Status of Women in Pre-Constitutional Period

 

Pre-constitutional period means period before the enactment of the Constitution of India i.e. 26^th January, 1950 across India. It includes the British Rule era and period between 15^th August, 1947 and 26^th January, 1950.

During British rule the position of wife in household was at sorry level. The women were dominated in domestic sphere. Literacy rate was also very low, hardly 1 out-off  100 women was able to read and write. Evil social practices, dogmatic religious beliefs, inhuman superstitions and sinister customs caused the maximum degree of deterioration. Child marriage, enforced widowhood, sati, Devadasi, purdah, burkha, dowry, female infanticide and the practice of polygamy made the Indian society static. One sect of the society was having easy provisions of divorce but in the majority the provision for divorce was not present.

During the communal tensions between the religious groups, only the women were victims of sexual violence. During such riots, specifically in Madras precidency, if a pregnant woman was caught then the rioters use to cut her belly and let her to die. Age old women were killed by these rioters. Female children, young girls and other adult women were raped heinously. Also in some parts during such riots, specifically during partition, in the area of Punjab and Bengal, the women were disrobed and forced to walk in front of rioters and then they were gang-raped brutally. British rulers were not able to handle such communal riots and such incidences took place many times even after 1900.

The majority religious group was practicing some things such as child marriages, enforced widowhood, sati, Devadasi, purdah, etc. But the social reformers such as Raja Ram Mohan Ray, Iswar Chandra Vidyasagar, Savitri Bai Phule, Mahatma Jyotiba Phule and others protested for the abolition of such practices and they stressed for the women education and widow remarriages. Their efforts were accepted by the majority religious groups.

The majority religious group accepted the reforms Sati’ was legally abolished in December, 1829. After the abolition of ‘Sati’ the Britisher’s realized the pitiable conditions of the Hindu widows and enacted the Hindu Widow Remarriage Act in 1856. The Hindu Woman’s Right to Property Act was passed in the year 1937. It intended to improve the position of widows in respect of property. The Child Marriage Restraint Act was passed in 1929. This Act penalized the marriage of girls below fourteen and boys below eighteen years of age. They accepted the reforms and many inhumane practices were abolished and many Acts in favour of Hindu women were passed. Also for these reforms Hindus supported to the protests and then government was forced to pass the enactments.

Some religious groups were against such reforms and from such groups practices like polygamy were not reformed, because no one was there to protest against such practices. And still there are some sects in the society where polygamy, dowry, no education rights, child marriage, etc. are practiced which are heinous.

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Explain the provisions relating to women in Directive Principles of State Policy under the Indian Constitution.

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education, and political disadvantages faced by them. The Constitution of India prohibits discrimination based on sex but it equally directs and empowers the government to undertake special measures for women. The Constitution provides many protection rights for women such as Protective discrimination in favor of women, the Right to freedom of women, the Right of women against exploitation, the Rights of women under directives, and political representations of women.

This policy envisaged equal rights to work, equal pay for equal work, and adequate means of decent and dignified livelihood for both men and women, these are guaranteed under the directive principles of State policy. Part IV of the Constitution containing Articles 38, 39 (a) (d) and (e), 42, 44, and 45 deals with the welfare and development of women.

A. Equal justice and free legal aid

In the Indian Constitution, there are provisions to get Equal justice and free legal aid to the needy. Such provisions are given in Article 38 of the Constitution of India, which reads as follows:

Article 38. State to secure a social order for the promotion of welfare of the people -

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Legal Aid means giving free legal services to the poor and needy who are unable to afford the services of an advocate for the conduct of a case or a legal proceeding in any court, tribunal, or before any judicial authority.

In the case of Hussainara khatoon vs. State of Bihar, it was held that if an accused is not able to afford legal services then he has a right to free legal aid at the cost of the state.

B. Principle of “equal pay for equal work” is a constitutional goal.

This principle is provided in Clauses (a) and (d) of Article 39 of the Constitution of India, which read as follows:

Article 39: Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(d) that there is equal pay for equal work for both men and women;

India still lacks a comprehensive and transparent wage policy for all the sectors of the economy. Gender equality is the goal, while gender neutrality and gender equity are practices and ways of thinking that help in achieving the goal. Gender parity, which is used to measure gender balance in a given situation, can aid in achieving gender equality but is not the goal in and of itself.

In Clause (a) of Article 39, all citizens, regardless of gender, have equal rights and a decent livelihood.

Article 39(d) ensures that there is equal pay for equal work for both men and women. The Parliament has enacted the Equal Remuneration Act, 1976 and implemented Article 39. The doctrine of ‘equal pay for equal work’ is equally applicable to both men and women, even the daily wagers are also entitled to the same wages as other permanent employees in the department employed to do the identical work.

The Apex court in Randhir Singh v. Union of India has expressed the opinion that the principle of “equal work” is not declared in the Constitution to be a fundamental right but it is certainly a constitutional goal.

C. Men and women workers to be protected equally

This principle is provided in Clauses (a) and (e) of Article 39 of the Constitution of India, which read as follows:

Article 39: Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(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;

In Clause (a) of Article 39, all citizens, regardless of gender, have equal rights and a decent livelihood.

According to Article 39(e) of the Constitution, the state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength and that of the children of underage to be protected equally. They should not be forced to work under inhuman and hazardous conditions.

In M.C Mehta v. State of Tamil Nadu, it has been held that in view of Article 39 the employment of children within the match in view of Article 39 the employment of children within the matches factories directly connected with the manufacturing process of matches and fireworks cannot be allowed as it is hazardous. Children can, however, be employed in the process of packing, etc. away from the place of manufacturing.

D. Provisions for maternity benefits:

Article 42 of the Constitution of India gives the provisions for the safety of women in work conditions and maternity relief. The said article reads as follows:

42. Provision for just and humane conditions of work and maternity relief –

The State shall make provision for securing just and humane conditions of work and for maternity relief.

E. Uniform Civil Code and Gender Equality

Article 44 of the Constitution of India gives the provisions for Uniform Civil Code in India. In order to establish true equality among the citizens of the country, the State must enforce the Uniform Civil Code. Gender justice means social, political, and economic equality for women. The Article reads as follows:

44. Uniform civil code for the citizens –

The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

It suggests the abolition of the patriarchal system that has been infused with the system. Gender justice is indispensable for ‘development’ in a true sense. The implementation of a uniform civil code and the issue of gender justice, two are closely connected to each other in the Indian socio-legal perspective. Women empowerment in core areas like social status, gender bias, health, security, and empowerment are of urgent necessity. There is no Uniform Civil Code in India but a Uniform Criminal Code exists. Criminal law is equally applicable to all citizens irrespective of their religious affiliation. However, in the case of civil law particularly in the matter of personal laws, there is no uniformity. World history is evidence of the fact that one of the most neglected ideas has been that of women’s rights. Around half of the world’s population has been denied equality in almost every sphere of life. This statement is a testimony to the fact that equality without gender justice is no equality at all.

In a landmark judgment in Sarla Mudgal versus U.O.I: The Supreme Court has passed directions to the Central Government to review Art. 44 of the Constitution which permits the state to guarantee a uniform civil code (U.C.C). According to the court, it is imperative and essential for the protection of the oppressed and for the promotion of public solidarity and integrity.

F. Free Education for female children:

The right to education is a fundamental right and Article 45 provides the directive principle to impart free education to all children of India irrespective of their gender, caste, creed, religion, etc. until they complete the age of fourteen years. The Article reads as follows:

Article 45 Provision for free and compulsory education for children –

The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

As per Article 45, all children are to be given free education irrespective of their gender.

Thus Directive Principles of State Policies through Articles 38, 39 (a), (d) and (e), 42, 44, and 45 provide for the feminist jurisprudence.

References:

1) DIRECTIVE PRINCIPLES OF STATE POLICY AND WOMEN IN INDIA

2) Women Rights under the Constitution of India

3) PART IV DIRECTIVE PRINCIPLES OF STATE POLICY

What do you understand by outraging the modesty of a woman?

Outraging the modesty of a woman:

Section 354 of the Indian Penal Code provides definition and punishment for the outraging the modesty of a woman. The said section reads as follows:

354. Assault or criminal force to woman with intent to outrage her modesty.-

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

Outraging the modesty of a woman is an offence provided there is use of assault or criminal force with the intention for the purpose or knowing it likely that he will thereby outrage her modesty. The offence under this section is different from rape and is of less seriousness than the one under Section 376.

It has been made a non-bailable offence under the Criminal Law Amendment Act, 2013.

Ingredients

The section has two main ingredients:

(i) Assault or use of criminal force to a woman. The act on his behalf must be an outcome of the criminal force or an assault used by him.

(ii) Intention of the actor or his knowledge that he would thereby commit this offence. From the side of an accused, section 354 requires basic knowledge on his part that his act is likely to cause harm to a woman's modesty.

Outraging the modesty

In ordinary language "modest" means freedom from conceit or vanity or propriety in dress, speech and conduct. Modesty means sexual dignity of a woman which is acquired by her since the time of her birth. Modesty is defined as something lewd or scrupulously chaste as per the Oxford dictionary. The Supreme Court defined, the essence of a woman’s modesty is her sex.

The word "outrage" has affinity with extremely rude, violent, injurious or insulting act on one hand and it is connected with guilt, culpability, criminality and deviation from rectitude on the part of the person committing assault or using criminal force on a woman. The word ‘outrage’ implies a physical act.

The concept of modesty is subjective to every woman i.e. the sexual limits are personal to every woman; there cannot be a set formula to judge the boundaries of the sexual honour of a woman.  For example, a simple touch on the shoulder might be unacceptable to a woman who lives in a rural area but for a woman in an urban area it could be a casual gesture to greet people. However, there are certain acts which are bound to violate the modesty of every woman and these are the concerns of law, e.g. touching on her posterior sexual organs etc.

Herein, the modesty of a woman is violated by touching her without her consent at such parts of her body which are unacceptable to her. The reaction of the woman is not very relevant in judging as to whether an assault to her amount to outraging her modesty as this offence differs from woman to woman. The ultimate test for ascertaining whether modesty has been outraged is whether the act by the accused is capable of shocking the sense of decency of the woman.

Examples- include demand for disrobing her, defamatory remarks, forcefully dragging her to commit sexual assault and not limited to voyeurism are acts that would come under the ambit of outraging the modesty of a female.

Insulting Modesty

The word ‘insult’ refers to a situation where a woman is made to feel ashamed of her sexual dignity i.e. lowering the sexual honour of a woman in her own eyes. It may be done by passing sexual obscene remarks or making such gestures, sounds or showing sexual objects to her.

The modesty of a woman is insulted without actually touching her but by uttering any word, making any sound or gesture or exhibiting any object which has a sexual connotation with the intention that it be heard, seen or intrudes upon the privacy of such woman. If a person with an object to insulting the modesty of a woman exposes private parts of his body to her or uses obscene words or exhibits obscene drawings he shall be liable for the offence of insulting the modesty of a woman. However, the offender himself doesn’t need to personally exhibit the object; he may employ an agent for the same.

 

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References:

1) Outraging modesty of a woman [S. 354]

2) Sexual Offences in IPC: Outraging Modesty, Disrobing, Voyeurism, and Stalking

3) Case study on outraging modesty of women

 

 

Explain the beneficial provisions conferred on the women under the Factories Act.

The Factories Act, 1948:

The Factories Act, 1948 The Factories Act is a part of labour welfare legislation wherein measures have been laid down to be adopted for the health, safety, welfare, working hours, leave and employment of young persons and women who are employed at factories. The Act was drastically amended in 1987 whereby safeguards against the use and handling of hazardous substances for setting up hazardous industries were laid down.

Provisions for women's welfare under the Factories Act, 1948

Exclusive provisions for women have also been incorporated in the Act keeping in view their soft and tender personalities. The maximum of these provisions was incorporated by the amendment of the Act in 1987. Provisions for the welfare of women:

Prohibition of employment of women during night hours: It is a safety measure for a woman.

Section 66(1)(b) of the Factories Act, 1948 states that no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m.

Prohibition of work in hazardous occupations: it provides that no women shall be allowed to clean, lubricate or adjust any part of a prime mover of any transmission machinery, lubrication or adjustment which would expose the women to risk of injury from moving any part either of that machinery.

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

Pearson v Belgium Co LTD.(1896) 1 Q B 244: The question was whether stationary parts of a machine can be cleaned by women if the machine as a whole is in motion. It was held by the court that if machinery as a whole is in motion even stationary parts of the machine cannot be cleaned by a woman.

Richard Thomas and Baldwins Ltd. V Cummings(1955) 1 AII ER 285: 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.

Prohibition of employment of women in pressing cotton where a cotton opener is at work: Section 27 of the Factories Act, 1948 prohibits employment of women in any part of a factory for pressing cotton in which a cotton opener is at work.

Fixation of daily hours of work at nine: Hours of work which provides that the daily hours of work of adult workers have been fixed at 9 by provisions of Section 54 of the Factories Act, 1948. Sometimes men can work for more time but it does not permit women workers to go beyond the limit.

Fixation of maximum permissible load: It is a safety measure and it is also supported by the International Labour Laws.

Provision for crèche: In every factory where more than 30 women workers are ordinarily employed, there shall be a suitable room for the use of children under the age of six years of such women. It is a nursery and a place where the babies of working women are taken care of while the mothers are at work. It provides that in every factory there shall be a suitable room for the use of children under the age of 6 years of such women and should be adequately clean, ventilated, accommodation and sanitary condition. Section 48 of the Factories Act, 1948 provides for the provision of crèche in factories.

Provision for washing and bathing facilities, toilet facilities: The Act provides for separate and adequately screened washing and bathing facilities for women. Washing and bathing facilities are provided for women workers and shall be kept clean. Provisions for toilets are also provided under the Factories Act. Latrine and urinal facilities separately for men and women are necessary where women labour is employed. The factories Act must make it obligatory for any factory owner to maintain an adequate number of latrines and urinals separate for women. Provision for separate latrines and urinals for female workers exists under Section 19 of the Factories Act, 1948. Provision for separate washing facilities for female workers exists under Section 42 of the Factories Act.

All the above provisions are simultaneously provided under The Plantations Labour Act 1951, The Mines Act 1952, The Beedi and Cigar Workers (Conditions of Employment) Act 1966, The Contract Labour (Regulation and Abolition) Act 1970 and The Interstate Migrant Workmen (Regulation of Employment and condition of services) Act 1979.

References:

1) Protection of women under the labour laws

2) Women Rights Under Indian Labour Laws- A Socio-Economic Study

3) About Women Labour

What are the main features of Immoral Traffic (Prevention) Act?

The Immoral Traffic (Prevention) Act (for short ITPA) was Act no. 104 of 1956 and it was enacted on Dt. 30.12.1956. The long title of the ITPA is, “An Act to provide in pursuance of the International Convention signed at New York on the 9^th day of May, 1950, for the Prevention of Immoral Traffic.” It is evident from the long title that the ITPA is enacted in pursuance of the International Convention for the Prevention of Immoral Traffic, New York, signed on Dt. 9.05.1950.

The ITPA extends to whole India.

According to ITPA any person who is keeping and/or managing a brothel is liable for the punishment of rigorous punishment for 1 to 3 years with a fine upto Rs. 2,000/- (Two thousands only). If such person is again convicted for the same crime then the rigorous imprisonment term may be 2 to 5 years with a fine upto Rs. 2,000/- (Teo thousands only).

If a major (completed 18 years of age) person is living on the earning of prostitution then such person may be punished with imprisonment of a term upto 2 years and/or a fine upto 1,000/- (One thousands only). And if such prostitute is a minor, then the person who is living on her/his earning will be punishable for imprisonment of a term of 7 to 10 years.

Further the ITPA provides the punishment for procurement, inducement or taking a person for sake of prostitution which is rigorous imprisonment 3 to 7 years with a fine upto Rs. 2,000/- (Two thousands only). And if such act of the convicted person is against the will of the person then the punishment will be rigorous imprisonment of 14 years.

This Act provides for the appointment of special police officer and advisory body for dealing the offenses under the Act.

Offenses under ITPA are cognizable offenses. Also search of such premises where brothel is continued can be done without search warrant due to the provisions of the IPTA Act.

This act provides for the establishment of protect home for removed and rescued persons from such heinous trafficking. Also how such protect homes should maintain their records is provided under ITPA.

Only Metropolitan Magistrate or a Judicial Magistrate of the first class can try the offenses under the ITPA.

State governments and Central government are empowered to establish the special courts for imparting the justice in the cases covered under this Act. State governments are empowered to formulate the rules and regulations under this Act for proper implementation of the Act and such rules are published in the official gazette of the State.

The ITPA provides for the prevention of the trafficking of humans for illicit purpose of prostitution and brothel. Both are the heinous acts which are destroying the ethics of the humanity. In general in such businesses women are forcefully thrown and they are forced to lose their dignity and modesty.

Reference:

TheImmoral Trafficking (Prevention) Act, 1956.

 

Environmental Law Short Questions and Answers: Part 3

Vande Matram! Here are some short questions and answers on Environmental laws in India. Please read these and note them down for your knowledge.

When is the hunting of a wild animal permitted in India?

·         Hunting of wild animals is permitted only when such animals become dangerous to human beings or it becomes diseased beyond recovery.

Which Section of the Indian Forest Act, 1927 provides poisoning water of a forest area?

·         The Indian Forest Act, 1927 Section 26(i) of the Act makes it punishable if any person, who, in contravention of the rules made by the State Government, poisons the water of a forest area. This is a colonial law and this provision must be incorporated into the statute of independent India.

Enlist the main provisions for the protection of the environment enacted in India?

·         the Wild Life (Protection Act), 1972

·         The Indian Forest Act, 1927

·         The Water (Prevention and Control of Pollution) Act, 1974

·         The Air (Prevention and Control of Pollution) Act, 1981

·         Environment (Protection) Act, 1986

·         The Noise Pollution (Regulation and Control) Rules, 2000

·         The Serais Act, 1867

·         Obstruction in Fairways Act, 1881

Which Act empowers pollution control boards to inspect and analyse industrial plants?

·         The Water (Prevention and Control of Pollution) Act, 1974 empowers Pollution Control Boards to enter into industrial plants, factories, etc., and inspect plants, records registers, and documents, to take samples of industrial effluents and analysis of same.

What is the objective of the Air (Prevention and Control of Pollution) Act, 1981?

·         The objective of the Air (Prevention and Control of Pollution) Act, 1981 is to provide prevention, control, and abatement of air pollution. This Act basically aimed at industrial pollution and automobile pollution. 

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Environmental Law Short Questions and Answers: Part 2

Vande Matram! Here are some short questions and answers on Environmental laws in India. Please read these and note them down for your knowledge.

What is the Constitutional provision for the protection of the environment in India?

·         In Article 48 of the Constitution of India, it is clearly stated that it is the duty of the state to ‘protect and improve the environment and to safeguard the forests and wildlife of the country’. It imposes a duty on every citizen ‘to protect and improve the natural environment including forests, lakes, rivers, and wildlife.’

Who is responsible for making rules and regulations for the protection of the environment in India?

·         The Ministry of Environment and Forests, India. In India, the Ministry of Environment and Forests is the nodal agency at the Central level for planning, promoting, and coordinating the environmental programmes, apart from policy formulation.

What are the main objectives of the Ministry of Environment and Forests?

·         Following are the main objectives laid down by the Ministry of Environment and Forests:

o   Conservation & survey of flora, fauna, forests, and wildlife

o   Prevention and control of pollution

o   Afforestation & regeneration of degraded areas

o   Protection of the environment.

 Who is authorised to monitor industrial pollution and its prevention, and control?

·         In India the Central Pollution Control Board monitors, industrial pollution, prevention, and control at the central level, which is a statutory authority attached to the Ministry of Environment and Forests.

·         At the State level, the State Departments of Environment and State Pollution Control Boards are the designated agencies to perform these functions.

What is the main motive of the Wild Life (Protection Act), 1972?

·         The motive of the Wild Life (Protection Act), 1972 is to introduce legislation for providing protection to wild animals and birds. It provides that the wildlife which is an integral part of the ecosystem can be protected and guarded against extinction. This Act is basically for the protection of animals, plants, and birds that live in forests. 

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