Dr. Mohanan B Pillai Professor & Head Dept. of Politics & International Studies Pondicherry University Women Protective Laws and Constitutional Provisions.

Dr. Mohanan B Pillai Dr. Mohanan B Pillai Professor & Head Professor & Head

Dept. of Politics & International Studies Dept. of Politics & International Studies Pondicherry University Pondicherry University

Women Protective Laws and Women Protective Laws and Constitutional ProvisionsConstitutional Provisions

Human Rights – Definition 1

Human Rights are those conditions of life which allow us to realise our full potential and to develop our qualities of intelligence and spirituality. Such an environment respects and protects the dignity of each person and rejects stereotypical views of individuals. ‘Human Rights’ is not an abstract concept for lawyers and philosophers – human rights affect the daily lives of every man, woman and child in the society.

Human Rights – Definition 2

Human Rights are freedoms such as life, liberty, security and other guarantees to which people as human have rights. They are generally understood as inalienable claims or entitlements against state or society held equally by all persons simply by virtue of the fact that they are human beings.

First Generation of Human Rights

1. Freedom of Expression

2. Freedom of arbitrary imprisonment .

3. Freedom of custodial violence The Magna Carta (1215) in England Petition of Rights (1627) in England Bill of Rights (1688) in England Declaration Rights of Man and Citizen (1789)

adopted by French National Assembly The Philadelphia Constitutional and Convention

(1787) in the US

These civil and political rights constitute the first generation of modern concept of human rights.

Second Generation of Human Rights

The Russian Revolution under the Bolshevik slogan of “bread, land and all power to the Soviets” inspired the Leninist decree of Soviet Bill of Rights with its conspicuous primacy of economic and social rights over civil and political rights. These have inspired other contemporary socialist projects in state and nation building and contributed to the emergence of the second generation of human rights

Third Generation of Human Third Generation of Human Rights Rights

Freedom from racial discrimination. Freedom from hunger. Freedom from disease and malnutrition Development, environment, gender

justice, minority rights, education, child and bonded labour, refugees, displaces persons and against all forms of torture.

Contd…

Third Generation of Human Third Generation of Human Rights Rights

These concerns continue to be periodically incorporated within the ambit of global regime of human rights. They have also been expressed periodically within the UN system through many special covenants like:

1. Civil and Political Rights (1966)

2. Economic and Cultural Rights (1966)

3. Rights to Development (1986)

4. Against Torture (1984)

5. Against Gender Discrimination of Women (1979)

6. Right of the Child (1989)

Institutional Underpinnings of India’s Institutional Underpinnings of India’s Democracy & Related Structures – British Democracy & Related Structures – British

Colonial Rule. Colonial Rule.

► Parliamentary System Parliamentary System

► Federal Structure Federal Structure

► Bureaucracy Bureaucracy

► Judiciary Judiciary

► Legal System Legal System

► Civil and Criminal Procedure Code Civil and Criminal Procedure Code

► The Penal Code of 1860 including the The Penal Code of 1860 including the Preventive detention Provisions Originated Preventive detention Provisions Originated from Defense of India Act of 1858. from Defense of India Act of 1858.

► The Police Code of 1861. The Police Code of 1861.

Fundamental Rights Part III of the Constitution contains a long list of

Fundamental Rights. They are classified into six groups:

a)Rights to Equality (Articles 14-18)

b)Rights to Freedom (Articles 19-22)

c)Right against Exploitation (Articles 23-24)

d)Right to Freedom of Religion (Articles 25-28)

e)Cultural and Educational Rights (Articles 29-30)

f)Right to Constitutional Remedies (Articles 32-35)

Provisions of Human Rights - Indian Constitution (Selected)

Subject Indian Constitution

Protection of life and personal liberty

Art. 21 : No Person shall be deprived of his life or personal liberty except according to procedure established by law

Freedom of conscience and free profession, practice and propagation of religion

Art 25 (10) : Subject to public order, morality and health and to the provisions of this part, all persons are equally entitled to the freedom of conscience and right freely to profess , practice and propagate religion .

Protection of interests of minorities

Art 29 (1): Any section of the citizens residing in the territory or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same .

Subject Indian Constitution Rights of minorities to establish and administer educational institutions

Art 30 (1) : All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Right to constitutional remedies

Art 32(1): The right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by this part is guaranteed. Note : ‘By this part’ refers to part-III Fundamental Rights.

Women Protective Laws and Constitutional Provisions

Sl.No.

Description Source Provision

1 Political Rts. of Women

Constitution of India

Equality before law and equal protection of law (A.14).

1.1 Right to vote

Constitution of India,

Every person who is citizen of India and who is not less than 18 yrs. of age and is not otherwise disqualified, shall be entitled to be registered as a voter at any election (A.326).

No person to be ineligible for inclusion in, or to claim to be included in a special electoral roll on grounds of race, religion, caste or sex (A.325).

Representation of People Act, of 1951.

Every person who has completed his or her age of 18 years is eligible for registration of his/her name in the electoral roll (S.19).

1.2 Right of women to contest elect-ions:

Representation of People Act of 1951

basic qualification for a candidate to LS/RS or State legislatures are as follows:- he/she a citizen of India- have completed 25/30 yrs - have sound mind- not be a undischarged insolvent- not hold nay office of profit- not be convicted of criminal offence of moral terprirude. There is no bar for women to stand for election/s provided she is elector in the same constituency. Not less than one-third (including the no. of seats reserved for women belonging to the SC and the ST) of the total no. of seats to be filled by direct election in every Panchayat/s shall be reserved for women (Chap II).


Not less than one-third (including the no. of seats reserved for women belonging to the SC and the ST) of the total no. of seats to be filled by direct election in every Municipality shall be reserved for women (A.243 D).

1.3 Right of women to hold public office:


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 (A.16).

1.4 Right to association


All citizens both men & women shall have the right to form association or union (A.19 cl.1 (c)).

2. Appropriate measures for women


Equality before law and equal protection of law (A.14). Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth (Art 15)

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 (Art.16[2])

3 Education for achieving the crimination of the prejudices


It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women (Art.51A(e)).

4 Protection against all forms traffic in women & exploitation of prostitution of women


Prohibition of traffic in human beings and forced labour (A.23).

Indian Penal code, 1860

Procreation of minor girls for illegal and improper purposes (Sec.366A).

Importation of minor girls i.e. girls below 21 years of age, from foreign country including Jammu and Kashmir for illegal and improper purposes (Sec. 366B). Buying or disposing any person as a slave (Sec.370). Habitual dealings in slaves (Sec. 371).

Indian Penal code, 1860

Selling minors, i.e. below 18 years of age for the purposes of prostitution is penalized (Sec.372).

Buying minors i.e. below 18 years of age for the purposes of prostitution is penalized (Sec.373).

Immoral Traffic (Protection) Act, 1934

Procurring, indulging or taking a person for the sake of prostitution is an offence (S.5).

Bombay Devdasis (Protection) Act, 1934

Dedication of girls & women to Gods & Goddess is penalized (S.3).

5 Representation by women at international level


Right to equality (A.14).

6. Rights to the Nationality



Citizenship Act, 1951

Citizenship by birth for both men and women (S.3).

Citizenship by descent. Only father can transmit his citizenship to his child/ren (S.4).Citizenship by registration or by Naturalization (S.5 & S.6). Renouncing the citizenship. Both men and women can renounce their citizenship (S.8).

7. Education Constitution of India

State shall within the limits of its economic capacity and development make the effective provision for securing the right to education (A.41).

State shall make provisions for the free and compulsory education for children until they complete the age of 14 years (A.43).

8. Equality in the matters of employment



8.1

Right to work


Policy of the state shall be towards securing citizens men and women equally have right to an adequate means to livelihood (A.39 cl.(a)).

8.2

Right to non-discrimination


State shall make effective provisions for securing the right to work (A.41). Equality of opportunity in matters of public employment (A.16).

Equal Representation Act, 1976

No employer can discriminate against men or women in the matters of the same or similar nature, except where employment of the in such work is prohibited or restricted by law (S.5).

8.3 Equal pay for equal work


State shall direct its policy towards securing that there is equal pay for equal work for both men and women (A.39 cl(d)).

Equal Remuneration Act, 1976

A worker working in any establishment shall not get a wage lower than what the worker of opposite sex get for doing the same or similar type of work (S.4).

8.4 Right to the social security


State shall make effective provisions for securing the public assistance in cases of unemployment, old age, sickness and disablement (A.41).

The Workman’s Compensation Act of 1923 (applicable for both men and women)

It provides compensation to be paid by the employer for any injury or any accident suffered by the worker at the time of and/or during his/her employment.

The Employees State Insurance Act, 1948 (applicable to both)

It provides for insurance scheme for workers to be implemented by the employer.

The Employees Provident Fund & Miscellaneous Provisions Act, 1952 (applicable to both)

It provides three schemes namely provident fund scheme, family pension’s scheme and the deposit-linked insurance scheme.

8.5 Maternity benefits

Constitution of India The state shall make provisions for securing maternity relief (A. 42).

The Maternity Benefit Act, 1973 (applicable to women working in the organized sector)

It prohibits employment of the pregnant women during certain period (usually for three months) (S.5).

Absence during the maternity period is paid with full wages (S.7).Women are entitled to get the medical bonus in addition to her paid leave (S.8).

The Act also provides for the nursing breaks to mothers for feeding their infants (S. 11).

9 Health Constitution of India

State shall direct its policy towards securing health and strength of workers men, women (A.39 cl(e)).

State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner (A.39 cl(f)).

Special provisions for women concerning their health under the labour laws Factories Act, 1948 Prohibition of employment of women in the

dangerous and hazardous tasks (S.27).

Mines Act, 1952 Women shall not be employed in any parts of the mine which is below the ground in a mine (S.46).

Factories Act, 1948 Women shall be employed between 6 am and 7 pm. No women shall be employed between 10pm & 5am except in fish curing and fish canning industries (S.66.1(b)).

Bidi & Cigar Workers (conditions of employment) Act, 1966

No women shall be employed between 7 pm & 6 am

Labour Act, 1951 No women shall be employed between 7 pm & 6 am

Mines Act, 1952 No women shall be employed between 7 pm & 6 am

Factories Act, 1948 Separate and adequate urinals and latrines for male and female workers shall provided by the employers (s.19).

Labour Act, 1951 Separate and adequate urinals and latrines for male and female workers shall provided by the employers (S.9).

Mines Act, 1952 Separate and adequate urinals and latrines for male and female workers shall provided by the employers (S.20).

Bidi & Cigar Workers (conditions of empl-oyment) Act, 1966

Separate and adequate urinals and latrines for male and female workers shall provided by the employers (S.10).

Factories Act, 1948 Employer shall make arrangements for crèches where there are more than 30 women workers.

Labour Act, 1951 Employer shall provide for crèche facility where there are more than 50 women workers.

Mines Act, 1952 Employer shall provide for the crèches facility where there are more than 50 women workers.

10. Rural Women Constitution of India

Rights to equality (Art.14)

Constitutional 73rd & 74th Amendments empowers the rural women to participate in the political process through the Panchayat Raj Institutions

11. Rights to enter into contracts or agreements


Equality before law and equal protection before law.

Indian Contract Act, 1862.

Every person who is not a minor and is of sound mind may enter into a valid contract.

12 Rights in the matrimonial matters

In there is no uniform code applicable to all communities in their matrimonial matters. Each community has its distinct personal laws for such matters.

12.1 Rights to enter into marriage (age approved)

Child Marriage Restraint Act, 1929

Male not below 21 years of age and female not below the 18 years of age (S.6).

Hindu Marriage Act,1955

Male not below 21 yrs of age and female not below the 18 yrs of age (S.5).

Parsi Marriage & Divorce Act, 1936

There is no condition as to the minimum age for entering into marriage. The consent of father or guardian is required if any one of the parites to the marriage below his/her 21 years of age.

Muslim Personal Law

Every Muslim who is of sound mind and attained puberty i.e. Muslim boy/girl completes hi/her 15 yrs of age in Shias. In case of persons attained puberty he/she may be contracted into marriage by his/her guardians.

12.2 Grounds of divorce

Hindu Marriage Act, 1955

Sec.13A lays down grounds of divorce available to both the husband and wife viz. adultery, cruelty, desertion, conversion, insanity, leprosy (virulent and incurable), veneral diseases, renouncing the world, not heard of 7yrs or more, and the decree of judicial separation passed & no cohabitation between parties for one year etc.

Sec.13A also provides for four more grounds to the wife viz. bigamy, rape, sodomy or bestiality, the maintenance decreed to the wife and no cohabitation for one year, the wife was under 15 yrs when she was married and has repudiated the marriage before she is 18.

It provides for the mutual consent divorce both for the husband and wife (S.13B).

The Muslim Personal Law

Muslim husband of sound mind and has attained puberty can seek divorce from his wife at his will, without assigning any reasons, and even in the absence of his wife. For a divorce under the Muslim law, no deed is required to written or signed, and it may be obtained merely words. Only males have this absolute right to obtain divorce. Muslim women cannot seek divorce like the Muslim men, but can obtain divorce only under certain specific contingencies namely, whereabouts of husband have not been known for a period of 4 yrs, husband has neglected or has failed to provide for the maintenance for a period of 2 years, the husband has been sentenced to imprisonment for a period of 7 years or more, he failed to performed without reasonable cause his marital obligations for a period of 3 years, husband is impotent at the time of marriage, husband has been insane for 2 years, the exercise by wife of the option of puberty, husband treats with cruelty. A Muslim wife can get divorce only from the court of law & cannot have the same like that of a Muslim husband.

12.3 Rights on the dissolution of marriage

(a) Interim maintenance


Both the husband and wife are entitled to ask for the sum of amount as maintenance during the pendancy of the suit for dissolution of marriage (S.24).

Indian Divorce Act, 1869

Only wife is entitled to the maintenance pendent elite or the interim maintenance (S.36).


Only wife can demand the sum of amount for the maintenance pending the litigation (S.39).

Muslim Personal Law

There is no provision for the interim maintenance neither for husband not for wife.

(b) Permanent alimony


Both the husband & wife may ask for the payment of maintenance from other spouse on dissolution of marriage. The economic capacity of parties is taken into consideration (S.25).

Indian Divorce Act, 1869

Only wife is entitled to ask for permanent alimony (S.37).


Only wife can claim alimony (S.40).

Muslim Personal Law

Husband shall maintain his divorced wife for 3 months after the talaque/divorce. But this is different from what Hindus/ Parsis/ Christian wives get as alimony on divorce. Muslim

Criminal Procedure Code 1973 (applicable to all communities except the Muslim)

Wife living / divorced / deserted may file a suit against her husband for maintenance. Even aged parents and minor children can sue their son / daughter / father respectively. Muslim women can file a suit u/Sec.125 provided her husband has given his consent for the applicability of Sce. CrPC before seeking divorce (S.125).

12.4 Guardianship

Hindu Minority & Guardianship Act,1956

Both the person & property of the legitimate son or an unmarried daughter Father is guardian, only after his death, Mother can act as the natural guardian. In case of the illegitimate son or an unmarried daughter Mother is the natural guardian both for the person & property of her children. Husband is considered as the guardian in case of a married woman (S.6).

Muslim Personal Law

As far as person of a male below 7 yrs and a female till attains puberty, Mother is the guardian and once a boy completes his 7 yrs of age, & a daughter attains her puberty Father is the guardian. For the property of the minors Father is the legal guardian and he may appoint any other Muslim excluding the mother as the legal guardian.

The Parsis and Christians in their laws have no provision relating to guardianship

But even in these communities Father is considered as the natural guardian of his minor children.

12.5 Adoption Hindu Adoptions & Maintenance Act, 1955

Both male and female can take or give s child in adoption. Female – any Hindu female who is of sound mind and who is not married or if married – whose marriage has been dissolved or whose husband is dead or has renounced the world or has ceased to be Hindu or has been declared to be of unsound mind by a court of competent jurisdiction, can take a child (who is Hindu and below 15 yrs) in adoption. A married woman cannot adopt a child even with her husband’s consent. Similar conditions needs to be complied with in case of adoption by a male Hindu (S.8).

If the father is alive, he alone has the right to give a child in adoption. But he has to take prior consent of the mother i.e. his wife (S.9).

12.6 Succession (inheritance)

Hindu Succession Act, 1956

There is different law for the joint family (HUF) property and the self acquired property of Hindus. Women as a wife gets a share equal to the males in HUF and self-acquired property. But the daughter/s can inherit to self-acquired property of the father & not to the HUF property. Daughter/s’ share in the self-acquired property is equal to that of male heirs (S.9).

Indian Succession Act, 1925 (which incorporates provisions governing the succession of Parsis and Christians)

Parsis–Right of a Parsi female to succeed to the property is recognized but her share is half of what the male/s get (S.50 – S.56).

Christians: A Christian women is treated on an equal footing with the men in succession (S.32 – S.49).

Muslim Personal Law

A Muslim female receives a share in the property but less than what the Muslim male get.

Succession (Testamentary)

Indian Succession Act, 1925

Both men and women, married or unmarried may dispose off their property by alienating to anybody by making a will during his/her life-time (S.59).

Thank You …Thank You …

Dr. Mohanan B Pillai Professor & Head Dept. of Politics & International Studies Pondicherry University Women Protective Laws and Constitutional Provisions.

Documents

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