WOMEN AND LAW by 8CuFyj

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									Women Protective Laws and
 Constitutional Provisions


           Dr. Mohanan B Pillai
              Professor & Head
   Dept. of Politics & International Studies
            Pondicherry University
  Human Rights – Definition 1
Human Rights are those conditions of life
 which allow us to realise our full potential
 and to develop our qualities of intelligence
 and spirituality. Such an environment
 respects and protects the dignity of each
 person and rejects stereotypical views of
 individuals. ‘Human Rights’ is not an
 abstract concept for lawyers and
 philosophers – human rights affect the
 daily lives of every man, woman and child
 in the society.
 Human Rights – Definition 2
Human Rights are freedoms such as
 life, liberty, security and other
 guarantees to which people as
 human have rights. They are
 generally understood as inalienable
 claims or entitlements against state or
 society held equally by all persons
 simply by virtue of the fact that they
 are human beings.
First Generation of Human Rights
 1. Freedom of Expression
 2. Freedom of arbitrary imprisonment .
 3. Freedom of custodial violence
     The Magna Carta (1215) in England
     Petition of Rights (1627) in England
     Bill of Rights (1688) in England
     Declaration Rights of Man and Citizen (1789)
      adopted by French National Assembly
     The Philadelphia Constitutional and Convention
      (1787) in the US
    These civil and political rights constitute the first
 generation of modern concept of human rights.
Second Generation of Human Rights
The Russian Revolution under the Bolshevik
  slogan of “bread, land and all power to the
  Soviets” inspired the Leninist decree of Soviet
  Bill of Rights with its conspicuous primacy of
  economic and social rights over civil and
  political rights. These have inspired other
  contemporary socialist projects in state and
  nation building and contributed to the
  emergence of the second generation of
  human rights
Third Generation of Human Rights
 Freedom from racial discrimination.
 Freedom from hunger.
 Freedom from disease and malnutrition
 Development,      environment,     gender
  justice, minority rights, education, child
  and bonded labour, refugees, displaces
  persons and against all forms of torture.


                                     Contd…
 Third Generation of Human Rights
These concerns continue to be periodically
   incorporated within the ambit of global regime of
   human rights. They have also been expressed
   periodically within the UN system through many
   special covenants like:
1. Civil and Political Rights (1966)
2. Economic and Cultural Rights (1966)
3. Rights to Development (1986)
4. Against Torture (1984)
5. Against Gender Discrimination of Women (1979)
6. Right of the Child (1989)
Institutional Underpinnings of India’s Democracy
  & Related Structures – British Colonial Rule.

►   Parliamentary System
►   Federal Structure
►   Bureaucracy
►   Judiciary
►   Legal System
►   Civil and Criminal Procedure Code
►   The Penal Code of 1860 including the
    Preventive detention Provisions Originated
    from Defense of India Act of 1858.
►   The Police Code of 1861.
         Fundamental Rights
   Part III of the Constitution contains a long list of
Fundamental Rights. They are classified into six
groups:
a) Rights to Equality (Articles 14-18)
b) Rights to Freedom (Articles 19-22)
c) Right against Exploitation (Articles 23-24)
d) Right to Freedom of Religion (Articles 25-28)
e) Cultural and Educational Rights (Articles 29-30)
f) Right to Constitutional Remedies (Articles 32-35)
Provisions of Human Rights - Indian Constitution (Selected)
     Subject                       Indian Constitution
Protection of life   Art. 21 : No Person shall be deprived of his life
and personal liberty or personal liberty except according to
                     procedure established by law
Freedom of             Art 25 (10) : Subject to public order, morality
conscience and free    and health and to the provisions of this part,
profession, practice   all persons are equally entitled to the freedom
and propagation of     of conscience and right freely to profess ,
religion               practice and propagate religion .

Protection of           Art 29 (1): Any section of the citizens residing
interests of           in the territory or any part thereof having a
minorities             distinct language, script or culture of its own
                       shall have the right to conserve the same .
      Subject               Indian Constitution
Rights of minorities   Art 30 (1) : All minorities,
to establish and       whether based on religion or
administer             language, shall have the right to
educational            establish    and      administer
institutions           educational institutions of their
                       choice.
Right to               Art 32(1): The right to move the
constitutional         Supreme Court by appropriate
remedies               proceedings         for      the
                       enforcement of rights conferred
                       by this part is guaranteed.
                       Note : ‘By this part’ refers to
                       part-III Fundamental Rights.
    Women Protective Laws and Constitutional Provisions
Sl.    Description       Source                       Provision
No.
1     Political Rts.   Constitution Equality before law and equal protection
      of Women           of India   of law (A.14).
1.1   Right to vote                 Every person who is citizen of India and
                                    who is not less than 18 yrs. of age and is
                                    not otherwise disqualified, shall be entitled
                                    to be registered as a voter at any election
                       Constitution (A.326).
                        of India,
                                    No person to be ineligible for inclusion in,
                                    or to claim to be included in a special
                                    electoral roll on grounds of race, religion,
                                    caste or sex (A.325).
                       Representati Every person who has completed his or
                       on of People her age of 18 years is eligible for
                       Act, of 1951. registration of his/her name in the
                                     electoral roll (S.19).
1.2   Right     Represen basic qualification for a candidate to LS/RS or State
      of        tation of legislatures are as follows:
      women     People
                          - he/she a citizen of India- have completed
      to        Act of
      contest   1951        25/30 yrs
      elect-                - have sound mind
      ions:                 - not be a undischarged insolvent
                            - not hold nay office of profit- not be convicted of
                            criminal offence of moral terprirude. There is no
                            bar for women to stand for election/s provided she is
                            elector in the same constituency. Not less than one-
                            third (including the no. of seats reserved for women
                            belonging to the SC and the ST) of the total no. of
                            seats to be filled by direct election in every
                            Panchayat/s shall be reserved for women (Chap II).
                Constitut   Not less than one-third (including the no. of seats
                ion of      reserved for women belonging to the SC and the ST)
                India
                            of the total no. of seats to be filled by direct election
                            in every Municipality shall be reserved for women
                            (A.243 D).
1.3   Right of      Constitution   Equality of opportunity in
      women to      of India       matters        of      public
      hold public                  employment.       No citizen
      office:                      shall on grounds only of
                                   religion, race, caste, sex,
                                   descent, place of birth,
                                   residence, or any of them,
                                   be     ineligible   for,  or
                                   discriminated against in
                                   respect of any employment
                                   or office under the State
                                   (A.16).


1.4   Right to      Constitution   All citizens both men &
      association   of India       women shall have the right
                                   to form association or
                                   union (A.19 cl.1 (c)).
2.   Appropriate                 Equality before law and equal
     measures for                protection of law (A.14).
     women
                                 Prohibition of discrimination on
                                 grounds of religion, race, caste,
                                 sex, or place of birth (Art 15)
                    Constitution
                    of India     No citizen shall on grounds only
                                 of religion, race, caste, sex,
                                 descent, place of birth, residence,
                                 or any of them be ineligible for or
                                 discriminated against in respect
                                 of any employment or office
                                 under the State (Art.16[2])

3    Education for Constitution It shall be the duty of every
     achieving the of India     citizen of India to renounce
     crimination of             practices derogatory to the
     the prejudices             dignity of women (Art.51A(e)).
4   Protection      Constitutio Prohibition of traffic in human
    against all     n of India beings and forced labour (A.23).
    forms traffic
                    Indian      Procreation of minor girls for illegal
    in women &
                    Penal code, and improper purposes (Sec.366A).
    exploitation
                    1860
    of
                                Importation of minor girls i.e. girls
    prostitution
                                below 21 years of age, from foreign
    of women
                                country including Jammu and
                                Kashmir for illegal and improper
                                purposes (Sec. 366B).

                                 Buying or disposing any person as a
                                 slave (Sec.370).
                                 Habitual dealings in slaves (Sec.
                                 371).
Indian Penal code, Selling minors, i.e. below 18 years
1860               of age for the purposes of
                   prostitution is penalized (Sec.372).
                    Buying minors i.e. below 18 years of
                    age for the purposes of prostitution is
                    penalized (Sec.373).
Immoral Traffic     Procurring, indulging or taking a
(Protection) Act,   person for the sake of prostitution is
1934                an offence (S.5).

Bombay Devdasis Dedication of girls & women to
(Protection) Act, Gods & Goddess is penalized (S.3).
1934
5    Representation by Constituti Right to equality (A.14).
     women at            on of
     international level India
6.   Rights to the     Constituti Right to equality (A.14).
     Nationality       on of
                       India
                       Citizenshi Citizenship by birth for both men
                       p Act,     and women (S.3).
                       1951
                                  Citizenship by descent. Only
                                  father    can      transmit     his
                                  citizenship to his child/ren (S.4).
                                  Citizenship by registration or by
                                  Naturalization (S.5 & S.6).
                                  Renouncing the citizenship. Both
                                  men and women can renounce
                                  their citizenship (S.8).
7. Education Constitution State shall within the
             of India     limits of its economic
                          capacity           and
                          development make the
                          effective provision for
                          securing the right to
                          education (A.41).

                          State     shall   make
                          provisions for the free
                          and          compulsory
                          education for children
                          until they complete the
                          age of 14 years (A.43).
8.  Equality in the Constitution Right to equality (A.14).
    matters of      of India
    employment
8.1 Right to work Constitution Policy of the state shall be towards
                    of India     securing citizens men and women
                                 equally have right to an adequate
                                 means to livelihood (A.39 cl.(a)).

8.2 Right to non- Constitution State    shall    make     effective
    discrimination of India    provisions for securing the right to
                               work (A.41).
                                Equality of opportunity in matters
                                of public employment (A.16).
                   Equal        No employer can discriminate
                   Representati against men or women in the
                   on Act, 1976 matters of the same or similar
                                nature, except where employment
                                of the in such work is prohibited or
                                restricted by law (S.5).
8.3 Equal pay Constitution State shall direct its policy
    for equal of India     towards securing that
    work                   there is equal pay for
                           equal work for both men
                           and women (A.39 cl(d)).

               Equal       A worker working in any
               Remuneratio establishment shall not
               n Act, 1976 get a wage lower than
                           what the worker of
                           opposite sex get for doing
                           the same or similar type
                           of work (S.4).
8.4 Right to     Constitution of        State shall make effective provisions
    the social   India                  for securing the public assistance in
    security                            cases of unemployment, old age,
                                        sickness and disablement (A.41).
                 The Workman’s          It provides compensation to be paid by
                 Compensation Act of    the employer for any injury or any
                 1923 (applicable for   accident suffered by the worker at the
                 both men and           time of and/or during his/her
                 women)
                                        employment.
                 The Employees State It provides for insurance scheme for
                 Insurance Act, 1948 workers to be implemented by the
                 (applicable to both) employer.

                 The Employees          It provides three schemes namely
                 Provident Fund &       provident fund scheme, family
                 Miscellaneous          pension’s scheme and the deposit-
                 Provisions Act, 1952   linked insurance scheme.
                 (applicable to both)
8.5 Mate Constitution of India   The state shall make provisions for
    rnity                        securing maternity relief (A. 42).
    bene
    fits The Maternity           It prohibits employment of the
          Benefit Act, 1973      pregnant women during certain
          (applicable to women   period (usually for three months)
          working in the         (S.5).
          organized sector)
                                 Absence during the maternity
                                 period is paid with full wages
                                 (S.7).
                                 Women are entitled to get the
                                 medical bonus in addition to her
                                 paid leave (S.8).
                                 The Act also provides for the
                                 nursing breaks to mothers for
                                 feeding their infants (S. 11).
9 Health   Constitution State shall direct its policy
           of India     towards securing health
                        and strength of workers
                        men, women (A.39 cl(e)).


                        State shall direct its policy
                        towards securing that
                        children      are       given
                        opportunities and facilities
                        to develop in a healthy
                        manner (A.39 cl(f)).
 Special provisions for women concerning their health under the labour laws
Factories Act, 1948      Prohibition of employment of women in the
                         dangerous and hazardous tasks (S.27).
Mines Act, 1952         Women shall not be employed in any parts of the
                        mine which is below the ground in a mine (S.46).

Factories Act, 1948     Women shall be employed between 6 am and 7 pm.
                        No women shall be employed between 10pm & 5am
                        except in fish curing and fish canning industries
                        (S.66.1(b)).
Bidi & Cigar Workers    No women shall be employed between 7 pm & 6 am
(conditions of
employment) Act, 1966
Labour Act, 1951        No women shall be employed between 7 pm & 6 am

Mines Act, 1952         No women shall be employed between 7 pm & 6 am
Factories Act, 1948     Separate and adequate urinals and latrines for male
                        and female workers shall provided by the employers
                        (s.19).
Labour Act, 1951      Separate and adequate urinals   and latrines for
                      male and female workers shall   provided by the
                      employers (S.9).
Mines Act, 1952       Separate and adequate urinals   and latrines for
                      male and female workers shall   provided by the
                      employers (S.20).
Bidi & Cigar Workers Separate and adequate urinals and latrines for
(conditions of empl- male and female workers shall provided by the
oyment) Act, 1966    employers (S.10).
Factories Act, 1948   Employer shall make arrangements for crèches
                      where there are more than 30 women workers.

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

Mines Act, 1952       Employer shall provide for the crèches facility
                      where there are more than 50 women workers.
10. Rural Women Constitution of Rights to equality (Art.14)
                India
                   Constitutional 73rd & 74th Amendments
                   empowers the rural women to participate in
                   the political process through the Panchayat
                   Raj Institutions
11. Rights to      Constitution of Equality before law and
    enter into     India           equal protection before law.
    contracts or
    agreements
                   Indian Contract Every person who is not a
                   Act, 1862.      minor and is of sound mind
                                   may enter into a valid
                                   contract.
12   Rights in the     In there is no uniform code applicable to all communities
     matrimonial       in their matrimonial matters. Each community has its
     matters           distinct personal laws for such matters.
12.1 Rights to enter   Child Marriage Male not below 21 years of age and
     into marriage     Restraint Act, female not below the 18 years of age
     (age approved)    1929              (S.6).
                       Hindu            Male not below 21 yrs of age and female
                       Marriage         not below the 18 yrs of age (S.5).
                       Act,1955
                       Parsi Marriage   There is no condition as to the minimum
                       & Divorce Act,   age for entering into marriage. The
                       1936             consent of father or guardian is required
                                        if any one of the parites to the marriage
                                        below his/her 21 years of age.
                       Muslim           Every Muslim who is of sound mind and
                       Personal Law     attained puberty i.e. Muslim boy/girl
                                        completes hi/her 15 yrs of age in Shias.
                                        In case of persons attained puberty
                                        he/she may be contracted into marriage
                                        by his/her guardians.
12.2 Grounds Hindu      Sec.13A lays down grounds of divorce
     of      Marriage   available to both the husband and wife viz.
     divorce Act,       adultery, cruelty, desertion, conversion,
             1955       insanity, leprosy (virulent and incurable),
                        veneral diseases, renouncing the world, not
                        heard of 7yrs or more, and the decree of
                        judicial separation passed & no cohabitation
                        between parties for one year etc.
                        Sec.13A also provides for four more grounds
                        to the wife viz. bigamy, rape, sodomy or
                        bestiality, the maintenance decreed to the wife
                        and no cohabitation for one year, the wife was
                        under 15 yrs when she was married and has
                        repudiated the marriage before she is 18.

                        It provides for the mutual consent divorce
                        both for the husband and wife (S.13B).
The Muslim Muslim husband of sound mind and has attained puberty can
Personal Law seek divorce from his wife at his will, without assigning any
             reasons, and even in the absence of his wife. For a divorce
             under the Muslim law, no deed is required to written or
             signed, and it may be obtained merely words. Only males
             have this absolute right to obtain divorce. Muslim women
             cannot seek divorce like the Muslim men, but can obtain
             divorce only under certain specific contingencies namely,
             whereabouts of husband have not been known for a period of
             4 yrs, husband has neglected or has failed to provide for the
             maintenance for a period of 2 years, the husband has been
             sentenced to imprisonment for a period of 7 years or more, he
             failed to performed without reasonable cause his marital
             obligations for a period of 3 years, husband is impotent at the
             time of marriage, husband has been insane for 2 years, the
             exercise by wife of the option of puberty, husband treats with
             cruelty. A Muslim wife can get divorce only from the court of
             law & cannot have the same like that of a Muslim husband.
12.3   Rights on the dissolution of marriage

       (a) Interim Hindu           Both the husband and wife are entitled
       maintenance Marriage       to ask for the sum of amount as
                   Act, 1955      maintenance during the pendancy of
                                  the suit for dissolution of marriage
                                  (S.24).
                     Indian       Only wife is entitled to the
                     Divorce      maintenance pendent elite or the
                     Act, 1869    interim maintenance (S.36).
                     Parsi      Only wife can demand the sum of
                     Marriage & amount for the maintenance pending
                     Divorce    the litigation (S.39).
                     Act, 1939
                     Muslim       There is no provision for the interim
                     Personal     maintenance neither for husband not
                     Law          for wife.
(b)       Hindu Marriage Both the husband & wife may ask for the payment of
Permanent Act, 1955      maintenance from other spouse on dissolution of
alimony                  marriage. The economic capacity of parties is taken
                         into consideration (S.25).
          Indian Divorce     Only wife is entitled to ask for permanent alimony
          Act, 1869          (S.37).
          Parsi Marriage     Only wife can claim alimony (S.40).
          & Divorce Act,
          1939
          Muslim             Husband shall maintain his divorced wife for 3
          Personal Law       months after the talaque/divorce. But this is different
                             from what Hindus/ Parsis/ Christian wives get as
                             alimony on divorce. Muslim
          Criminal           Wife living / divorced / deserted may file a suit
          Procedure Code     against her husband for maintenance. Even aged
          1973 (applicable   parents and minor children can sue their son /
          to all             daughter / father respectively. Muslim women can
          communities        file a suit u/Sec.125 provided her husband has given
          except the         his consent for the applicability of Sce. CrPC before
          Muslim)            seeking divorce (S.125).
12.4 Guardi Hindu Minority & Both the person & property of the legitimate son or
     anship Guardianship     an unmarried daughter Father is guardian, only
            Act,1956         after his death, Mother can act as the natural
                             guardian. In case of the illegitimate son or an
                             unmarried daughter Mother is the natural guardian
                             both for the person & property of her children.
                             Husband is considered as the guardian in case of a
                             married woman (S.6).
            Muslim Personal As far as person of a male below 7 yrs and a female
            Law              till attains puberty, Mother is the guardian and once
                             a boy completes his 7 yrs of age, & a daughter
                             attains her puberty Father is the guardian. For the
                             property of the minors Father is the legal guardian
                             and he may appoint any other Muslim excluding
                             the mother as the legal guardian.

             The Parsis and      But even in these communities Father is considered
             Christians in their as the natural guardian of his minor children.
             laws have no
             provision relating
             to guardianship
12.5 Adoption Hindu    Both male and female can take or give s
              Adopti   child in adoption. Female – any Hindu
              ons &    female who is of sound mind and who is not
              Mainte   married or if married – whose marriage has
              nance    been dissolved or whose husband is dead or
              Act,     has renounced the world or has ceased to be
              1955     Hindu or has been declared to be of unsound
                       mind by a court of competent jurisdiction,
                       can take a child (who is Hindu and below 15
                       yrs) in adoption. A married woman cannot
                       adopt a child even with her husband’s
                       consent. Similar conditions needs to be
                       complied with in case of adoption by a male
                       Hindu (S.8).
                       If the father is alive, he alone has the right to
                       give a child in adoption. But he has to take
                       prior consent of the mother i.e. his wife (S.9).
12.6 Succes Hindu       There is different law for the joint family
    sion     Succession (HUF) property and the self acquired
    (inherit Act, 1956 property of Hindus. Women as a wife gets a
    ance)               share equal to the males in HUF and self-
                        acquired property. But the daughter/s can
                        inherit to self-acquired property of the father
                        & not to the HUF property. Daughter/s’ share
                        in the self-acquired property is equal to that
                        of male heirs (S.9).

    Indian Succession      Parsis–Right of a Parsi female to succeed to
    Act, 1925 (which       the property is recognized but her share is
    incorporates           half of what the male/s get (S.50 – S.56).
    provisions
    governing the          Christians: A Christian women is treated on
    succession of Parsis   an equal footing with the men in succession
    and Christians)        (S.32 – S.49).
              Muslim A Muslim female receives a
              Personal share in the property but less
              Law      than what the Muslim male
                       get.


Succession     Indian     Both men and women,
(Testamentary) Successi   married or unmarried may
               on Act,    dispose off their property by
               1925       alienating to anybody by
                          making a will during his/her
                          life-time (S.59).
Thank You …

								
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