CHAPTER 3

HUMAN RIGHTS AND WOMEN‘ S LEGAL & CONSTITUTIONAL RIGHTS

IN INDIA

All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.

Global Issues, 1998

Human Rights are essentially an integral part for the existence of human life. Since
the possession of these rights distinguishes human beings from other living beings.
Their protection and promotion have always been a major concern for mankind.
Rights which are essential for the dignified human existence, i.e. the right to have
basic needs like food, clothing, shelter and medical care and rights which are essential
for the adequate development of human personality such as the right to education, the
right to freedom of culture, the right to freedom of speech and expression and the
right to free movement etc. all come under the domain of human rights. Universal
Declaration of Human Rights is one of the most monumental events in the history of
human rights which signifies that these fundamental rights are the root of the human
nature and are essence of our humanity. But so far as woman‘s right is concerned, the
question arises where and when were women‘s right begin? What is the importance of
women‘s right for the development of women? No doubt, since the advent of
civilization, women have been projected as dependent on men though she has been
the main contributor to the family income. Her household keeping, nursing and
nurturing the family bonds apart from catering to the family needs through her
domestic and other labour has been trivialized by man to maintain and strengthen the
status quo. This has been so constructed that woman has till this day failed to fight
back this masculine orientation of faminity with dexterity. The recognition of her
claim as a sharer in property has come by way of charity rather than her entitlements.
This has been the condition of the women in general irrespective of caste and religion
where the latter took a favourable view of the conditions of women. It was so
interpreted that except applause and blessings a women received nothing. This has
been true of all the faiths and religions. Above all, women‘s contribution in the
development and progress of the country can‘t be denied. Keeping this fact in mind,

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several efforts are being taken to promote and protect the right of women and it has
been recognized that women are equally entitled to all rights as men. In this regard,
one of the most important milestones in advancing human rights was the world
conference on Human Rights held in Vienna (Austria) in June 1993. The Vienna
Conference focused on women‘s right and their integral place in human rights in
general. It helped in making the groundwork for historic Fourth World Conference on
women in Beijing in 1995.

We know that there may exist vast cultural differences in our world, but there is
common truth that when a woman dies, becomes disabled, is abused or goes hungry;
it can profoundly affect each of her children, her family, a whole neighborhood and an
entire community. As early as the 18th and 19th centuries, thinkers like Mary
Wollstone Craft and J.S. Mill argued forcefully that women had the potential for full
rationality and consequently were as capable as men of complete moral responsibility.
Women could not realize their potential as they were deprived of education and
confined to the domestic spheres. Women, since ages, have been provided very little
opportunity to develop their minds. August Bebel, in his text on women under
socialism (1879) said that ‗woman was the first human being that tasted bondage,
woman was a slave before the slave existed.‘ He felt that physical inferiority and
economic dependence were the root cause of women‘s oppression. From the very
beginning, it is observed that women are consistently degrades whatever culture they
belong to. The injustices of legal system treat women as less inheritance than male. In
India, a vast majority of girl children are kept away from school because of the task of
the family and taking care of the siblings at home. It can be easily said that women‘s
right are human rights but Hillary Clinton, the first lady of USA said, “Rights on
paper that are not protected and implemented are not really rights at all.”173

Human Rights: Conceptual Analysis

Human right is not a new issue. It has its roots since time immemorial. The roots for
the protection of the human rights may be traced as far as back as in the Babilonian
laws, Assyrian laws and in the Dharam of the vedic period in India. Writings of Plato
and other Greek and Roman philosophers also depict for the protection of human
rights though they had a religious foundation. The city state of Greece have equal
173
Supra note 154 at 15-16.

100
freedom of speech, equality before law, right to vote, right to be elected to public
office, right to trade and right of access to justice to their citizens. Similarly, rights
were secured to the Roman by the jus civil of Roman law.174

Human Rights are not merely ideals or aspirations nor are they some rights granted to
the human being by the existence of particular set of laws. They are claimed made by
virtue of the fact that they are human beings with an inalienable right to human
dignity. All individuals and all people have the right to self-directed development.
The basis of human rights is ―Dharma‖ which is vitally connected with humanity.
Dharma is one word which defines and covers the totality of human experience and
existence. Dharma derived from the root, Dhr meaning to uphold, to support, to
nourish, to integrate etc., is the sum total of essential values and ideas on which the
political, economic, cultural and religious expression of life are based. Dharma has
another dimension which relates to the individual persons who contribute society.175

Human rights may be defined as the rights and freedoms that every person on the
earth are entitled to enjoy i.e. right to social security, right to equality, right to life,
liberty and security of persons etc., without distinction of any kind such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or status.176

Human Rights are essentially rights of an individual and are rights which every
human being must have against the State or other public authority by virtue of his
being a human, irrespective of any other consideration. They are based on mankind
demand for a life in which the inherent dignity of a human being will receive respect
and protection. Bennett says, ―Human Rights include those areas of individual or
group freedom that are immune from governmental interference or that because of
their basic contribution to human dignity or welfare are subject to governmental
guarantee, protections or promotion.‖177

174
Atula Gaur, Protection and Implementation of International Human Rights in Domestic Law, 2
(Serials Publications, New Delhi, 2010).
175
Supra note 7 at 376-378.
176
Supra note 27 at 4.
177
Id. at 2.

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Human beings are rational beings. They, by virtue of their being human, possess
certain basic and inalienable rights which are commonly known as human rights.
Since these rights belong to them because of their existence, they become operative
with their birth. Human rights, being the birth rights are therefore inherent in all
individual irrespective of their caste, creed, religion, sex and nationality. These rights
are essential for all the individuals as they are consonant with their freedom and
dignity and are conducive to physical, moral, social and spiritual welfare. They are
also necessary as they provide suitable conditions for the material and moral uplift of
the people. Because of their immense significance to human beings, human rights are
also sometimes referred to as fundamental rights, basic rights, inherent rights, natural
rights and birth rights. Human right is a generic term and it embraces civil rights, civil
liberties and social, economic and cultural rights. However, it can be said that the
rights that all people have by virtue of being human are human rights. These are the
rights which no one can be deprived without a grave affront to justice. Prof Louis
Henkin explained ‗Human Rights‘ as…….claims which every individual has or
should have upon the society in which he or she lives.

The Human Rights resemble to natural rights because they have not been created by
any legislative enactment. A civilized society or nation is bound to recognize these
inalienable rights. The legal obligation to protect them includes the legal obligation to
respect them. Members of the United Nations have committed themselves to promote
respect for and observance of human rights and fundamental freedoms178.

Human dignity is the essence of human rights. All those rights which are essential for
the protection and maintenance of dignity of individuals and create conditions in
which every human being can develop his personality to the fullest extent may be
termed as human rights. In 1993, a world conference on Human Rights was held, it
was stated in its declaration that all human rights derive from the dignity and worth
inherent in the human person and that the human person is at the centre of human
rights and fundamental freedoms.179

Gavison is of the view that human rights are rights that belong to every person and do
not depend on the specifics of the individual or the relationship between the right

178
Supra note 174 at 3.
179
Id at 3-4.

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holder and the right grantor. Moreover, human rights exist irrespective of the question
whether they are granted or recognized by the legal and social system within which
they alive. They are devices to evaluate these existing arrangements: ideally, these
arrangements should not violate human rights. In other words, human rights are
moral, pre-legal rights. They are not granted by people nor can they be taken away by
them. They can only be respected or violated by them.180

According to David Sebby, human rights pertain to all persons and are possessed by
everybody in the world because they are human being, they are nor earned, bought or
inherited nor are they created by any contractual undertaking. Similarly, Davison
presents a very precise definition by saying, ―The concept of human rights is closely
connected with the protection of individuals from the exercise of state, government or
authority in certain areas of their lives, it is also directed towards the creation of
societal conditions by the state in which individuals are to develop their fullest
potential.181

In India also, the Parliament has also enacted the Protection of Human Rights Act,
1993 which defines human rights as ―the rights relating to life, liberty, equality and
dignity of the individual guaranteed by the constitution or embodied in the
International Covenants and enforced by courts in India‖182

Human Rights are said to be those fundamental rights which every man or woman
inhabiting any part of the world should be entitled to by virtue of having been born as
human being. Basic to human rights is the concept of nondiscrimination and equality
of treatment. The challenge to inequality is inherent in the very notion of human
rights. The United Nations also since its inception is working on the direction of
achieving this concept.183

Thus, human rights are all those rights which are inherent in nature and without which
life cannot be imagined. Human rights being the eternal part of the nature of human
beings are essential for individuals to develop their personality, their human qualities,

180
Supra note 174 at 3-4.
181
Id at 6.
182
The Protection of Human Right Act, 1993, s. 2 (d)
183
Lina Gonslaves, Women and Human Rights, 20 (A.P.H. Publishing Corporation, New Delhi, 2008).

103
their intelligence, talent and conscience and to enable them to satisfy their spiritual
and other higher needs.

Women and Human Rights:

All talk of women‟s right is moonshine. Women have every right. They have only to
exercise them.

Victorial Woodhull, an American Leader

Women are the integral part of the society. The progress of the society depends upon
the position and status of women of that society. All societies must strive to do
everything possible to integrate women in all walks of life in an equitable and just
manner. Any genuine concern about overall human rights question can‘t be complete
if women are not given due coverage and response. Women need to be considered the
pivot not only of domestic life but also of entire society. However, the fact remains
that the denial of rights to women has been often defended by various cultures and
religious. As a result, almost all sections of contemporary societies suffer from
varying degrees of violations of human rights of women. Today, all women share a
common degradation, indignity, oppression, violence and discrimination in every
society. Also, the fact that this discrimination on the basis of gender is so deeply
rooted in the history of humanity that often it is not even perceived as discrimination.
On top of it, with the increasing criminalization in society, varied media images of
such incidents, inadequate means to address the causation and implications of such
violence, poor enforcement of existing legal provisions, globalization resulting from
unabashed consumerism and erosion of traditional moral values have all added to the
problems of violation of human rights of women. However, in the past few decades
there has been a growing awareness of this disturbing phenomenon and its long term
impact on the empowerment, employment and development of women.

The fact can‘t be denied that women are human beings like men and women‘s rights
are human rights and feminism can‘t be delinked from human rights. Human Right of
women has been defined as:

―Collective rights for women is to be seen and accepted as a person with the capacity
to decide or act on her own behalf and to have equal access to resources and equitable

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social, economic and political support to develop her full potential, exercise her right
as a full human being and to support the development of others.‖184

The United Nations, since its recognization, is highly concerned with the plight of the
women and tried to recognize them at par with men. It also had taken several steps to
facilitate them all kind of welfare programmes and policies. For furtherance this, the
United Nations, apart from the charter provisions, have framed more than fifty
instruments for protection of the human rights of women. All these instruments are
significant in themselves as they not only accept the prevalence of discrimination
against women but are a pointer to the fact that the world community is gearing up to
tackle it and eliminate discrimination in all forms. Among all, the two basic human
rights instruments i.e. the United Nations charter and the Universal Declaration of
Human Rights, are the most important which ensure equality in variety of ways.

United Nation Charter:

The Preamble of the United Nations Charter (1945) begins with by referring a ―faith
in fundamental human rights, in the dignity and worth of the human persons, in the
equal rights of men and women and of nations large and small. The United Nations
Charter states that the United Nations aspires to ―achieve international
cooperation….in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or
religion. 185 Article 8 states, ―The United Nations shall place no restriction on the
eligibility of men and women to participate in any capacity and under conditions of
equality in its principal and subsidiary organs.‖ Further, Article 13 of U.N. Charter
empowers the General Assembly to initiate studies and make recommendations to
foster the realization of human rights and fundamental freedoms.186

In Article 56, all members pledge themselves to take joint and separate action in
cooperation with the organization for the achievement of the purposes set forth in
Article 55. Among the powers of the General Assembly are initiating studies and
making ‗recommendation for the purpose of…assisting in all realization of human

184
Supra note 7 at 386.
185
The United Nations Charter, 1945, art. 1(3)
186
S.R. Myneni, Women & Law, 5 (Asian Law House, Hyderabad, 2008 (reprint 2010)).

105
rights and fundamental freedoms for all without distinction as to race, sex, language
or religion. The United Nations shall ―promote…..universal respect for and
observance of human rights and fundamental freedoms for all without distinction‖ on
account of sex or other reasons. 187 Similarly, the Economic and Social Council is
empowered to make recommendations for ―promoting respect and observance of
human rights and fundamental freedom for all.‖188 In the sphere of women‘s right,
ECOSOC, in 1946, established a Commission on the status which prepares reports
and make recommendations to the ECOSOC to promote the rights of women. 189
Furthermore, the basic objectives of the International Trusteeship system include
assuring ―equal treatment in social, economic, and commercial matters for all
Members of the United Nations and their nationals and also equal treatment for the
latter in the administration of justice…‖190

Universal Declaration of Human Rights:

The Universal Declaration of Human Rights is the first and overreaching United
Nations document on human rights which makes explicit reference to equality for
women not only in its preamble but also in several Articles. The General Assembly of
the U.N.O. adopted the Universal Declaration of Human Rights, Vide Resolution No
217-A (III) GADR at its third session on December 10, 1948. The Declaration has 30
Articles. Articles 2 to 21 have referred to Civil and Political rights and Articles 22 to
27 deals with different Social and Economic rights.

The Declaration states that ―everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or status. 191 No discrimination shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person
belongs.

187
The UN Charter, 1945, art. 55.
188
The UN Charter, 1945, art. 62(2).
189
Supra note 7 at 406.
190
Id. at 382-383.
191
The Universal Declaration Of Human Rights, 1948, art. 2.

106
Under Article 16 of the declaration, men and women of full age without any
limitation due to race, nationality or religion have the right to marry and to form a
family. They are entitled to equal rights as to marriage, during marriage and its
dissolution. Marriage shall be entered into only with the free and full consent of the
intending spouses. The family is the natural and fundamental group unit of society
and is entitled to protection by society and the state.192

All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.193

As per Article 3 of the Declaration, everyone has the right to life, liberty and the
security of person. Article 7 of the Declaration states that all are equal before the law
and are entitled without any discrimination to equal protection of law.

According to the Declaration of Human Rights, women along with men are entitled
for the following civil and political rights as the terms ‗no one‘ and ‗everyone‘
consists both men and women.194

Civil and Political Rights:

1. No one shall be held in slavery or servitude.195

2. No one shall be subjected to torture or cruelty, inhuman or degrading
treatment or punishment.196
3. Everyone has the right of recognition everywhere as a person before the
law.197
4. Everyone has the right to an effective remedy by the competent national
tribunal for acts violating the fundamental rights of constitution.198
5. No one shall be subjected to arbitrary arrest, detention or exile.199

192
Supra note 27 at 5.
193
The UDHR, 1948, art. 1.
194
Supra note 186 at 6.
195
The UDHR, 1948, art. 4.
196
The UDHR, 1948, art. 5.
197
The UDHR, 1948, art. 6.
198
The UDHR, 1948, art. 8.
199
The UDHR, 1948, art. 9.

107
6. Everyone charged with a penal offence has the right to be presumed to be
innocent until proved according to law in a public trial.200
7. Everyone is entitled in full equality to a fair and public hearing by an
independent tribunal.201
8. No one shall be subject to arbitrary interference neither with his /her privacy
family, home or correspondence nor to attacks upon his /her honour and
reputation.202
9. Everyone has the right to freedom of movement and residence within the
borders of each State.203
10. Everyone has the right to seek and to enjoy on other countries asylum from
persecution.204
11. Everyone has the right to a nationality.205
12. Everyone has the right to own property alone as well as in association with
others. No one shall be arbitrarily deprived of his property.206
13. Everyone has the right to freedom of thought, conscience and religion.207
14. Everyone has the right to freedom of opinion and expression.208
15. Everyone has the right to freedom of peaceful assembly and association.209
16. Everyone has the right to take part in the government of his country.210

Social and Economical Rights:

In addition to these civil and political rights, every person has the following social and
political rights:

1. Everyone has the right to social security.211

200
The UDHR, 1948, art. 11.
201
The UDHR, 1948, art. 10.
202
The UDHR, 1948, art. 12.
203
The UDHR, 1948, art. 13.
204
The UDHR, 1948, art. 14.
205
The UDHR, 1948, art. 15.
206
The UDHR, 1948, art. 17.
207
The UDHR, 1948, art. 18.
208
The UDHR, 1948, art. s19.
209
The UDHR, 1948, art. 20.
210
The UDHR, 1948, art. 21.

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2. Everyone has the right to work, to free choices of employment, to just and
favourable conditions of work and to protect against unemployment.
Everyone, without any discrimination has the right to equal pay for equal
work.212
3. Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holiday with pay.213
4. Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family.214
5. Everyone has the right to education.215
6. Everyone has the right to freely participate in the cultural life of the
community.216

As the declaration states everyone has the above Human Rights i.e. woman along with
men are entitled of all the Human Rights. For the furtherance of this, the United
Nations adopted Conventions on the Elimination of Discrimination against Women in
1967 and 1979.217

The United Nations Convention on the Elimination of Discrimination against

Women 1967:

The General Assembly of the United Nations adopted the convention on the 7th
November, 1967. Article 10 of this convention directs that all appropriate measures
shall be taken to ensure to women, married or unmarried, equal rights with men in the
field of economic and social life and in particular-

a) The right without discrimination on the grounds of material status or any other
grounds to receive vocational training to work, to free choice of professional
and employment advancement.

211
The UDHR, 1948, art. 22.
212
The UDHR, 1948, art. 23.
213
The UDHR, 1948, art. 24.
214
The UDHR, 1948, art. 25.
215
The UDHR, 1948, art. 26.
216
The UDHR, 1948, art. 27.
217
Supra note 186 at 7.

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b) The right to equal remuneration with men and to equality of treatment in
respect of work of equal value.
c) The right to leave with pay, retirement, privileges and provisions for security
in respect of unemployment, sickness, old age or other incapacity to work.
d) The right to receive family allowance on equal terms, with men.

In order to prevent discrimination against women on account of marriage or maternity

and to ensure their effective right to work, measures shall be taken to prevent their
dismissal in the event of marriage or maternity and to provide paid maternity leave to
have with guarantee of returning to former employment and to provide the necessary
social service including childcare facilities. However, measures taken to protect
women in certain types of work for reasons inherent in their physical nature shall not
be regarded as discriminatory.218

The other Conventions of special importance to women are the Convention on the
Political Rights of Women, 1952 and the Convention on the nationality of Married
women, 1957 adopted by the United Nation General Assembly. 219 The 1986
Declaration on the Right to development also specifies that the state shall cooperate in
the realization of human rights and fundamental freedoms ―for all without any
distinction as to race, sex, language or religion.220 States are further required to take
effective measures ―to ensure that women have an active role in the development
process.‖221 Appropriate economic and social reforms should be carried by the States
in order to eradicate all social injustices. States should also encourage ―popular
participation in all spheres as an important factor in the development and in the full
realization of all human rights.‖However, it is the United Nations Convention on the
Elimination of all forms of Discrimination against Women 1979 which is the most
comprehensive instrument on the human rights of the women and contains more
concrete provisions aimed at the real implementation of the rights already recognized.
India has ratified the Convention on 9th July 1993. The Convention has the twin

218
Supra note 27 at 6-7.
219
Supra note 7 at 406-407.
220
The Declaration on the Right to Development, 1986, art. 6 (1).
221
The Declaration on the Right to Development, 1986, art. 8.

110
objectives: to prohibit discrimination and to ensure equality (Articles 2-4). The states
are enjoined to achieve these objectives not merely de jure but de facto (Article 4)222.

The United Nations Convention on the Elimination of all forms of Discrimination

against Women 1979 (CEDAW) - Vienna Declaration

Article 1 defines ―discrimination against women‖ to mean any distinction, exclusion

or restriction made on the basis of sex which has the effect or purpose of imparing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their
marital status, on the basis of equality of men and women, all human right and
fundamental freedoms in the political, economic, social, cultural, civil or any other
field. The Convention, thus, prohibits discrimination not only in public life but in
private life as well, which clearly extends to family relations.

Article 2 (b) enjoins upon the state parties while condemning discrimination against
women in all its forms, to pursue by appropriate means without delay, elimination of
discrimination against women by adopting appropriate legislative and other measures
including sanctions where appropriate, prohibiting all discrimination against women,
to take all appropriate measures including legislations, to modify or abolish existing
laws, regulations, custom and practices which constitute discrimination against
women.

Clause (c) enjoins upon the state to ensure legal protection of the rights of women on
equal basis with men, through constituted National Tribunal of other public
institutions against any act of discrimination to provide effective protection to
women.223

Article 3 enjoins upon the State parties that it shall take, in all fields, particularly, in
the political, social, economic and cultural fields, all appropriate measures including
legislation to ensure full development and advancement of women for the purpose of
guaranteeing them the exercise and enjoyment of human rights and freedoms on the
basis of equality with men.

222
Supra note 7 at 407.
223
Supra note 183 at 18-19.

111
As per article 11(1) of this convention, the state parties are required to take all
appropriate measures to eliminate discrimination against women in the field of
employment in order to ensure the following rights on the basis of equality of men
and women-

a) The right to work as an inalienable right of all the human being;

b) The right to the same employment opportunities including the application of
the same criteria for selection in matter of employment;
c) The right of free choice of profession and employment, the right to promotion,
job security and all benefits and conditions of service and the right to receive
vocational training and retraining including apprenticeship, advanced
vocational training and recurrent training;
d) The right to equal remuneration including benefit and to equal treatment in
respect of work of equal values as well as equality of treatment in the
evaluation of equality of work;
e) The right to social security, particularly in cases of retirement, unemployment,
sickness, invalidity and old age and other capacity to work as well as the right
to paid leave; and
f) The right to protection of health to safety in working conditions including the
safeguarding of the function of reproduction.

Under Article 11(2) of this convention, the state parties shall take the following
measures to prevent discrimination against women on the ground of marriage or
maternity and to ensure their effective right to work.

a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of

pregnancy of maternity leave and discrimination in dismissals on the basis of
marital status;
b) To introduce maternity leave with pay or work comparable social benefits
without loss of formal employment, seniority or social allowances;
c) To encourage the provision of necessary supporting social services to enable
parents to combine family obligations with work responsibilities and
participation in public life, in particular through promoting the establishment
and development of network of child care facilities;

112
d) To provide special protection to women during pregnancy in types of work
proved to be harmful to them.

Article 13 declares that ―the State parties shall take all appropriate measures to
eliminate discrimination against women in other areas of economic and social life in
order to ensure as a basis of equality of men and women.‖224

India is a signatory of CEDAW, 1979 having accepted and ratified it in June 1993. It
reiterated that discrimination against women violates the principle of equality of
rights and respect for human dignity of equality. The domestic courts are under an
obligation to give due regard to the international conventions and norms for
construing domestic laws when there is no inconsistency between them. 225 In 1951,
the International Labour Organization adopted a Convention concerning Equal
Remuneration for Men and Women Workers for work of equal value. According to
Article 2, the principle of equal remuneration may be applied through:

a) National laws or regulations,

b) Legally established or recognized machinery for wage determination,
c) Collective agreements between employers and workers, or
d) A combination of these various means.

The ILO also adopted two other conventions to improve the working conditions of
women: the first one was the Convention Concerning Night Work of Women
Employed in Industry, 1948 and the another one was The Convention Concerning
Maternity Protection (Revised) 1952.

Sexual abuse of women and further specific women rights violations have been the
subject of several UN declarations and resolutions. The 1974 UN General Assembly
through Declaration on the Protection of Women and Children in Emergencies
and Armed Conflicts recognized ―the need to provide special protection of women
and children belonging to the civilian population‖ for they are ―too often the victims
of inhuman acts and consequently suffer serious harm‖. It prohibited ―all forms of
repression cruel and inhuman treatment of women and children, including
imprisonment, torture, shooting, mass arrests, collective punishment, destruction of

224
Supra note 183 at 19.
225
Supra note 186 at 8-9.

113
dwellings and forcible eviction‖ (Art. 5), condemned attacks and bombings on the
civilian population and called for respect of basic human rights and humanitarian law
in all cases.226

The 1993 Declaration against Violence against Women adopted by the UN General
Assembly signified an important step in defining violence against women as ―any act
of gender-based violence that results in, or is likely to result in, physical, sexual or
mental harm or suffering to women, including threats of such acts, coercion or
arbitrary deprivation of liberty, whether occurring in public or in private life."(Art. 1)
This definition comprises not only violence committed by the general community, but
also by the State and by family members. It also recognized in its preamble that
women in situations of armed conflict are especially vulnerable to violence.227

The Resolution on Women, Peace and Security 1325 adopted by the UN Security
Council in 2000 requested the inclusion of women in peace building and
peacekeeping operations and decision-making bodies. It also called for the respect of
human rights of women and urged States to refrain from granting impunity to people
who have committed genocide, war crimes and crimes against humanity, including
those relating to sexual violence against women. Further Security Council Resolutions
have reiterated the topic, such as Resolution 1820 (2008), Resolution 1888 (2009),
both of which concentrated mainly on condemning sexual violence during conflicts,
and Resolution 1889 (2009).228

Lahore Declaration on the Right of Women229:

The Lahore declaration consists of several basic rights necessary for the dignified and
respectable position of women. If these rights are honestly implemented, there will be
no sufferance of women. The declaration contains as following rights-

I. Marriage, Separation and Divorce:

1) Both women and men shall be entitled to free choice in marriage.

226
Sona Drahonovska, Women Rights in Conflict Zones: A Focus on India, 1 (2010).
227
Ibid
228
Ibid, 14
229
Supra note 186 at 9-11.

114
2) All women and men shall have equal right in all matters relating to marriage,
divorce, guardianship, maintenance, and custody of children.
3) Marriages and divorces shall be properly registered and easy access records be
provided.
4) Child marriage shall be abolished. The minimum age of marriage for both
women and men shall be 21 years.
5) All polygamous marriages shall be banned and made punishable. Such
marriages shall be null and void and the injured party be adequately
compensated.
6) Provisions pertaining to restitution of conjugal rights shall be declared.
7) A civil law shall be enacted to provide for inter-faith marriage and their
registrations.
8) Women and men shall have equal rights under citizenship laws and
domiciliary regulations.
9) Spouses shall be entitled to judicial separation by mutual consent.
10) Distribution of movable and immovable assets and income upon divorce or
dissolution of marriage shall be based on principles of justice and equity.
11) Matrimonial courts shall be established to deal exclusively with all disputes
under Family Law (including inheritance and return of personal belongings to
the spouses). These Courts shall have jurisdiction in respect of family matters
of all religious communities. Court fees should be minimal.
12) The Matrimonial Courts shall have adequate representation of Judges from
women.
13) Execution of decrees passed by the matrimonial Courts shall be made more
effective and efficient.
14) Laws shall be enacted to allow for transfer of cases from one jurisdiction to
another in family matters.
15) Women and men shall have statutory rights of freedom to information about
their rights through all avenues, including legal aid, the media and through
curriculum in formal and informal educational centers.

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II. Economic Rights of Women within Marriage230:
1) The economic right of women on marriage during the subsistence of marriage
and on dissolution of marriage shall be protected by law.
2) All endowments pledged to a woman at the time of her marriage, whether by
parents, parents-in-law or her husband and the gifts given to her shall be
absolute and separate property.
3) Adequate maintenance including interim maintenance shall be provided to the
dependent spouse during the subsistence of the marriage.
4) During the subsistence of the marriage the wife‘s access to matrimonial assets
must be guaranteed including her right to reside in the matrimonial home.
5) Laws against domestic violence shall empower the courts to grant injunction
restraining a violent spouse from entering the matrimonial home.
6) In case of dissolution of marriage, the Courts shall decide all related matters
e.g. divorce/dissolution, maintenance/alimony or dower/financial settlement
and provision of shelter simultaneously except disputes relating to custody of
minors. In doing so, separate procedures be laid down in order to provide for
expeditious disposal of suits.
7) Assets movable or immovable accumulated during the subsistence of the
marriage shall be distributed on the termination of the marriage.
8) Inheritance laws shall be changed to ensure that the share of the male and
female heirs of same class of kinship shall be equal. Upon death of the
husband, the widow and her children shall inherit in equal proportion half of
the immovable and movable assets accumulated by the couple during the
subsistence of the marriage. The widow shall remain the sole owner of the
balance half of such assets till her death.
9) The children shall inherit in equal proportion the share of their mother‘s
assets.

Protection of Women‘s Human Rights under the Indian Constitution:

The struggle for the recognition of human rights and the struggle against political,
economic, social and cultural oppression against injustice and inequalities have been
an integral part of the history of all human societies. The conception of the rights

230
Supra note 27 at 10-11.

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which every human being is entitled to enjoy by virtue of being a member of the
human species has evolved through history in the course of these struggles. India has
played the most significant role in the promotion of the cause of human rights. With
the attainment of Independence, a declaration of rights, the most elaborate in the
world, was incorporated in the new constitution. India has made the most sincere
efforts for the protection and promotion of human rights around the world and has
become the greatest champion of Human Rights in the Third World. India has not
only incorporated an elaborate Bill of Rights in her constitution but also efforts have
been made to translate these in to reality. Thus, it is found that India has incorporated
the most elaborate Declaration of Human Rights, 1948 in its Constitution.231

No doubt, the framers of the Indian Constitution were inspired by the Universal
Declaration and they saw to it that the essence and the spirit of the Universal
Declaration as incorporated in the Constitution. The inspiration is evident in the
Preamble of the Constitution which assures ―dignity of the individual.‖ 232 Perhaps it
was the influence of the declaration on the makers of our Constitution which tempted
Dr. B.R.Ambedkar to the following observations: The Declaration of the Rights of
Man…has become part and parcel of our mental makeup…these principles have
become silent immaculate premise of our outlook.233

India is a signatory to various international conventions, covenants and protocol on

human rights and has thus assumed the responsibility to provide various rights
accordingly. In a democratic way, the constitution has not only guaranteed
international recognized human rights but entrusted governing with the responsibility
of creating opportunities for full exercise of these rights. India has adopted a clear
policy on human rights for the welfare and protection of the citizens. Part III of the
Indian Constitution clearly mentions the rights enumerated in the Declaration. These
rights enumerated in Part III namely:

a) Right to equality, guaranteed under Article 14-16,

b) Right to freedom of speech & expression etc. guaranteed under Article 19

231
N.K. Padhi, Protection of Human Rights and National Human Right Commission: Reflection, 97
(Gyan Publishing House, New Delhi, 2007).
232
Supra note 183 at 22.
233
Quoted in N. Palkhivala, We the people, 200 (1948)

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c) Right to life and personal liberty enshrined in Article 21 and 22,
d) Right against exploitation enshrined in Article 23 and 24
e) Right to freedom of religion guaranteed under Article 25 and 26
f) Cultural and educational right enshrined in Article 29 and 30
g) Right to constitutional remedies, the soul of the constitution guaranteed under
Article 32.

The right to equality includes prohibition of discrimination on the ground of religion,

race, caste, sex or place of birth; equality of opportunity in matters relating to
employment or appointment to office under the state, the abolition of untouchable,
prohibition of conferment of any titles by the state. The right to freedom includes
guarantees of freedom of speech, assembly, association, travel, residence, acquisition
of property, and practice of any occupation. There is a ―due process clause‖
respecting life and personal liberty. The right against exploitation prohibits forced
labour and child labour. The right to freedom of religion includes the guarantee to
every religious denomination to manage religious affairs. Religious instruction may
not be provided in any educational institution wholly maintained out of state funds.
Cultural and educational rights concern the protection of the interested minorities.234

Thus, this part III of the constitution reflects the Civil and Political Rights mentioned
in the declaration from Article 3 to 21. On the other hand, Part IV which spells out the
Directive Principles of State Policy ensures the Economic, Social and Cultural Rights
enumerated in the Declaration from Article 22 to 28.

In Keshavananda Bharati v. State of Kerela,235 the Supreme Court observed that the
Universal Declaration of the Human Rights may not be a legally binding instrument
but it shows how India understood the nature of human rights at the time when the
Indian Constitution was adopted. C.J. Sikri held that some rights are not natural or
inalienable rights. As a matter of fact, India was a party to the declaration and the
declaration describes some fundamental rights are inalienable.

234
Supra note 7 at 379-380.
235
AIR 1973 SC 1461.

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In Chairman, Railway Board v. Chandrima Das,236 it was held by the Supreme Court
that our Constitution guarantees all the basic and fundamental human rights set out in
the Universal Declaration of the Human Rights, to its citizens and other persons. The
purpose of Part III of the Constitution is to safeguard the basic human rights from the
vicissitudes of political controversy and to place them beyond the reach of the
political parties who, by virtue of their majority, may come to form the Govt. at the
Centre or in the State. Further, emphasizing the importance of the declaration, the
court observed that the human rights jurisprudence is based on the Universal
Declaration of Human Rights, 1948, which has the international recognition as the‘
moral code of conduct‘ having been adopted by the General Assembly of the United
Nations.

The Directive Principles of State Policy which are the second generation human rights
set out the main aim and objectives of the states in the governance of the country.
They have been excluded from the purview of the courts. The Directive Principles
impose an obligation upon the state to take positive steps for ensuring social and
economic justice to all irrespective of sex, caste, language, religion etc. In Peoples
Union for Civil Liberties v. Union of India237the apex court lays down that the Indian
Constitution guarantees essential human rights in the form of directive principles,
which are fundamental in governance of the country. Part III and IV of the
Constitution of India, though two separate units carry the common theme of human
rights.238 Ultimately in the Constitution of India two generations of human rights are
enumerated in the form of Fundamental Rights and Directive Principles of State
Policy.

The constitution of India was drafted by our founding fathers for reconciling the
natural rights and the economic rights facilitating thereby the smooth building up of a
new social order and a society free from exploitation. The Supreme Court in Kapila
Hingorani v. State of Bihar 239 held that the constitution of India contains a large
number of rights which guarantees human rights, some of which are akin to the rights
enumerated in International Treaties and Charters.
236
AIR 2000 SC 988.
237
(2005) 2 SCC 436.
238
Supra note 77 at 19.
239
(2003) 6 SCC 1.

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The emergence of independent India marks an important milestone in the uplift of
women‘s position. After the political independence, most important and crucial event
was the drafting of the Constitution of this country which enshrines the principles of
equality, liberty and social justice. The founding fathers of the constitution of India
were very much aware about the sociological problems of the female sex. They
realized that equality was important for the development of the nation.

Article 14 of the Constitution guarantees equality before the law and equal protection
of the laws. Article 15(1) declares that a citizen shall not be discriminated against
only on the ground of religion, race, caste, sex or place of birth or any of them. Article
15(3) upholds the special provisions in favour of women and children. Article 16
provides that equality of opportunity in matters of public employment. No citizen
shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for or discriminated against in respect of any employment
or office under the state. Women are also the subject matter of all other fundamental
rights as enshrined in the part III of the constitution.

The Directive Principles of State Policy under part IV of the Constitution have the
application for the women also. Article 39(a) says that the citizens, men and women
equally, have the right to an adequate means of livelihood; Article 39(d) states that
there is equal pay for equal work for both men and women. Article 39(e) lays down
that the health and strength of workers, men and women are not abused. In
Uttarakhand Mahila Kalian Parishad v. State of U.P. 240 it was held that female
teachers are entitled to the same salary as is paid to the male teachers. Article 42 of
the constitution is very significant for women. It provides that the state shall make
provision for securing just and humane conditions of work and for maternity relief.

In addition to Fundamental rights and Directive principles of state policy, the

constitution has several provisions on human rights providing for negative rights as
well as for positive obligations. For example, the equal right of all to participate in the
political process on the basis of adult franchise is provided in Article 325 and 326 and
the fairness of electoral process is ensured in Article 324 to 329. Part XVI, comprising
Articles 330 to 342 makes special provisions for the representation of SCs, STs and
the Anglo-Indians in the National Parliament and the State Legislatures by reserving
240
AIR 1992 SC 1965.

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certain number of seats for them. On the same line, some amendments of the
constitution have introduced special provisions for the SCs, STs, women and other
weaker sections of the society. For example, Part IVA comprising Article 51A was
introduced in 1976 imposes certain fundamental duties on the citizens which among
others ensure dignity of women, common brotherhood among people and protection
of environment. Part IX and IXA was introduced in 1992 make special provisions for
the representation including in the chief executive position of the SCs and STs and
woman in the village panchayat and the municipalities respectively.241

From the above description, it is clear that most of the provisions of the Constitution
are supplementary with the Universal Declaration of Human Rights and even much
before the ICCPR and the ICESCR. The most notable aspect of the Constitution of
India is the recognition of state‘s obligation to ensure human rights to everyone and
not only to those who can make full use of them. No doubt, the state plays an
important and crucial role in protection and securing the basic human rights of the
individuals including women. State can‘t deny its obligation on this context. Dr.
Justice A.S. Anand Chairperson NHRC clearly remarked that “it is the obligation
of the state to ensure everyone the right to adequate food, education and enjoyment
of the highest attainable standards of physical and mental health. These rights have
to be respected and made available to the citizens by the state.”

Despite of all this, it is generally find out that the laws which are passed by the
legislatures are not adequate and sufficient one to meet the demand and aspiration of
the common fellow in all cases due to the lack of implementation properly and
effectively. So, to overcome this problem and to meet the National as well as
International demand, the Protection of Human Rights Act, 1993 was enacted by
Parliament under which a separate and autonomous body was constituted by the name
of National Human Right Commission for the better protection of the human rights of
everyone. Thus, here it becomes necessary to describe the role and function of the
National Human Right Commission as the human rights protector in India.

241
Supra note 231 at 39-40.

121
National Human Right Commission: Human Right Protection Mechanism in
India:

The National Human Right Commission in India is an example of a general purpose

commission set up with the objective of protection and promotion of human rights.
Section 12 of the Protection of Human Rights Act, 1993 deals with the broad
functions of the Commission. These functions242 are as follows:

a) To enquire suo motu or on a petition presented to it by a victim or any person

on his behalf, into complaint or-
i. Violation of human rights or abetment thereof, or
ii. Negligence in the prevention of such violation, by a public servant.
b) To intervene in any proceeding of involving any allegation of violation of
human rights pending before a Court with the approval of such Court.
c) To visit under intimation of the State Government any jail or any other
institution where the persons are detained or lodged to study the living
conditions and make recommendations thereon.
d) To review the factors, including acts of terrorism and recommend appropriate
remedial measures.
e) To study treaties and other international instruments for their effective
implementation.
f) To undertake and promote research in the field of human rights.
g) To spread human rights literature among various sections of society.
h) To encourage the efforts of non-governmental organizations and institutions
working in the field of human rights.
i) Such other functions as it may consider necessary for the promotion of the
human rights.

Besides this commission, the role of Indian judiciary in protection and enforcement of
human rights is remarkable and appreciable. The Supreme Court and High Courts are
ensuring justice to the downtrodden as well indigent person by virtue of Articles 32
and 226 of the Constitution through Public Interest Litigations. However it is a
notable fact in the present society that the full realization of the human rights in the
society is not on swing. There is a lag behind of its complete enforcement. But,
242
Supra note 186 at 11-12.

122
struggle for human rights must continue with greater vigor as it can‘t be easily or
quickly achieved in a day. Reservation for women in the local self government is one
step to realize the importance of human rights. Now they can easily participate in
policy making. They can raise their voice for the protection of their rights along with
dignity by using such platforms. In this way, one day will come when everyone will
live in a society which will be free from any kind of exploitation. Everyone will feel
the harmony and common brotherhood so that all can bloom naturally. With this ray
of hope, everyone should come forward and fight against violation of the human
rights which are necessary for the human existence. Here, some suggestions are being
given to raise the human rights issues:

First, the violation of human rights cases should be treated with humanity not subject
to any other consideration.

Secondly, public participation and awareness should be increased.

Thirdly, state and its machinery should be more sensitive in respect of human rights
and fundamental freedoms.

Fourthly, sensitization should be done accordingly at first to men and then women.

Last but not the least, various NGOs and Human Rights Organizatons should come
forward to achieve the common goal in a paramount position so that we can keep the
lamp of human rights burning.

Legal Rights of Women in India:

Indira Gandhi, the First Lady Prime Minister of India once quoted that “Indian
women have more rights than women of other countries, but there are large areas
wherein women are suffering, where may be they are not conscious of their rights.‖

In the past two decades many laws in the public and private sphere were passed to
improve the status of women and to empower them. However, despite these laws,
gender based violence and discrimination against women continue to be a pervasive
feature of Indian society. There are, clearly, lacunae in these laws and gaps in their
implementation.

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The constitution of India has provided some rights to the workers. As per Article 42
of the constitution of India, the State shall make provision for securing just and
human conditions of work and for maternity relief. Hence, the government has
enacted legislation incorporating those rights provided in Articles 38, 39 and 42 of the
constitution under Directive Principles.
The working women have been provided with various benefits, concessions,
protection and safeguards under different labour legislations in order to provide
security against various risks peculiar to their nature. The women workers not only
enjoy better rights but also they have better remedies in factories, mines, plantations
and other industrial. Women workers enjoy all the provisions that are applicable to
industrial workers along with men. In addition to that they enjoy some special
privilege of maternity benefits with wages, prohibition of work in dangerous
operations and in mines below ground and equal remuneration for similar work.
For this purpose some provisions are included for the benefit of women labourers in
the following Acts,
 Factories Act, 1948.
 Mines Act, 1952
 The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
 Employees‘ State Insurance Act, 1948
 Maternity Benefit Act, 1961
 The Equal Remuneration Act, 1976
 The Plantation Labor Act, 1951
Besides above legislations, women are socially and economically protected by the
legislature from time to time by enacting several legislations fir their benefits. Some
of them are as follows-
 The Family Courts Act, 1954 which seeks to provide justice to women who
get involved in family disputes.
 The Special Marriage Act, 1954 this act legalizes the inter-caste marriage.
 The Hindu Marriage Act, 1955 which prohibited polygamy and concedes
equal rights to women to divorce and to remarry.
 The Hindu succession Act, 1956 & (Amendment) Act, 2005 which provides
for women the right to parental property and abolishes discrimination between
son and daughter in respect of property rights.

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 Hindu Adoption and Maintenance Act, 1956 which gives a childless woman
the right to adopt a child and to claim maintenance from the husband if she is
divorced by him.
 Hindu Minority & Guardianship Act, 1956, this Act has sanctioned women to
guard her daughter throughout her life and in the case of a son for first five
years.
 Immoral traffic (Prevention) Act, 1956 which gives protection to women from
being kidnapped and or compelled to become prostitutes.
 Dowry Prohibition Act, 1961 declares the taking of dowry an unlawful activity
and thereby prevents the exploitation of women.
 The Medical Termination of Pregnancy Act, 1971, this Act legalizes abortion
on health grounds.
 The Equal Remuneration Act, 1976 this Act provides equal pay to men and
women for same work.
 Prohibition of Child Marriage Act, 2006, this Act as the name suggest
prohibits the child marriage and declare it voidable and make it punishable.
 Domestic Violence Act, 2005 protects the women from domestic violence.
 The Sexual Harassment of women at Work Places (Prevention, Prohibition
and Redressal) Act, 2013 protects the women from sexual harassment at work
place.
 Criminal Law Amendment Act, 2013 lays down new provisions penalizing
acid attack, sexual harassment, voyeurism and stalking; increased penalty for
gang-rape and causing serious injury to victims; provision for rape expanded
and pre-medical treatment to victims.

With the observations about the human rights, legal and constitutional rights with
respect to women, it can be said that though women are provided highly protection
and safeguards against any kind of atrocities and exploitations, they have been
conferred various rights to raise their voice against violation, they are in pathetic
condition and no one is concerned about it. All this happen due to lack of awareness
about their rights. They are less educated and if any women try to raise their voice,
they are dragged by the family members at the fear of social stigma and family ideals.
Thus, women‘s rights are in documents seems as a great weapon in their hands but in
reality these are like toothless lion.
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Mohd Ali Jinnah rightly remarked:

“No nation can ever be worthy of its existence that cannot take its women
along with the men. No struggle can ever succeed without women
participating side by side with men. There are two powers in the world; one
is the sword and the other is the pen. There is a great competition and
rivalry between the two. There is a third power stronger than both, that of
the women.”

**********************

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