CHAPTER-1

INTRODUCTION

Twenty first century has brought in its trail a new hope for women.

Dramatic changes have happened in the role, ambitions and attitude of

women in the last few decades of twentieth century. Women have departed from their traditional role
of reproducers, mothers and wives only. From a non-entity, they have been able to establish an
identity of their own in the modern society.1

The whole situation in today’s women world leads to some basic questions. Do women feel insecure,
unhappy and dissatisfied more than their predecessors? Why are they confused about women’s role
and position in modern society? Is employment making women economically strong, but socially and
emotionally broken? What can be done to empower women? Is there any mid-way, which could make
women secure, aware, confident and happy without disturbing the familial peace and social harmony?

1. Why women are relegated to secondary position? Women comprise of 50% of the world
population1. It is an anomaly that though they possess diverse capabilities and are of valuable
service in various nation-building activities, they had been relegated to secondary position till very
recent past by the modern society. Why? Is it because they belong to weaker sex? Or they are
incapable or incompetent? No, it is not so.

1 familial - relating to or having the characteristics of a family; "children of the same familial
background"; "familial aggregation"
2. It is appointed to ponder why modern women are still insecure and unhappy, despite attaining so
much success in almost every sphere of modern world. Women have played multiple roles in life and
in each role their performance is par excellence. Still Women-folk have to suffer innuendo physical
and emotional problems despite of all the changes and developments happened in the modern
women’s world. The position
of women in real life is still far from satisfactory. There is still a deep entrenched discrimination
against them almost in every walk of life. It crosses all the borders, age of region, caste, class or
community.

3. Why is she confused about what her role should be in real-life?

Feminist Movement for empowerment
With changing times, women risen up to situation

Modern women have proved that they are second to none, whether it is home or outside home at their
workplace. Even in areas which are far away from their traditional role as a housewife. With
changing times, they have risen up to the occasion and managed the work both inside and outside the
home at her work place. – Such as in industry, media, IT, politics, technology, administration/
management, armed forces or civil services.

At home, they rear children with love and affection at home and manage household activities. They
have shown their capability to deal with the recent economic depression - a situation of – with
ingenuity. Like a financial expert they meet the challenges of the present times of ever rising prices in
their own income.

Outside, they work shoulder-to-shoulder with men almost in all the areas. They are educated. Many
of them are financially independent. Modern women are more aware than their predecessor of their
rights and are keen to exercise them. They know their worth in within the family, in the society and in
the world.
 It did not happen overnight. Women fought a fierce battle to reach up-to present position. They
continuously worked hard to get equality, liberty and opportunity.
Movement for empowerment of women
Woman’s movement for empowerment in India is quite different from the similar movements in
Western nations.
1.0 WOMEN IN WESTERN WORLD
In the West, since beginning its focus was on establishing an independent identity of a woman free
from male domination. The feminist movement in the West laid great stress on the freedom and
liberty of women. It resulted in reacting aggressively against patriarchal system of society and male
chauvinism.
Since Feminist movement for liberation and other revolutions took place in western world, the
western society realized much earlier the need improve the position of women in society. There the
governments and the society made many efforts/reforms – legal, social, economic and political too
gave to women more and more freedom and liberty to take their own decision without being
influenced by the men-folk.
Women of Western world today enjoy more privileges in matters of education, employment,
freedom, liberty & equality than their counter parts in eastern world.2

Margaret Thatcher, the Prime Minister of United Kingdom during late eighties led her country from a
bad economic condition to success. She has shown to the world that in a democracy, it is not
necessary to bow down before the unreasonable demands of pressure groups or abandon useful but
unpopular policies in order to win an election. Gorabachov’s Soviet Union watched with interest her
efforts for economic development. She has shown to the world that women are capable of wielding
political power even in a “Developed country” like England.
“But the erosion of family values and decay of day today ‘social life’ has always been a matter of
concern USA and the West. There people and leaders regularly call for the restoration of
social/family values and systems, which basically depend on culture of ‘inclusiveness’ and not on the
concept of ‘exclusiveness’, which Western societies glamorizes.”

1 Ref. Patricia Jeffrey, Frogs in a Well: Indian Women in Purdah (New Delhi: Vikas, 1979), p. 174.7
1.1 WOMEN IN EASTERN WORLD

The eastern world, especially nations in Asia are still struggling to give to its women their rightful
place. Problems of high female mortality rate, sexual harassment, deaths during childbirths still exist
there. There are millions of women who have go through sexual harassment, domestic violence,
discrimination, abuse or are denied of pleasures of life because of their gender. Their problems are
deeply ingrained in the history, laws
and cultures of complex and sophisticated Asian societies.

1.1.1 Beauty of Indian movement

In India, initially the focus of the movement for emancipation empowerment of women-folk were to
improve and not to denouncethe traditional values and systems. It was to lead women to freedom and
remove darkness spread all over due to the apathy of powerful lobbies of the society, which crushed the
spirit of men and women alike. It aimed to empower not only the women, but the nation as a whole.
Therefore, under the guidance, encouragement and support of eminent male leaders like Gandhi, Nehru,
Patel and social reformers like Raja Ram Mohan Roy, Ishwar Chandra Vidyasagar, Vivekananda etc.,
women in India also challenged those quarters which were interested in holding all backwards.

Being under the foreign domination, India suffered for a long time due to multiple ills – poverty,
illiteracy, ignorance due to superstitions and blind following of outdated customs and social practices,
women being the worst victim. Therefore, the movement for empowerment focused on education,
social and legal reforms like equal civic, personal and property rights to men and women. Stress was
laid on ‘Stree Dharma’ (fundamental duties of women). The strength of the whole movement was based
on its being above party, caste or communal politics.
1.1.2 Confusion in women’s mind about their role in life

There is a confusion in women’s mind as well as to what should be their role in life – that of a home-
maker or a career woman. On one hand they are under constant pressure, because psychological
strains are created by the need to conform to socially induced images of femininity – to be a good
wife, perfect mother and efficient home-maker. On the other, desire to establish their own identity or
financial strains in family life force them to become career women.

Why Indian women feel insecure in general?

Generally women suffer deprivation, discrimination, humiliation and denial of basic human rights in
varying degrees at some point or the other. Discrimination against them is at every stage of life and
everywhere. It may be a girl child, a married woman, a single woman, a working woman, refugees or
women belonging to lower, middle or
upper strata of society.

In India, women in general form one of the most vulnerable sections of Indian Society. Women are at
disadvantage due to:

a) Class oppression due to poverty,

b) Economic dependence on male counterpart,

c) Caste oppression due to inter caste clashes

d) Social taboos and

e) Gender oppression

f) Increasing number of crimes.

1.1.3 Many transitions in one life for a woman

A woman faces many transitions in one life. Almost every tenth year brings a major change in her
life. With each transition, her role and position in society changes drastically. She needs attention,
 support, care and love of her near and dear ones during transition from one phase to another – in her
childhood of her parents and close relations, in her youth of her spouse, in her old age of her sons and
daughters. It is usually apathy of people concerned, at every stage of her life, which makes a woman’s
life miserable. Discrimination against her starts much before she is born- in the form of feticide and
continues till her last breadth.
Unfortunately, most of the times, it is her own family and people, who are responsible for her
sufferings. Women generally prefer to suffer silently than to go to courts or seek justice in the
courts/state authorities or any outside agency. The consumerist culture has increased atrocities,
domestic violence and physical assaults on women.
1.2 POSITION OF WOMEN IN THE NINETEENTH CENTURY

Up-till the beginning of twentieth century women in India along with other women all over the world
were hedged in by many social economic, legal and religious restrictions. Most of them were
illiterate, ignorant and confined them within the four walls of the house for centuries. They were not
aware of their rights. Ignorance and deprivation were accepted as their lot. They were far away from
the mainstream, cut
off from all the communications with outside world and generally confined within the four walls of
their house.3

1.2.1 Still victims of social evils and discrimination

A large number of women are still victims of many evil social customs and traditions, which are
ingrained in the history, culture and laws of the patriarchal system of society. Most heinous crimes
are still done against women irrespective of caste, creed, time or place such as infanticide, feticide,
physical abuse, early marriage, illiteracy, unequal rights in marriage, divorce, rape, molestation,
dowry deaths, inheritance,3
polygamy, inauspicious widowhood with severe disabilities and restrictions, restrictions on widow
remarriage or Sati etc.etc,. The list is endless. Crimes against women are increasing every day.

Margaret Hilda Thatcher, Baroness Thatcher, LG OM PC FRS was a British politician who was the
Prime Minister of the United Kingdom from 1979 to 1990 and the Leader of the Conservative Party
from 1975 to 1990.
1.2.2 Declining Sex-ratio

Societal bias against women continues as revealed by falling sex-ratio. India may be progressing
economically, but socially it is on its back gear. On gender issues it lags behind alarmingly – be it
sex-ratio or number of crimes, as statistics show, against women. On paper there are enough laws o
tackle the issues, but without much positive results. The sex ratio has steadily declined over the 20th
century. The sex ratio in 1901 census was 975 female to every 1000 males. Now according to
provisional data of Census 2011, released on 31st April 2011, national sex ratio is 940 females for
every 1000 males in 2011; child sex (0-6years) has worsened to 914 in 2011 from 927 in 2001.
Decline is unabated since 1961 Census.

Poor statics in other spheres as well

As for health-care, the National Sample Health Survey showed that over 50% of women are anaemic.
India’s maternal mortality ratio is highest in South Asia: 540 deaths per 1, 00,000 live births. Though
70% of the female labour force works is in agriculture, less than 10% of women farmers are
landowners. Nearly half the women in India are still illiterate. Literacy rate 65 years after
independence has reached for females only up to 65% (total being 74% and for males 82%).

Reasons for sufferings/insecurity of women-folk are many like -

a) Indifferent attitude – The male-dominated society and callous

government usually turns a blind eye to the gender issues, “Women have
to face an uphill task for taking women’s issues as, firstly most people are indifferent to atrocities that
do not affect them, and it is only a microscopic minority, which reacts. Secondly, the administration
and judiciary are very slow in reaching and taking any kind of measure and sometimes even stall the
proceedings.”
b) Strains on modern families – A modern woman, when in need, does not find enough support
systems to fall back on, which usually her own family used to provide earlier. Due to fast-pace of
modern life, busy lifestyle, lack of time and other constraints on modern families, it has become
almost impossible to get earlier kind of emotional or physical support. Many surveys show that a
significant number of women leave
workforce when they start a family. Maternity is usually seen as a disruption in career. There is a
dramatic decline in the share of women as they move up the hierarchy.

c) Growing intolerance amongst youths – The tolerance level of people is continuously decreasing.
Aspirations and ambitions have increased beyond limits. Everybody wishes to touch the sky with
least effort and with no loss of time. Failure in achieving one’s targets due to one reason or the other,
make a person intolerant and angry.

d) Liberal ‘divorce’ laws – In metros and modern families, marriages are no more considered to be a
lifelong commitment. Intolerance amongst youth is increasing. A woman cannot be sure due to lack
of mutual understanding, how long her marriage will last. It does not take much time or effort for
both the couple to walk out. A little bit of intolerance or misunderstanding puts her married status in
danger and compels her to cope up with all kinds of problems and difficult situations singlehandedly.

e) Adversities of life arising out of economic, social, psychological and environmental situations hit
women’s world worst. During times of war, struggle, unstable economy, natural calamities and
infighting amongst various sections of society or inter-group or intra-group clashes, women along-
with children are the primary victims and are worst hit.

f) At times in an attempt to safeguard/uphold their independence/authority within the family or at

working place, some women become insensitive ,narrow minded and sometimes ruthless. Too much
of assertion of their independence or authority create complications in their own life and in others’
lives as well, which ultimately develop insecurity in women’s minds.
g) Government of India has made some draconian laws in favour of women with an intention to protect
them from violence and discrimination. Instead of gaining the sympathy of society or the opposite
sex, they have earned the wrath/ire of menfolk and the society. Such laws are being misused by some
shrewd women to teach men/society a lesson. Male members or his relatives cannot even raise their
voice against the misuse of such legislations.

h) Government’s inefficiency/failure to implement honestly and sincerely

the laws passed to protect the interests of women.

1.2.3 Disoriented psyche of Modern Woman

It has been observed that too much stress on women’s liberty has developed in women a disoriented
form of psyche, where nothing but ‘self’ matters – ‘I, my and me’. Women too like men are now in a
rat race for power, position and money. Self-gratification and heroism (feeling of being super
women) is taking prevalence over social responsibilities. Breaking down of value system is affecting
adversely familial bonds or bonds of marital loyalty. They are in a hurry to fulfil their desires and in
the process end seems to justify means. Such an attitude has led to a situation, where they do not want
to compromise in any way their time and resources, most of the times not even for their own children.
Modern women many a times do not find or devote enough time to inculcate positive values in the
minds of growing-up children. Rising number of different kinds of crimes and lawlessness in the
society as well as in the nation is to some extent.

1.3 POSITION OF WOMEN IN ANCIENT INDIA

The position of women was not always so bad in India. In ancient India, during the Vedic period,
women were placed on a high pedestal. In her role of a good wife and a worthy mother, she
commanded a great deal of respect and honor in the society. They were known for their mental
alertness, intuition and spiritual qualities of love and service. The best of qualities a human being can
possess like knowledge, wealth, strength and ability to provide food and shelter were all visualised in
the form of
 woman – Saraswati, Laxmi, Durga, Annapurna respectively. She had freedom and access to
education and knowledge. Gargi and Maitreyi are well known for their pursuit of knowledge. “Yatra
Naryastu Pujyante, Ramate Tatra Devata”4, meaning where woman is worshipped, there resides god.
During later period of Vedic age, as described in Brahamanas and Sutras, women lost their
independence and their status was degraded to that of ‘Shudras’5. Women were regarded as unfit for
independent life. After the revival of Hinduism, according to Chinese traveller’s, marriages between
men of higher castes and women of lower castes were permitted and their offspring’s were given a
recognized

1.4 POSITION DURING MEDIEVAL PERIOD

Seventh century onwards, with the downfall of Hindu Raj and continuous invasions of Turks,
Afghans and Mughals, the position of woman deteriorated fast. Right to education was taken away
from them. They became the victims of illiteracy, ignorance, complete male domination and many
kinds of religious and social restrictions.
Patriarchal system institutionalized unequal nature of family laws and traditions. Property was
inherited only by sons.4

In some parts of northern India, Bengal and Rajputana, women from families of Rajah, Chiefs,
Zamindars and upper castes suffered from social evils like ‘Purdah system’ , ‘Sati Pratha, ‘dowry’
‘polygamy’and ‘infanticide’, renunciation of all the comforts and happiness by widows (young or
old). In Maharashtra, these evils were curbed to some extent by the energetic steps taken by Peshwa.

Nevertheless, this does not mean that there were no exceptions to this rule. Even during those days,
there were a few great women like Rani Laxmibai, Chand Bibi, Milya Bai, Razia Sultana etc. who
came into forefront, led people and earned fame and respect of people.

1 Ref. Asha, S. “Narrative Discourses on Purdah in the Subcontinent.” ICFAI Journal of English
Studies 3, no. 2 (June 2008): 41–51: Purdah has "visual, spatial, and ethical dimensions".It refers to
three main components: veiling of women, segregation of sexes, and a set of norms and attitudes that
sets boundaries for Muslim women’s moral conduct.
1.5 POSITION OF WOMEN IN MODERN PERIOD

During the second half of the nineteenth century, modern education drew the attention of some
sensitive Indians and reformers like Swami Dayanand, Maharshi Karve, Raja Ram Mohan Roy,
and Gandhiji etc. towards the oppressive and evil social customs, practices and traditions. They tried
to put to an end those evil practices. They worked for the better future and emancipation of women
community. Inspired by Gandhiji, many women from well to do and middle class families not only
received education, but also came out to take part in public life. Women’s Associations were formed
all over the country. All India Women’s Conference was formed in 1926 and is working since then to
support legitimate demands of women.

All India Muslim Ladies Conference was started in 1914. Leading Muslim ladies demanded abolition
of Purdah system, restrictions on polygamy and spread of education for women. They were
supported by reformists.5

Wives of some viceroys showed interest in the uplift and education of women and helped in opening
some colleges and institution for them. In 1923, due to sincere efforts of Mrs. Ramabai Ranade,
Women India Association was formed with branches all over the country. It rendered valuable service
to the cause of women.

1 The All India Women's Conference (AIWC) is an organization based in Delhi. It was founded in
1927 by MargaretCousins, "as an organization dedicated to upliftment and betterment of women and
children". As well as continuing its original mission, the AIWC has since diversified into various
social and economic activities involving women. organization working for women's development and
empowerment.
1.6 POSITION OF WOMEN AFTER INDEPENDENCE:

1.6.1 Brighter Side of Women’s development

Since Independence, India is passing through times of rapid changes in social behaviour. It is still in
transitional phase. Government took upon itself responsibility of protecting its women, providing
them better conditions of living, better education, better medical facilities, better job opportunities
and opening up enough avenues for them to grow to their fullest stature.

Constitution of India gave them freedom, equality and access to education and employment.
Government of India issues guidelines, from time to time, to Central and State Government for
formulating and implementing action programs for women. It has identified areas of health, family
planning, nutrition, education, vocational courses for women, employment, legal provisions and
social welfare for its future
action plans.

Woman herself has become aware and confident of her mind, capabilities and rights. She started
questioning the stereo type assumptions that went with womanhood. Gradual and greater awareness
has led her to make her own decisions. She made her own efforts for welfare of women and secured
more space in economic, political and
social spheres for them through the intervention of government’s authorities. The older typical image,
slowly and slowly, started getting diffused. Women got a foothold in modern world and started
leading active life.

1.6.2 A separate Department of Women & Child Development

In 1985, a separate Department of Women & Child Development was set up within the Ministry of
Human Resource development to implement/monitor the comprehensive programs and to ensure all
round development of Women. National Perspective Plan (NPP) for women 1988-2000 A.D.
prepared a base for future strategies. It put a major
 thrust in the programs for women development, particularly to raise the social and economic status of
women. It also instructs the Government to ensure that women are properly covered by
developmental schemes. There had been many changes during last few decades of twentieth Century.

Many bright and dynamic young women came forward and joined the national mainstream through
working and reaching at decision making levels in different disciplines like politics, administration,
economics, technology, industry, journalism and other developmental fields, which are far away from
her traditional role of a housewife. Many of them made their presence felt in Indian society. The
name of Mrs.
Indira Gandhi, former Prime Minister (1965 to 1984) is worth mentioning here. At present,
everybody is well aware of the important place occupied by Sonia Gandhi and her role in Indian
politics. However the number of women who have joined the main-stream is very small.

Twenty first century has brought a new hope for women. Many women have joined the workforce
and become quite ambitious about their own career in the same manner as men are. However the
number of women who have joined the main-stream is very small. Darker Side - In general, women
are still victims of discrimination.

1.7 WOMEN’S LIBERTY

The darker side of women’s lib is that woman who acted as a pivotvaround which the whole familial
and social life revolved, is losing hervgrip and is under the influence of her whims and fancies. She is
becoming more and more aggressive and rude, most of the time shouting on others and showing all
kinds of tantrums – emotional and violent
outbursts.

Is Child-care a dilemma? -Child care and proper upbringing of small children, who need twenty
four hours mothers’ attention and presence at home has become a dilemma for career women.
Parenting and inculcating right values in children requires a lot of time and patience during a child’s
growing years.
Dearth of time and required attention of parents at right time, lack of stimulation at home, while
children are growing up, tense atmosphere and impaired relationships between parents, dictatorial
handling of children during their tender age and easy availability of and access to money tempts
children to bad habits.

The concept of spending ‘quality’ or ‘quantity’ time with children does not work well. Many
parents buy materialistic goods for them to clear their guilt conscience of not being there for them. In
the dual worker families with dependent children, the concerns can range from sheer logistic
problems associated with providing proper child-care toemotional challenges tied to not being there,
when one’s children are
growing.

It is the irony of the modern times that when children need their mothers the most, a modern career
mother hardly gets time to spend with them. Her mind remains busy in unresolved problems of work-
place and her career prospects, even at that time too, when she is at home. When she finds spare time,
her children do not need her much, as they get involved in schools or in other activities elsewhere and
remain busy in their ownworld.

Alienation1 – Sometimes, improper handling during their tender age may make children irritant or
undisciplined or hamper normal growth of children’s abilities. Many children develop the feeling of
alienation and revolting indulgence. They may become uncommitted to values of their parents or the
‘establishment’. Some of them become the victim of harmful evils like drug addiction (an evil,
which has come across as shockingly and poignantly) in order to escape from problems that may be
real or imaginary.

To prevent such harmful evils from spreading in the society, it is necessary that parents shall find out
enough time for their children. It would develop in children feeling of interdependence and a feeling
of being wanted and being loved. They should provide them a secure and stable home environment.
Children can be kept busy with sports, hobbies and other useful activities, which could which could
slant them away from evil outlets.
 Support systems – There exist many support systems, but not without constraints. If young couple
depend on their old parents or in-laws for taking care of their children and in performing daily
household chores, they become overburdened and find it difficult to cope with the responsibilities
properly due to their failing health. If they depend on servants, they are expensive, unreliable,
untrained and do not stay around for long.

Crutches/day care centre, are overcrowded and are run more on commercial basis rather than paying
attention required for proper upbringing of children. Besides a mother’s role is so crucial that nobody
else can substitute her for cultivating positive qualities, which once imbibed, would inevitably
became part of one’s nature and provide the guidelines for wholesome behaviour patterns.

In short, career women themselves are overburdened. Neither they could do full justice to home-tasks
nor to their duties at work place. At home, their kids are deprived of the tender and affectionate care
and love of the mother. The nation is at loss from having confident and healthy citizens – mentally,
physically and economically. Such a dilemma is seen not only in India, but in advanced countries too,
where government has created enough facilities and arrangements to make their citizens secure
and comfortable.

1.7.1 Plight of an urban woman

Two income families are fast becoming the norm of urban modern society. It puts a great pressure on
urban women. Modern trend of nuclear family system and desire of liberated woman for complete
freedom have aggravated their problems.

The urban women have to suffer mainly due to lack of support systems. Old traditional support
systems are gradually vanishing and new systems supposed to replace them are not up to the
expectations and satisfaction.

For some couples day-care or crutches are too expensive. In addition to it, increased necessities due to
consumerism and lure for luxury items have added to the miseries of urban women, who suffer more
than a rural woman due to social evils like infanticide, dowry, divorce, child care, polygamy etc.
1.7.2 Plight of rural women

a) In rural India, most of the women are victim of poverty, ignorance, illiteracy and
unemployment. Rural women irrespective of caste or class have to suffer more than urban
women in three critical areas: –

b) Access to education,

c) Reproductive health, and

d) Credit Resources.

Illiteracy is wide spread in rural areas, which has made rural women superstitious, unemployable and
victim of different kinds of oppressions. Poverty frequently pushes unemployed men to go to distant
places in search of jobs and leave their families behind. Most of rural women in about 30% to 35%
rural households, women are sole breadwinner with complete responsibility to raise children and run
the household3. They mostly work in unorganized sector and are usually oppressed or exploited by
their employers.

Most of the women in rural areas become victims of abuse, harassment, humiliation and exploitation
because of the laziness, drunkenness, debts, vices or violent attitude of their own men-folk. Wife
beating, desertions, polygamy are the common practices amongst them. Male members of the family
are incapable to protect own women. They
tolerate atrocities on their women by others with down cast eyes. Nobody comes forward to rescue
the victims or has the courage to condemn exploitation of their own women. In addition to it
women’s own helplessness, unawareness or inherent weaknesses put them in difficult situations.

However, women belonging to lower castes get laxity in regard to all those social or religious
restrictions, rituals and observances, by which urban women or caste Hindu women suffers like
Pardah system, polygamy, Sati Pratha etc. Widows have lesser ritual or religious restrictions.
Divorce or remarriage is allowed to rural women.
1.7.3 Caste Colour to gender issues

Generally, the suppression and slave like conditions of women do not evoke much sympathy in the
hearts of men-community. On the contrary, many male members of the society try to cash on
women’s sufferings. In fact the male-dominated society and callous Government turns a blind eye to
the gender issues.

In the present atmosphere of politicization of caste, Caste-colour is given to gender issues. Gender
issues are very conveniently turned into caste issues by vested shrewd persons politicians. Such an
attitude pushes the oppressed women into the background unnoticed.

1.8 ATTEMPTS FOR EMPOWERING WOMEN

Reality is much deeper than what one sees on the surface or in the papers. The attempts done so far in
India towards women’s development could make a small section of women educated and aware. They
are doing several things which women were not allowed to do a few years back. But these attempts
are just like few drops in the ocean. Much more is required to be done in this area.

The pace of women’s advancement has been very slow. It is very difficult to make a breakthrough in
age old traditions, customs and accepted norms/values in the society.

Despite all the efforts made forwomen’s uplift, plight of average women has not been changed much.
She still remains the most maligned/ill-treated person even in modern
society.

Deep thinking of authorities, national determination and political-will are needed to assess women’s
properly problem-areas and to remove hurdles lying on their way to join the mainstream2. It
necessitates toning up social, legal, political and economic systems. It involves social mobilization
and transformation of outdated social values. Plans for women’s development need to be made very
carefully, so that not only
 they, but also the whole society and nation could benefit.

There is a need to create supportive infrastructure for women to enhance their confidence and ensure
their security. For it, policy makers need to understand that liberation means liberation from atrocities
and oppression. The policies, they make or programs they initiate should be directed to educate all the
women, so that they could become confident, self-sufficient, and capable to participate in nation
building activities. It is necessary to inculcate in women scientific temper and courage to fight
against evil social practices. They should be made aware of the legal infrastructure of the nation,
especially about the special legal measures taken to protect them from atrocities and exploitation.

1.8.1 Education of a girl child

So far, Government has attempted to educate all the women, but without desirable results. According
to 2011 census the literacy rate amongst women could reach only up-to 65%. Reluctance of parents to
send their daughters to co-educational institutions or hostels, or their economic difficulties creates
problems for girls to get educated. Quite often talented and hard-working girls are by-passed, while
arrangements are made for the brother.6

Challenge of education, A Policy Perspective 1985 has observed “As far as the participation of girls
in education is concerned, it is clear that even after considerable acceleration in recent years because
of deliberate measures to facilitate their participation, girls are still way behind the boys. To a great
extent this disparity is more the result of economic and occupational problems and cultural biases of
society than the accessibility of educational facilities. Even though the performance of girls compares
favourably with the boys, relatively fewer girls seek admission to professional courses other than
those pertaining to medicine, teacher training and nursing.”

Pruthi, Raj Kumar; Rameshwari Devi and Romila Pruthi (2001). Status and Position of Women: In
Ancient, Medieval and Modern India. Vedam books. ISBN 81-7594-078-6.
Many parents still do not like to send their daughters to far away schools. They still hesitate to send
girls to co-educational institutions and are particularly averse to those, in which there are male
teachers. A large number of girls get little education or no education at all due to financial constraints
or domestic responsibilities or early marriage or early child birth etc.
As a result of this attitude, many girls seldom get opportunity to develop their personality and fulfil
their ambitions. Half of the opportunities/career-courses available to them are not known to many
girls especially those belonging to poor families or living in remote areas. It is still difficult for them
to get free access to modern facilities like computer or internet.
Their easy access to Open University1 and distance education programs could solve these problems
to a great extent.
Sound system of education and training makes any person broadminded, liberated and financially
independent and to inculcate in them knowledge. Training imbibes in them attitude, work-habits and
skills. Swami Vivekananda has said when you educate a man you educate only one person. But when
you educate a woman you educate a whole family.
As enshrined in the Preamble to the Constitution of India, “equality of status and opportunity”
must be secured for all its citizens; equality of every person under the law is guaranteed by Article 14
of the Constitution. A safe workplace is therefore a woman’s legal right. Indeed, the Constitutional
doctrine of equality and personal liberty is contained in Articles 14, 15 and 21 of the Indian
Constitution. These articles ensure a person’s right to equal protection under the law, to live a life free
from discrimination on any ground and to protection of life and personal liberty. This is further
reinforced by the UN Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW), which was adopted by the UN General Assembly in 1979 and which is ratified by India.
Often described as an international bill of rights for women, it calls for the equality of women and
men in terms of human rights and fundamental freedoms in the political, economic, social, cultural
and civil spheres. It underlines that discrimination and attacks on women’s dignity violate the
principle of equality of rights.

In India women are not safe. Heinous and heart tormenting crimes are being perpetrated over them
every minute. Be it a girl at school, a sister at home or a strong corporate lady in the magnetic world
of money; they are all vulnerable. Exploitation of women in India is not synonymous town education.
It is also in no way related to their exposure. If that would be true women could have felt safer at
home. Educated women working with some fine corporate firm would have never complained of
 harassment by their counter male colleagues. But that’s not the prevailent scenario. Women is an
epitome of shakti yet she is drained out of all her modesty and dignity by perpetrating such evil
crimes over her. A women discharges so many important functions as daughter, sister then stepping
into someone’s life as wife, giving birth to a child as mother and at workplace as someone’s
employee. It is well settled principle and not an issue of debate that physically she is a weaker sex.
For the very first time this remark was made by the supreme court of United States of America in a
case. Biologically also she is somewhere at loss, discharging so many functions she is somewhere
standing on an unequal pedestal compared to male counterpart. So it is somewhere responsibility of
the society to make her feel safer at her workplace.

A society cannot progress by crushing one gender of the society or by making her feel weaker section
of the society. If society is a vehicle women is an important wheel. She has all the rights to be felt
safe and protected at her workplace. There are several constitutional provision in India safeguarding
women rights. For instance, we have Article 14, Article 15 and Article 21. Article 14, thogh,is
general in nature yet it is there to safeguard equality before law under article 15 there is specifically
use of word ‘sex’ in regard to prohibiting discrimination. Also Article 21 is there to safeguard life and
liberty of working women in India. Also there is Convention On Elimination Of All Forms Of
Discrimination Against Women, Maternity Benefit Convention. After this we have a leading case of
Vishaka v. State of Rajasthan (1997)6S.C.C. 323. They all help us to know how women’s rights in
India are safeguarded at their workplace. We will address these key issues in paragraph one after the
other.

But before we delve deep into intricacies of protections and safeguards it is important to understand
that what actually amounts to sexual harassment.

1.8.3 WHAT AMOUNTS TO SEXUAL HARASSMENT

In India there is no adequate and sufficient laws protecting women from sexual harassment at their
workplace. Expecting such enactment in a male dominated society would definitely take considerable
amount of time and we need to show some more patience. Prior to Vishaka case,we had no
legislation in this regard. After Vishaka we have ‘The Sexual Harassment of Women At Workplace
(Prevention, Prohibition and Redressal) Act,2013 which is a legislative Act in India that seeks to
 protect women from sexual harassment at their place of work. It was passed by the Lok Sabha(the
lower house of the Indian Parliament) on 3 september 2012.

However, in Vishaka’s case a definition of sexual harassment was suggested by J.S. Verma J. . He
opined that for this purpose sexual harassment includes such unwelcome sexually determined
behaviour (whether directly or by implication) as:

(a) Physical contact and advances

(b) A demand or request for sexual favours
(c) Sexually coloured remarks
(d) Showing pornography
(e) Any other unwelcome physical,verbal or non verbal conduct of sexual nature.

When we analyse the above definition we get to know that sexual harassment is something which is
in the form of descrimination on the basis of sex which is projected through unwelcome sexual
submission to or rejection of such a conduct by the female employee was capable of bein used for
affecting the employment of the female employee and her work performance gets interfered
unreasonably and the effect of such an act is that an adverse and hostile work environment is created
against her.7

1.8.4 SEXUAL HARASSMENT OF WORKING WOMEN AND INDIAN CONSTITUTION

The Constitution of India talks of gender equality. Sexual harassment of any women at her place of
employment is in totality against the principle of gender equality. It is also violation of the
fundamental rights in particular Article 14, Article 15 and Article 21 of the Indian Constitution which
enshrines principles of equality before law and prohibition of discrimination on grounds of religion,
race, caste, sex and place of birth. Article 21 is also said to be violated by sexual harassment of
women at workplace as it deals with the protection of life and personal liberty.

http://legal-dictionary.thefreedictionary.com/sexual+harrasement
http://indialawyers.wordpress.com
 Any International convention not inconsistent with the Fundamental Rights and in harmony with its
spirit must be read into these provisions to enlarge the meaning and content thereof to promote the
object of the constitutional guarantee. This is implicit in Article 51(c). Article 73 also is relevant in
this regard.

Next in reference we have

C.E.D.A.W (CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN) 1979

We can say that this convention is a step towards protecting the honour and dignity of the women.
The message is loud and clear that ‘she’ has all right to feel safe and protected at her workplace.
Allow her to work. Don’t crush her. Allow her to grow and multiply.

The Government of India has ratified the CEDAW’S resolution on 25th June, 1953 with some
reservation which are no material in the present context.

Sexual harassment constitutes a gross violation of women's right to equality and dignity. It has its
roots in patriarchy and its attendant perception that men are superior to women and that some forms
of violence against women are acceptable. One of these is workplace sexual harassment, which views
various forms of such harassment, as harmless and trivial. Often, it is excused as ‘natural’ male
behaviour or ‘harmless flirtation’ which women enjoy. Contrary to these perceptions, it causes
serious harm and is also a strong manifestationof sex discrimination at the workplace. Not only is it
an infringement of the fundamental rights of a woman, under

Article 19 (1) (g) of the Constitution of India “to practice any profession or to carry out any
occupation, trade or business”; it erodes equality and puts the dignity and the physical and
psychological well-being of workers at risk. This leads to poor productivity and a negative impact on
lives and livelihoods.

To further compound the matter, deep-rooted socio-cultural behavioural patterns, which create a
gender hierarchy, tend to place responsibility on the victim, thereby increasing inequality in the
workplace and in the society at large.
ARTICLE 11

State parties shall take all appropriate measures to eliminate discrimination against women in the field
of employment in order to ensure, on a basis of equality of men and women, the same rights in
particular:

(a) The right to work as an inalienable right of all human beings;

(b) The right to protection of health and to safety in working conditions, including the safe
guarding of the function of reproduction.

ARTICLE 24

State parties undertake to adopt all necessary measures at the national level aimed at achieving the
full realization of the rights recognized in the present convention.

The general recommendations of the CEDAW in the matter relating to sexual harassment at
workplace in respect of Article 11 are:

Violence and equality in employment:

Equality in employment can be seriously empaired when women are subjected to gender specific
violence, such as sexual harassment at the workplace.

Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and
advances, sexually coloured remarks, showing pornography and sexual demands, whether by words
or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is
discriminatory when the women has reasonable grounds to believe that the objection would
disadvantage her in connection with the employment, including recruiting or promotion, or when it
creates a hostile working environment whats needed to be provided for is effective complaints,
procedures and remedies, including compensation.
States in their reports must include information about sexual harassment, And what measures have
been adopted to protect women from sexual harassment and other forms of violence and coercion in
the workplace.

VISHAKA V. STATE OF RAJASTHAN (1997)6 S.C.C. 323

The leading judgement of Vishaka v. State of Rajasthan in which a writ petition was filed for the
enforcement of Fundamental Rights of working women under Articles 14 , 15, 21 of the Indian
Constitution. The present petition was brought as a class action by certain social activists and NGO.
The progress made at each hearing in Vishaka, culminated in the formulation of guidelines to which
Union ofIndia gave its consent through the Solicitor General, indicating that these should be the
guidelines and norms declared by the Supreme Court to govern the behaviour of employees and all
others at workplace to curb this social evil.

At present we have legislation in the form of Sexual Harassment of Women At Workplace

(Prevention, Prohibition and Redressal) Act, 2013.

Though sexual harassment at the workplace has assumed serious proportions, women do not report
the matter to the concerned authorities in most cases due to fear of reprisal from the harasser, losing
one’s livelihood, being stigmatized, or losing professional standing and personal reputation.

Across the globe today, workplace sexual harassment is increasingly understood as a violation of
women's rights and a form of violence against women. Indeed, the social construct of male privileges
in society continues to be used to justify violence against women in the private and public sphere. In
essence, sexual harassment is a mirror reflecting male power over women that sustains patriarchal
relations. In a society where violence against women, both subtle and direct, is borne out of the
patriarchal values, women are forced to conform to traditional gender roles. These patriarchal values
and attitudes of both women and men pose the greatest challenge in resolution and prevention of
sexual harassment. Workplace sexual harassment, like other forms of violence, is not harmless. It
involves serious health, human, economic and social costs, which manifests themselves in the overall
development indices of a nation.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
was enacted to ensure safe working spaces for women and to build enabling work environments that
respect women’s right to equality of status and opportunity. An effective implementation of the Act
will contribute to the realization of their right to gender equality, life and liberty, equality in working
conditions everywhere. The sense of security at the workplace will improve women’s participation in
work, resulting in their economic empowerment and inclusive growth.

The full scale of the problem is not known given the difficulties in documenting the experience of
those who have experienced workplace sexual harassment. However, available studies on sexual
harassment show that it is certainly prevalent in India today. This is why the legislation is an
important step forward within the larger architecture of women’s rights, as it tackles this issue to
secure the rights of women workers across the country.

While the official figures for women’s work participation are low, much of the work that women do
is not captured in official data accounts. It is argued1 that where this is to be captured, women’s
overall work participation would be 86.2 per cent. While the official data shows that women’s work
participation rate is around 25.3 per cent in rural areas and 14.7 per cent in the urban areas, estimates
indicate that there is a huge workforce of women, therefore there is a need to secure their workplace
and entitlements. Given, that 93 per cent of women workers are employed in the informal sector, they
remain unprotected by laws. With no laws or mechanisms to protect them, proactive measures are
required to make their workplaces safe

It is well established that ensuring safe working conditions for women leads to a positive impact on
their participation in the workforce and increases their productivity, which in turn benefits the nation
as a whole. Economically, empowered women are key to the nation’s overall development and this
can only be achieved if it is ensured that women’s workspaces across all sectors and all over the
country have a safe and secure environment for work.

It is important as well to ensure that the emphasis is on prevention rather than punitive action. This
calls for widespread awareness on the Act among employers, managers and the workers themselves.
Frequently, women workers may face sexual harassment but may not be aware that it is a breach of
their rights and that there is something they can do about it. They need to know that they can do
something about it. Then there are others, who may believe that it is a personal matter that needs to be
resolved by the people involved. In order to change this order of things, it is urgent that measures are
taken to change mind-sets and attitudes by creating awareness about what constitutes sexual
 harassment and the steps that can be taken to address it. This handbook will serve as an important tool
to make workplaces safe and benefit both workers and employers alike, leading to mutual gains.

Workplace Sexual Harassment- What Is It?

“No woman shall be subjected to sexual harassment at any workplace.”

Section 3(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013

T his section defines the aggrieved woman, workplace and sexual harassment as well as highlights
key elements of workplace sexual harassment. It provides examples of behaviours through which a
woman can experience possible professional and personal harm. It presents the user with scenarios
from across-section of work contexts to build clarity on different forms of sexual harassment as
identified under the

1.8.5 WHO IS AN AGGRIEVED WOMAN?

The Act recognizes the right of every woman to a safe and secure workplace environment irrespective
of her age or employment/work status. Hence, the right of all women working or visiting any
workplace whether in the capacity of regular, temporary, adhoc, or daily wages basis is protected
under the Act.

It includes all women whether engaged directly or through an agent including a contractor, with or
without the knowledge of the principal employer. They may be working for remuneration, on a
voluntary basis or otherwise. Their terms of employment can be express or implied.

Further, she could be a co-worker, a contract worker, probationer, trainee, apprentice, or called by
any other such name. The Act also covers a woman, who is working in a dwelling place or house.

1.8.6 WHAT IS A WORKPLACE?

A workplace is defined as “any place visited by the employee arising out of or during the course of
employment, including transportation provided by the employer for undertaking such a journey.” As
per this definition, a workplace covers both the organised and un-organised sectors.
 It also includes all workplaces whether owned by Indian or foreign company having a place of work
in India. As per the Act, workplace includes:

a) Government organizations, including Government company, corporations and cooperative

societies;
b) Private sector organisations, venture, society, trust, NGO or service providers etc.
providing services which are commercial, vocational, educational, sports, professional,
entertainment, industrial, health related or financial activities, including production, supply,
sale, distribution or service;
c) Hospitals/Nursing Homes;
d) Sports Institutes/Facilities;
e) Places visited by the employee (including while on travel) including transportation
provided by employer; - A dwelling place or house.

The Act defines the Unorganised Sector as:

• Any enterprise owned by an individual or self-employed workers engaged in the production or sale of
goods or providing services of any kind;

• Any enterprise which employs less than 10 workers.

1.9 WHAT IS SEXUAL HARASSMENT AT THE WORKPLACE?

“Sexual Harassment” includes anyone or more of the following unwelcome acts or behaviour (whether
directly or by implication), namely:

1. Physical contact or advances;

2. A demand or request for sexual favours;

3. Making sexually coloured remarks;

4. Showing pornography;

5. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature

1.9.1 KEY ELEMENTS OF= WORKPLACE SEXUAL HARASSMENT

 Very often situations that start off innocently end up in inappropriate and unprofessional behaviours.
It is important to remember that workplace sexual harassment is sexual, unwelcome and the
experience is subjective. It is the impact and not the intent that matters and it almost always occurs
in a matrix of power. It is possible that a woman may experience a single instance of sexual
harassment or a series of incidents over a period of time. It is important also to remember that each
case is unique and should be examined in its own context and according to the surrounding
circumstances as a whole.

The following table highlights the subjective nature of the experience and the impact it may have on
the person involved, irrespective of the intent of such behaviour.

To enable prevention of sexual harassment at the workplace, it is critical to recognize and

differentiate between welcome and unwelcome sexual behaviour. Listed are some examples of how
“unwelcome” and “welcome” behaviour is experienced.

1.9.2 EXAMPLES OF BEHAVIOURS AND SCENARIOS THAT CONSTITUE SEXUAL

HARASSMENT

Below are examples of behaviour that may or may not constitute workplace sexual harassment in
isolation. At the same time, it is important to remember that more often than not, such behaviour
occurs in cluster. Distinguishing between these different possibilities is not an easy task and requires
essential training and skill building. Some examples of behaviour that constitute sexual harassment at
the workplace:

1. Making sexually suggestive remarks or innuendos.

2. Serious or repeated offensive remarks, such as teasing related to a person’s body or appearance.

3. Offensive comments or jokes.

4. Inappropriate questions, suggestions or remarks about a person’s sex life.

5. Displaying sexist or other offensive pictures, posters, mms, sms, whatsapp, or e-mails.

6. Intimidation, threats, blackmail around sexual favours.

7. Threats, intimidation or retaliation against an employee who speaks up about unwelcome
behaviour with sexual overtones.

8. Unwelcome social invitations, with sexual overtones commonly understood as flirting.

9. Unwelcome sexual advances which may or may not be accompanied by promises or threats,
explicit or implicit.

10. Physical contact such as touching or pinching.

11. Caressing, kissing or fondling someone against her will (could be considered assault).

12. Invasion of personal space (getting too close for no reason, brushing against or cornering
someone).

13. Persistently asking someone out, despite being turned down.

14. Stalking an individual.

15. Abuse of authority or power to threaten a person’s job or undermine her performance against
sexual favours.

16. Falsely accusing and undermining a person behind closed doors for sexual favours.

17. Controlling a person’s reputation by rumour-mongering about her private life.

Some examples of behaviour that may indicate underlying workplace sexual harassment and
merit inquiry:

1. Criticizing, insulting, blaming, reprimanding or condemning an employee in public.

2. Exclusion from group activities or assignments without a valid reason.

3. Statements damaging a person’s reputation or career.

4. Removing areas of responsibility, unjustifiably.

5. Inappropriately giving too little or too much work.

6. Constantly overruling authority without just cause.

 7. Unjustifiably monitoring everything that is done.

8. Blaming an individual constantly for errors without just cause.

9. Repeatedly singling out an employee by assigning her with demeaning and belittling jobs that are
not part of her regular duties.

10. Insults or humiliations, repeated attempts to exclude or isolate a person.

11. Systematically interfering with normal work conditions, sabotaging places or instruments of
work.

12. Humiliating a person in front of colleagues, engaging in smear campaigns.

13. Arbitrarily taking disciplinary action against an employee.

14. Controlling the person by withholding resources (time, budget, autonomy, and training) necessary
to succeed.

Some examples of workplace behaviours that may not constitute sexual harassment:

1. Following-up on work absences.

2. Requiring performance to job standards.

3. The normal exercise of management rights.

4. Work-related stress e.g. meeting deadlines or quality standards.

5. Conditions of works.

6. Constructive feedback about the work mistake and not the person.

1.9.3 FORMS OF WORKPLACE SEXUAL HARASSMENT

Generally workplace sexual harassment refers to two common forms of inappropriate behaviour:

• Quid Pro Quo (literally ‘this for that’)

 a) Implied or explicit promise of preferential/detrimental treatment in employment
b) Implied or express threat about her present or future employment status

• Hostile Work Environment

a) Creating a hostile, intimidating or an offensive work environment

b) Humiliating treatment likely to affect her health or safety

Prevention and Prohibition

“The meaning and content of fundamental rights guaranteed in the Constitution of India are of
sufficient amplitudes to encompass all facets of gender equality…”

Late Justice J.S. Verma

T his section describes those who are both responsible and accountable to prevent workplace sexual
harassment in compliance with the Act. It also highlights the role of workplaces in prohibiting
workplace sexual harassment through an effectively communicated policy.

1.10 PREVENTIVE AUTHORITIES

1.10.1 WHO IS AN EMPLOYER? An employer refers to:

1. The head of the department, organisation, undertaking, establishment, enterprise, institution,

office, branch or unit of the Appropriate Government or local authority or such officer
specified in this behalf.

2. Any person (whether contractual or not) responsible for the management, supervision and
control of a designated workplace not covered under clause (i).

3. A person or a household who employs or benefits from the employment of domestic worker
or women employees.

1.10.2 WHO IS AN APPROPROATE GOVERNMENT?

As per the Act, Appropriate Government means:

 1. In relation to a workplace which is established, owned, controlled or wholly or substantially
financed by funds provided directly or indirectly—

a) By the Central Government or the Union Territory administration, the Central

Government;

b) By the State Government, the State Government;

2. In relation to any workplace not covered under sub-clause (i) and falling within its territory,
the State Government.

1.11 WHO IS A DISTRICT OFFICER (DO)?

State Governments will notify a District Magistrate/Additional District Magistrate/ Collector/

Deputy Collector as a District Officer at the local level. The District Officer will be responsible for
carrying out the powers and functions under the Act at the district levels (including every block,
taluka, tehsil, ward, and municipality).

1.11.1 RESPONSIBILITIES OF THE AFOREMENTIONED AUTHORITIES

Under the law the employer/DO is obliged to create a workplace free of sexual harassment. It is the
responsibility of the Employer/District Officer in general to:

1. Create and communicate a detailed policy;

2. Ensure awareness and orientation on the issue;

3. Constitute Complaints Committee/s in every workplace and district so that every

working woman is provided with a mechanism for redress of her complaint(s);

4. Ensure Complaints Committees are trained in both skill and capacity;

5. Prepare an annual report and report to the respective state government;

6. District Officer will also appoint a nodal officer to receive complaints at the local
level.
1.11.2 Complaints Committee/s The Act provides for two kinds of complaints mechanisms:

Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All Complaints
Committees must have 50 per cent representation of women. ICC or LCC members will hold their
position not exceeding three years from the date of their nomination or appointment.

1) Internal Complaints Committee (ICC)

Every employer is obliged to constitute an ICC through a written order. The ICC will be composed of
the following members:

2) Local Complaints Committee (LCC)

The District Officer will constitute an LCC in every district so as to enable women in the unorganised
sector or small establishments to work in an environment free of sexual harassment. The LCC will
receive complaints:
a) From women working in an organisation having less than 10 workers;
b) When the complaint is against the employer himself;
c) From domestic workers

3) External Members on the Complaints Committee/s

The Act refers to external members, which generally means persons who have expertise with the issue
of sexual harassment. Given the largely intangible nature of workplace sexual harassment, there are a
range of complexities involved in responding effectively to workplace sexual harassment complaints.
For this reason, external third party/ members on the Complaints Committee/s (from civil society or
legal background) should possess the following attributes:

a) Demonstrated knowledge, skill and capacity in dealing with workplace sexual harassment
issues/complaints;

b) Sound grasp and practice of the legal aspects/implications. Such expertise will greatly benefit
Complaints Committees in terms of fair and informed handling of complaints to lead to sound
outcomes. These external third party members shall be paid for their services on the Complaints
Committees as prescribed.
1.11.3 Sexual Harassment at Workplace Policy

Employers/District Officers are responsible for complying with prohibition, prevention and redress of
workplace sexual harassment. In practice, this means having a policy that:

(1) Prohibits unwelcome behaviour that constitutes workplace sexual harassment;

(2) Champions prevention of workplace sexual harassment through orientation, awareness and
sensitization sessions;

(3) Provides a detailed framework for redress.

3.2.3 Dissemination of Information and Awareness Generation

Employers/ District Officers have a legal responsibility to:

1) Effectively communicate a policy that prohibits unwelcome behaviour that constitutes workplace
sexual harassment, and provides a detailed framework for prevention, and redress processes.

2) Carry out awareness and orientation for all employees.

3) Create forums for dialogue i.e. Panchayati Raj Institutions, Gram Sabhas, Women’s Groups, Urban
Local Bodies or like bodies, as appropriate.

4) Ensure capacity and skill building of Complaints Committees.

5) Widely publicize names and contact details of Complaints Committee members.

 CHAPTER-2

JUDICIAL RESPONSE

The Judiciary is to be an arm of the social revolution upholding he equality that Indians had longed
for. It is established fact that Judiciary is the third organ of the Government in any democracy. The
Judiciary is the guardian of the fundamental rights of the people. Truly, the Supreme Court has been
called upon to safeguard the rights of the people and play the role of guardian of social revolution. 1
It is the great tribunal which has to draw the line between individual liberty and social control. It is
also the highest and final interpreter of the general law of the country. It is the highest Court of
Appeal in Civil and Criminal matters.

The role of judiciary has been quite significant with respect to women. The Indian judiciary to a
certain extent has taken lead in securing socio-economic justice to women. There is a new trend in the
judiciary to interpret laws so as to provide better protection to women in respect of their rights. A
scanning of numerous rulings reveal that the issues of equality, discrimination, sexual harassment of
women at work place, equal pay for equal work, maternity benefits, prohibition of work in hazardous
occupations and several other rights of women workers have been recognised by Supreme Court of
India and High Courts in their various judicial decisions.

1. Equality

The right to equality has been the main theme of many legal battles fought necessarily for quashing
unequal provisions against women.

(1) Article 14
Article 14 provides that no one shall be denied equality before law or equal protection of laws. Article
14 in addition to conferring equality of status in women, recognizes women as a class different from
men as a class.
In Madhu Kishwar and others v. State of Bihar and Others. The petitioners who were members of
HO and Oraon tribes of Bihar challenged the 474 vires of Chhota Nagpur Tenancy Act, 1908 on the
ground that under the said Act the succession of property was confined to male line only. It was
contented by the petitioner that the Act was violative of the Fundamental Rights of equality. The
Court opined that as citizens of the country, the female members of these tribes were entitled to
Constitutional guarantee given to them under Article 14. However, instead of deciding the case on
merits the Court directed the State of Bihar to explore the possibilities of inheritance to female also.
2. Discrimination

Article 15 prohibits the State from making discrimination against any citizen on grounds only of
religion, race, sex, place of birth or any of them. Thus in Radha Charon v. State , the Orissa High
Court held Rule 6(2) of the Orissa Statutory Judicial Service rules, 1963 purporting to disqualify
married women from being appointed as District Judges, was violative of Art. 15(1) as
disqualification was on the ground of sex.

Clause 3 of Article 15 provides that nothing in this Article shall prevent the State from making any
special provision in favour of women. In other words, it enables the State to discriminate in favour of
women. However, a question arises whether Article 15(3) authorises discrimination against women?
This question was answered in negative by Calcutta High Court in Mahadeb Jiew v. B.B. Sen. 4 P.B.
Mukherjee, J. observed:

The words women and children used in Article 15(3) means making special provision in favour of
women and children and not against them.

The special provision for women mentioned in Article 15(3) would not be interpreted to authorise a
discrimination against women, because Article 15(3) did not use the expression ‘discrimination
against’ but used a different expression namely ‘special provision for’. The expression ‘special
provision for’ denotes provisions especially for women and that such special provision is ‘for’ i.e. in
favour of women. The intention obviously was to protect the interests of women and children. This
gave a clear and coherent interpretation to Article 15(1) and (b) because the provision discriminating
in favour of women, would necessarily discriminate against men and would therefore constitute an
exception to the prohibition of discrimination on the ground of sex contained in Article 15(1). It is
submitted that this view is correct and sound.
 The above interpretation was followed by Bose, J in Anjali Roy v. State of West Bengal6 but
struck a note of doubt. However, on appeal the doubt did not find favour with Chakravarti,
Ag. C.J. and Sen, J. who observed:
“As to the true meaning of Article 15(3), I am inclined to think that it really contemplates
provisions in favour of women, although grammatically and etymologically, ‘for’ may mean
‘concerning’ and though, theoretically, it is possible to think of reasonable discrimination
against women ... But the ordinary meaning of ‘provision’ is certainly provision in favour of
…. That clause (3) is obviously an exception to clause (1) and (2) since its effect is to
authorise what the Article otherwise forbids, its meaning seems to me to be that not with
standing that clause (1) and (2) forbid discrimination against any citizen on the ground of sex,
the State may discriminate against males by making ‘special provision’ in favour of females it
is true that since clause (1) and (2) use the general term sex, clause (3) may logically also
mean that the State may discriminate against women, but the language used being ‘provision
for’ such an intention of the clause appears to be excluded. Further, support to that conclusion
is lent by clause (4), the other exception clause, which speaks of any special provision ‘for the
advancement of any socially and educationally backward classes of citizens’ ‘for the
Scheduled Castes and Scheduled Tribes.’ There can be no doubt that the word ‘for’ in the last
part of clause (4) means ‘in favour of’ and it is reasonable to presume that the same word used
elsewhere in the Constitution bears the same meaning. Another instance where ‘provision for’
clearly means provision in favour of is to be found in Article 16(4).”

Therefore, the meaning of Article 15(3) of the Constitution would be that a special provision in
favour of women would be valid even if it implied discrimination against men.
 CASE STUDY-1

Again in Dattatreya Motiram v. State of Bombay, 7 Chief Justice Chagla held:

“As a result of the joint operation of Article 15(1) and Article 15(3) the State could discriminate in
favour of women against men, but it could not discriminate in favour of men against women.”

One of the arguments raised in this case was that Article 15(3) must not be read as a proviso to Article
15(1) because that would result in completely nullifying one of the important ingredients of Article
15(1). It was said that the object of Article 15(3) was not to make discrimination possible by
permitting special provision for women. Answering this, the Bombay High Court observed.

Article 15(3) is obviously a proviso to Article 15(1) and proper effect must be given to the proviso. It
is true that in constructing a proviso one must not nullify the Section itself, but it does not and cannot
destroy the whole Section. The proper way to construe Article 15(3) in our opinion, is that whereas
under Article 15(1) discrimination in favour of men only on the ground of sex is not permissible, by
reason of Article 15(3) discrimination in favour of women is permissible, and when the State does
discriminate in favour of women it does not offend against Article 15(1). As a result of the joint
operation of Article 15(1) and Article 15(3) the State may discriminate in favour of women against
men, but it may not discriminate in favour of men against women.

1 Modern Women referring to women of 20th Century.5

Therefore, according to the Court, Article 15(3) is an exception of Article 15(1) so far as provisions
for benefit of women are concerned.

The aforesaid survey of the cases at the High Court level indicates that the trend is uniformly in
favour of interpreting Article 15(3) as referring only to matters beneficial to women. But the Supreme
Court in a case Yousuf Abdul Aziz v. State of Bombay, 8 seems to give the exception an unbridled
scope and operation. The Supreme Court remarked:

It was argued that the clause (3) should be confined to provisions which are beneficial to women we
are unable to read any such restrictions into the clause.
It is submitted with due respect that above judgment was not a sound judgment because it lacks
reasons in its support and the framers of the Constitution who so ardently championed the cause of
amelioration or upliftment of the women folk of India should not have though of framing special
laws under this clause which should be of a non-beneficial character. The view of High Courts that
special provision for women means ‘in favour of women’ is the correct view.

CASE STUDY-2

B.R. Acharya and Qamar v. State of Gujarat and another, The petitioners, who were probation
officer in the pay scale of Rs. 425-700 had filed the petition claiming promotion to the higher post
carrying the pay-scale of Rs. 550-900, mainly on the ground that officers junior to them were
promoted to the higher past.

The contention of the petitioners was that they should be considered to be eligible for appointment
to the post of Lady Superintendent and promotions given to the Lady Officers who were junior to
them to such post should be quashed and set aside.

It is clear from the affidavit in reply send on behalf of the respondent which stated that there were
certain posts which were meant only the lady officers. The institutions, where destitute women,
unmarried mothers, etc. were kept, are headed by Lady Superintendent, only Lady Officers were
considered eligible for such mens. The petitioners, however, contended that they should not be
discriminated only on the ground of sex. They should also be considered eligible for promotion to
such posts. This claim made by the petitioners could not accepted. Having regard to the nature of
duties to be performed, it is open to the State Government to decide that the institutions which are
exclusively meant for women should be headed by only women or lady officers. The Government
cannot be compelled to appoint male officers to head such institutions, if it does not consider it
advisable to do so. If a special provision is made for women, the petitioners could not make
grievance that they had been discriminated against. Incidentally it may be pointed out that Article
15 of the Constitution of India prohibits discrimination on grounds of religion, race, caste, sex or
place of birth. Clause (3) of the said Article however, provides “Nothing in this article shall prevent
the State from making any special provision for women and children. The Court, therefore, that
 they did not 478 find any substance in the petitioners contention that they should be considered to
be eligible for promotion to the post of Lady Superintendent. Petition was dismissed.

CASE STUDY-3

In State of Kerala v. K. Kunihipacky, 28 january 2004 the question of preferring female lecturers
in state colleges exclusively for women came under review. A male lecturer claimed that a female
lecturer junior to him in experience had been promoted to a professorship in the same department,
violating Article 16. Traditionally, only females had been appointed to teaching positions in women’s
colleges when available. The State argued that since the preference of females in women’s colleges
was an established practice, preference for a female teacher was proper. The Court held that while the
preference for women in women’s college was not unreasonable given the general inequality between
sexes, seniority cannot be overlooked, directing the government to reconsider the promotion after the
contestant presented reasons to support their promotion. In effect, the Court held that females can be
given preferences over males in women’s college, a conventional practice but, once appointed, senior
male and female employees of equal caliber should be promoted.

The Kunihipacky’s decision is significant in that the Court reinforced existing social preferences.
Instead of emphasizing Article 16 banning sex discrimination, the Court appeared eager to protect
convention. Would the Court take the same position if a female claimed discrimination in men’s
college where most employees are men? Following the logic of Kunihipacky, the Court would
probably uphold the convention of extending preference to men in men’s colleges. This type of an
approach continues sex discrimination and the practice of separate categories of jobs.

Sex discrimination challenges in the context of employment law can be divided into two groups of
cases. In the first bigger group of cases, women have challenged rules, regulations and practices that
restrict or prohibit their employment. In the second group of cases, rules, regulations and practices
that treat women preferentially have been challenged on the basis that they restrict or prohibit men’s
employment.
 (i) Restrictions of Women’s Employment

Many rules, regulations and practices which impose restrictions on women’s employment have been
found to violate the equality guarantees, but the approach of the Courts to equality and gender
differences informing these decisions are divided and problematic. However, some of the rules and
zractices which impose restrictions on women’s employment have been upheld by the Courts.

The prohibition regarding marriage had come under challenge before the Supreme Court in Bombay
Labour Union v. International Franchise Ltd. In this case a service rule in the International Franchise
Company requiring unmarried women in a particular department to resign on getting married was
challenged. The Supreme Court rejected the writ petition on the ground that the company was not
bound by fundamental rights because the company is not a State within the meaning of Article 12 of
the Constitution. But, at the same time the Court held the rule should be abrogated in the interest of
social justice.

In criticizing the validity of this Rule, the Supreme Court observed: “We do not think that because the
work has to be done as a team, it cannot be done by married women. We also feel that there is
nothing to show that married women would necessarily be more likely to be absent than unmarried
absenteeism among married women, that would be so more or less in the case of widows with
children also. The fact that work has got to be done as a team and presence of all those workmen is
necessary, is in our opinion no qualification so far as married women are concerned. It cannot be
disputed that even unmarried women or widows are entitled to such leave as the rules provide and
they would be availing themselves of these leave facilities.”9

However, the Supreme Court found the above Rule justified on the ground that it does not compel
women who marry to resign as a matter of course but only when the central government finds that the
marriage impairs efficiency. The Rule stated that if a women employee subsequently marries she may
be asked to resign if necessitated by the maintenance of efficiency in the service. This Rule does not
bar married women as a class. The fact that Supreme Court justified this Rule shows the Victorian
attitude of the Court with regard to married women.

2 Ref. Doniger, Wendy (2009). The Hindus: An Alternative History. Penguin Books. p. 611. ISBN
9780143116691.: A social funeral practice among some Indian communities in which a recently
widowed woman would immolate herself on her husband’s funeral pyre
 CASE STUDY-4

In Raghubans Saudagar Singh v. State of Punjab, the rule, which made women ineligible for
various posts in men’s jail except for the posts of clerks and matrons, was upheld by the Punjab and
Haryana High Court. The Court observed:

It needs no great imagination to visualize the awkward and even hazardous position of women, acting
as a warden or other jail official who has to personally ensure and maintain discipline over habitual
male criminals, their own safety and security might be in danger if women were appointed to such
offices.

The Court further observed that the government rule barring women from serving as superintendents
of men’s jails does not discriminate on the basis of sex alone but was geared to efficiency and
suitability. It is submitted that this decision exhibits old prejudicial attitude towards fair sex. Today,
when women are excelling in all types of professions, whether it is police, parachute units, pilots or
drivers, there is no justification for such an attitude. Women officers now work as efficiently as men
in every department including the police department. Kiren Bedi has set an example for the same.

Another important case which highlights discrimination against women in Government employment
C.B. Muthamma v. Union of India, 14 the Apex Court held that the provisions in the service rules
requiring a female employee to obtain the permission of Government in writing before her marriage
is solemnized and denying right to be appointed on ground that a candidate is a married women are
discriminatory against woman and that if a married man has a right, a a married women, other things
being equal, stands on no worse footing. The very decision also clarifies the positions that it was not
meant to universalise or dogmatize that men and women are equal in all occupations and all situations
and do not exclude the need to pragmatise where the requirements of particular employment. The
sensitiveness of sex or the peculiarities of societal sectors or the handicaps of either sex may compel
selectivity. It has been also made clear that save where the differentiation is demonstrable the rule of
equality must govern.

It is submitted that the Supreme Court in the above two cases, namely Bombay Labour Union case
and Muthamma case has rightly15 advanced the socio economic interests of women. But it is strange
that why the government, which is under an obligation to protect the fundamental rights and to secure
socio-economic justice for all, should defy the Constitution and its spirit. It is submitted that before
framing rules the Government at its level, should ensure that the rules framed are not violative of any
of the fundamental rights conferred on the citizens. This will help in reducing the institution of
litigation in Courts. The most radical approach came in the case of Air India v. Nargesh Meerza,
which also involved the issue of equality between men and women. In this case Supreme Court struck
down the Air India and Indian Airlines Regulations on the retirement and pregnancy bar on the
services of Air Hostesses as unconstitutional on the ground that the conditions laid down therein were
entirely unreasonable and arbitrary. Regulation 46 provided that an air hostess would retire from the
service of corporation upon attaining the age of 35 years, or on marriage, if it took place within four
years of service or on first pregnancy, whichever occurred earlier. Under Regulation 47 the Managing
Director had the discretion on extend the age of retirement by one year at a time beyond the age of
retirement upto age of 45 years if an air hostess was found medically fit. The condition that the
services of Air Hostesses would be terminated on first pregnancy was the most unreasonable and
arbitrary provision and liable to struck down. The regulation did not prohibit marriage after four years
and if an Air Hostess after having fulfilled the first condition became pregnant, there was no reason
why pregnancy should stand in the way of her continuing in service. The Court held that the
termination of service on pregnancy was manifestly unreasonable and arbitrary and, was, therefore,
clearly violative of Article 14 of the Constitution. Having taken in service and after having utilised
her services for four years to terminate her service if she becomes pregnant amounts to compelling
the poor Air Hostess not to have any children and thus interfere with and divert the ordinary course of
human nature. The termination of services of Air Hostesses in such circumstances is not only a
callous and cruel act but an open insult to Indian womanhood – the most sacrosanct and cherished
institution. The provision for extension of service of Air Hostesses “at the option” of the Managing
Director confers a discretionary power without laying down any guidelines or principles and liable to
be struck down as unconstitutional. The option to continue in service may be exercised in favour of
one Air Hostess and not in favour of the other and is thus discriminatory. Under the Air India
Regulations the extension of the retirement of an Air Hostess was entirely at the mercy and the sweet
will of the Managing Director. The conferment of such a wide and uncontrolled power on the
Managing Director was violative of Article 14 as it suffered from the vice of excessive delegation of
powers.
It is submitted that the Supreme Court rightly struck down a provision which not only
promoted inequality but also undermined the status of women. It may therefore, be said that
judicial approach has assumed a positive and human approach which is inconsonance with the
modern values. It is found that where the law is unfavourable to socio-economic status of
women, the attitude of the Supreme Court has been critical in no uncertain terms.

CASE STUDY-5

Again in a case against Air India, Lena Khan v. Union of India, 17 the regulations which
required air hostesses employed in India to retire at the age of 35, with extension to age 45,
but which allowed air hostess employed outside India to continue employment beyond age 45,
was challenged as violative of Articles 14 and 15. The Supreme Court held that such
discrimination should not be allowed merely because it complies with local law abroad.
However, in the light of Air India’s submission that it would phase out air hostesses recruited
outside India at age 45, the Court concluded that no intervention was required at this time.

CASE STUDY-6

In the decision in Mrs. Sivanarul v. The state of Tamil Nadu and Others, S. Mohan J. as
the learned judge then was, held that on order of termination of the services of a lady teacher
serving in a private school recognized and aided by the Government, based on a clause in the
contract of service, on the ground that she got married was not only obnoxious, but also
opposed to public policy and, therefore, bad. In Maya Devi v. State of Maharashtra, 19 a
requirement that married woman obtain her husband’s consent before applying for public
employment was challenged as violating Articles 14, 15 and 16. The Supreme Court held:

“This is a matter personal between husband and wife. It is unthinkable that in social
conditions presently prevalent a husband can prevent a wife from being independent
economically just for his whim or caprice.”

The Court emphasized the importance of economic independence for women, and the
importance of not creating conditions that discourage such independence. The consent
requirement was held to be unconstitutional and discriminatory. The Court was of the view
that consent requirement was an obstacle to women’s equality. The decision also supports a
view that consent requirement contributed to the subordination of women. The decision is
commended to be one more step towards equality of sexes. However, it is a pity that the judge
should opine that “a man and woman are two different classes and the historical truth is that
women is a weaker class but that is all the more reason why she needs protection. Is it
protection that a woman seeks or is it her right to be given equal opportunity to employment?
Surely there is no nexus between her getting a job for which she is qualified and trained and
her belonging to a “weaker class” and in need of protection.

CASE STUDY-7

In the case of Sujaya v. Director General, the petitioner was working as a staff nurse in the
Military Nursing Service. She was released from service on the ground of marriage the
petitioner challenged her dismissal. Petitioner said that the order would result in her being
discriminated against in matters of employment under the State. She therefore argues that the
order is hit by the prohibition contained in Article 14, 15 and 16 of the Constitution. The
Court held that the order releasing the petitioner from service on the ground of marriage is
highly discriminatory and hence hit by the Articles 14, 15 and 16. The Court further said that
it is unfortunate to say that this ancient land, which is on its onward march to the 21st century
with ambitious reforms to have more developments, still allows orders reflecting male
chauvinism to be issued with impurity. This morbid approach amounts to an open insult to the
institution of our womanhood. This is impermissible. Thus, the order releasing the petitioner
from service therefore is declared unenforceable in law.

CASE STUDY-8

Mohini Philip v. Union of India and Others

In this case the petitioner was working as a nursing officer in military service was ordered to
be released and relieved from service on the ground of marriage. The Court held that
irrelevant considerations have been taken into account to order the release on marriage ground
only. Thus the order was arbitrary and unreasonable and quashed the order of termination. It
further held that circular dated April 20, 1977 which provides for assessment of standard of
performance after which provides for assessment of standard of performance after marriage
not violative of Articles 14 and 16.
 CASE STUDY-9

Urmila Devi v. State of U.P. and Others

In this case by means of the writ petition under Article 226 of Constitution of India the petitioner
has challenged the validity of an order passed under Rule 24 of the Subordinate Civil Courts
Ministerial Establishment Rules, 1947 which provides that woman shall not be eligible for
appointment to the ministerial establishment of the Civil Courts Subordinate to the High Court.

The Court held that part III of the Constitution of India deals with fundamental rights. Article 16(2)
of the Constitution of India specifically provides as follows

“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.”

The above Article 16(2), therefore, specifically lays down that a person shall not be ineligible for the
employment to any post merely on the ground of sex. The impugned order disentitled the women for
appointment to the ministerial establishment of the Civil Courts subordinate to the High Court. This
order is clearly violative of Article 16(2) of the Constitution of India and as such is ultra vires. The
consequential communication issued by the District Judge dated April 5, 1990 is also, therefore,
invalid.

In view of the above the petition was allowed and the order passed under Rule 24 of the Subordinate
Civil Courts Ministerial Establishment Rules, 1947 quoted above was declared ultra vires of the
Constitution of India. The communication issued by the District Judge dated April 5, 1990 was also
quashed. It was open to the District Judge, Gorakhpur to issue a fresh communication providing that
for women would also be entitled to apply for the vacant posts for which advertisement had already
been issued on April 5, 1990.

‘’
‘
CASE STUDY-9

Shalini Damodar Nikam v. India United Mills and Others, In this case the petitioner filed this
petition regarding the different retirement age for male and female employees. The issue in this case
was whether a different and differentiating system in relation to retirement age for male and female
should be rejected. The learned judge observed that a different and differentiating system in relation
to retirement age could not survive as prima facie it was obnoxious. In that view of the fundamental
issue involved on which the learned judge had a prima-facie inclination in favour of the petitioner’s
contention and directed that she shall be continued in service until further orders.

CASE STUDY-10

Maniamma v. Hindustan Latex Limited,

In this case the fact was denial of promotion to lady security guard on the ground that she is a lady.
The issue before the Court was whether the petition should be promoted to the post of Assistant
Security Inspector. The Court held that the respondent had no case that the petitioner being a female
employee would not be in a position to perform the duties of Assistant Security inspector. It had been
accepted as universal principle that there should not be any discrimination on the ground of sex.
Hence the denial of promotion to the petitioner was clear violation of Article 16(2) of the
Constitution and the respondent was directed to consider the case of the petitioner for promotion.

It is submitted that the Supreme Court has through these judgments uplifted the position and status of
women. It had not only recognised the fundamental right of women to work without any
discrimination but had also recognised the right to work with dignity and honour.

Preferential Treatment

Some cases have come up before the Courts where the employment rules, regulations and practices
have been challenged due to preferential treatment to women tan amounting to a discriminatory
treatment against men. The question raised in these cases was whether clause (3) of Article 15 can be
invoked for construing and determining the scope of Article 16(2). The opinion of the Courts have
been mixed. For example, in Shamsher Singh v. State, the employment practices of the State
Educational System were challenged as violating Article 16(2). The Educational System had two
branches, one run exclusively by women, the other, exclusively by men. In the women’s branch,
Assistant District Inspectors (female) were granted a special pay increase. The Educational
Department was subsequently reorganised and as a result both male and female Assistant District
Inspectors were designated as Block Education Officers. Both the women and men were performing
identical duties. The male petitioner challenged the pay increase as discrimination based on sex and
thus violative of Article 16(2). The question referred to the full Bench of the Punjab and Haryana
High Court was whether Article 15(3) could be invoked to interpret Article 16(2) and whether
increase of pay in cases of females can be justified under Article 15(3). The High Court held that
Articles 14, 15 and 16 constitute a single code. Article 14 is the genus and Articles 15 and 16 the
species. If Articles 15(1) and 15(2) cover the entire field of discrimination, Article 16 deals with
public employment, specifically. There is an overlapping of provisions. Therefore, Article 15(3)
could be invoked to determine the scope of Article 16(2) because Article 15(3) is deemed to be a
special provision in the nature of proviso qualifying the general guarantees of Article 14, 15(1),
15(2), 16(1) and 16(2). The petition was dismissed and the pay increase upheld.

Justice R.S. Narula gave a dissenting opinion by holding that Article 16 seems to be an exception to
the general rule of discrimination and therefore Article 15(3) cannot be read into Article 16(2).

In Walter Alfred Baid v. Union of India, a recruitment rule making a male candidate ineligible for
promotion in a predominantly female institution was declared unconstitutional. Delhi High Court
agreed with the dissenting opinion in Shamsher Singh’s case and held that Article 16(2) did not
permit a classification on the basis of sex.

Article 16(2) incorporates a concept of absolute equality between the sexes in matters of employment
which is underscored by the absence of any saving in the other clauses in relation to sex. The Court
maintains that considerations which have their genesis in sex and arise out of it would not save
discrimination. What could save such a discrimination is any ground or reason independently of sex
such as socio-economic conditions, material status and other disqualifying conditions e.g. age,
background, health academic accomplishments etc. If every man is ineligible for a particular post in
an exclusively female educational institution, it would be a clear case of discrimination on the ground
of sex alone. However, justified socially, administratively or otherwise such a requirement may be,
such discrimination having its genesis in sex would be hit by Article 16(2) and none of the
considerations which have their foundation in sex would be able to save such a discrimination from
the challenge of unconstitutionality.
CASE STUDY-11 Major Ramji Lal Verma v. Union of India and Others,

In this case petitioner was a lecturer in the P.B.A.S. Inter College, Hathras. In 1961 he was
commissioned as Second Lieutenant in the National Cadet Corps. Subsequently, he was
promoted to the rank of major. He was by the order dt. 27th May, 1980, discharged from
service of the National Cadet Corps with effect from 29.08.1979. He filed a civil suit for a
declaration that he was entitled to hold commission in the National Cadet Corps as Major till
the age of 52 years but he withdrew the suit and filed the present petition challenging the
validity of the order of his discharge.

Rule 22 of the National Cadet Corps. Rules, 1948, as amended on 21.08.1979 says that no
officer is entitled to hold commission as an officer in the N.C.C. beyond the age of 45 years.
Under the proviso the competent authority has power to grant extension up to the age of 50
years. Such extension is to be granted if the authority is satisfied that the officer continues to
be physically fit and it is necessary or expedient to allow him to continue in service. Rule 28
lays down that every officer and cadet shall on becoming entitled to receive his discharge
under the rules be so discharged with all convenient speed. The petitioner was discharged
from the N.C.C. in accordance with R. 28 (1) read with Rule 22 as 488 amended in August,
1979, after he had attaining the age of 48 years. The petitioner made an application for grant
of extension but he was not granted any extension.

Learned counsel for the petitioner assailed the validity of Rule 22 on the ground that it
practices discrimination. He urged that under Rule 19 of the National Cadet Corps (Girls
Division) Rules, 1949, a female commissioned officer in the Girls Division is entitled to
continue in service until she attains the age of 52 years. He argued that Articles 15(1) and
16(2) of the Constitution prohibit discrimination on the ground of sex in public employment.
Rule 22 practices discrimination as under that rule no male commissioned officer is entitled to
continue in service beyond the age of 45 years which under Rule 19 applicable to Girls
Division a female commissioned officer is entitled to continue in service up to the age of 52
years. There is no justification for the discrimination.

The Court observed that Articles 15 and 16 read together ensure equality to all citizens in
matters relating to employment under the State without any discrimination, but, the State is
 not prevented from making any special provision for women. It is open to the State to make
laws and rules which may treat males and females differently, but, such differentiation must
be reasonable and it must have some reasonable nexus with the object sought to be achieved.

2.3 In the above judgment the Court had followed the following decisions of the Supreme Court:

2.3.1 In Yusuf Abdul Aziz v. State of Bombay, sex was held to be a permissible classification.
The Supreme Court held that sex is a sound classification although there can be no discrimination in
general on that ground, the Constitution itself provides for special provisions in the case of women
and children.

2.3.2 In Miss C.B. Muthamma v. Union of India, Krishna Iyer J. speaking for the Court made
the following observations:

“We do not mean to universalise or dogmatise that men and women are equal in all occupations and
all situations and do not exclude the need to pragmatise where the requirements of particular
employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either
sex may compel selectivity. But save where the differentiations demonstrable, the rule of equality
must govern.”

2.3.4 In Air India v. Nargesh Meerza, the Supreme Court upheld the Regulations 46 and 47 of the
Air India Employees Service Regulations which prescribed different period of age of retirement for
the Air Hostess. The Supreme Court emphasised that what Articles 15(1) and 16(2) prohibit is that
discrimination should not be made only and only on the ground of sex. These Articles of the
Constitution do not prohibit the State from making discrimination on the ground of sex coupled with
other considerations.

The Court thus held:

“We, therefore, hold that Rule 22 which prescribes the age of 45 years for the retirement of a male
officer of the National Cadet Corps Rules 1949 (Girls Division) which prescribes the age of 52 years
for retirement of lady officers does not practice any discrimination. The petitioner who was an officer
in the Male Division belongs to different cadre and forms a different group. He is regulated by
separate rules, he cannot claim any parity with lady officers to claim a right to continue in service till
the age of 52 years. The petitioner having attained 48 years of age has rightly been discharged from
service. He is not entitled to any relief from this Court.”

The controversy regarding the interpretation of these two Articles was set at rest by Supreme Court in
a recent decision namely, Government of A.P. v. P.B. Vijay Kumar, 32 by holding that Article 15(3)
should be read harmoniously with Article 16 of the Constitution. In this case the Government of
Andhra Pradesh by introducing Rule 22-A in Andhra Pradesh State and Sub-Ordinate Service Rules,
made reservation for women in public services, to a specified extent. This was challenged to be
violative of Articles 14 and 16. The Supreme Court held that making special provisions in respect of
employment or posts under the State is an integral part of Article 15(3). This power conferred under
Article 15(3) is not whittled down in any manner by Article 16. The special provision which the State
may make to improve women’s participation in all activities under the supervision and control of the
State can be in the form of either affirmative action or reservation. The Supreme Court while
justifying the reservation for women in public employment observed:

“Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and
16 – the former being a more general provision and the latter, a more specific provision. Since Article
16 does not touch upon any special provision for women being made by the State, it cannot in any
matter derogate from the power conferred upon the State in this connection under Article 15(3). This
power conferred by Article 15(3) is wide enough to cover the entire range of State activity including
employment under the State.

The Supreme Court while upholding the Article 15(3) further observed: “The insertion of clause (3)
of Article 15 in relation to women is a recognition of the fact that for centuries, women of this
country have been socially and economically handicapped. As a result they are unable to participate
in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate the
socio-economic backwardness of women and to empower them in a manner that would bring about
an effective equality between men and women that Article 15(3) is placed in Article 15. Its object is
to improve the status of women. An important limb of this concept of gender equality is creating job
opportunities for women. To say that under Article 15(3), job opportunities for women cannot be
created would be to cut at the very root of the underlying inspiration behind this Article.”
Therefore, it is submitted that the main purpose of incorporating Article 15(3) in the Constitution was
to remove the socio-economic backwardness of women and to empower them in a manner that would
bring effective equality between man and woman. The object of this Article is to strengthen and
improve the status of women. Article 15(3) would therefore, include the power to make reservations
for women. It is further submitted that Articles 14, 15 and 16, must not be read individually they must
be read jointly because they constitute a single 491 code. Reading them individually will nullify the
guarantees provided under them. Thus as per ruling in Vijay Kumar’s case the Supreme Court has
rightly held, that Article 15(3) should be read harmoniously with Article 16 to achieve the purpose for
which these Articles have been framed.

2.4 Sexual Harassment of Women at Work Place

Article 21 says that no person shall be deprived of his life or personal liberty except according to
procedure established by law. Women workers have a right to lead a dignified and honourable life
and liberty. A serious problem with respect to women worker, at place of work is sexual harassment.
Sexual harassment at the workplace can seriously affect a person’s job, person well being and can
create an intimidating, hostile and humiliating work environment. Sexual harassment is a violation of
the Article 21 of the Indian Constitution, which ensures protection of life and personal liberty. It is
also the violation of Article 15, i.e. prohibition of discrimination on the grounds of religion, race sex
or place of birth.

In India there is no specific legislation to protect woman against sexual harassment at the
workplace. However, it is the Judiciary which has come to the rescue of the working woman and
filled the vacuum by formulating guidelines and norms to govern the behaviour of the employers and
all others at the workplace. The Supreme Court held sexual harassment to be violative of the
fundamental right to equality, right to life and liberty and also the right to practice any profession or
to carry out any occupation trade or business.

2.4.1 Prohibition of work in Hazardous Occupations

The Factories Act, 1948 prohibits employment of women in dangerous occupations. Section 22(2) of
the Factories Act, 1948 provides that no women shall be allowed to clean, lubricate or adjust any part
of a prime mover or of any transmission machinery is in motion, or to clean, lubricate or adjust any
part of any machine if the cleaning, lubrication or adjustment thereof would explore the women to
risk of injury from any moving part either of that machine or of any adjacent machinery.

In an English case Pearson v. Belgium Co. Ltd., the question was whether stationary parts of a
machine can be cleaned by woman if the machine as a whole is in motion. It was held by the Court
that if the machinery as a whole is in motion even stationary parts of the machine cannot be cleaned
by woman. But in Richard Thomas and Baldwins Ltd. v. Cummings, the Court observed that there
would be no breach of statutory duty if an injury occurs while the machinery is unfenced, if the power
is cut off and the machinery is under repairs and the parts are not in motion but are moved by hand
for purposes of repairs.

The Factories also prohibits the employment of women in pressing cotton where a cotton opener is at
work. There is a proviso that if the feed end of a cotton opener is in a room, separated from the
delivery end by a partition to the roof or to such height as the inspector may in any particular case
specify in writing, women may be employed on the side of the partition, where the feed end is
situated. In B.N. Gamadia v. Emperor, the Bombay High Court observed that the provisions of the
Section are not complied with if there is a door made in a partition between the two portions of the
room and if it can be opened by a woman employed although the door is shut, yet it is not locked nor
other effective means are taken to prevent its being opened by a woman. This shows that both
legislature and judiciary have shown concern about the security of women workers and every
precaution is being taken to protect them against the risks of employment.

2.4.12 Maternity Benefits

Maternity benefit was said to be an indemnity for the loss of wages incurred by a woman worker who
voluntarily before the birth of a child and compulsorily thereafter abstains from work in interest of
herself and that of her child.

Only a few cases have come up before the Courts, so far in the area of maternity benefit. As it is clear
that the maternity benefit may be paid either under Employees’ State Insurance Act or Maternity
Benefit Act. Under both the Acts it is paid on the daily average basis for a maximum period of 12
weeks of which not more than 6 weeks should exceed the actual date of confinement or delivery. The
Maternity Benefit Act like Employee’s State Insurance Act does not define the term “week”. A
question, therefore arises whether for the computation of maternity benefit for the period of twelve
weeks of which six weeks (including the day of delivery) preceding the date of delivery and six
weeks following the date cover wages for non-working days such as Sundays falling during the
period of absence.. This question came up before the Kerala High Court in Malayalam Plantations
Ltd. v. Inspector of Plantations.

The Full Bench of the Court while linking the maternity benefit with the average daily wages of a
women worker indicated that such benefit was to be calculated with reference to the working days
only. The Court accordingly held, that there was nothing in the Maternity Benefit Act to show that the
duration of maternity benefit covers non-working wage-less days in the week. Therefore, in
calculating the benefit the number of weeks for which a women worker is entitled to the benefit must
be multiplied by six and not by seven. This view, however did not find the approval of Supreme
Court in B. Shah v. Labour Court Coimbatore, the Supreme Court referred to various dictionary
meanings of the word “week” and observed:

“In the context of Sub-Sections (1) and (3) of Section 5 of the Maternity Benefit Act, 1961, the term
“week” has to be taken to signify cycle of seven days including Sundays. The language in which the
aforesaid Sub-Sections are couched also shows that the legislature intended that computation of
maternity benefit is to be made for the entire period of the women workers actual absence, i.e. for all
the days including Sundays which may be wage less holiday, falling within that period and not only
for intermittent periods of six days thereby excluding Sundays falling within that period for it were
not so, the legislature instead of using the words “for the period of her actual absence immediately
preceding and including the day of her delivery and for the six weeks immediately following that
day”, would have used the words “for the working days falling within the period of her actual
absence immediately preceding and including the day of her delivery and the six weeks immediately
following that day but excluding the wage less days.”

Again the word “period” occurring in Section 5(1) of the Act is a strong word. It seems to emphasis,
in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also
to be borne in mind in this connection that in interpreting provisions of beneficial piece of legislation
like the one in hand which is intended to achieve the object of doing social justice to women workers
employed in the plantations and which squarely fall within the purview of Article 42 of the
Constitution, the beneficial rule of construction which would enable the women workers not only to
subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker
and maintain the level of her previous efficiency and output has to be adopted by the Court.”

The interpretation placed by the Court on the phraseology of Sub-Sections (1) and (3) of
Section 5 of the Act appeared to the Court to be in conformity not only with the legislative
intendment but also with paras 1 and 2 of Article 4 of Convention No. 103 Concerning
Maternity Protection Convention (Revised), 1952 adopted by the General Conference of
International Labour Organisation which are extracted a below for facility of reference:

1. While absent from work on maternity leave in accordance with the provisions of Article 3,
the women shall be entitled to receive cash and medical benefits.

2. The rates of cash benefit shall be fixed by national laws or regulations so as to ensure benefit
sufficient for the full and healthy maintenance of herself and her child in accordance with a
suitable standard of living.

The Court however held, that the computation of maternity benefit has to be made for all the
days including Sundays and rest days which may be wage-less holidays comprised in the
actual period of absence of the women extending up to six week preceding and including the
day of delivery as also for the days falling within the six weeks immediately followings the
day of delivery thereby ensuring that the woman worker gets for the said period not only
amount equally 100 per cent of the wages, which she was previously earning in terms of
Section 3(n) of the Act,49 but also the benefit of the wages for all the Sundays and rest days
falling within the aforesaid two periods which would ultimately be conducive to the interest of
both the woman worker and her employer. It is submitted that this view is correct and is in
consonance with the principles of social justice. It also shows the concern of judiciary to
provide better security to women workers in cases of confinement, miscarriage or sickness
arising out of pregnancy or premature birth of a child, etc.

In a judgment of far reaching consequences the Supreme Court recently in Municipal

Corporation of Delhi v. Female Workers50 declared that the maternity benefit is applicable to
 casual workers and daily wage workers also. In this case the question was whether the muster
roll employees (which are casual and daily wage employees) of municipal corporation are
entitled to maternity benefit. The Supreme Court held:

“There is nothing in the Maternity Benefit Act which entitles only regular women employees to
the benefit of maternity leave and not to those who are engaged on casual basis or on muster
roll on daily wage basis … … … … … … Since Article 42 specifically speaks of “just and
humane conditions of work” and maternity relief, the validity of an executive or
administrative action in denying maternity benefit has to be examined on the anvil of Article
42 which though not enforceable at law, is nevertheless available for determining the legal
efficacy of the action complained of. The provisions of the Act would indicate that they are
wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and
in other Articles, specifically Article 42. A woman employee, at the time of advanced
pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her
health and also to the health of the foetus. It is for this reason that it is provided in the Act that
she would be entitled to maternity leave for certain periods prior to and after delivery.”

The Supreme Court further observed:

“A just social order can be achieved only when inequalities are obliterated and everyone is
provided what is legally due. Woman, who constitute almost half of the segment of our
society, have to be honoured and treated with dignity at places where they work to earn
their livelihood.”

Therefore, the maternity benefit cannot be denied to the women employees engaged on muster
roll, on the ground that they are not regular employees of the corporation. This is a beneficial
piece of judgment which will cover a large 500 number of women workers who were till date
refused maternity benefit because of the casual and temporary nature of service.

A Arulin Ajitha Rani v. Principal and Film and Television Institute of Tamil Nadu, Chennai
and Ors.
 The appellant was a student in Film Direction and Screenplay Writing in M.G.R. Film and Television
Institute of Tamil Nadu, which is a Government Institute conducting diploma courses in different
fields including the film Direction. The question relates to shortage of attendance of the appellant
during the academic session of 2005-2006, between June 2005 and March 2006 to be precise. It is not
in dispute that the rules and regulations relating to attendance of class envisage that a student is
required to attend 80% of the classes in the year concerned.

In the present case, according to the Department, the appellant was not permitted to appear at the
examination as per attendance was much below the required attendance. The appellant filed Writ
Petition No. 1935 of 2006, which has been dismissed by the learned single judge under the impugned
judgment. Thereafter, initially an order was passed on 18.07.2006 dismissing the writ appeal on
merits at the stage of admission. Subsequently, however, Review Appeal No. 99 of 2006 was filed.
While considering such Review Application, counsel for the appellant cited before the Division
Bench an earlier order of the High Court, in the case Kavitha Rajagopal v. The Registrar, Tamil
Nadu Dr. Ambedkar Law University, Chennai and Another decided as 01.12.2004, to the effect that
even if there was no specific provision relating to condonation of delay, a pregnant woman was
entitled to get maternity leave benefit in the concerned university and the shortage of percentage in
attendance can be condoned in exceptional cases. As a matter of fact, in the aforesaid decision, there
was reference to another decision of a learned single judge Nithya v. University of Madras. Taking
into consideration the earlier decisions, the Division Bench recalled the earlier order of dismissal and
directed the matter to be taken up for hearing. Learned counsel for the appellant has contended that in
view of the International Conventions recognising the necessity to grant maternity leave to pregnant
women and in order to avoid any discrimination, the shortage of attendance is required to be
condoned. In the above context, learned counsel for the appellant has referred to Article 12(2) of the
Convention on the Elimination of All Forms of Discrimination Against Women, which is to be the
following effect: “12(2) notwithstanding the provisions of paragraph 1 of this Article, States parties
shall ensure to women appropriate services in connection with pregnancy, confinement and the post-
natal period, granting free services where necessary, as well as adequate nutrition during pregnancy
and lactation.”

Similarly, learned counsel for the appellant has also placed reliance upon the provisions contained in
the Maternity Benefit Act, 1961.
Similarly in Municipal Corporation of Delhi v. Female Workers, 54 emphasis had been made regarding
grant of maternity benefit to the employees. In Vishaka’s case, it has not been stated that inspite of
clear domestic law on the question, an International Convention is required to be followed. In
Municipal Corporation of Delhi v. Female Workers, the importance of grant of maternity relief to
the employee, particularly, keeping in view the provisions contained in the Maternity Benefit Act,
1961 and the provisions contained in Articles 42 and 43 of the Constitution had been emphasised.
But, in none of the decisions it has been laid down that notwithstanding any specific provision
available under the domestic law, International Conventions are to be implemented.

In the above context, the matter has to be examined. There is no doubt that the Maternity Benefit Act,
1961 contains several provisions for extending the benefit to the pregnant women in their respective
work-field. Section 2 of the Act indicates that the Act applies to (a) every establishment being a
factory, mine or plantation including any such establishment belonging to government and to every
establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other
performances and (b) to every shop or establishment within the meaning of any law for the time being
in force in relation to shops and establishment in a State, in which ten or more persons are employed,
or were employed, on any day of the preceding twelve months.

However, the proviso contemplates that the State Government may with the approval of the Central
Government, declare that all or any of the provisions of the Act shall apply to any other
establishment or class of establishments, industrial, commercial, agricultural or otherwise.

Even assuming that an educational institution may also come within the aforesaid provisions, there is
no dispute that the State Government has not issued any notification declaring that the provisions of
the Act would be applicable to the educational institutions. There cannot be any dispute regarding the
requirement of grant of maternity benefit to the working women. However, the question is, in the
absence of any specific provision applicable to educational institution, whether such provision can be
extended.

The Court further said that in the context in which such provisions have been made for the working
women such provision can be ipso facto made applicable. Whether such benefit can be extended or
not is essentially a policy decision to be taken by either the State Government or the Central
Government.
In the present case, the learned counsel for the appellant had contended that by applying the above
provisions and the International Conventions, the shortage of attendance was required to be condoned
as had been done in two earlier occasions by the learned single judges in the two decisions Nithya v.
University of Madras, and Kavitha Rajagopal v. The Registrar, Tamil Nadu Dr. Ambedkar Law
University, Chennai and another.

In the peculiar facts and circumstances of the case, the Court pointed out that the Court was unable to
apply the ratio of the said decisions to the present case. Even assuming that such provisions can be
made applicable, the concerned student could have availed maternity leave of six weeks before the
birth of the child and six weeks after the birth of the child.

From the factual position, which had been eluciated clearly in the counter affidavit filed in the Review
Appln. No. 99 of the 2006 and even from the averment made by the appellant herself, it is apparent
that the appellant had claimed to have attended the classes till 17.09.2005 and only on that day she
was admitted in the hospital and the child was born on 19.09.2005. In other words, it was not the case
of the appellant that she was unable to attend the classes because of the pregnancy before 17.09.2005.
Similarly, the appellant had stated that she attended the classes after 15.10.2005. During the period
from 17.09.2005 to 503 14.10.2005, 18 working days were available. Even giving full credit for those
18 days, as has been explained in the counter affidavit, the required percentage would come to about
71%. Minimum requirement is 80% with provision for condonation of delay upto 50%, i.e, a student
having attended 75% or above, can be considered for condonation. No other power is envisaged
under the rules and regulations for condonation of further period. Therefore, even assuming that such
International Conventions or the provisions of the Maternity Benefit Act could be made applicable,
yet the concerned student fell short of the attendance.

For the aforesaid reasons, we are unable to persuade ourselves to interfere with the order of the learned
single judge. The question as to whether similar beneficial provisions should be made applicable to
the educational provisions should be made applicable to the educational institutions is essentially a
policy matter left to the wisdom of the legislature and we do not express any opinion in one way or
the other.

The writ appeal is accordingly dismissed.

Thus in above judgment it was decided that in the context in which provisions of maternity benefit has
been made for the working women, such provisions cannot be ipso facto made applicable to
educational institutions. Whether such benefit can be extended or not to educational institution is
essentially a policy decision to be taken by either the State Government or the Central Government.

2.7 Equal Pay for Equal Work

Though the Equal Remuneration Act was passed in 1976, it is one of the least invoked legislations by
the intended beneficiaries. There have been a few cases where women have challenged the lower
salaries paid to them. In Air India v. Nargesh Meerza and Others, the Central Government had
made a declaration by virtue of a notification that the differences in the remuneration of air hostesses
and flights stewards were not based on sex because Section 1658 clearly authorises restrictions
regarding remuneration to be paid by the employer if a declaration under it is made by the appropriate
government. An air hostess challenged the discriminatory employment conditions for air hostesses
and stewards along with other thing. The Supreme Court held that the benefit conferred on the female
under the Act is not absolute and unconditional. From a comparison of the mode of recruitment, the
classification, promotional avenues and other matters, it is clear that air hostesses form an absolutely
separate category from the Assistant pursers in many respects such as different grades, different
promotional avenues and different service conditions. No hostile discrimination is therefore,
involved. The declaration made by the Government of India is presumptive proof of the fact that in
matter of allowances, conditions of service and other types of remuneration, no discrimination has
been made only on the ground of sex.

Thus equal pay for equal work has been denied to the air hostesses which resulted as tremendous set
back to the working women. Secondly, this case has also shown that even during their period in
service, discrimination against women was practiced. This situation was remedied by the passing of
Equal Remuneration (Amendment) Act 1987, which specifically mentions that there should not be
discrimination during employment between men and women.

Thirdly, it also proved beyond doubt in this case that Section 16 of Equal Remuneration Act, 1976 is
defective and can work against the interests of women employees. Under this Section government can
declare that difference in wages in a particular post is not based on sex and the Courts have to accept
it without any inquiry. This rule could be used arbitrarily not only in public sector undertakings but
also in private employment to shut out an enquiry by the Courts.

Therefore, Section 16 needs amendment so that equal pay for equal work cannot be denied. However,
after the Air India case the judiciary has played an active role in enforcing and strengthening the
Constitutional goal of “equal pay for equal work.”

A milestone in the area of implementation of Equal Remuneration Act was reached with the
pronouncement of the Supreme Court decision in People’s Union for Democratic Rights v. Union of
India, 60 in this case the Supreme Court ruled:

“It is the principle of equality embodied in Article 14 of the constitution which finds expression
in provision of the Equal Remuneration Act.”

In other words if the provisions of the Act are not observed the principle of equality before the
law enshrined in Article 14 is violated.

In Randhir Singh v. 505 Union of India, , while construing Article 14 and 16 in the light of
the preamble and Article 39(d), the Supreme Court held that the principle of “equal pay for
equal work” is deducible from them and may be properly applied to cases of unequals scales
of pay based on no classification or irrational classification though those drawing different
scales of pay do identical work under the same employer. This case is a harbinger of a new
judicial trend of reading directive principles into fundamental rights.

The Supreme Court in this case further observed: Equal pay for equal work is not a mere
demagogic slogan. It is a Constitutional goal capable of attainment through Constitutional
remedies, by the enforcement of Constitutional rights. In Sanjit Roy V. State of Rajasthan,64
the Supreme Court directed the State Government not only to pay minimum wages but also to
pay wages in accordance with the principle of equal pay for equal work to men and women
workers engaged in famine relief work.
Again in Bhagwan Das v. State of Haryana, 65 the Supreme Court was of the view that (i)
person doing similar work cannot be denied equal pay on the ground that mode of recruitment
was different; and (ii) a temporary or casual employee performing the same or similar duties
and functions is entitled to the same pay as that of a regular or permanent employee.

The Supreme Court again in a recent case namely Food Corporation of India v. Shyamal K.
Chatterjee 2003 , held that equal wages will be payable even to causal workers engaged
through contractor when they are doing the same work. However, in one case the Division
Bench of Kerala High Court has held that unless it is shown that there is discrimination
amongst the same set of employees by the same master in the same establishment doing the
same job and similarly situated, the principle of equal work cannot be enforced.

In Air India Cabin Crew Assn. v. Yeshaswince Merchant and Others with Air India Officer
Assn. and another v. Air India Ltd. 17November 2013 and tagged cases , where appeals
were filed against the Division Bench Judgment of the Bombay High Court. In a batch of
petitions filed by the respondents Air India Air Hostesses Association and its members, the
High Court held that the age of retirement from flying duties of air hostesses at the age of 50
years with option to them to accept 506 post for ground duties after 50 and upto the age of 58
years is discrimination against them based on sex which is violative of Articles 14, 15 and 16
of the Constitution of India as also Section 5 of the Equal Remuneration Act, 1976 and
contrary to the mandatory directions issued by the Central Government under Section 34 of
the Air India Corporation Act, 1953.

The Supreme Court negatived the grievance that service conditions providing lower age of
retirement to air hostesses is unfavourable as compared to flight persers, who are the male
members of the crew on board and are allowed the age of retirement 55 to 58 years. The
argument claiming parity on retirement age by females with male member of the crew was
negativated. It was held that there is no discrimination against air hostesses based only on sex.
It further held that the service condition is neither unconstitutional under Articles 15 and 16 of
the Constitution nor violative of Section 4 of the Equal Remuneration Act. The Court quoted
notification issued by the Central Govt. under Section 16 of the Equal Remuneration Act. It
 upheld the stand of the employer that the different ages of retirement and salary structure for
male and female employees in Air India are based on their different conditions of service and
not on sex alone.

Section 4 of the Equal Remuneration Act prohibits the employer from paying unequal
remuneration to male and female workers for same work or work of similar nature. Section 5
of the Act prohibits discrimination by the employer while recruiting men and women workers
for same work or work of similar nature. By amendment introduced to Section 5 by
Amendment Act 49 of 1987, the employer has been prohibited from discriminating men and
women after their recruitment in the matter of their conditions of service for the same work or
work of similar nature.

The expression “same work or work of a similar nature” has been defined in section 2(h) of the
Equal Remuneration Act.

Section 16 empowers the appropriate government to make a declaration by a notification that

in respect of particular employment difference in regard to remuneration of men and women
workers under an employer is found to be based and “factor other than sex” and there is no
contravention of provisions of the Act 507 by the employer. In exercise of powers under
Section 16, the Central Government issued a notification on 15.06.1979. The Supreme Court
held that the declaration is presumptive proof of the fact that in the matter of allowances,
conditions of service, and other type of remuneration, no discrimination has been made on the
ground of sex only. The declaration by the Central Government therefore, completely
concludes the matter.

The Supreme Court on considering the challenge to the lower retirement age of female
members of the crew on board on basis of gender discrimination prohibited by Articles 15(1)
and 16(2) of the Constitution observed that these Articles do no prohibit the State from
making discrimination on the ground of sex coupled with other considerations. The Supreme
Court made reference to Section 15 of the Act at this juncture and observed that the terms and
condition of age of retirement settled in course of industrial adjudication by air hostesses
through their Association is a term and condition of their employment fixed in accordance
with the adjudicatory machinery provided for in the industrial law. It gives them a special
treatment as found by them to be favourable to them. There is nothing objectionable for air
hostesses to agree lower retirement age from flight duties with option for ground duties after
the age of 50 years up to the age 58 years.
A service condition giving a special treatment to women is saved by clause (a) of Section 15
of the Equal Remuneration Act. It is also saved by sub-section II of clause (b) of said Section
which allows special treatment to women in terms and conditions of service relating to
retirement. It was held that the early age retirement policy of air hostesses in Air India does
not contravene Section 5 of the Equal Remuneration Act and otherwise, it is saved by Section
15(a) and 15(b)(ii) of the Equal Remuneration Act. The challenge of this ground failed.

The Supreme Court again reiterated in a plethora of cases69 that “equal pay for equal work”
enshrined in Article 39(d) is implicit in Article 14 and 16 and hence becomes enforceable in
the Court of law. It is a “Constitutional goal” capable of being achieved through
Constitutional remedies. Article 39(d) and other like provisions in the Directive Principles are
“Conscience of our 508 Constitution.” They are rooted in social justice. They were intended
to bring about a socio-economic transformation in our society.

A survey of the aforesaid decisions reveals the creative role of judiciary in securing equal pay
for equal work to both the sexes. Further, the Court has brought the equal remuneration within
the contours of the fundamental right of equality.

From the above discussion it is clear, that the role of Judiciary has also been quite significant
with respect to women. The Indian Judiciary to a certain extent has taken lead in securing
socio-economic justice to women. An analysis of the decided cases reveals that there is a new
trend in the judiciary to interpret laws so as to provide better protection to women in respect
of their rights. The creative thinking that is evident in cases like Muthama and Nargesh
Meerza is a
 good sign of judicial activism. The Court rightly maintained that women are the participants
in the mainstream and deserve equal treatment. Old laws making women’s biology as a basis
of segregation are un-reasonable and the Supreme Court has held such laws unconstitutional.
The Supreme Court has interestingly maintained recently that giving preference to women in
jobs was only an affirmative action and need not be deemed as reservation. The Judiciary is
playing a creative role in harmonising and balancing the rights and interests of men vis-à-vis
women.

Women are suffering from problem of sexual harassment at work place. The judgment of the
Supreme Court in Vishaka case is no doubt a step in the right direction. So, the authority
should implement the measures strictly described by the Court in Vishaka’s case. State
Government should enact effective legislation to check the problem of harassment. The
Judiciary had played a important role to provide maternity benefit to women workers. The
judgment in Municipal Corporation of Delhi v. Female Workers has a far reaching
consequences. This is a beneficial piece of judgment which will cover a large number of
women workers who were till date refused maternity benefit because of the casual and
temporary nature of service.

CASE STUDY-12

In A. Arulin Ajitha Rani v. Principal and film and Television Institute of Tamil Nadu,
Chennai and Ors., it was decided that maternity benefit can be 509 extended or not to
educational institution is essentially a policy decision to be taken by either the State
Government or the Central Government.

The Judiciary has played an active role in enforcing and strengthening the Constitutional goal of
“equal pay for equal work” for both men and women and has brought equal remuneration
within the contours of fundamental rights. The decided cases reveal a creative role of judiciary
in securing equal pay for equal work.
 CHAPTER-3

International Instruments for protection of women protection

The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations
General Assembly on 10 December 1948 at Palais de Chaillot, Paris. The Declaration arose directly
from the experience of the Second World War and represents the first global expression of rights to
which all human beings are inherently entitled.
The full text is published by the United Nations on its website.
It consists of 30 articles which have been elaborated in subsequent international treaties, regional
human rights instruments, national constitutions and laws. The International Bill of Human Rights
consists of the Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two
Optional Protocols. In 1966 the General Assembly adopted the two detailed Covenants, which
complete the International Bill of Human Rights; and in 1976, after the Covenants had been ratified
by a sufficient number of individual nations, the Bill took on the force of international law.

During the Second World War the allies adopted the Four Freedoms: freedom of speech, freedom of
religion, freedom from fear, and freedom from want, as their basic war aims. The United Nations
Charter "reaf firmed faith in fundamental human rights, and dignity and worth of the human person"
and committed all member states to promote"universal respect for, and observance of, human rights
and fundamental
freedoms for all without distinction as to race, sex, language, or religion” A universal declaration that
specified the rights of individuals was necessary to give effect to the Charter's provisions on human
rights.

At the time Humphrey was newly appointed as Director of the Division of Human Rights within the
United Nations Secretariat. The Commission on Human Rights, a standing body of the United
Nations, was constituted to undertake the work of preparing what was initially conceived as an
International Bill of Rights. The membership of the Commission was designed to be broadly
representative of the global community with representatives of the following countries serving:
Australia, Belgium, Byelorussian Soviet Socialist Republic, Chile, China, Egypt, France, India,-
family phrases were the result of the Christian Democratic movement's influence on Cassin and
Malik.

The Universal Declaration was adopted by the General Assembly on 10 December 1948 by a vote of
48 in favour, 0 against, with eight abstentions: the Soviet Union, Ukrainian SSR, Byelorussian SSR,
People's Federal Republic of Yugoslavia, and People’s Republic of Poland, Union of South Africa,
Czechoslovakia and the Kingdom of Saudi Arabia. Honduras and Yemen, both members of UN at the
time, failed to appear for vote8. The South African position can be seen as a kind of protection of the
system of apartheid in South Africa, which clearly violated any number of articles in the declaration.
The Saudi Arabian delegation abstained mostly for two reasons: because of Article18 which states
that everyone has the right "to change his religion or
belief" and because of Article 16 on equal marriage rights. Eleanor Roosevelt attributed the
abstention of the Soviet bloc nations to Article13, which provided the right of citizens to leave their
countries.

The following countries voted in favour of the declaration:

Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil, Burma, Canada, Chile, Republic of
China, Colombia, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador,
Ethiopia, France, Greece, Guatemala, Haiti, Iceland, India, Iran, Iraq, Lebanon, Liberia, Luxembourg,
Mexico, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru,
Philippines, Siam, Sweden,
Syria, Turkey, United Kingdom, United States, Uruguay, Venezuela. The Universal declaration
should protect the rights of people. Each country who signed this declaration is obliged to respect the
human rights in their country.
The human rights include:

a) Equal opportunities,

b) Equality of the sexes,

 c) Racial equality,

d) The right to an education,

e) The right to protest,

f) The right to life,

g) The right to privacy,

h) Freedom of speech,

i) Freedom of religion,

j) Children protection and

k) Tolerance

The underlying structure of the Universal Declaration was introduced in its second draft which was
prepared by René Cassin. Cassin worked from a first draft prepared by John Peters Humphrey. The
structure was influenced by the Code Napoleon, including a preamble and introductory general
principles. Cassin compared the Declaration to the portico of a Greek temple, with a foundation,
steps, four columns and a pediment.
Articles 1 and 2 are the foundation blocks, with their principles of dignity, liberty, equality and
brotherhood. The seven paragraphs of the preamble, setting out the reasons for the Declaration,
represent the steps.

The main body of the Declaration forms the four columns.

a) The first column (articles 311) constitutes rights of the individual, such as theright to life and
the prohibition of slavery. Articles 6 through 11 refer to the fundamental legality of human
rights with specific remedies cited for their defence when violated.

b) The second column (articles 12–17) constitutes the rights of the individual in civil and
political society.

c) The third column (articles 18–21) is concerned with spiritual, public and
 political freedoms such as freedom of thought, conscience and religion, as well as freedom of
association.

d) The fourth column (articles 22–27) sets out social, economic and cultural rights. In Cassin's
model, the last three articles of the Declaration provide the pediment which binds the structure
together. These articles are concerned with the duty of the individual to society and the
prohibition of use of rights in contravention of the purposes of the United Nations
Organisation.

The adoption of the Universal Declaration is a significant international commemoration marked each
year on 10 December and is known as Human Rights Day or International Human Rights Day. The
commemoration is observed by individuals, community and religious groups, human rights
organisations, parliaments, governments and the United Nations. Decadal commemorations are often
accompanied by campaigns to promote awareness of the Declaration and human rights 2008 marked
the 60th anniversary of the Declaration and was accompanied by year-long activities around the
theme "Dignity and justice for all of us.”

The Guinness Book of Records describes the UDHR as the "Most Translated Document” in the world.
In the preamble, governments commit themselves and their people to progressive measures which
secure the universal and effective recognition and observance of the human rights set out in the
Declaration. Eleanor Roosevelt supported the adoption of the UDHR as a declaration rather than as a
treaty, because
she believed that it would have the same kind of influence on global society as the United States
Declaration of Independence had within the United States. In this, she proved to be correct. Even
though it is not legally binding, the Declaration has been adopted in or has influenced most national
constitutions since 1948. It has also served as the foundation for a growing number of national laws,
international laws, and treaties, as well as regional, national, and sub-national institutions protecting
and promoting human rights.

While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning
of the words "fundamental freedoms" and "human rights" appearing in the United Nations
Charter, which is binding on all member states. For this reason the Universal Declaration is a
fundamental constitutive document of the United Nations. Many international lawyers, in addition,
believe that the Declaration forms part of ‘customary international law’ and is a powerful tool in
applying
diplomatic and moral pressure to governments that violate any of its articles. The 1968 United
Nations International Conference on Human Rights advised that it "constitutes an obligation for the
members of the international community" to all persons.

The declaration has served as the foundation for two binding UN human right covenants, the
International Covenant on Civil and Political Rights, and the International Covenant on Economic,
Social and Cultural Rights and the principles of the Declaration are elaborated in international treaties
such as the International Convention on the Elimination of All Forms of Racial Discrimination, the
International
Convention on the Elimination of Discrimination Against Women, the United Nations Convention on
the Rights of the Child, the United Nations Convention Against Torture and many more. The
Declaration continues to be widely cited by governments, academics, advocates and constitutional
courts and individual human beings who appeal to its principles for the protection of their recognised
human rights.

The Universal Declaration has received praise from a number of notable people. Charles Malik,
Lebanese philosopher and diplomat, called it "an international document of the first order of
importance,"1 while Eleanor Roosevelt, first chairwoman of the Commission on Human Rights
(CHR) that drafted the Declaration, stated that it "may well become the international Magna Carta of
all men everywhere."10 December 1948. In a speech on 5 October 1995, Pope John Paul II called
the UDHR "one of the highest expressions of the human conscience of our time". And in a statement
on 10 December 2003 on behalf of the European Union, Marcello Spatafora said that "it placed
human rights at the centre of the framework of principles and obligations shaping relations within the
international community.
Islamic countries reaction:

Most Islamic countries have signed the Universal Declaration of Human Rights and other human rights
agreements. In 1948, Saudi Arabia did not sign the declaration, claiming that it violated Islamic
Sharia law4. However, Pakistan (which had signed the declaration) disagreed with and critiqued the
Saudi position. In 1982, the Iranian representative to the United Nations, Said Rajaie-Khorassani, said
that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not
be implemented by Muslims without trespassing the Islamic law. On 30 June 2000, Muslim nations that
are members of the Organisation of the Islamic Conference (now the Organisation of Islamic
Cooperation officially resolved to support the Cairo Declaration on Human Rights in Islam, an
alternative document that says people have "freedom and right to a dignified life in accordance with
the Islamic Shari’ah", without any discrimination on grounds of "race, colour, language, sex,
religious belief, political affiliation, social status or other considerations". As a secular state, Turkey
has signed the declaration of Human Rights in 1948 and other European Human Rights agreements.

A number of scholars in different fields have expressed concerns with the Declaration's alleged western
bias. These include Irene Oh (Religion and Ethics), Abdulaziz Sachedina (Religion), Riffat Hassan
(Theology) and Faisal Kutty (Law). Riffat Hassan argues as follows:

"What needs to be pointed out to those who uphold the Universal Declaration of Human Rights to be
the highest, or sole, model, of charter of equality and liberty for all human beings, is that given the
Western origin and orientation of this Declaration, the "universality" of the assumptions on which it
is based is - at the very least – problematic and subject to questioning. Furthermore, the alleged
incompatibility between the concept of human rights and religion in general, or particular religions
such as Islam, needs to be examined in an unbiased way."

Irene Oh argues that one of the ways to reconcile the two is to approac it from the perspective of
comparative ethics. Kutty writes: "A strong argument can be made that the current formulation of
international human rights constitutes a cultural structure in which western society finds itself easily
at home ... It is important to acknowledge and appreciate that other societies may have equally valid
alternative conceptions of human rights.
 Groups such as Amnesty International3 and War Resisters International3 have advocated for "The
Right to Refuse to Kill" to be added to the UDHR. War Resisters International has stated that the
right to conscientious objection to military service is primarily derived from, but not yet explicit in,
Article 18 of the UDHR: the right to freedom of thought, conscience and religion.

Steps have been taken within the United Nations to make this right more explicit; but those steps have
been limited to secondary, more "marginal" United Nations documents. That is why Amnesty
International would like to have this right brought "out of the margins" and explicitly into the
primary document, namely the UDHR itself.

3.1 Women:
American feminist Catharine MacKinnon has asked the question "are women considered human?",
focusing in part on the use of male-centric terms such as brotherhood in Article 1 and
himselfandhisfamily in article 23.

3.1.1 Convention on political rights on Women1:

The Contracting Parties, desiring to implement the principle of equality of rights for men and women
contained in the Charter of the United Nations, Recognizing that everyone has the right to take part in
the government of his country directly or indirectly through freely chosen representatives, and has the
right to equal access to public service in his country, and desiring to equalize the status of men and
women in the enjoyment and exercise of political rights, in accordance with the
provisions of the Charter of the United Nations and of the Universal Declaration of Human Rights,
having resolved to conclude a Convention for this purpose, hereby agree as hereinafter provided:

Article 1
Women shall be entitled to vote in all elections on equal terms with men, without any discrimination.
Article 2
Women shall be eligible for election to all publicly elected bodies, established by national law, on equal
terms with men, without any discrimination.

Article 3
Women shall be entitled to hold public office and to exercise all public functions, established by
national law, on equal terms with men, without any discrimination.
Article 4

i. This Convention shall be open for signature on behalf of any Member of the United Nations and
also on behalf of any other State to which an invitation has been addressed by the General
Assembly.

ii . This Convention shall be ratified and the instruments of ratification shall

be deposited with the Secretary-General of the United Nations.
Article 5

i. This Convention shall be open for accession to all States referred to

in paragraph I of article IV.

ii. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General
of the United Nations.

Article 6

i. This Convention shall come into force on the ninetieth day following the date of deposit of the sixth
instrument of ratification or accession.

ii. For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of
ratification or accession the Convention shall enter into force on the ninetieth day after deposit by
such State of its instrument of ratification or accession.
Article 7

In the event that any State submits a reservation to any of the articles of this Convention at the time of
signature, ratification or accession, the Secretary-General shall communicate the text of the
reservation to all States which are or may become Parties to this Convention. Any State which objects
to the reservation may, within a period of ninety days from the date of the said communication (or
upon thedate of its becoming a Party to the Convention), notify the Secretary General that it does not
accept it. In such case, the Convention shall not enter into force as between such State and the State
making the reservation.

Article 8

i. Any State may denounce this Convention by written notification to the Secretary-General of the
United Nations. Denunciation shall take effect one year after the date of receipt of the notification by
the Secretary General.

ii. This Convention shall cease to be in force as from the date when the
denunciation which reduces the number of Parties to less than six becomes effective.

Article 9
Any dispute which may arise between any two or more Contracting States concerning the
interpretation or application of this Convention, which is not settled by negotiation, shall at the
request of any one of the parties to the dispute be referred to the
International Court of Justice for decision, unless they agree to another mode of settlement.

Article 10

The Secretary-General of the United Nations shall notify all Members of the United Nations and the
non-member States contemplated in paragraph I of article IV of this Convention of the following:
i. Signatures and instruments of ratification received in accordance with article IV;
ii. Instruments of accession received in accordance with article v;
iii. The date upon which this Convention enters into force in accordance with article vi;
iv. Communications and notifications received in accordance with article vii;
v. Notifications of denunciation received in accordance with paragraph i of article viii;
vi. Abrogation in accordance with paragraph 2 of article viii.

Article 11

i. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally
authentic, shall be deposited in the archives of the United Nations.

ii. The Secretary-General of the United Nations shall transmit a certified copy to all Members of the
United Nations and to the non-member States contemplated in paragraph I of article IV.

3.1.2 The Convention on the Nationality of Married Women:

It is an international convention passed by the United Nations General Assembly in 1957. It entered
into force in 1958 and as of 2013 it has 74 state parties.

Before the Convention on the Nationality of Married Women, no legislation existed to protect
married women's right to retain or renounce national citizenship in the way that men could. Women's
rights groups recognized a need to legally protect the citizenship rights of women who married
someone from outside of their country or nationality.

The League of Nations, the international organization later succeeded by the United Nations, was
lobbied by women's rights groups during the early 20th century to address the lack of international
laws recognizing married women's rights of national citizenship. The Conference for the Codification
of International Law, held at The Hague in 1930, drew protests from international women's rights
groups, yet the League
declined to include legislation enforcing married women's nationality rights. The League took the
position that it was not their role, but the role of member states, to deal with equality between men
and women.
The International Women's Suffrage Alliance (IWSA, later renamed the International Alliance of
Women) launched a telegram campaign in 1931 to pressure the League of Nations to address the lack
of legislation.

Women from around the world sent telegrams to the League of Nations as a protest. The League
made the concession of creating an unfunded Consultative Committee on Nationality of Women.

The Pan-American Conference in Montevideo passed a Convention on the Nationality of Married

Women in 1933. It was passed by the Pan American Conference at the same time as the Treaty on the
Equality of Rights Between Men and Women. These were the first pieces of international law to
"explicitly set sexual equality as a principle to be incorporated into national legislation" which was
required of countries ratifying the convention and treaty. Lobbying by the American National
Women's Party has been credited with this legislation. However, neither the International Labour
Organization (ILO) nor the League of Nations passed any legislation on the issue during the interwar
years.

The issue of the nationality of married women was a leading women's rights issue facing the United
Nations after its establishment. The United Nations Commission on the Status of Women was
created, and made it a priority of their agenda, launching a study in 1948. The Commission
recommended to the United Nations Economic and Social Council that legislation is drafted to give
women equal rights as set out in Article 15 of the Universal Declaration of Human Rights. The
Convention on the Nationality of Married Women entered into force on August 11, 1958. As of
2013, the convention has been ratified by 74 states. It has been denounced by the ratifying states of
Luxembourg, Netherlands, and United Kingdom.

The Convention was concluded in the light of the conflicts of law on nationality derived from
provisions concerning the loss or acquisition of nationality by women as a result of marriage, divorce,
or of the change of nationality by the husband during marriage. It allows women to adopt the
nationality of their husband based upon the woman's own decision, but does not require it.
The Convention seeks to fulfil aspirations articulated in Article 15 of the
Universal Declaration of Human Rights that 'everyone has a right to a
nationality' and 'no one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality'.

 Woman's nationality not to be automatically affected by marriage

to an alien.

 Acquisition or renunciation of a nationality by a husband not to

prevent the wife's retention of her nationality.

 Specially privileged nationality procedures to be available for

wives to take the nationality of their husbands.

3.2 DECLARATION ON ELIMINATION OF DISCRIMINATION

AGAINST WOMEN, 1967:

The Declaration on the Elimination of Discrimination against Women is a human rights proclamation
issued by the United Nations General Assembly, outlining that body's views on women's rights. It
was adopted by the General Assembly on 7 November 19671. The Declaration was an important
precursor to the legally binding 1979 Convention on the Elimination of All Forms of Discrimination
against Women.
The Declaration follows the structure of the Universal Declaration of Human Rights, with a preamble
followed by eleven articles.

1. Declares that discrimination against women is "fundamentally unjust and constitutes an offence
against human dignity". "Discrimination" is not defined.
2. Calls for the abolition of laws and customs which discriminate against women, for equality under
the law to be recognised, and for states to ratify and implement existing UN human rights instruments
against discrimination.

3. Calls for public education to eliminate prejudice against women.

4. Calls for women to enjoy full electoral rights, including the right to vote and the right to seek and
hold public office.

5: Calls for women to have the same rights as men to change their nationality.

6: Calls for women to enjoy full equality in civil law, particularly around marriage and divorce, and
calls for child marriages to be outlawed.

7: Calls for the elimination of gender discrimination in criminal punishment.

8: Calls on states to combat all forms of traffic in women and exploitation of prostitution of women.

9: Affirms an equal right to education regardless of gender.

10: Calls for equal rights in the workplace, including nondiscrimination in employment, equal pay for
equal work, and paid maternity leave.

11: Calls on states to implement the principles of the Declaration.

3.3 CONVENTION ON THE ELIMINATION OF ALL FORMS OF

DISCRIMINATION AGAINST WOMEN:

The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an
international treaty adopted in 1979 by the United Nations General Assembly. Described as an
international bill of rights for women, it came into force on 3 September 1981. Over fifty countries
that have ratified the Convention have done so subject to certain declarations, reservations, and
objections, including 38 countries
that rejected the enforcement article 29, which addresses means of settlement for disputes concerning
the interpretation or application of the Convention. Australia's declaration noted the limitations on
central government power resulting from its federal constitutional system. The United States and
Palau have signed, but not yet ratified the treaty. The Holy See, Iran, Somalia, South Sudan, Sudan
and Tonga are not
signatories to CEDAW.

The Convention defines discrimination against women in the following

terms:
Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field. It also establishes an agenda of action for
putting an end to sex-based discrimination:

States must take measures to seek to eliminate prejudices and customs based on the idea of the
inferiority or the superiority of one sex or on stereotyped role for men and women.

States ratifying the Convention are required to enshrine gender equality into their domestic
legislation, repeal all discriminatory provisions in their laws, and enact new provisions to guard
against discrimination against women. However, special protection for maternity is not regarded as
gender discrimination (Article 4). Appropriate measures, including legislation, to suppress all forms
of trafficking in women and
forced prostitution are also not regarded as gender discrimination (Article 6). Equal opportunity in
education for female students is required, and coeducation is encouraged. (Article 10). States ratifying
the Convention must also establish tribunals and public institutions to guarantee women effective
protection against discrimination, and take steps to eliminate all forms of discrimination practiced
against women
 by individuals, organizations, and enterprises (Article 2,(e)).

3.4 CEDAW with UNSCR 1325 and 1820

3.4.1 Resolutions 1325 10th anniversary events highlight use of CEDAW

mechanisms.

The 10th anniversary of Resolution 1325 in October 2010 highlighted the increasing demand for
accountability to UN Security Council Resolution 1325 on Women, Peace and Security. Many
expresse concern about the fact that only 22 Member States out of 192 have adopted national action
plans. Women are still underrepresented if not
totally absent in most official peace negotiations and sexual violence in
conflict continue to increase.

These realities emphasized the need to use other legal mechanisms to strengthen the implementation of
SCR 1325, particularly CEDAW. The well-established mechanisms of CEDAW – the Member States
compliance report and the civil society shadow reporting process were cited as powerful instruments
to ensure accountability.

Several regional and international meetings including the High Level Seminar “1325 in 2020: Looking
Forward…Looking Back,” organized by the African Center for the Constructive Resolution of
Disputes, and the “Stockholm International Conference 10 years with 1325 – What now?” called for
the use of CEDAW to improve implementation.

3.4.2 Intersection between SCR 1325 and CEDAW

While CEDAW and UN Security Council Resolutions 1325 and 1820 on Women, Peace and Security
are important international instruments on their own, there is also an intersection among the three
standards that can be used to enhance their implementation and impact. Resolutions 1325 and 1820
broaden the scope of CEDAW application by clarifying its relevance to all parties in conflict, whereas
CEDAW
provides concrete strategic guidance for actions to be taken on the broad commitments outlined in the
two Resolutions.

CEDAW is a global human rights treaty that should be incorporated into national law as the highest
standard for women's rights. It requires UN Member States that have ratified it (185 to date) to set in
place mechanisms to fully realize women's rights.

a) Resolution 1325 is an international law unanimously adopted by the Security Council that
mandates UN Member States to engage women in all aspects of peace building including
ensuring women's participation on all levels of decision–making on peace and security issues.

b) Resolution 1820 links sexual violence as a tactic of war with the maintenance of
international peace and security. It also demands a comprehensive report from the UN
Secretary General on implementation and strategies for improving information flow to the
Security Council; and adoption of concrete protection and prevention measures to end sexual
violence.

c) Resolutions 1325 and 1820 and CEDAW share the following agenda on
women's human rights and gender equality:

i) Demand women’s participation in decision-making at all levels

ii) Rejection of violence against women as it impedes the advancement

of women and maintains their subordinate status

iii) Equality of women and men under the law; protection of women and girls through
the rule of law

iv) Demand security forces and systems to protect women and girls
from gender-based violence
 v) Recognition of the fact that distinct experiences and burdens of women and girls come from
systemic discrimination
vi) Ensure that women’s experiences, needs and perspectives are incorporated into the political, legal
and social decisions that determine the achievement of just and lasting peace.

A General Comment from the CEDAW committee could strengthen women’s advocacy for the full
implementation of Resolutions 1325 and 1820 at the country and community levels. Conversely,
CEDAW’s relevance to conflict-affected areas will be underscored further by the two Resolutions. In
other words, all three international instruments will reinforce each other and be much more effective
if used together in
leveraging women’s human rights.

3.5 UNITED NATIONS COMMISSION ON THE STATUS OF

WOMEN :

The fifty-seventh session of the United Nations Commission on the Status of Women took place at the
UN building, New York between the4th and 15th March 2013.

The agreed conclusions from the session agreed the following four
actions:

a) Strengthening implementation of legal and policy frameworks

and accountability.

b) Addressing structural and underlying causes and risk factors so

as to prevent violence against women and girls.

c) Strengthening multisectorial services, programmes and responses

to violence against women and girls.

d) Improving the evidence-base.

 UN Women's Executive Director Michelle Bachelet urged speedy implementation of the Agreed
Conclusions saying, “The best way to honour the commitments made by Member States at the
Commission is to work for implementation and accountability."

The Expert Group Meeting (EGM): prevention of violence against women and girls was convened as
part of the United Nations Commission on the Status of Women's multi-year programme of work for
2010-2014. The "Elimination and prevention of all forms of violence against women and girls" forms
a priority theme for its fifty-seventh
session in 2013 (CSW57).

The meeting took place in Bangkok, Thailand 17–20 September 2012

and was organised by the United Nations Entity for Gender Equality and
the Empowerment of Women (UN Women), in collaboration with the
following organisations:

a) United Nations Economic and Social Commission for Asia and

the Pacific (ESCAP);
b)United Nations Development Programme (UNDP);

c)United Nations Population Fund (UNFPA);

d) United Nations Children’s Fund (UNICEF) ;

e) World Health Organization (WHO).

3.5.1 HISTORY OF EXPERT GROUP AND RECOMENDATIONS

The report reflects the shared discussion and analysis of the major issues, gaps and challenges
identified at the EGM and presents key findings and recommendations. It was intended to build on
the individual papers on specific issues provided by experts prior to the meeting, and the background
paper prepared by the rapporteur2. It provides inputs for the reports of the Secretary-General to the
CSW and widely disseminated in
preparation to the fifty-seventh session of CSW (CSW57).

Experts stressed the critical importance of women’s organisations, civil society, international
institutions, donors and States working together to go beyond ‘ad hoc’ approaches to prevention, and
for States to take their responsibility for developing long-term and multi-sectoral strategies so that
activity can be coordinated, and evidence built, to achieve real results. With an increased commitment
from all actors to such an approach, and corresponding investment, many experts believed violence
against women and girls could be ended within a generation. To this end, experts have made
recommendations (see below) for a coordinated and target-focussed approach to preventing violence
against women and girls, driven by two overarching activities – a Global Implementation Plan –
framing the work of international, regional and national
institutions (including States) toward the goal of ending violence against women and girls, along with
a Global Advocacy Campaign – driven by women’s and other civil society organisations to create
momentum and provide accountability for the above.

Also, given CSW’s specific mandate with regards to implementation of the Beijing Declaration and
Platform for Action1 experts have made further recommendations for immediate implementation,
aligned with the BPfA’s2 strategic objectives of taking integrated measures to prevent and eliminate
violence against women, and studying the causes and consequences of violence against women and
the effectiveness of preventive measures. While the BPfA objectives cover both prevention of, and
response to, violence against women and girls, and experts supported full implementation of all of
these, the recommendations below build on those areas focussing on prevention.

Finally, experts identified recommendations arising from emerging issues or gaps in the evidence and
practice base regarding prevention of violence against women and girls in certain contexts and
settings. These include recommendations for prevention in settings affected by humanitarian crises
such as conflict and natural disasters; contexts of serious urban or youth violence; with regards to
representation of women and girls in the context of mass media as well as in new social media; and in
the context of the global financial crisis and shifting geopolitics. In addition to the broad
recommendations below that are relevant to all settings, special attention has been given to certain
contexts and settings in order to highlight specific strategies for prevention related to these particular
areas of concern. Experts have also chosen to highlight certain recommendations specific to
preventing violence against girls, including adolescent girls, and young women, as a frequently
overlooked group worthy of special consideration.
 CHAPTER 4

CONSTITUTIONAL PERSPECTIVE FOR THE PROTECTION OF WOMEN RIGHTS

AT WORKPLACE

All human beings, both adults and children, have the right to enjoy their right and freedom granted to
them simply because they are human. Rights of human being are based on mankind increasing
demand for a civilized society. Despite having so many rights and laws to protect them still they are
not protected. Women, Children and Elderly people are the most vulnerable class of our society. If
today we ponder about the word “protection”, then women, children and elderly people are tagged
with it automatically. Though women, children, and elderly classes are believed to be the most
delicate and pampered ones their rights are being encroached every day, everywhere in the world and
protection of them comes naturally to balance the human rights scale.

The Human Rights of women children and elderly are written in the “Universal Declaration of
Human Rights” which was adopted in the year 1948 by the United Nation under the chairmanship of
Eleanor Roosevelt. People across the world irrespective of their caste, color, sex and religions are
entitled to live with dignity and respect without any fear or oppression of anyone.

It is inevitable truth that women have been ill-treated in every society for ages and India is no
exception to that. Persona of a developed nation is reflected within the condition of women of that
nation. If society is a bird and men and women are the two wings of society, as bird’s need both of
wings to fly, so society needs the empowerment of both men and women to uplift itself. In domestic
violence women are treated like a slave and are being robbed of their dignity which is raising
questions. A section of Indian Penal Code is a shield or sword. Flawed Rape Laws are haunting
women of being toyed in the street every time they come out of home.

Trafficking of women, especially minor girls, has jeopardized the basic esteem of women besides
exploiting them in them most despicable manner like prostitution, destroying them physically, socio-
economically and in many other respects. ‘The Vishaka Guidelines’ are being made laughing stock
 satyriasis in many work place in every single day. The unborn baby-boy has not also got respite from
the vile desire having baby boy. Last but not the least modern naked cyber pornography has labeled
women as sex-pricking doll. Due to the social stigma most of them could summon up the courage to
reveal those heinous acts committed against them in every sphere of their life. Rights of women
include the rights against sexual exploitation, right against discrimination, and right to privacy, right
to life and even right to employment. The right to live with human dignity not merely includes
physical or animal existence rather it embraces several other aspects in its fold.

“There can be no keener revelation of a society’s soul than the way in which it treats it children.”
Currently the children comprises of 26.3% of the world population.[6] Societies are greatly hampered
from the violation of their rights. Rights of the children include the right against exploitation of
sexual abuse, right to education, right against discrimination, right to live, right to survival and right
to development. Children always live under the thumb of their parents, all the decision concerning
them, from clothes to education are taken by their parents. Psychologists also condemn the carrot and
stick approach some parents use with their children. When a child is been trafficked or sexually
exploited there is a violation of their right to life, survival, protection and participation. Because of
the fear of their parents and society the children often do not complain on violation of their rights.
Parents should be made aware of the laws regarding child protection and child abuse. Parents should
be made well versed that if they violate the right of the children then they would be punished sternly
by the law.

People, at an old age, tend to depend on their family as they used to depend during their childhood.
Senior Citizen are reservoir of knowledge and experiences, though people retire on ;attaining the age
above 60 years but most of them are still physically fit and mentally alert and can do work of low
burden. Most of them become unemployed but if they were given appropriate opportunity then they
can also contribute in the socio-economic development of the nation. There are many problems which
come automatically on becoming old. They face economic crisis, physical constraints and psycho
social problem. Most of the time their own children turn a deaf ear towards them and they are
frequently being tortured by them.[7] Old age people rights are written in the “Universal Declaration
of Human Rights”. They also deserve the right to live with dignity and right against exploitation.
Senior citizen often don’t plaint to others about the problem because of their deteriorated health due
 to which they could not communicate, love for the person and in fear of getting economically
affected.

Concept of Human Rights:

At first the people who have the power is having the rights and the people working under them were
having no rights. Slavery and death of people was a common thing happening with the people but
after conquering the battle of Babylon in 539 BC Cyrus the Great did something very revolutionary.
He announced that all slave are free to go and all people have the right to choose their religion no
matter what crowd they were part of. His words were written on clay known as Cyrus Cylinder. This
led to the birth of the concept of human rights.

Though there was no any articulated law at that time but people started making their own rules and
regulation based morality and justice. These rules and regulation later on came to be known as natural
law. These laws were always tampered by the people who were having power until in the year 1215
AD King John of England created Magna Carta., or Great Charter in which the people’s basic legal
rights were preserved and even the king was not allowed to infringe the rights of the people.

In the year 1628 Petition of Rights were made by Charles I .The Petition of rights demanded : (1) that
no freeman should be forced to pay any tax, loan, or benevolence, unless in accordance with an act of
parliament; (2) that no freeman should be imprisoned contrary to the laws of the land; (3) that soldiers
and sailors should not be billeted on private persons; (4) commissions to punish soldiers and sailors
by martial law should be abolished.

Many other bills and declarations like Bills Of Rights (1688), American declaration of Independence
(July 4, 1776) were made to preserve the rights of the people. Despite of all these declaration and
bills two World Wars took place and all the people’s rights were shattered. Finally in the year 1945
United Nations Organizations (UNO) was formed. The ‘Charter of United Nation Organization’
adopted in June 1945 declared one of its objects as to reaffirm faith in fundamental Human Rights’
and its purpose of ‘ promoting and encouraging respect for Human Rights”.[9]
4.1 The International Perspective:

The United Nations Charter and Universal Declaration of Human Rights (UDHR) are considered to
be the basic documents to preserve the human and both these documents ensure about the protection
of the rights of women, children and elderly. There are many kinds of rights mostly applied to a
certain kind of restriction but human rights are the only right that is universally applicable to
everyone. Everywhere, that means kids, children, woman, elderly etc… .The UDHR adopted various
rights in its articles for the preservation and protection of women, children and elderly, like the right
to life, we are all free and equal, right against discrimination, right to live with dignity, right against
torture, right against slavery etc……

4.1.1 Violence against women is a common problem faced by every countries of the world. In order
to protect the women many conventions, laws were made by the countries and the United Nations.
U.N organizations like ILO and UNESCO have also adopted convention concerning the problems
related to women. The two International Covenant- International Covenant on Civil and Political
Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESR),
enforces the concept of equality. Optional protocol to the Convention on the Elimination of all forms
of Discrimination Against women, 1999 laid down the provision for non-discrimination of women.
Convention on the Political Rights of Women (1952), Convention on the Nationality of Married
Women (1957), Convention on the Consent to Marriage, Minimum Age of Marriage and
Registration of Marriages, 1962 and the Committee on the Elimination of Discrimination against
Women (CEDAW) are some of the UN human rights conventions which specifically related to
women. Convention on the Elimination of all forms of Discrimination against Women (CEDAW),
1979 is the most comprehensive instrument on the human rights of the women and contains more
concrete provisions aimed at the real implementation of the rights already recognized.

4.1.2 The role of women and need to improve the status of the women were internationally
recognized in the year 1975 and the General Assembly proclaimed that year as “International
Women’s Year” and 1975-85 was declared as the “Decade for Women”. Beside all these
Conventions, there are four International Conference on Women and the latest was held in the year
1995 at Beijing. Hence, the issue of women was addressed at the International front and at different
countries.

4.1.3 The recognition of the human rights of child came under the umbrella under the International
Law in 1924 with the adoption of Geneva Declaration of the Rights of the Child, 1924 to some extent
this convention abolished the custom of treating the children as the property of their father. The
conventions also recognized various other rights of child like the child must be given requisite means
for its normal development, the hungry child should be fed, the sick child must get proper treatment,
the orphan and the street child must be given shelter. The child should be carefully nurtured and
provided with ample opportunities to live a decent life.

The Universal Declaration of Human Rights, 1948 has laid down many articles for the protection of
the child rights. The observance of “International Year of Child” in the year 1979 have created
global awareness which led the United Nations to draft Convention on the Rights of Child, 1989. To
protect the children from pornography, sale and trafficking International Convention for the
Suppression of the Traffic of the Women And Children, 1921 and Optional Protocol to CRC on Sale
of Children, Child Prostitution and Child Pornography,2005 was made.

The old age people right was first brought in the resolution passed by the general assembly in the year
1948. The question of the elderly and aged was again debated in the UN and the General Assembly
passed resolution concerning this problem in the 1969 and 1971.The General Assembly in the year
1971 requested the Secretary-General to prepare a report suggesting guidelines for national policies
and international action related to the needs and the role of elderly and aged in society in context of
all over development, particularly in countries where socio-economic problem of the aged are
marked. In 1978 the Assembly decided to hold a World Conference on Ageing. Accordingly a World
Conference on ageing was held in Vienna from July 26 to August 6, 1982 wherein an International
Plan of Action on Ageing. The second assembly on ageing was held in Madrid to help the
government and society plan policies related to old age people.
 4.1.4 The Assembly urged the Secretary-General to continue his efforts to ensure that follow-up
action to the Plan is carried out effectively.

(i) The U.N. General Assembly on December 16, 1991 adopted 18 principles which are organized into
5 clusters, namely-independence, participation, care, self-fulfillment, and dignity of the older persons.

(ii) The U.N. General Assembly has declared ―1st October‖ as the International Day for the Elderly,
later rechristened as the International Day of the Older Persons.

(iii)In 1992, the U.N. General Assembly adopted the proclamation to observe the year 1999 as he
International Year of the Older Persons”.

These convention, declaration, conference framed a guidelines for the countries to tackle these problem
and use it for its prosperity and growth.

4.2 The National Perspective:

The Universal Declaration of Human Rights, which consists of 20 Articles, is a reflection of the basic
rights which human being, both adults and children require living and enjoying a life of freedom,
without fear or oppression and abuse, in a healthy environment. The very same thought are contained
and reflected in Part III and IV of the Constitution of India. While Part III speaks of fundamental
rights enforceable by the Courts, Part IV contains ideas and guiding principles for good governance,
and enacting legislations in the best interest of the citizen of the country. Our revered Constitution
makers were well aware of the condition of these classes so they drafted the Constitution in the
manner in which these people right would not be hampered by anyone. In the year 1993 the very first
time a separate law relating to human rights was enacted. Under which the human rights was defined
and National Human Rights Commission (NHRC) and State Human Rights Commission was set to
protect the rights of the human. Currently, 18 State Human Rights Commission are working in India
to look after the people of that particular state.
4.3 Constitutional Protection:

The Constitution is known to be the supreme law of any country. It mentions the rights and the freedom
of the citizens of a nation. The preamble of our Constitution guarantees justice, equality, liberty and
fraternity to the people of the country. The Constitution not only assures equality to everyone, but
also an unequivocal prohibition against discrimination on grounds of religion, race, caste, sex or place
of birth.[19] The state is also empowered to make special provisions for women and children.[20]
There are other Fundamental Rights viz. Right to Life, Liberty and Constitutional Remedies.The
Supreme Court has expanded the scope of Rights to Life in many cases viz. Siddharam Satlingappa
Mhetre v. State of Maharastra, Suchita Srivastava v. Chandigarh Administration. Women also
have Fundamental Rights to human (read feminine) dignity[24], to privacy[25], to health[26], to
primary education[27], to free legal aid[28], to speedy trial[29] et.al, as adjunct to right to life. Under
Article 41 of The Constitution of India the state is directed to provide maternity relief to women.
Under Article 51Ait is a Fundamental Duty Of every citizen of India to renounce practices derogatory
to the dignity of women.

The Constitution of India has also taken care of the children and there are various article in our
Constitution to protect the rights of the children. The Constitutional concept of children in India is the
realization of a healthy childhood with a pace for all round growth and development, and protection
from exploitation and abuse by child labour forces on them due to economic necessity.[30]

The constitution guarantees right to education[31], prohibits discrimination on grounds of religion,

race, caste, sex or place of birth[32] , prohibit traffic in human being and forced labour[33], prohibits
employment of children in factories[34]. Article 39 (e) and (f) provides as under ” (e) 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;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions
of freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment .” Article 45 of the Constitution laid down the provisions for free
and compulsory education for children. It is thus seen that the Constitution of India has taken care of
the health and education and all round development of the children. The Supreme Court of India has
 dealt with the rights of children in many landmark judgments viz. Sheela Barse’s v. Union of
India[35], Md. Giasuddin v. State of Andhra Pradesh[36], M.C Mehta v. State of Tamil Nadu[37],
Elizabeth Dinsnaw v. Arvind Dinshaw[38], Vishal Jit v. Republic of India[39].

The Constitution of India has also advocates the rights of elderly people. Right to work, to education
and to public assistance in certain cases: The State shall, within the limits of economic capacity and
development, make effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in other cases of
undeserved want.[40]

Promotion of educational and economic interests of Scheduled Caste and Scheduled Tribes and other
weaker sections: The State shall promote with special care the educational and economic interests of
the weaker sections of the people…..and shall protect them from social injustice and all forms of
exploitation.[41]

4.3.1 Protection under Other Laws and Act:

Apart from The Constitution of India the Central and State Government has passed many act to protect
the rights of the women, children and elderly. During the last six decades after Independence, the
government has launched massive programs concerning socio-economic development of the women
children and elderly. To protect the women from trafficking Immoral Traffic (Prevention) Act, 1986
was passed in the year 1986. The act was further amended in the year 1986 and came to be known as
PITA previously known as All India Suppression of Immoral Traffic Act (SITA). This act only deals
in trafficking in prostitution, it does not have any provisions for trafficking in domestic work, child
labour, organ harvesting etc.. A separate act was made for protection of women from
sati,[42]domestic violence[43]and dowry prohibition[44]. The Supreme Court has framed guidelines
in the case of Vishaka v. State of Rajasthan[45] for protection of women from sexual harassment in
work place. On the guidelines of the case Protection of Women against Sexual Harassment at Work
Place Bill, 2007 was brought in the parliament. To set up National Commission for women, The
National Commission for Women Act, 1990 was passed by the parliament.
 All children have same rights but their situation vary. Keeping this in mind many act were passed to
remove the social evil existing in the society. The first act to protect the children was Guardians and
Wards Act which was passed before Independence in the year 1890. A separate act was passed to
protect the children from labour[46], marriage[47], trafficking[48], organ transplantation[49] and
sexual offences[50]. In order to safeguard the interest of the child Juvenile Justice (Care and
Protection) Act, 2000 further amended in 2006 was passed. To widen the scope of Article 21A a
separate act was passed named The Rights of Children to Free and Compulsory Education Act was
passed in the year 2009 and many the Sarvya Shiksha Abhiyan was implemented in all the state.

The statutory provisions to maintain their parents is Maintenance & Welfare of Parents and Senior
Citizens Act, 2007.Various religious and community have also said about the duty and protection of
the parents by their children. The provision to maintain the parents in Hinduism is written in the
Hindu Adoption and Maintenance Act, 1956. A Hindu is bound, during his or her lifetime, to
maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.[51]The
obligation of a person to maintain his or her aged infirm parent or a daughter who is unmarried
extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain
himself or herself out of his or her own earnings or others property.[52]To maintain the parents who
cannot maintain themselves was even recognized in the early text of Hindu.

In several verses of the Quran, Allah makes it clear that duty, kindness and gratitude towards parents is
an essential part of Islam. “Thy Lord hath decreed that ye worship none but Him, and that ye show
kindness to your parents. If either or both of them attain an old age, say not ‘uff’ to them, nor repulse
them, but speak unto them a gracious word. And make yourself submissively gentle to them and with
compassion say ‘Oh my Lord! Have mercy on them both as they did care for me when I was little.’” –
Qur’an 17:23-24. In Islam Old age home is forbidden, according to The Holy Quran the parents
should be kept by children in their own home not in any old age home.

4.3.2 Protection under Criminal Law:

Apart from separate act for protection of women there are also provisions for protection of women from
rape, dowry death and cruelty towards them in The Indian Penal Code, 1860 and Indian Evidence
 Act, 1872. Section 304B of Indian Penal Code and 113B of Indian Evidence Act, 1872 deals with
dowry death. Section 375 deals with rape of women and children. Section 498A of IPC, 1860 deals
with the cruelty done by the husband on his wife. The court has held in Krishna Lal v. Union of
India[53] that the social evil should be eradicated and to ensure that the married women live with
dignity at their matrimonial homes.

Section 312-318 of IPC, 1860 deals with the protection of unborn child. If a person tries to kill a child
before birth in the form of doing miscarriage that person shall be punished with imprisonment for life,
or with imprisonment of either description for a term which may extend to 10 years, and shall also be
liable to fine.[54]Rape of a child come under Section 375 of IPC, 1860 and the punishment for rape is
given in Section 376 of IPC, 1860.

Order for maintenance of wife, children and elderly are given in Chapter IX of The Code of Criminal
Procedure, 1973.If any person having sufficient means neglects or refuses to maintain his father or
mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as
such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to
time direct.[55]Daughter, including married daughter have a duty towards the maintenance of their
parents.

4.4 Violence against Women:

Violence against women include all the violent act committed against them. The United Nations
defines violence against women as “any act of gender-based violence that results in, or is likely to
result in, physical, sexual or mental harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” Violence
against women have taken place from the time they have treated as a property. The World Health
Organization (WHO) reports that violence against women and girls is one of the most widespread
violation of human rights.[56] Violence against women include all forms of physical, sexual and
 psychological abuse. Violence done by a husband to his wife come under the domestic violence. We
may discuss domestic violence under the following subheadings:

(a) Wife Beating (b) Dowry Harassment and Death (c) Marital Rape

4.4.1 Wife Beating:

Declaration on the Elimination of Violence against Women, 1993 clarifies the term “violence against
women” means any act of gender-based violence that results in, or is likely to result in, physical,
sexual or psychological harm or suffering to women, including threats of such acts, coercion or
arbitrary deprivation of liberty, whether occurring in public or in private life.[57]The battering of
woman, like other crimes of violence against women has been shrouded in myths. Such myths are
based on the mistake notice that the victim has provoked her own assault, and some consider it as
protection against embarrassment, while for others, it is a phenomenon of masochistic, meaning that
such women experience a sense of sexual pleasure only when she is beaten before being subjected to
sex.[58]Women suffered from “learned helplessness” as a result of repeated battering, which
prevented them from resisting the violence or leaving the relationship. Even the parents of the wife
neglect the fault of their son-in-law and in way subject their daughter to more torture. It is seen that
the wife are not only beaten by uneducated husband but also by educated husband. Unfortunately in
India, there is no specific law against wife beating, but the very act if it were to be simple or grievous
can be treated as assault under the provisions of the Indian Penal Code.Women usually don’t lodge
complaint against their husband because if the husband get convicted then she will the only one to
suffer the consequences of not having a husband.

4.4.2 Dowry Harassment and Death:

The practice of giving and taking dowry has been prevalent from ancient since Vedic period when it
was called Vahatu. The Rig-Veda and Athaveda mention that the dowry given to Surya by her father
reached her in-laws long before she herself entered it. The Atharveda says that when the bride went to
her husband’s place her clothes were definitely fine and sanctified by Mantras. Bana in Harsha
Charitra also mentioned that large number of horses and elephants were given to Rajyashri as dowry.
 So also in Mahabharata, we find that Drupada lavished his daughter with pearl. Thus, we see that in
ancient time the dowry was voluntarily. [60]Previously the dowry was given as a form of gift to their
in-laws but that practices changed it into a social evil and now wife are been harassed by their
husband and his relatives for dowry.

In Sobha Rani v. M.Reddy the Trial & High Court failed to regard the demand for dowry as
harassments and dismissed the wife plea saying that she had not produced any evidence which could
be regarded as harassment. When the case went on appeal in Supreme Court Shetty J. referred to
dowry as a “deep rooted evil” and that in spite of the law and the amendments, the “pernicious
practice continued”. Many times these dowry harassment takes the form of dowry death. In the year
2009 there was a total of 89,546 dowry death were reported.[62] Despite the amendment in Dowry
Prohibition Act, 1986 even today justice remains an elusive dream for many dowry death victims

4.4.3 Marital Rape:. Section 375 of Indian Penal Code, 1860 discriminates with a wife when it comes
to protection from rape. Marital rape creates a mental trauma in the wife because the husband himself
is betraying the trust and having sex without consent. By raping the wife the husband make her feel
unsecure in their home where she should feel herself secure. Marital rape is difficult to prove
especially when both partners voluntarily engaged in sexual activity in the past and issue of consent
arises at a later point when there is a non-consensual sex.What is required is to form a new definition
of rape. If the husband insist to have sex with his wife and causes grave injury or damage to life, limb
or health, such thing will amount to cruelty as defined in section 498A of IPC, 1860 and the conduct
shall be punished as amounting to rape. Women have also been exploited sexually. Sexual violence
refers to sexual activity where consent is not freely given or obtained. It lower the dignity of women
in the society. Sexual Violence can be under the following subheading: (a)Rape (b) Trafficking &
Prostitution (d) Molestation and Sexual Harassment.

\
 a) Rape:

Rape is considered to be more heinous crime than murder. In murder people die only once but
in rape people die again and again. Rape kills the victim’s soul. The position of India is not
better than many of the under developed nations and the prime reason of this is that the laws
and the punishment for these offences is not to deterrent and every such law suffers some loop
holes or have some grey areas which can be taken advantage of by the alleged offenders. The
offence of rape though included and defined in the Indian Penal Code along with offences
affecting the human body is not a typical offence like any other since, in the offence of rape
the aim is not to take, but to humiliate and degrade. The victims of rape do not only suffer
from forced genital copulation but they also suffer from humiliation and shame, which the
society offers. It would be necessary to remind that the punishment prescribed for rape has not
taken into account that, what follows the offence of rape is nothing less than the offence itself
and is no less than mental trauma and unbearable pain and humiliation for the victim and her
family. In the year 2009 there were 21,413 victims of Rape out of 21,397 reported Rape cases
in the country. A person who is accused of such heinous crimes must be awarded the strictest
punishments prescribed in the books of law.

(b)Trafficking & Prostitution:

Trafficking of women is a violation of their rights. The World Conference on Human Rights
which was held in Vienna 1993 has acknowledged that one of the Violence against women,
is ‘forced prostitution and trafficking in women’. Trafficking in human beings take place for
the purpose of exploitation which can be categorized as sex-based and non-sex based. The
former category include trafficking for prostitution, commercial sexual abuse, pedophilia,
pornography, cyber sex, and different types of disguised sexual exploitation that take place in
some massage parlors, beauty parlors, and other manifestation like call girl racket, etc.. Non-
sex based trafficking include domestic labour, industrial labour, adoption, organ transplantation,
marriage related rackets etc… Trafficking of women, minor girls for prostitution and sexual
exploitation has emerged as one of the most formidable challenges of the new millennium. Out
of human trafficked 43% of girls and women are used for forced commercial sexual
 exploitation.[63]In the year 2010 there were an increase of 20.2% increase in human trafficking
in India compared to 2009.[64]It has threatened the basic dignity and freedom of the women
and minor girl which is granted by the Constitution of India.

(c) Molestation and Sexual Harassment:

Molestation and sexual harassment are one of the worst evil of the modernized society caused to the
women by their male counter parts and the other members of the society.[65]In early times, on the
one hand, it was believed that where women are honored, god feel delighted, while on the other hand,
in the times of Manu, she was considered dependent and a weak human being who is protected by her
father, when young ,by husband in her youth, and by son in her old age. But now the situation has
totally changed now women are given freedom and they are entering in every field. Yet it is
unfortunate for us that the women who should be protected and respected in the workplace are being
sexually harassed. Molestation and Sexual harassment is just one form of abuse against women
against women that occurs in the work place. Sexual harassment is a violation of the rights under
Article 14,15 and 21 of the Constitution. Vishaka v. State of Rajasthan is the first in which sexual
harassment at work place came before court… The Supreme Court laid down the guidelines for
protection of women in work place and Protection of Women against Sexual Harassment Bill, 2007
was put in the parliament.
 CHAPTER-5

CONCLUSION AND SUGGESTION

While the Apex Court has given mandatory guidelines, known as Vishaka Guidelines, for resolution
and prevention of sexual harassment enjoining employers by holding them responsible for providing safe
work environment for women, the issue still remains under carpets for most women and employers.

It is not easy to change the ingrained attitude eof perpetrators of the wrong of sexual harassment.

Hence, combating sexual harassment involves developing understanding of what is

sexualharassment and change of attitudes in all-be it employees, colleagues, friends, administrators,
employers or the law makers.

In this regard, the following comments andsuggstions may be noted:

1. There is a need to adopt a holistic approach todeal with the problem of sexual
harassment. Legislation declaring sexual harassment unlawful, judicial decisions
awarding damages,or complaints committees giving out punishment cannot control the
widespread prevalence of sexual harassment.

The whole society should be involved in spreading the message that sexual harassment isa
heinous and demeaning practice. The media, the television, radio and news papers must engage
in concert attempts to change them indset of harassers.

2. Speaking out about sexual harassment is aneffective tool in combating it.While speaking
about it, the problem becomesvisible, it is acknowledged that it exists, and thisin turn
leads one to take effective measuresagainst it.

Since there are inherent difficulties withproving a case of sexual harassment, oncethe complainant has established a
prima facie
In case, the burden of proof should shift towrongdoer to prove his innocence.
To control sexual harassment at theworkplace, employment contracts mustcontain a clause that if
an employee is foundguilty of sexual harassment that would leadto termination of the
employee’s
job afterdue procedure.

Sexual harassment cases maylead toproblems for the

victim’s family. This must bedealt with by women organizations and theyshould provide counseling
services to thevictim as well as her familymembers.

Women organizations and civil society shouldplay a proactive role to change the patriarchalnorms
and standards that have largelypermeated within the fabric of Indian society.

Sexual harassment at workplace is highly prevalent in India and there is a need to provide apositive environment to
the women workers. Government should make separate laws dealingwith this issue. It should also realize that
women worker also constitute a part of working population in India
and it‟s the duty of the government to provide them security at work. New
l. Government and employers should ensure that women should be treated equally and genderdiscrimination
should not take place at the workplace. Effective implementation of the policiescan reduce the manifestation and
mutilation of the sexual harassment to the minimum. Oneorganisation can alter its approach to handle sexual
harassment by viewing other organisationstactic. This will reduce or eliminate glitches caused by this harmful
transgression. Governmentshould understand that separate laws may not bring about equality in gender relations
but a lawdealing with sexual harassment would provide women immense support in their struggle. Byfocusing on
the implementation of the Vishaka guidelines across sectors, examining the issuecomprehensively through its
components of redressal, prevention and protection, and drawingfrom experiences and perspectives shared at the
Consultation, the organizers facilitated theprocess of identifying problems to fill gaps that need to be addressed by
any law combatingsexual harassment at the workplace
.
 REFERENCES

Dilorio, J. (1992). Feminism and War: Theoretical Issues and Debates. Reference Services
Review, 20, 51-68.

Hrdlicka, A. (1912) Origin of the American Aborigines. American Anthropologists, 14, N. S. 5-

12.

Punwani, J. India: (1993) Searching for Answers In the Wake of Religious Violence. Ms, July-
August, 16-18.

Humphrey, H. Institute of Public Affairs. (1994). More Than Half Way to Beijing The Women's
Watch, 8, 1-8.

Raghaviah, M.(1996). Dedicated to Selfless Service.

http://www.webcom.com/~p…OMEN/womhin19940715.html.

Pratima, A. (1974). Women's Movement in India. Delhi,Vikas Publishing House, Chapter 1.

Desai, N. & Krishnaraj, M. (1987). Women and Society in India. Delhi, Ajanta Publications.

Adelman, C. (1991). Women at Thirtysomething: Paradoxes of Attainment. U. S. Department of

Education, Office of Research.

National Perspective Plan for Women (1988-2000): A Perspective from the Women's
Movement. (1988) New Delhi, The National Commission on Women

Dube, S. C. Men's And Women's Roles in India: A Sociological Review. Women in New Asia.
Ed. by Barbara E. Ward.174-203. Unesco.

Thomas, P. (1964). Indian Women through the Ages Bombay: Asia Publishing House.

Lyons, N. (1992). "Women's Education" In Encyclopedia of Educational Research. ed by

Marvin C. Alkin, Chief Editor. New York: Macmillan. 1520-1523.

Tilak, J. (1992). Education and Wage Earnings In Encyclopedia of Educational Research. ed by

Marvin C. Alkin, Chief Editor. New York: Macmillan. 419-423.
Bowman, M. J. (1992). Education and Economic Development In Encyclopedia of Educational
Research. ed by Marvin C. Alkin, Chief Editor. New York: Macmillan. 389-399.

McIntyre, R., Meloche, M. & Lang, J. Culture-Based Market Segmentation: A Potential Strategy
for EC'92 Journal of Euromarketing, 2(1), 31-47.

Bell-Lowther, E.(1985). World Feminization of Poverty: A Conference Report. The Social

Worker, 53, 70-73.

Jain, M. (1992, July 15). The Changing Woman India To-day, 36-43.

Bennett, L. (1992). Introduction: Gender and the Problem of Access Economic Development
Institute of World Bank Women, Poverty and Productivity in India An: EDI Seminar Paper #43.
Washington, D. C.: World Bank.

Newport, F. (1996, March) Americans Still Prefer a Son. The Gallup Poll Monthly, 2-3.

Dowse, D.(1994) Can You Clone Karma?, A Paper Presented at the University of Tennessee
Philosophy Club Meeting, 1-12.

Shramshakti: Report of the National Commission On Self Employed Women and Women in the
Informal Sector. (1988). Chaired by Ela R. Bhatt, New Delhi, The Commission.

Srinivasan, K. (1991). Some Revelations from the 1991 Census. Bombay International Institute
for Population Sciences.

McDonald, H. (1991, December 26).Paying for the Past: Population Surge Forces Rethink in Our
Official Strategy Far Eastern Economic Review, 16-18.

Ehrlich, P. (1988, December). Earth'88 National Geographic, 914-945.

Chaudhuri, R. (1991). Conflict and Values: A Study of Grassroots Conflicts in India Peace
Culture and Society: Transnational Research and Dialogue. Boulder: West-View Press, Chapter
13

Satha-Anand, C. (1991). From Violent to Nonviolent Discourse. Peace Culture and Society:
Transnational Research and Dialogue. Boulder: West-View Press, Chapter 11.
Alger, C. (1991). Creating Global Visions for Peace Movements. Peace Culture and Society:
Transnational Research and Dialogue. Boulder: West-View Press, Chapter 20.

Brock-Utne, B. (1991) Underdevelopment and the Oppression of Women: A Feminist

Prospective Peace Culture and Society: Transnational Research and Dialogue. Boulder: West-
View Press, Chapter 18.

Singh, K. (1991) Mass Communicators for Peace: Another Way. Peace Culture and Society:
Transnational Research and Dialogue. Boulder: West-View Press, Chapter 22.

Tuson, P.(1989) Suffragettes and Saris: Resources for Women's Studies in the India Office
Library and Records. British Library Women's Studies: Papers presented at a colloquium at
British Library , April 4. Ed by Albertine Gaur and Penelope Tuson, 99-

Roy, K. (1989). India: Accent In Women's Studies Encyclopedia Volume 3, History, Philosophy
and Religion. Ed by Helen Tierney. New York: Greenwood Press.

Beech, M. (1989) India: Marriage and Family. In Women's Studies Encyclopedia Volume 3,
History, Philosophy and Religion. Ed by Helen Tierney. New York: Greenwood Press.

Miller, B. (1989). India: Women in Development. In Women's Studies Encyclopedia Volume 3,

History, Philosophy and Religion. Ed by Helen Tierney. New York: Greenwood Press.

Peters, T. (1994). India Without Parallel in its Economic Potential Poverty. Chicago Tribune.

Melvani, L. (1996, September 15).

Http://www.umiacs.umd.edu/users/sawweb/sawnet/news/shamita.html.

Das, K. (1997). Let Us Invade Brothels and Rescue the Children!.

Http://www.rediff.co.in/news/1996/1011das.htm.

Dyson, T. & Moore, M. (1983). On Kinship Structure, Female Autonomy, and Demographic
Behavior in India. Population and Development Review, 9, 35-60.

Gopinath, K.(1989, September) The First All Women Police Station In India. Social Welfare, 10-
11.
Menon, S. & Kanekar, S. (1992). Attitudes Toward Sexual Harassment of Women in
India. Journal of Applied Social Psychology, 22, 1940-1952.

Tambiah, S. (1989, August-October). Bridewealth and Dowry Revisited: The Position of Women
in Sub-Saharan Africa and North India. Current Anthropology, 30, 413-435.

Bush, D. (1992). Women's Movements and State Policy Reform Aimed at Domestic Violence
Against Women: A Comparison of the Consequences of Movement Mobilization in the U.S. and
India. Gender and Society, 6, 587-608.

Nair, J. (1991) Reconstructing and Reinterpreting the History of Women in India. Journal of
Women's History, 3, 131-136.

Nair, S. and Martin, T. (1989). Pensions For Women in the Third World: A Case Study of
Kerala, India. International Journal of Contemporary Society, 26, 175-187.

Agnes, F. (1992, October 10) Maintenance for Women Rhetoric of Equality. Economic and
Political Weekly, 2233-2235.

Shastry, S. (1991, September 1). Law and Women in India. Journal of Social Research, 32, 277-
282.

Vinayak, R. (1992, December 31). Sexual Terrorism. India Today, 24, 60-63.

Ramachandran, S. (1991). Sex Ratio and the Status of Women in India. Canadian Woman
Studies, 13, 61-66.

Aijaz, K. (1997). Career Women in Pakistan: Chances and Scopes in Professional Life in an
Islamic Society. Http://berlin.snafu.de/~dgfk/PAK_Women.html.

Hannigan J, & Crew, H. (1993, October). A Feminist Paradigm for Library and Information
Science. Wilson Library Bulletin, 68, 28-32

Krikos, L. (1993, Spring). Recent Reference Sources in Women's Studies. Reference Services
Review, 19-24.
Cardman, E. (1990, Summer) The Gender Gap in Computer Use: Implications for Bibliographic
Instruction. Research Strategies, 8, 116-128.

Longino H. (1987, Fall) Can There Be A Feminist Science? Hypatia, 2, 51-64.

Vandergrift, K. (1993, October). A Feminist Research Agenda in Youth Literature. Wilson

Library Bulletin, 68, 23-26.

Hannigan, J. & Crew, H. (1993, October) A Feminist Paradigm for Library and Information
Science. Wilson Library Bulletin, 68, 28-32.