerate de facto equality to
the extent the Constitution intended. Reflecting this in Dimple Singla v. Union of India72
the Delhi High Court expressed its apprehension that unless attitudes change, elimination
of discrimination against women cannot be achieved. There is still a considerable gap
between constitutional rights and their application in the day-to-day lives of most women.
At the same time it is true that women are working in jobs which were hitherto
exclusively masculine domains. But there are still instances which exhibit lack of
confidence in their capability and efficiency. There remains a long and lingering suspicion
regarding their capacities to meet the challenges of the job assigned. Such doubts affect of
the working women.

In C. B. Muthamma v. Union of India,73 a provision of Service Rule regarding a

female employee, was required to obtain the permission of' the Government before the
solemnization of her marriage. Government denied her right of promotion on the ground
that she was married woman. In this case the provision of' service rule declared to be
discriminatory against woman. In this case the petitioner was denied promotion to grade I
of Indian Foreign Service only on this round. However the Court made it clear that it
does not mean that the men slid women are equal in occupations and in all situations and
do not exclude the need of pragmatise where the requirements of particular employment,
the sensitives of sex or the peculiarities of social sector of the handicaps of either sex
may compel selectivity. But save where the differentiation is demonstrable, the rule of
equality must govern.

In Air India v. Nargesh Mirza,74 the petitioner challenged the validity of service
rule under which they could retire at the age 35 years or on the first pregnancy.

72
(2002) 2 AISLJ 161
73
AIR 1979 SC 1868
74
AIR 1981 SC 1829.
The court held that the provision of the service rules is discriminatory and violative
of Articles 14, 15 and 16 of the Constitution.

Article 21 spells that no person shall be deprived of his life or personal liberty
except according to procedure established by law. This Article if read literally is a
colorless Article and would be satisfy, at the moment, it is established by the State that
there is a law which provides a procedure which has been followed by the impugned
action. But the expression ―procedure established by law‖ in Article has been
judicially constructed as meaning a procedure which is reasonable, fair and just.

The right to life and the right to personal liberty in India have been guaranteed by a
constitutional provision, which has received the widest possible interpretation. Under the
canopy of Article 21 of the Constitution, so many rights have found shelter, growth and
nourishment. An intelligent citizen would like to be aware of the development in this
regard as they have evolved from precedents of courts.

This Article provides that no person shall be deprived of life or personal liberty,
except according to procedure established by law. This Article, hence gives a positive
effect by judicial interpretation. This right is a fundamental right, enforceable against the
State, and Judicial decisions have imposed, on the State, several positive obligation.

A question arises while going through the constitutional provisions that why a
constitutional provision arises on various subjects. Is the ordinary law not enough? To the
answer it is true that Indian Penal Code contains adequate provision to punish a person
who takes away or attempts to take away the life of another. But, the impact of
constitutional provisions to take away the life of another. But the impact of constitutional
provision lies in this respect, that by being elevated to the pedestal of a fundamental right,
the right is placed beyond the reach of ordinary legislation inspired by political motives.
Hence it can be said that the enumerative rights can derive from Article 21.
 Right to live with Dignify

Gender equality becomes elusive in the absence of right to live with dignity. In
Neera Mathur v. LIC75, the court recognized that privacy was an important aspect of
personal liberty. In this case, the Supreme Court was shocked to learn that an LIC
questionnaire sought information as about the
dates of menstrual periods and past pregnancies, and the petitioner was terminated for not
providing correct information to the LIC. The Supreme Court held that the questionnaire
amounted of providing correct to invasion of privacy and that; therefore, such
probes could not be made. The right to personal liberty guaranteed under Article 21
included the right to privacy. Information about health could be sought where such
information was relevant it was relevant for selling insurance cover but not for the
person seeking employment.

In Gautam Kundu v. State of West Bengal,76 the Apex Court ensured that an
application for a blood test to disprove paternity of a child in a maintenance suit was
rejected. It was held that a child born of a married woman is deemed to be legitimate
unless the contrary is proved. Such a presumption could be re butted by a strong
preponderance of evidence and not a mere balance of probabilities. The court laid down
the following principles:

(a) that courts in India cannot order a blood test as a matter of course;

(b) An application for subjecting a child to a blood test, made in order to have a roving
inquiry, cannot be entertained;

(c) There must be a prima facie case for suspecting the fatherhood of a child which can be
established by proving non-access;

( d ) The court must carefully examine as to what would be the consequences of

ordering a blood test; whether it would have the effect of branding a child as a bastard
and its mother as an unchaste woman.

75
(1992) 1 SCC 286.
76
(1993) 3SCC 418.
 The Court observed that such a demand for subjecting the child to a blood test
was contrary to the right to personal liberty guaranteed by Article 21 of the
Constitution and said:

―Permitting blood tests to prove or disprove paternity unless there is a strong

case and access was ruled out would be slanderous, embarrassing and humiliating for the
woman.‖

Sexual Harassment
The Supreme Court has made a novel use of Article 21 viz., to ensure that the
female workers are not harassed by their male co-workers at their places of work.
In Vishaka v. State of Rajasthan,77 the Supreme Court has declared sexual
harassment of a working woman at her place of work as amounting to violation of rights
of gender equality and right to life and liberty which is a clear violation of Articles 14,
15 and 21 of the Constitution.
Article 21 guarantees right to life with dignity. Accordingly, the Court has
observed in this connection:
―The meaning and content of the fundamental rights guaranteed in the Constitution
of India are of sufficient amplitude to encompass all the facets of gender equality including
prevention of sexual harassment or abuse.‖
Sexual harassment also violates the victim's fundamental right under Article 19(1)
(g) ―to practice any profession or to carry out any occupation, trade or business‖.
Thus, Article 32 is attracted.
Further, the Court has accepted the proposition that the international conventions
and norms are to be read into the fundamental rights when there is no inconsistency
between them, and there is a void in the domestic law. According to the Court: ―It is
now an accepted rule of judicial construction that regard must be had to international
conventions and norms for con struing domestic law when there is no inconsistency
between them and there is a void in the domestic law.‖78

77
AIR 1997 SC 3011 : (1997) 6 SCC 241.
78
LIC of India v. Consumer Education & Research Centre, AIR 1995 SC 1811, 1818.
 In the absence of any domestic law relating to sexual harassment in India, the
Supreme Court has itself laid down under Article 32 some directions for prevention of
such harassment. These directions are binding and enforceable and are required to be
strictly observed in all work places until suitable legislation is enacted to occupy the
field.79
The Visakha ruling has been reiterated by the Supreme Court in
Chopra80 where the Court has observed:
―There is no gainsaying that each incident of sexual harassment, at the place of
work, results in violation of the fundamental right to gender equality and the Right to life
and liberty the two most precious Fundamental Rights guaranteed by the Constitution of
India. In our opinion, the contents of the fundamental rights guaranteed in our constitution
are of sufficient amplitude to encompass all facets of gender equality, including prevention of
sexual harassment and abuse and the courts are under a constitutional obligation to protect
and preserve those fundamental rights. That sexual harassment of a female at the place of work
is incompatible with the dignity and honour of a female and needs to be eliminated....‖
The directions issued by the Court place certain obligations on the employers or
other responsible persons in work places and other institutions
―whether in the public or private sector.‖ These persons are required to take
appropriate steps to prevent sexual harassment. This means that in the area of sexual
harassment, the Court has used Articles 14, 15, 19(1)(g), 21 and 32 of the Constitution
not only against the government and its instrumentalities but even against private
parties and private employers. This portends that, in course of time, the coverage of
certain Fundamental Rights may be expanded by the Supreme Court so as to bring
within their scope even private parties and non- government organizations.

Rape
Rape has been held to be a violation of a person's Fundamental Right
guaranteed under Article 21. ―Right to Life‖ means ―the Right to live with human
dignity‖. ―Right to Life‖ would therefore, include all those aspects of life which go
to make a life meaningful, complete worth living.‖
79
AIR 1997 SC at 3017
80
Apparel Export Promotion Council v. A. K. Chopra, AIR 1999 SC 625 : (1999) 1 SCC 759.
 Rape is a crime against basic human rights and is also violative of the victim‘s
most cherished of the Fundamental Rights, namely, the Right to life contained in Article
21.
In Bodhisattwa Gautam v. Subhra Chakraborty,81 the complainant, a student, was
induced by the accused, a teacher, on false assurance of marriage to cohabit with
him. He not only made false assurance of marriage but also fraudulently went through
marriage ceremonies. When she became pregnant the accused made her undergo an
abortion. When she asked him to maintain her, he disowned her on the ground that there
was no marriage. He was prosecuted under various sections of the IPC. The Supreme
Court refusing to quash the prosecution ruled that rape was not only an offence under
the Penal Code but was also a violation of a woman‘s right to live with dignity and
personal freedom.

―…. It is a crime against basic human right and it is also violative of

victim‘s most cherished of Fundamental Rights, namely, the right to life contained in
Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an
act of aggression aimed at degrading and humiliating women.‖

In State of Maharashtra v. Madhukar N. Mardikar, 82 the Supreme Court said with

reference to rape, that unchastity of a woman does not make her
―open to any and every person to violate her person as and when he wis hes‖.
Even a prostitute has a right to privacy under Article 21 and no person can rape her just
because she is n woman of easy virtue.

Another dynamic judgment with reference to Article 21 is Chairman; Railway

Board v. Chandrima Das,83 The Court in this case observed that the word
`life' as used in the Universal Declaration must get the same meaning as in Article 21.
Its meaning cannot be narrowed down. Here relief was provided to a Bangladeshi
woman who was raped. The term life in the International Conventions relating to
Human Rights and Article 21 were interpreted to mean life worth living, meaningful
and dignified.

81
(1996) 1 SCC 490.
82
(1991) 1 SCC 57.
83
(2000) 2 SCC 465: AIR 2000 SC 988.
Care Homes

In Vikram Deo Singh Tomar v. State of Bihar,84 the Supreme Court has taken note of
the pitiable conditions prevailing in care homes maintained by the State of Bihar for
women and children and has directed the State to improve matters in these homes and
provide at least the minimum living conditions ensuring human dignity.

The Court has emphasized that India is a welfare state and the Indian Constitution
lays special emphasis on the protection and well being of the weaker sections of the
society including women and children. Article 21 envisages a quality of life consistent
with his human personality. The right to live with human dignity is the fundamental right
of every Indian citizen.‖

In Upendra Baxi v. State of Uttar Pradesh,85 the Supreme Court gave directions to
the State Government seeking improvement of the living conditions in the government
protective home at Agra.

Article 39 (a) among other things provides that the State shall in particular; direct
its policy towards securing that all citizens, men and women equally have the right to an
adequate means of livelihood. This Article has been described as having the object of
securing a welfare state may be utilized for construing provisions as to fundamental rights.

According to Article 39(d), the state has to ensure that there is equal pay for equal
work for both men and women.

Parliament has enacted the Equal Remuneration Act, 1976, to implement Article
39(d). The Act provides for payment of equal remuneration to men and women
workers for the same work, or work of a similar nature and for the prevention of
discrimination on grounds of sex. The Act also ensures that there will be no
discrimination against recruitment of women and provides for the setting up of
advisory committees to promote employment opportunities for

86
AIR 1990 SC 1412 : (1990) 3 SCC 318.
87
AIR 1997 SC 3021 : (1997) 8 SCC 114.
women. Provision is also made for appointment of officers for h earing and deciding
complaints regarding contravention of the provisions of the Act. Inspectors are to be
appointed for the purpose of investigating whether the provisions of the Act are being
complied by the employers. Non-observance nee of the Act by government contractors
has been held to raise ques tions under Article 14.88

Besides the principle of gender equality in the matter specifically embodied in

Article 39(d), the Supreme Court has extracted the general principle of equal pay for
equal work by reading Articles 14, 16 and 39(d). The Supreme Court has emphasized in
Randhir Singh,89 referring to Article 39(d), that the principle of ―equal pay for equal
work‖ is not an abstract doctrine but one of substance. Though the principle is not
expressly declared by the Constitution to be a Fundamental Right yet it may be
deduced by construing Articles 14 and 16 in the light of Article 39(d). The word
‗socialist‘ in the Preamble must at least mean ―equal pay for equal work‖. The
Supreme Court has observed in Grih Kalyan Kendra v. Union of India:90

―Equal pay for equal work is not expressly declared by the Constitution as a
Fundamental Right but in view of the Directive Principles of State Policy as contained in
Article 39(d) of the Constitution ―equal pay for equal work‖ has assumed the status of
Fundamental Right in service jurisprudence having regard to the constitutional mandate of
equality in Articles 14 and 16 of the Constitution.‖

In Uttarakhand Mahila Kalyan Parishad v. State of U. P.91 it was held that female
teachers are entitled to the same salary as is paid to the male teachers of the same institution.

Article 42 requires the state to make provision for securing just and humane
conditions of ark and for maternity relief.

Article 42 provides the basis of the large body of labour law that obtains in India.
Referring to Articles 42 and 43, the Supreme Court has emphasized that the

88
People‘s Union jnr Democratic Rights v. Union of India, AIR 1982 SC 1473.
89
Randhir Singh v. Union of India, AIR 1982 SC 879.
90
AIR 1991 SC 1173, 1176: (1991) 1 SCC 619.
91
AIR 1992 SC 1965
Constitution expresses a deep concern for the welfare of the workers. The courts may not
enforce Directive Principles as such, but they must interpret laws so as to further and not
hinder the goals set out in the Directive Principles.92

In D.B.M. Patnaik v. State of Andhra Pradesh,93 the Supreme Court has suggested
that Article 42 may ‗benevolently‘ be extended to living conditions in jails. The barbarous
and subtle forms of punishment, to which convicts and under trials are subjected to, offend
against the letter and spirit of our Constitution.

The Delhi Municipal Corporation granted maternity leave to regular female workers
but denied the same to female workers on muster roll on the ground that their service not
having been regularized; they were not entitled to any such leave. Invoking Article 42, and
the concept of social justice, the Supreme Court has conceded the demand of these female
workers for maternity leave. The Court has emphasized that a just social order can be
achieved only when inequalities are obliterated and everyone is provided what is legally
due.94

In conclusion, the Constitution of India is a basic document which provides for

women empowerment within the framework of the plenary provision of Articles 14, 15
(3), 21, 39 (a), 51A (e) and Preamble. The courts always try to interpret the cases

92
U.P.S.E. Board v. Hari Shankar, AIR 1979 SC 65 : (1978) 4 SCC 16
93
AIR 1974 SC 2092: (1975) 3 SCC 185.
94
Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274: (2000) 3 SCC 224
which are detriment to women within the area of social justice with these Articles. A
woman can go to the court if one is subjected to any discrimination.