How The Preamble Of Indian Constitution Has Given The Equal Approach To The Status Of Women And Gender Justice

Introduction

The status of women and gender justice has been of major concern for a long time. Women, along with a few amazing men, have been fighting for gender justice for ages. Though we believe that women are treated equally to men in the present world, it is not true. There still exists gender inequality, and the status of women is still lower than that of men.

The concept of gender equality and that women are no less than men has been stressed in the Indian Constitution in its Preamble, fundamental duties, fundamental rights, and directive principles of the State.

Gender Equality refers to equality in power, status, opportunity, number, and role of women in society.

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The Preamble of the Indian Constitution and Gender Justice

The Constitution is the main and basic document of a country. Every law and rules made in a country is based on the Constitution of a country. A preamble of a constitution gives an introduction to the Constitution. It is a key to open the mind of the framers of the Constitution. The Preamble sets out the guidelines for the people and presents the principles of the Constitution.

The principle of gender equality is enshrined in the Preamble of the Indian Constitution. The Preamble of the Indian Constitution has in it the terms such as “Justice,” “Liberty,” and “Equality.” The Preamble states that every person should get JUSTICE (social, economic, and political); LIBERTY (of thought, expression, belief, faith, and worship); EQUALITY (of status and opportunity) to everyone – men and women.

By using the Preamble as a key to open the minds of the framers of the Constitution, we can say that they aimed at ensuring equality of status and opportunity through the Preamble.

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The Preamble also talks about social justice, which can be achieved only by abolishing all the inequalities. It also talks about political justice – which can be achieved through non-discrimination of men and women in political matters, and economic justice – which can be achieved by paying equally for equal work.

Every single word contained in the Constitution was chosen carefully and is of great importance. Thus, as a basic rule, everyone should be treated equally irrespective of their race, color, sex, status, wealth, title, etc.

The Preamble of the Indian Constitution also talks about the “dignity of the individual.” For a person to live with dignity, he should get equal access to fundamental rights (guaranteed under the Indian Constitution).

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Though women have the capacity to work as efficiently as men, they are not treated equally in many circumstances. The practice of discrimination and suppression of women has been and is still in practice irrespective of the Constitution focuses on abolishing it.

The Preamble clearly states that the State should treat everyone equally. To make it into reality, the Constitution has given certain rights and duties to all the citizens of India. It has also given the government the power to pass necessary laws and take necessary actions to uphold equality.

The Constitution has also given the State the power of positive discrimination for uplifting the status of the suppressed, like the women. The State can pass special laws and acts in favor of the women and make special reservations to neutralize their disadvantages.

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The following are some of the significant Articles of the Indian Constitution favoring women for spreading gender justice and uplifting their status in society.       

  1. Article 14 – Equality before the law
  2. Article 15(1) – Discrimination on the grounds of religion, race, caste, sex, or place of birth to be prohibited.
  3. Article 16 – Opportunity to be equal in public employment
  4. Article 15(3) – State can make special provisions in favor of women and children.
  5. (Article 39(a) – State can make policies to secure men and women equally with an adequate means to livelihood
  6. Article 39(d) – State can make policies for equal pay for equal work (for both men and women)
  7. Article 42 – State can make policies for maternity relief and a just and humane condition of work.
  8. Article 46 – State to the educational and economic interests of the weaker sections of the people – particularly of the Scheduled Castes and the Scheduled Tribes. It shall also protect the weaker sections of the people from social injustice and all forms of exploitation.
  9. Article 51(A)(e) – It is the duty of all citizens to promote harmony and brotherhood amongst all the people going beyond the linguistic, religious, or sectional differences; to give up practices diminishing the dignity of women.
  10. Article 243 D(3) – At least one-third of the seats… shall be reserved for women.  Such seats can by rotation be allotted to different constituencies in a Panchayat.
  11. Article 243 D(4) – At least one-third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women.
  12. Article 243 T(3) – At least one-third… of the total number of seats which are to be filled by direct election in every Municipality shall be reserved for women.
  13. Article 243 T(4) – Reservation of offices of Chairpersons in Municipalities for the Scheduled Tribes, Scheduled Castes, and women in the manner the legislature of a State may provide by law.

Women empowerment and gender justice in employment

The Constitution has clearly stated that there should be no discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. Yet, women are not treated equally in many circumstances. There is always in-equality existing for women when compared to men.

The Constitution of India has allotted special Articles for women’s empowerment. It has given the State to make special provisions and policies in favor of women1. Thus, the State can make special policies for the well-being and uplifting of women’s status.

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The Constitution has stressed that both men and women should equally have adequate means of livelihood. There should be equal pay for equal work for both men and women. The Parliament, in light of the power granted by the Constitution (Art. 39A), has enacted the Equal Remuneration Act, 1976, for abolishing all discriminations based on sex. In the case of Bhagavan Das vs. State of Haryana2, the Supreme Court of India has further strengthened the point by ruling that men and women should be given equal pay for equal work irrespective of the mode through which they are selected for the job.

One of the important Articles that deals with women empowerment is Article 42 of the Indian Constitution. The article makes it obligatory for the State to make laws and provisions for providing just and human conditions in the workplace and maternity relief. The State has enacted The Maternity Benefit Act (MB Act), 1961, and The Employees State Insurance (ESI) Act, 1948, to benefit women in the workplace.

Every woman has the right to freedom in decision making. They have complete control over their freedom, and no one else can deprive it of her – not even her husband. In the Maya Devi vs. State of Maharashtra3 case, the supreme court of India held that a woman doesn’t have to get consent from her husband to apply for public employment. If such a requirement is there, it shall be held invalid and unconstitutional.

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Constitution and dignity of women

The Constitution has laid down fundamental duties for all the citizens of India in Article 51A, in which subsection (e) especially talks about renouncing practices that are derogatory to the dignity of women. Therefore, it is the fundamental duty of each and every citizen not to do any actions that are derogatory to the dignity of women.

Reservation for women in offices and elections

Though there is no particular reservation existing for men in politics, they are the ones dominating politics. To empower women to participate in all fields of work, including politics, the Constitution, through its Articles, has made it compulsory for the seats in the public offices and Panchayat to be reserved for women.

Article 243D(3) states that among all the seats which are to be filled by direct election, at least 1/3rd of seats should be reserved for women. These reservations should be allotted in rotation to different constituencies so that women in every constituency get the chance to participate in elections. The seats reserved for women belonging to Scheduled Castes and Scheduled Tribes are also included in this 1/3rd of the seat.

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Article 243D(4) makes it mandatory to reserve a minimum of 1/3rd of the offices of Chairperson in a Panchayat for women. This reservation should go in rotation to different constituencies, giving opportunities for women in all the constituencies.

Among the total number of seats in every Municipality which are to be filled by direct election, one-third of the seats should be reserved for women – according to Article 243T(3). These seats allotted to women should go in rotation in different constituencies in a Municipality so that women in all the constituencies get an equal opportunity to participate in elections.

The requirement of 1/3rd reservation is an essential requirement, and any office can allot more than that if it wishes to. This has been confirmed in the case of Ashok Kumar Malpani Vs. State of M. P4, where an amendment was made in the M.P. Municipalities Act, 1962 and the M.P. Municipal corporation Act, 1956. The amendment increased the reservation of seats for women in the municipal corporation and municipalities from 30% to 50%. When the constitutional validity of the provision was questioned, the High court of Madhya Pradesh held that such reservation is constitutional.

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Women education

“Educate a man, and you educate an individual; educate a woman, and you educate a family”.-Brigham Young.

A woman, though named as the weaker sex, is, in reality, a strong person. While men are physically strong, women are both physically and mentally strong. She cooks three meals for the whole family every day; takes care of her in-laws; gives birth to children; takes care of her children, takes them to school, helps them with homework; takes care of her husband; goes to work; keeps the house clean and much more every day.

A woman does multitasking every day. As she is the person who has the capacity to handle both her family and work life, educating her can change the whole society. Yet, a female child was not sent to school in the old days as investing time and money on her education was seen as a waste of time as she will leave the family once she gets married.

The Constitution of India has made the right to education a fundamental right that should be given equally to all children irrespective of their gender.

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Empowering women through property right

The property right has been available to men for ages. But the concept of a property right to women is a topic of the new age. For long, only men were entitled to their ancestral properties, and women had no right over it. Women enjoyed the property through their husbands and were not given the right to the title of the properties. In many places, a widowed wife was not given any share from her deceased husband’s family.

The concept of equality over property rights has come into practice through a few judgments and amendments. The Hindu Succession Act, 1956 has been amended through a judgment given by the Supreme court in the case Vineeta Sharma v. Rakesh Sharma5. The court held that Hindu women have an equal right to men in the ancestral property.

Hindu women’s Right to Property Act, 1937 has given the widow the right to inherit her deceased husband’s ancestral property.

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Mary Roy Vs. State of Kerala6 In this case, a woman belonging to the Syrian Christian community in Kerala filed a petition against her brother after her father’s death, claiming an equal share from the family’s inheritance. At first, the lower court rejected her plea. However, the Kerala High Court has held that women have equal rights over the property by overruling the previous judgment.

The ‘sridhana’ or dowry, given to a woman upon her marriage, is given to her as a gift, and she should be the real owner of that property. In Ashok Kumar Chopra vs. Smt. Visandi And Ors7, the M.P. The High Court held that ‘Stridhan’ is the property of the women. It also held that the husband is just a trustee of ‘Stridhan’ and has to return it to the women if claimed for it.

Protection of women on crimes against them

Offenses against women have been done even in Vedic periods. One of the holy books, ‘Mahabaratham,’ has scenes where a woman (Draupadi) is treated as a mere object of gambling, and an attempt to strip off her cloth in front of the huge crowd is made. In the story of Ramayanam, Seeta (a woman) gets kidnapped by Ravanan to take revenge over Seeta’s husband’s act.

Spoiling women’s modesty and committing crimes against them was and is still in practice in many countries. Treating women as a toy and taking advantage of her body is a painful practice which has been happening since long.

Offenses against women include the followings:

  1. Rape
  2. Kidnapping and Abduction for different purposes
  3. Homicide for Dowry, Dowry Deaths or their attempts
  4. Torture, both mental and physical
  5. Molestation
  6. Sexual Harassment
  7. Acid attack
  8. Disrobing a women
  9. Voyeurism
  10. Stalking

“Rape is one of the most heinous crimes committed against a woman. It insults womanhood. It violates the dignity of a woman and erodes her honor. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of India” – Justice Madan B Lokur.

The case of Nirbhaya (gang rape) cannot be forgotten by anyone. Every woman has the right to life and personal liberty. She has full control of her life and her body. Using a women’s body as an experimental stage and raping her and removing her intestines is one of the most heinous crimes one could commit to a woman. While questioning the accused, the victim’s character was questioned for coming out late at night. The accused side argued that women are not supposed to get out late at night. All the fundamental rights guaranteed to all men and women equally was denied to the victim. However, the court ruled in favor of the victim.

Nirbhaya case is of huge importance when it comes to rape as this is the case that led to the Criminal Law Amendment Act, 2013 – also known as Nirbhaya Act- which provided amendment on the laws relating to sexual offenses.

Every individual has the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. Taking this in mind and using the powers granted under Article 15(3), the State has implemented many acts and has amended many provisions of the act to favor women.

Some of the sections dealing with such offenses are Sec. 376 IPC (Rape); Sec. 363-373 (Kidnapping & Abduction for different purposes); Sec. 302/304-B IPC (Homicide for Dowry, Dowry Deaths or their attempts); Sec. 498-A IPC (Torture, both mental and physical); Sec. 354 IPC (Molestation); Sec. 509 IPC (Sexual Harassment); Section 326A CrPC (Acid attack); Section 354B CrPC  (Disrobing a woman); Section 345C CrPC (Voyeurism); Section 354D CrPC (Stalking).

Many other Acts, including The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, Immoral Traffic (Prevention) Act,1956, have also been enacted in favor of women.

Prevention of female feticide

A woman’s child is considered a burden to a family for a long time. Though this thought is changing in the present world, female feticide is still taking place in many parts of the world. The fundamental right to life is curtailed to such innocent female fetuses. Prenatal sex determination is the cause of female feticide.

To stop the abortion of a female fetus, the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 was passed. This Act was passed to ban the act of finding out the sex of the unborn.

Conclusion

The Constitution has given importance to gender justice through the use of the Preamble. The Constitution of India has taken various measures and has given the power to enact various acts and provisions in favor of women. Despite all the actions taken to establish gender justice and uplift the status of women in society, women are still treated inferior to men.

It is the need of the hour for the government to implement more laws and provisions in favor of women and take all necessary actions to bring it into practice. The work of the State in eradicating gender justice is a lot, yet not enough. All the laws made have to be strictly implemented. Women and men should be treated equally in all aspects.

Endnotes

  1. Article 15(3), Constitution of India, 1949.
  2. 1987 AIR 2049, 1987 SCR (3) 714
  3. (1986) 1 SCR 743
  4. 2009 (IV) MPJR 179 = AIR 2010 MP 64
  5. (2019) 6 SCC 162, (2019) 3 SCC (Civ) 171
  6. 1986 AIR 1011
  7. AIR 1996 MP 226

This article has been written by Velvizhi V, LLB (Hons) graduate from School of Excellence in Law, Chennai.

Also Read – Status of Women In Ancient And Modern World

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