Directive Principles Of State Policy Law European Essay

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02 Nov 2017

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ix) The State to raise the level of nutrition and the standard of living of its people and the improvement of public health (Article 47)

Constitutional Provision for Women in India

A Constitutional is the basic document of a country having a special legal sanctity which sets the framework and the principal functions of the organs of the Government of a State and declares the principles governing the operation of these organs. The Constitution aims at creating legal norms, social philosophy and economic values which ate to be affected by striking synthesis, harmony and fundamental adjustment between individual rights and social interest to achieve the desired community goals. [1] 

Preamble

The preamble contains "the ideals and aspirations of the people of India". One of the golden ideals is "the equality of status and of opportunity". This objective has been achieved by and large, by providing equality clause in the Constitution of India. The equality clause expressly prohibits discrimination on the basis of race, religion, caste, sex, and place of birth and guarantees equality before the law and equal protection of laws irrespective of race, religion, cast, sex etc. Thus the Indian Constitution has ensured equal status to all i.e. not only between men and men, women and women but also between men and women. [2] Constitution of India provide the basic foundation on legislation and laws built in Article 14, 15, 16, 21, 39 of the Constitution of India. A basic understanding of some of the constitutional guarantees is pertinent to the subject of equal representation of women in the society.

Political Rights

Notwithstanding the fact that women participated equally in the freedom struggle and, under the constitution and law, have equal political rights as men, enabling them to take part effectively in the administration of the country has had little effect as they are negligibly represented in politics. There were only seven women member in the Constituent Assembly and the number later decreased further. [3] There representation in the Lok Sabha is far below the expected numbers. This has led to the demand for reservation of 33% seats for women in the Lok Sabha and Vidhan Sabhas. Political empowerment of women has been brought by the 73rd and 74th Amendments which reserve seats for women in Gram Panchayats and Municipal bodies. Illiteracy, lack of political awareness, physical violence and economic dependence are a few reasons which restrain women from taking part in the political processes of the country.

Economic Rights

There has been a catena of legislation conferring equal rights for women and men. These legislations have been guided by the provisions of the fundamental rights and Directive Principles of State Policy. Here again there is a total lack of awareness regarding economic rights amongst women. Laws to improve their condition in matters relating to wages, maternity benefits, equal remuneration and property/succession have been enacted to provide to the necessary protection in these areas. [4] 

Social Justice

The most important step has been codification of the personal laws in our country which pose the biggest challenge in this context for providing social justice to women. In the area of criminal justice, the gender neutrality of law worked to the disadvantage of a woman accused because in some of the cases it imposed a heavy burden on the prosecutrix, for e.g. in cases of rape and dowry. They prevent the fulfilment of the objective of securing to each individual dignity, irrespective of sex, community or place of birth. In these type discrimination Supreme Court said that- "Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are inter-dependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth-cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights." [5] 

Fundamental Rights

Fundamental Rights which are the most effective of every person like, man, woman and child because they are applied and enforceable as constitutional and fundamental rights in India. Justice Bhagwati said that rights are:- "These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent." [6] 

Thus, fundamental rights are very important part of the Constitution of India.

Article 14 ( Equality)

"Equality before the law or the equal protection of the law", Article 14 of the Constitution of India enunciates the general principle of right to equality and prohibits the state from denying to any person.

Article 14 of the Constitution recognises "Women" as a class. The Court has declared that women as a class were different from men as a class; and for this legislature had merely removed the disability attaching to women by passing the Hindu Succession Act, 1956. [7] 

Article 15(1) prohibits gender discrimination and Article 15(3) lifts that rigour and permits the State to positively discriminate in favour of women no make special provision s to ameliorate their social condition and provide political, economic and social justice. The State in the field of Criminal Law, Service Law, Labour Law, etc. has resorted to Article 15(3) and the courts, too, have upheld the validity of these protective discriminatory provisions on the basis of constitutional mandate.

Another specific example of equality of status is the right to equality of opportunity for citizens of India provided under Article 16 of the Constitution of India. The Courts realise "Women like men are governed by the Constitution. Articles 14, 15, 19(1)(g) and 21 provide the basis for Realizing equality between man and man, and man and woman. These articles have provided de jure equality to women, but they have not accelerated de facto equality between man and woman to the extent the Constitution intended. Unless attitudes change, elimination of discrimination against women cannot be achieved. There is still a considerable gap between the 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 falling in masculine fields. But there are instances which exhibit lack of confidence in their capability and efficiency. There is still a long and lingering suspicion regarding their capacity to meet the challenges of the jobs assigned to them. Such doubts affect the dignity of working women." [8] 

Article 21 (Right to livelihood)

A very sensitive case for right to livelihood because every person who take breath, his duty to protect own live. Problem of bar girls at Maharashtra before the High court Indian Hotel and Restaurant Association; this case decided. Petitioner has pleaded that its members have three different activities in their respective establishments which are independent of each other:- Service of food, performance of music and dance, and service of liquor in an independent and demarcated room approved by the Collector/Licensing Authority.

It is, therefore, pleaded that the activity of sale and consumption of foreign liquor is an activity independent of the rest of the establishment and is restricted to the demarcated and designated room approved by the Collector for sale and consumption of liquor. On certain days sale of liquor is prohibited. On such days the demarcated room or rooms for the sale of liquor are kept closed and the rest of the establishment is allowed to function and other activities of the Restaurant like sale of food and amusement performances are not disturbed. [9] 

On grounds of violation of Article 14,16 and 21 of the constitution, women’s prohibited the employment in Hotels and Bar serving liquor was challenged in judgment of Anuj Garg's [10] case it appears that Constitutional validity of section 30 of the Punjab Excise Act, 1914 prohibiting employment of "any man under the age of 25 years" and/or "any women" in any part of such premises in which liquor or intoxicating drugs is consumed by the Public was observed and examined.

Article 21 (Right to live with Dignity)

Article 21 [11] of the Indian constitution is the fountain head of the right to human dignity .The right to woman dignity has been elucidated by the Supreme Court that the right to life does not mean only animal existence but to live with dignity, Since the term human dignity is incapable of exact definition it has been used, defined and illustrated by the Court depending on the fact and circumstances and socio-cultural milieu. Looking to the development of the woman human dignity at international arena and the need of the socio-political and cultural environment, the court has explained and articulated the right to human dignity in various forms.

In Neera Mathur V. LIC [12] , The court decided 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 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 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 Bangal [13] , 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 rebutted by a strong preponderance of evidence and not a mere balance of probabilities. The Court laid down the following principles:

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

an application for subjecting a child to a blood test, made in order to have a roving inquiry, cannot be entertained;

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

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.

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 test 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."

In Surjit Singh v. Kanwaljit Kaur [14] , the Highcourt held; "Allowing the medical examination of a woman for her virginity would certainly violate her right to privacy and personal liberty enshrined under Article 21 of the Constitution. Such an order would amount to a roving enquiry against a female who are vulnerable even otherwise. In the instant matrimonial case the question of virginity of the wife is not in issue and the virginity test cannot constitute the sole basis to prove the consummation of marriage. Allowing such a medical examination of the wife would be holding a roving enquiry which is not permissible. Thus, order of Lower Court dismissing application by husband for getting wife medically examined in order to prove her virginity is proper."

In Zahida Begam v. Mustak ahamed [15] a suit was filed by the wife for dissolution of marriage on the ground of impotency of husband who was unable to perform marital obligations. The husband denied that he is impotent or was unable to perform marital obligation. On the contrary he requested the court that wife be directed to undergo medical checkup so as to ascertain her virginity. Karnataka High Court held that the direction of the court to the wife to undergo virginity test was improper and invaded privacy of the plaintiff wife, which was violation of the Article 21 of the Constitution.

In Bodhisattwa Gautam v. Subhra Chakraborty [16] 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 [17] , 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 wishes". Even a prostitute has a right to privacy under the Article 21 and no person can rape her just because she is a woman of easy virtue.

Another dynamic judgment with reference to Article 21 is Chairman Railway Board v. Chandrima Das [18] , 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.

Vishaka v. State of Rajsthan

In the matter of personal law there are certain spheres where there is violation of Article 21, especially in case of restitution of conjugal rights. In Sareetha v. Venkta Subbaiah [19] , the Court held section 9 of Hindu Marriage Act violative of the Article 21 of the Constitution. But in later cases, [20] and [21] the decision was overruled by the Supreme Court.

Right against Exploitation

In Vishal jeet v. Union of India [22] , the Court has held that: "Prostitution always remains as a running sore in the body of civilisation and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making the way onwards leaving a track marked with broken hopes. Therefore the necessity for appropriate and drastic action to eradicate this evil has become apparent." The Court Suggested certain measures for eradicating the evil.

In Gaurav Jain v Union of India [23] , the condition of prostitutes in general and the plight of their children in particular were highlighted. The Court issued directions for a multipronged approach and mixing the children of prostitutes with other children instead of making separate provisions for them. The Supreme Court issued directions for the prevention of induction of women in various forms of prostitution. It said that women should be viewed more as victims of adverse socio-economic circumstances than offenders in our society.

Directive Principles of State Policy

As Fundamental rights protect to individual rights such as the Directive Principles of state policy protect to needs of social status. These Principles are not enforceable in any court but they are fundamental in the governance of the country and it shell be the duty of the State for the welfare of the person, including women.

Article 39(a) the state shall direct its policy towards securing that citizens, men and women, equally, have the right to an adequate means of livelihood.

Article 39(d) directs the state to secure equal pay for equal work for both men and women.

Article 39(e) the stat shall directs that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Article 42 of the constitution of India is giving a very important provision for the securing just and humane conditions of work and for maternity relief.

Implemented by state to the Directive principles in the Factories Act, Maternity Benefit Act, Beedi and Cigar Workers (Conditions of Employment) Act, etc.

Article 51-A (Fundamental Duties)

"It shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, regional or sectional diversities; to renounce practices derogatory to the dignity of women." [24] 

Part IV-A which of only one Article 51-A was include to the constitution of India by the 42nd Amendment, 1976. This Article for the first time specifies of ten fundamental duties for citizens. Article 51-A (e) is related to the women. One of the most important duty "rights to education" is include 86th amendment, 2002. Which duty provide to the, "who is a parent or guardian to provide opportunity for education to his child or, as the case may be, ward between the age of six and fourteen years." [25] 

Women’s Representation in Local Bodies

The 73rd and 74th Amendments to the Indian Constitution effected in 1992 provide for reservation of seats for women in Elections to Panchayats and Municipalities.

Under Article 40 the Directive Principles of State Policy state that: -

"The state shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to functions as units of self government."

It was held in "Power of the people which is the soul of a republic stands subverted if decentralisation and devolution desiderated in Article 40 is ignored by the Executive in action even after holding Elections to the floor level of administrative bodies." [26] 

Women in Panchayat and Municipalities have been reservation provided in Article 243-D and 243-T of the Constitution of India. According to Indian Constitution 73rd Amendment Act, 1992 are well known as the Panchayati Raj and Municipalities Act, include parts IX and IX-A, with Articles 243, 243-A to 243-O and Articles 243-P to 243-ZG.

Article 243D in The Constitution Of India

Article 243D have been provided that; "The Reservation of seats

(1) Seats shall be reserved for

(a) the Scheduled Castes; and

(b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the, total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.

(2) Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for women belonging, to the Scheduled Castes or, as the case may be, the Scheduled Tribes.

(3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.

(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide: Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State: Provided further that not less than one third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level."

Article 243T in the Constitution Of India

Article 243T have been provided that; "Reservation of seats

(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.

(2) Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.

(3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.

(4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.

(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause ( 4 ) shall cease to have effect on the expiration of the period specified in article 334.

(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens."



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