Abstract
The Constitutional Law is the supreme law of the land. The Indian Constitutional Law provides equal opportunity to both sexes. Soon after the constitution of the Constituent Assembly in November 1946, the Congress adopted a resolution declaring that it stands for a Constitution wherein social objectives should be laid down to promote freedom, progress and equal opportunity for all the people of India without any discrimination. Thus, the women of India got their rights constitutionally protected. The Hindu Women Property Act of 1937, The Special Marriage Act of 1954, Hindu Marriage Act of 1955, Hindu Succession Act of 1956, Hindu Adoption and Maintenance Act of 1956, Hindu Minority and Guardianship Act of 1956, The Maternity Benefit Act of 1961, The Equal Remuneration Act of 1976, The Contract Labour (Regulation) Act of 1978, Criminal Law Amendment Act of 1983 are the most important Constitutional Laws passed to protect the rights of women folk in India.
Introduction
The Constitutional Law is the supreme law of the land. The Indian Constitutional Law provides equal opportunity to both sexes. Soon after the constitution of the Constituent Assembly in November 1946, the Congress adopted a resolution declaring that it stands for a Constitution wherein social objectives should be laid down to promote freedom, progress and equal opportunity for all the people of India without any discrimination. It was accepted whole heartedly by all the members of the Constituent Assembly. Thus, the women of India got their rights constitutionally protected.1
Fundamental Rights
Part III of the Indian Constitution provides various Fundamental Rights such as Right to Equality, Right to Freedom, Right of Personal Liberty, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies. These rights are equally available to both men and women. Out of these, rights which are more related with the dignity of women are as follows.2
Right to Equality
The Constitution guarantees the right to equality to every citizen of India. Article 14 of the Constitution embodies the general principles of equality before the law and prohibits unreasonable restriction between persons. It provides that the State shall not deny to any person equality before the law or the equal protection of the laws. Both these expressions, ‘equality before the law’ and ‘equal protection of the laws’, aim to effectuate one of the objectives i.e., equality of status, enshrined in the Preamble of the Constitution. These expressions have also been used in Universal Declaration of Human Rights. The basic purpose of this right is that the law should be applied to all equally and there should be no discrimination between one person and another.3
Article 15 provides that the State shall not discriminate citizens on the grounds of religion, race, caste, sex, place of birth or any of them. Similarly, Article 15(2) prohibits discrimination on the above grounds with regard to access to shops, public restaurants, hotels, places of public entertainment; or use of wells, tanks, bathing places, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public.4
Article 15 empowers the State to make special provisions for the protection and welfare of women and children as they require special treatment on account of their very nature. Article 15(3), various laws have been made, such as establishment of educational institutions by the state exclusively for women, reservation of seats for women in educational institutions, special maternity relief to women workers, special treatment for women in matter of granting bail, special treatment under Factories Act and Mines and Minerals Act, authorizing service of summons on men only, and special treatment to women on considerations of public morals and rectitude.5
Article 16(2) of the Constitution provides that the State shall not discriminate citizens on the basis of religion, race, caste, sex, place of birth, descent, residence or any of the matters of public employment. Article 16 embodies the particular application of general rule of equality laid down in Article 14 with special reference to appointment and employment under the State. Thus, no discrimination can be made in matters of public employment merely on the basis of sex.6
Equal Political Rights
To effectuate the principle of equality of status in the Preamble and Article 14 of the Constitution, political rights have also been provided by the Constitution itself. Article 325 of the Constitution provides that no person shall be ineligible for inclusion in special electoral roll on the grounds of religion, race, caste or sex. Similarly, Article 326 provides for the elections to the House of the people and to the Legislative Assemblies of State to be on the basis of adult suffrage. Thus, it is clear from the above provisions that the Constitution has provided equal political rights to men as well as to women.7
Right against Exploitation
Article 23 of the Constitution prohibits traffic in human beings, meaning thereby selling and buying men and women like goods and includes immoral traffic in women and children for immoral or other purposes. Under Article 35 of the Constitution, Parliament has been empowered to make laws for punishing acts prohibited by Article 23. In pursuance of this power, Parliament has enacted the Suppression of Immoral Traffic in women and Girls Act, 1955 and 1986 to make the prohibition under Article 23 effective by providing punishment for the acts which result in traffic in human beings.8
Right to Constitutional Remedy
Article 32 of the Indian Constitution is nothing but effective machinery to the enforcement of Fundamental Rights. It provides that if any Fundamental Right is taken away or abridged by the State, a person can directly move to the Supreme Court (or High Court under Article 226) for the enforcement of his/her Fundamental Right. This right is available equally to men as well as to women.9
Women and Remedial Acts
The women of Tamil Nadu have far long laboured under legal, religious and social disabilities. Attempts were made to remove them slowly by means of legislative laws and also by social reforms. The merits of important women laws are given below.
The Hindu Women Property Act, 1937
The act is produced for the equal share for women from their parent’s property. The Hindu Women Property Act came into practice in 1937.10 By this, widow women get the equal share in joint family or if separated they are also eligible for the share of her family’s property. If it is the property of a husband, it can be shared among wife, child and mother. The widow can live with the property but she can not sell it. So after her death, it will naturally go to her male child.11
The Special Marriage Act, 1954
The Special Marriage Act was passed in September 1954. This Act permits marriage of people from different religious faiths without changing their religion and it stipulates minimum age for marriage as 18 years for girl and 21 years for boys.12 This Act came into force on the first January 1955. It extends to the whole of India except the state of Jammu and Kashmir. It protects the rights of women in Tamil Nadu through marriages.13
Hindu Marriage Act, 1955
This act fixes minimum age for marriage as 18 years for girls and 21 years for boys.14 The salient feature of this act is that it makes monogamy Universal. Special Marriage Act, 1954 and The Hindu Marriage Act, 1955 were amended in 1976 to provide for the right of a girl to repudiate. Cruelty and desertion were added as grounds for divorce and mutual consent were recognized.15
Hindu Succession Act, 1956
The Act confers the right of absolute ownership over property and the women can make ‘Will’ leaving her share of property to the heirs. Section 10 of the Act provides for the property of an intestate being divided among the heirs in accordance with certain prescribed rules for the benefit of women. Rule 1 states that intestate widow or if there are more widows than one, all the widows shall take one share. Rule 2 states that surviving son and daughter and the mothers of the intestate shall each take one share. Rule 3 states that the heirs in the branch of each deceased son or each predeceased daughter of the intestate are also entitled to get one share in the property. This Act protects the rights of women in Tamil Nadu.16
Hindu Adoption and Maintenance Act, 1956
This Act makes it permissible any female Hindu who is of sound mind and who is not minor and who is not maimed or if maimed whose marriage has been dissolved or whose husband is dead or has completely renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, to take a son or daughter in adoption. The consent of father and mother is necessary for giving the child in adoption unless otherwise. This Act is one of the important Acts to increase the rights of women in Tamil Nadu.17
Hindu Minority and Guardianship Act, 1956
The Hindu Minority and Guardianship Act was passed in 1956. Under this act, the consent of wife is required for adopting a son or a daughter. It extends to whole of India except the state of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this act extends and to those who are outside the said territories.18
The Maternity Benefit Act, 1961
This Act is applicable to every establishment, plantation, mine or factory which provides with payment of maternity benefit at the rate of average daily wages for the period of women’s actual absence. The Act was amended in April, 1976 to cover women, who do not fall within the purview of the Employee’s State Insurance Act, 1948. A proposal to further amend the Act is under consideration of the Labour Ministry.19
It may be added here that the Employees State Insurance Act, 1948 guarantees that all factories should provide sickness benefit, maternity benefit, medical and funeral benefit. Similarly Factories Act, 1948, Plantation Labour Act, 1951, Mines Act, 1952, which have co-relationship with women benefit, prohibit the employment of women from 7 p.m to 6 a.m. in factories, mines and plantation, and regulate the working hours and certain provisions for women’s safety and welfare. The government is authorized to fix the maximum load that they may be lifted by women and to open crèches also.20
The Equal Remuneration Act, 1976
This Act provides not only payments of equal wages for the same work of a similar nature, but also for a machinery for its implementation and advising the government to ensure increased employment to women. This Act is under further review for the benefit of women.21
The Contract Labour (Regulation) Act, 1978
This Act regulates the working conditions of contract labourers which includes women’s payment of wage and provides for welfare facilities and crèches for the children of working women engaged in construction work. It protects the rights of poor women workers in Tamil Nadu.22
Criminal Law Amendment Act, 1983
The Indian Evidence Act, the Indian Penal Code and the Criminal Procedure Code were amended in 1983 to make the crimes against women much more stringent and effective and also to make a new provision in the Indian Penal Code to make cruelty against women by her husband or any relative of her husband punishable with imprisonment for a term which may extend to three years and also with fine. Wilful conduct of such a nature by the husband or any relative of the husband as is likely to drive the woman to commit suicide or cause grave physical or mental injury to her, and harassment of a woman by her husband or by any relative of her husband with a view to coercing her or any relative to meet any unlawful demand for property would be punishable as cruelty.23
– Dr. S. L Omnakutten
Assistant Professor of History, Rani Anna Government College for Women, Tirunelveli.
References
1) Hajira Kumar & Jaimon Varghese, Women’s Empowerment – Issues, Challenges, strategies, New Delhi, 2005, p.220.
2) Latika Menon, Female Exploitation and Women’s Emancipation, New Delhi, 2004, p.75.
3) Hajira Kumar and Jaimon Varghese, op.cit., pp.249-250.
4) Annual Report of India, 2003, Ministry of Information and Broadcasting, Government of India, New Delhi, 2003, p. 670.
5) Kavita Mishra, Women’s Role in Politics in Modern World, New Delhi, 2006, pp.127-128.
6) Latika Menon, op.cit., p.76.
7) Indian Constitution, Article 326.
8) Indian Constitution, Article 23.
9) Indian Constitution, Article 32.
10) Rosapoo and Kalyana Sundari, India Mahaliriyal (Tamil), Madurai, 2005, p. 64.
11) Kalyana Sundari, Magalir Membaadu (Tamil), Chennai, 2006, p. 117.
12) A. Ramaswami, Gazetteer of India, Tamil Nadu State, Ramanathapuram District, Madras, 1972, p.175.
13) Annual Report of India, 2003, Ministry of Information and Broadcasting, Government of India, New Delhi, 2003, pp. 679-680.
14) Kalyana Sundari, op.cit., p. 118.
15) Mohini Chatterjee, Feminism and Women’s Human Rights, Jaipur, 2004, p.11.
16) Kavita Mishra, Women’s Role in Politics in Modern World, New Delhi, 2006, pp.129-130.
17) Ibid., p.131.
18) Letter No. 616, Home Department to Government of Tamil Nadu, Dated 21 February 1961.
19) Kavita Mishra, op.cit., p.131.
20) Pinnalur M. Vivekanandan, Magalir Maenmaiyum Satta Urimaigalum (Tamil), Chennai, 2004, p.136.
21) Kavita Mishra, op.cit., p.132.
22) Ibid., p.133.
23) Ibid., p.134.