Constitutional Perspectives
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Constitutional Perspectives

October 13, 2019


Welcome dear students, I welcome you to the
course on gender justice and workplace security. In the previous lecture we discussed the international
developments towards women rights and issues of violence against women. In the backdrop of this international developments
it is imperative for us to know the Indian laws and the Indian legal development and
judicial perspectives with regards to general justice. We start with the constitution of India with
the independence of the country, the country adopted enacted and gave to themselves the
constitution. The constitution as we say is the supreme
law of the land, it is the basic document which has a special sanctity, in that it sets
the framework and principle functions of the government and declares the principles governing
their operation. The constitution not only grants equality
of sexes, but also empowers the state to take protective and discriminatory measures for
the redressal of the cumulative disadvantages on account of the strange old of patriotical
society and the existing traditions, meets, and beliefs. The constitution starts with the preamble,
the preamble which reflects the ideals and aspirations of the people of the country. It starts with the words, “we, the people
of India”, and then it goes on to establish the various ideals and values for which it
stands. Now if we see the words, “we, the people
of India”, the source can be traced to all the people of the country. Irrespective of caste, community, religion,
sex etc. So therefore, it is the men and women of the
nation who have given to themselves the constitution, the supreme law of the land. The ideals or values which have been identified
in the preamble have been enumerated as justice, liberty and equality. So it would be the endeavor of the state to
ensure that each of these values or ideals are realized in the process of the working
of the government. So that is the basic start of the constitution
whereby it tries to realize certain goals and it makes all men and women a partner in
the process to whom such justice, liberty, equality are to be ensured and the consequent
responsibility of the state towards that regard. Part three of the constitution speaks of fundamental
rights. Now these fundamental rights are guaranteed
to the citizens and in some cases non-citizens as well of the country. And they are what we call as basic rights
or human rights which are the entitlement of every person, every man, women or child
being human beings and then it is integral to their existence and to their living. The important feature of these fundamental
rights are that they are enforceable in the quotes of law. So in a sense if there are any violations
of these fundamental rights any person can move to the courts for enforcement of those
right, and it is the responsibility of the state to maintain and ensure these fundamental
rights. In this reference there has been a case which
has been referred of Valsamma Paul versus Cochin University 1996 where the supreme court
held that the human rights are derived from the dignity in this reference we have the
case of Valsamma Paul vs. Cochin University 1996 where the supreme court held that human
rights are derived from the dignity and worth inherent in Human beings the human rights
of the girl child are inalienable integral and indivisible part of universal human rights. The full development of personality and fundamental
freedoms of women and their equal participation in political social, economic and cultural
life are concomitains for national development social and family stability and growth culturally
socially and economically if one sees this observation one definitely finds reflections
of the international developments and international instruments where the human rights of women
have been held to be are part of universal human rights. And the fundamental rights tries to uphold
these human rights and to see that these human rights are not violated at any level. Now these are some of the basic rights which
are there. There are others that we are coming to later
to start with article 14, lays down equality before law and equal protection of the laws,
it lays down that the state shall not deny to any person equality of law and equality
equal protection of the laws, now there are two concepts that we can see in this regard
one is equality before law and the other is equal protection of laws. The first is an expression which is found
in all return constitutions in world over it is a sort of a negative concept implying
the absence of any special privilege in favour of individuals the other equal protection
of laws is a more of a positive concept which implies the equality of treatment in equal
circumstances what article 14 stands for it does not speak of any absolute equality it
does not mean that all laws must be general in character or that the same law should apply
to all persons. It means that among equals the law should
be equal and should be equally administer and like should be treated alike so therefore
if we are speaking of two groups of people and they are at the same level then the law
should apply equally to them but if they are unequal then it cannot be the concept of equality
cannot be emphasized because they basically stand at a situation where the two groups
are not equal to each other. So therefore what article 14 allows is reasonable
classification based on real and substantial distinction bearing adjust and reasonable
object sort to be achieved. So therefore to start with article 14 guarantees
the right to equality to all persons however such equality is subject to the condition
that equals must be treated equally and in situations where permissible there can be
a reasonable classification which is allowed, in that regard article 15 of the Indian constitution
lays down that the state shall not discriminate against any citizen on grounds of religion,
race, cast, sex, place of birth or any of them. So therefore article 15 for the emphasizes
that there should not be any form of discrimination against citizens and the grounds of discrimination
cannot be religion race, cast, sex being one amongst them so the fact that a man and woman
they cannot be any discrimination only on that basis of men and women. However section article 15(3) of the Indian
constitution allows positive discrimination in favor of women. Now it says nothing in this article shall
prevent the state from making any special provisions for women and children so therefore
it allows for a positive discrimination that is the significance here in a sense that this
is not violate of what has been stated in article 14,what it stands for is equals must
be treated equally but if it is seen in a certain situation that two people are not
placed equally given the historical, the political, the social, the cultural, and other conditions
put together. Then in such a situation it would be proper
for the state to allow for positive discrimination, such positive discrimination which tends to
ameliorate these conditions which are existing for that group of people and therefore special
provisions for women and children are permissible in the Indian constitution. Article 16 further speaks of equality of opportunity
for all relating to employment thus these are some of the articles which ensure equality
and prohibit gender discrimination except for positive discrimination in favor of women. So as we said article 14 does not indicate
that loss must be general in character or application or the same laws should apply
to all persons, it does not stand for that but it allows for a reasonable classification
such reasonable classification which must be based on a intelligible differentia and
has a rational relation to the object sought to be achieved, however that classification
cannot be arbitrary, artificial or evasive in nature. So if a classification is made just for example
or one which is a popular example on the color of hair that would be taken more of a arbitrary
classification people with black hair and people with brown hair that cannot be the
bases of a classification. However, if the classification is based on
sound reasons and there is an object sort to be achieved by way of the classification
that is permissible within the controls of equality as laid out under the Indian constitutional
frame work. Now there have been a plethora of cases or
judicial decisions which have gone on to emphasis or establish this aspect of equality and in
many situations whether relate into employment as well as others whether it has been seen
that there has been discriminatory practices or policies which are discriminatory or unfavorable
for women the courts has intervene and courts have said aside such provisions being bad
in law or being vitality of the constitutional dictum. C.B. Muthuamma verses Union of India 1979
is a very, very famous case where the lady was denied promotion or she was even discouraged
from joining the foreign service and had to give an undertaking that if she married she
would resign from service, if you can recollect the international instruments that one cannot
be discriminated against on ground of the marital status that she is married or she
is unmarried cannot be a ground whereby a women is denied something, so here was a condition
in the Indian Foreign service which required that she cannot marry and if she marries she
has to resign from the service and even the policies where somewhere discouraging of women
to join the service, so that was challenged in a court of law and it was said aside as
being bad. Air India verses Nargesh Mirza 1981 and air
hostess challenge the Air India regulations which required her to retired at the age of
35 years or pregnancy in case of marriage which ever occurred earlier. So here was also a situation where the laws
or where the existing service regulations unfavorably discriminated so far as a women
was concerned, so where in case of a man such marriage of a man extra did not have any impact
with regard to his continuous in employment. But where it related to a woman and the women
was in the position of a air hostesses it required her to resign from service at the
age of 35 years or in case of her pregnancy. So these were said aside by the court as being
bad in law because such discriminatory policies regulations cannot be allowed to continue
because it goes against the basic concept of gender justice or equality of the genders
for which the state stands for. Charu Khurana verses Union of India 2014 she
is one of the recent cases which have been there and this lady Charu Khurana she wanted
to have a card from the Federation of Western India Cine Employees Association as a makeup
artist, these are certain sort of associations or union which exist and which give the necessary
permission for a person to register and continue a job whether as a hair stylish, or as a makeup
artist. Now she was for a long time making an endeavor
to get accord as a makeup artist in hair stylish, however it was reported that she cannot given
the job of a makeup artist because till then this is quite a recent case till then male
members are only allowed that job. So even 2000, 2010 we have a situation where
they are existed or still exist polices in place which are discriminatory of women. So therefore this issue was challenged by
the lady in the court of law, that how it is possible that in certain job such as a
makeup artist it is only the males who are allowed to take up that job and not women. And one of the propositions which we are given
by the federation was that traditionally these roles of makeup artist have only being done
by men. And if women where allowed then this jobs
will naturally go as more and more women will like to take up the profession and nit will
deprive them of their livelihood, however such argument was set aside by was completely
rejected by the supreme court of the country and it said that it is really sad that even
after maybe 60 or more year of independence and the constitution being in place we are
still having policies still having regulations and rules which discriminate against women
and restrict her in terms of the job opportunities that she is entitle to and necessary directions
was given to the federation to give her accord and to see that necessary a men mans are made
whereby there are no differentiation or distinctions made with regard to the sex of a person or
the gender who can take up that particular service. There is section 497 IPC which we speaks of
the offence of adultery, now the section is there it allows a man to bring an action for
an adulteries relationship against the other man with whom the wife is in such adulteries
relationship. However it does not give any consequent right
to a women whose husband has as adulteries relationship with another women to bring an
action against that women, now this was a case which was challenged in Sowmithri Vishnu
versus Union of India 1985, where the section 197 IPC was challenged on the ground that
it violates the right to equality established alert article 14 of the Indian constitution. Now in this situation however the arguments
of the court where different because there was a definite purpose for which the section
in the way that it exist came in to be and in the entire scheme of the section 497women
is seen as victim and it is to protect the cause of women that the section has not permitted
the women to bring the case against the other women with whom with the husband has an adulteration
relationship. So therefore the courts appeals the sections
and said that there is definite purpose for which has been made and therefore it is not
vitality of article 14 of the Indian constitution. similarly reservation of the seats for women
to the extent of 30% in states services which was made by the Andhra Pradesh government
was held to be valid similarly it was help that the states can also established educational
institutions only for the women. Because that would qualify within article
15(3) were the states in an entitle to make to take effective steps to ensure that the
women and children or the promotion of the interest that course of women and children
and the generations of abused generations of denial of rights which are taken place
can be some were undone by the way of positive discrimination are allowing for certain opportunities
which are specifically for women and not for men and women each general. So therefore these judicial decisions have
gone to reemphasize and establish the concept of equality and in several cases it has also
established that the state is completely free to take appropriate steps for the course of
women and towards the end they can make special laws or special policies or even go for the
reservation of seats for women wherever they feel it is necessary. Next coming to the right to freedom, freedom
and liberty is very important to leave in a civilized society in that respect Article
19 of the Indian constitution lays down six freedoms now they are freedom of speech and
expression, freedom of assembly, freedom to form associations, freedom of movement, freedom
to reside and settle, freedom of profession, occupation trade or business so every person
leaving in India cannot be denial the freedom of speech to speak or to express oneself. In whatever manner ones to assemble peace
without harms to for associations with regard to mobility of persons as where a person wants
to go wants to reside and settle as well as the profession or occupation that are person
wants to take up however these freedoms are not unrestricted they are subject to reasonable
restrictions such restrictions are lay down in Article 19 (2) of the Indian constitution. So therefore when we speak on this freedoms
it necessarily implies in the context of general justice that every women has a right to speech
and expression has a right to assembly to form associations to reside and settle anywhere
and to perceive any profession or occupation of his choices and there cannot be any unreasonable
restriction on the ground that she is a women which can be place for any of these freedoms.

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