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Constitutional provisions and legal rights for protection and well-being of women in India

Constitutional provisions and legal rights for protection and well-being of women in India

adv soniya gajbhiye


Adv Soniya Gajbhiye

adv soniya gajbhiyeWomen in any society play a very important role. In Indian society’s context her role kept changing and evolving with the enactment of the Constitution and especially since Babasaheb’s fight for women’s’ rights through introduction of the Hindu Code bill. Woman is a very strong person in this world who plays  many vital roles in society: like mother, wife, sister,etc. But, since last several decades, women have become a more vulnerable section endangering their safety and security. Violence against women such as physical abuse, domestic violence, sexual harassment and female infanticide are on increase in recent times.

With a view to curb the violence and abuse on women, our country has enacted, adopted and implemented many laws by making provision for special protection to women. We all need to know the rights of women in India. When we mention the rights of women, then we have to take into consideration both, the Constitutional Rights and Legal Rights. The constitutional rights are those which are incorporated in the various provisions of the constitution. The legal rights refer to those which are incorporated in the various laws or Acts of the parliament and the state legislatures.

Constituional Provisions

Article 14 of the Constitution guarantees equality of status to women and prohibits discrimination between women and men.

Under Article 15 (3) of the Constitution, State (Union of India) is empowered to make a special provisions for women and children. The basic purpose behind it is to acknowledge the concept that women need special treatment for their upliftment. Likewise Article 16(2) of the Constitution provides for equality of opportunity to all citizens irrespective of the sex.

Article 39(a) of the Constitution directs state to provide adequate means of livelihood to men and women and Article 39 (d) of the Constitution lays down equal pay for equal work to men and women and Article 39(e) provides that 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.

Article 42 provides that the state shall make provision for securing just and humane conditions of work and maternity relief.

In 1961, the Maternity Benefit Act was passed to facilitate the benefit to the women.

Article 51-A(e) of the Constitution imposes a duty on citizens to renounce practices which are derogatory to women’s dignity.

To be more specific, the Constitution of India itself contains effective provisions to protect women in India.

Keeping in mind the object and purpose underlying Article 14, 15, 16, 39 and 51-A of the Constitution of India, the State has enacted several laws such as:

1. Before independence, the Woman’s Right to Property Act 1937 was enacted whereunder, limited right of maintenance to women was ensured.
2. Later on, said Woman’s Right to Property Act 1937 was superseded by The Hindu Succession Act 1956, whereunder, the limited right of Hindu women was converted into full ownership under section 14. Recent amendment under the Hindu Succession Act 1956 has also given the status of a coparcener in the Hindu Coparcenary/Joint Family property to the daughters.
3. Commission of Sati (Prevention ) Act (1987) provides for the more effective prevention of the commission or practice of sati or voluntary or forced burning or burying alive of widows, and to prohibit glorification of this action through the observance of any ceremony.
4. Dowry Prohibition Act 1961 was enacted to prevent the giving and taking of dowry. Under this Act, the demand of dowry is made a punishable offence.
5. Likewise, by the Medical Termination of Pregnancy Act 1971, protection is provided against the illegal termination of pregnancy, such as through female infanticide which is made punishable and penal in nature.
6. Maternity Benefit Act 1961 protects the employment of women during the time of her maternity and entitles women to a maternity benefit and certain other benefits. The Maternity Benefit (Amendemen) Act 2007, an amendment to the Maternity Benefit Act 1961 has been passed. The Act is applicable to contractual or consultant women who are already on maternity leave at the time of enforcement of the Amendment act.
7. Latest in the year 2005, the Protection of Women from Domestic Violence Act 2005 was enacted. It is a comprehensive legislation to protect the interests of women from violence of any kind whatsoever in domestic relations. Since the abuse to the women in the domestic relations has become a common phenomenon, the act ensures protection against every kind of violence such as economic violence, emotional violence, physical violence etc. And to make women enjoying the protection under this act effectively, the provision for appointment of protection officer is also made. Although the provisions under this Act do not make out an act as criminal offence, still effective remedy by way of Protection Order from the court of law is provided and in the event of non-observance of the said Protection Order, it contemplates the punishment to the wrongdoer.
8. Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994) prohibits sex selection before or after conception and prevents the misuse of pre-natal diagnostic techniques for sex determination leading to female foeticide.
9. Equal Remuneration Act 1976 provides for payment of equal remuneration to both men and women workers for same work or work of a similar nature. It also prevents discrimination on the ground of sex against women in recruitment and service conditions.
10. Minimum Wages Act 1948 does not allow discrimination between male and female workers or different minimum wages for them.
11. Muslim Women (Protection of Rights on Divorce) Act 1986 protects the rights of Muslim women who have been divorced by or have obtained divorce from their husband.
12. The Sexual Harassment of Women at work place (Prevention and Protection) Act 2013 provides protection to women from sexual harassment at all workplaces, both in the public and private sector.
13. Mines Act 1952 and Factories Act 1948 prohibits the employment of women between 7 P.M to 6 P.M. in mines and factories and provides for their safety and welfare.
14. The Protection of Children from Sexual Offences (POCSO Act) 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children. It defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography.
15. Provisions like section 498-A in IPC also aim at providing protection to women and the act of ill-treatment is made a punishable offence.

Some general laws/rights

Apart from the above mentioned rights, there are some important general laws that every woman should know:

– Right to free legal aid
When any woman goes to the police station or court without being accompanied by a lawyer; she should be aware of the fact that she has right to get the legal aid that she should exercise the right. A woman is entitled for free legal aid irrespective of her income or financial status. A woman is eligible to apply for free legal aid by virtue of Section 12(c) of the Legal Services Authorities Act, 1987.

– Right to Privacy
A woman who has been raped has the right to record her statement in private in front of the magistrate without being overheard by anyone else or with a lady constable or a police officer in person. Under sec 164 of the Criminal Procedure Code, the police will have to give privacy to the victim without stressing her in front of masses.

– Right to Zero FIR

As per the Supreme Court ruling, a rape victim can register her police complaint from any police station under the Zero FIR

– Right to no arrest
– As per the Supreme Court ruling, a woman cannot be arrested after sunset and before sunrise. Except, in case the woman has committed a serious crime, the police require to get it in writing from the magistrate explaining why the arrest is necessary.

– Right to not being called to the Police station
According to sec 160 of the Criminal Procedure Code, a woman can not be called to the police station for interrogation. The Police can interrogate a woman at her residence in the presence of a woman constable and family members or friends.

– Right to confidentiality
Under sec 228-A of the Indian Penal Code makes the disclosure of a rape victim’s identity a punishable offence. Under no condition a rape victim’s identity can be revealed. Neither the police nor media can make known the name of victim in public.

After the Nirbhaya Gang Rape Case, which happened on the night of 16th December 2012, that shocked the entire nation and forced the government to give a new shape to the criminal law by enactment of the most awaited act i.e. The Criminal Law Amendement Act, 2013 is an Indian legislation passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013. This Act provides for amendment of Indian Penal Code, Indian Evidence Act, and the Code of Criminal Procedure, 1973 on laws related to sexual offences. Thus the Act has included the following sections: Sec 354A, Sec 354B, Sec 354C, Sec 354D in IPC.

Thus, legislature has taken every care to ensure safety and security to women in India. But, the need of the time is that, women must know their rights and laws made for their protection. Effective implementation through the law machinery and police authorities requires a little more timely and effective action.



Soniya Gajbhiye is an advocate at Bombay High Court’s Nagpur Bench. She is also a social activist running an organization named Bhimraj Ki Beti Buddhist Mahila Sangh in Nagpur.