Women and Child Law Assignment: Universal Declaration of Human Rights & Article-14 & 15 On Women
Women and Child Law Assignment: Universal Declaration of Human Rights & Article-14 & 15 On Women
Women and Child Law Assignment: Universal Declaration of Human Rights & Article-14 & 15 On Women
Submitted to:
Dr. Nida Zainab Naqvi
Submitted by:
Nida Khan
B.A.LL.B.(Hons.)- Regular
Roll no. 39
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ACKNOWLEDGEMENT
-Nida Khan
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TABLE OF CONTENTS
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INTRODUCTION
Women's rights are the rights and entitlements claimed for women and girls worldwide, and
which formed the basis for the women's rights movement in the 19th century and feminist
movement during the 20th century. In some countries, these rights are institutionalized or
supported by law, local custom, and behaviour, whereas in others they are ignored and
suppressed. They differ from broader notions of human rights through claims of an inherent
historical and traditional bias against the exercise of rights by women and girls, in favor of
men and boys.
Issues commonly associated with notions of women's rights include the right to bodily
integrity and autonomy; to be free from sexual violence; to vote; to hold public office; to
enter into legal contracts; to have equal rights in family law; to work; to fair wages or equal
pay; to have reproductive rights; to own property; to education.
BACKGROUND
Women have an important role to play in the society. They are regarded as primary sources
that raises and nurtures the family. In spite the fact that the women’s contribution to the
progress of the country is equal to that of their male counterpart, still they experience a
number of limitations that restrict them from realizing their potential for growth. It was
against this perspective that the governments all over the world, felt the need to prioritize the
needs and interests of women and recognize their contribution in various stages and
overcoming impediments that would take place within the course of their empowerment. The
term, women’s empowerment implies the capacity of the women in taking all the important
decisions on an independent basis that are related to her, throughout her life span that will
lead to her success in all phases of life. In the past, human rights had been conceptualized in a
way that did not take account of women’s lives and the fact that they experienced violence,
crime, discrimination and coercion. In the past, women followed certain norms and traditions
that put many restraints upon them, primarily in the male dominated society. The work of
activists, human rights mechanisms and States has been critical in ensuring that the human
rights framework has developed and adjusted to summarize the gender specific dimensions of
human rights violations to safeguard women in a better way. Efficiently ensuring women’s
human rights requires a wide-ranging understanding of the fundamental societal structures
and power relations that define and stimulate the ability of the women to enjoy human rights.
These power structures have an impact on all aspects of life, from law and politics, to
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economic and social policy, family and community life, education, training, skill
development and attainment of employment opportunities. Achieving equality between
women and men and eliminating all forms of discrimination against women are fundamental
human rights and United Nations values. Women all over the world, however, commonly
experience violations of their human rights throughout their lives, and human rights of
women has not always been a priority. Achieving equality between women and men requires
a comprehensive understanding of the ways in which women experience discrimination and
are deprived of equality so as to develop appropriate strategies and norms to eliminate such
discrimination. Some groups of women experience additional forms of discrimination, based
on their age, ethnicity, nationality, religion, health status, marital status, education, disability
and socio-economic status. These interconnecting forms of discrimination must be taken into
account when formulating measures and responses to combat discrimination against women
(Women’s Rights are Human Rights, 2014). Combating against discriminatory treatments is
essential for the progress of women. Besides these, one should give priority to the rights of
women and promote their effective implementation.
Empowerment in the present existence has become one of the most comprehensively used
terms that indicates progress and development of women. Women’s groups, non-
governmental development organisations, activists, politicians, governments and international
agencies refer to empowerment as one of their main objectives. Empowerment leads to
generation of awareness and understanding amongst women regarding programs, schemes,
measures, strategies, policies, and rules. It is considered as a project, which normally
individuals undergo, which eventually leads to changes and transformations. Empowerment
is referred to as a process to change the distribution of power, both in interpersonal relations
and in institutions throughout the society. Another meaning signifies, the process of
acquiring, providing, bestowing the resources and the means or enabling access to a control
over such means and resources. Given the above, the term is therefore, more relevant to the
marginalized groups, the poor, the illiterates, the indigenous communities, and those women,
who are struggling to acquire their rights within the society (Anonuevo, 1995).
Empowerment is a complex issue, with varying interpretations in social, economic, cultural,
and political frameworks. With empowerment of women, they began to acquire
understanding of number of areas, these are participation in the decision making processes;
domestic work should be carried out by both males and females and not just females by
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themselves; women should take control of the reproductive functions and decide on the size
of the family; women should be allowed to spend the income, she has earned, according to
her own needs and desires; working women should value and take pleasure in the
performance of their job duties; they should be self-confident and learn to speak for their
rights and should possess the ability to prevent criminal and violent acts (Anonuevo, 1995).
The measures that have been formulated to promote empowerment at the community or the
organizational levels are, existence of women’s organizations, allocation of funds to women
and women projects, increase in the number of women leaders in village, district, provincial
and national levels, involvement of women in the design, strategy, development and
application of technology, participation in the community programs, productive enterprises,
politics and arts, involvement of women in non-traditional tasks, increase in the training
programs for women and exercising the legal rights, where required. At the national level,
these are, awareness of the social and political rights, incorporation of women in the general
national development plan, existence of women’s networks and publications, extent to which
women are publically noticeable and acknowledged and the extent to which women’s issues
can be addressed to the media (Anonuevo, 1995).
There are many factors that facilitate empowerment of women and these are, formations of
women’s organizations, availability of support systems for women, availability of women
specific data and other pertinent information, availability of funds, feminist leadership,
networking, positive media coverage, constructive policy climate, promotion of education
and skill development amongst them, helping them to stand for themselves, encouraging
them towards attainment of employment opportunities and generating awareness amongst
them regarding all important areas, so that they are able to live their lives in an efficient way.
On the other hand, factors that constrain the empowerment of women include, work pressure,
isolation of women from each other as well as from the community, low education or lack of
literacy skills, traditional viewpoints that limit the participation of women in various
functions and events, shortage of finances, occurrence of conflicts, disputes, wars, internal
strife and militarization, unstructured policies and disagreements, policy environment that
promotes discriminatory treatment against women, negative coverage of media and inability
to raise their voice against violent and criminal acts.
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Universal Declaration of Human Rights (UDHR)
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history
of human rights. Drafted by representatives with different legal and cultural backgrounds
from all regions of the world, it set out, for the first time, fundamental human rights to be
universally protected.
The Declaration was adopted by the UN General Assembly in Paris on 10 December 1948
during its 183rd plenary meeting.
Preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as
the highest aspiration of the common people,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote social progress and better
standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United
Nations, the promotion of universal respect for and observance of human rights and
fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance
for the full realization of this pledge,
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for these rights and freedoms and by progressive measures, national and international, to
secure their universal and effective recognition and observance, both among the peoples of
Member States themselves and among the peoples of territories under their jurisdiction.
“To achieve international cooperation… in promoting and encouraging respect for human
rights and for fundamental freedom for all without distinction as to race, sex, language or
religion.”
Within the UN’s first year, the Economic and Social Council established its
Commission on the Status of Women as the principal global policy making body,
dedicated exclusively to gender equality and advancement of women.
Among its earliest accomplishments was ensuring gender neutral language in the draft
Universal Declaration of Human Rights.
The UDHR was the first expression of global consensus that the rights of every
human being were paramount and must be respected.
It is a remembrance too, Universal Declaration of Human Rights was a response to
the horrors of the Holocaust- the Declaration’s preamble states “…disregard and
contempt for human rights have resulted in barbarous acts which have outraged the
conscience of mankind.”
Formalising human rights in a universal document for the first time, the Universal
Declaration of Human Rights (UDHR) has since inspired numerous international
conventions, treaties, regional instruments and instruments such as domestic laws.
The “Women’s Rights are Human rights” notions are one of the most important
legacies of this document.
Article 2 of the UDHR applies to all rights and freedom equally to men and women,
and prohibits discrimination on the basis of sex. These freedoms and rights include
equal pay for equal work, the right to health and the right to education for all.
Non-western women played an important role in challenging the myth that western
states were at the foremost of human rights. The lesser known but no less important;
other than Eleanor Roosevelt, were the trailblazing female delegates to the UN who
were greatly involved in the drafting of the Declaration included Indian delegate
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Hansa Mehta who revised the phrase – “All men are born free” to “All humans are
born free”, in Article 1 of UDHR.
Minerva Bernardino, a delegate from the Dominican Republic who led the Latin
American feminist movement, and was outspoken about ensuring both ‘men and
women’ featured in the document.
Approval of the Universal Declaration of Human Rights in 1948 was the first step
towards liberal and advanced codification of international human rights. The
principles of the Universal Declaration were translated into treaties, thus States that
ratified them are legally bound by the terms and conditions of the treaties. Eight
international human right treaties have been adopted up to 2007.
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ARTICLE-14 & 15 OF THE INDIAN CONSTITUTION, ON WOMEN
The framers of the Indian Constitution were inspired by the Universal Declaration of Human
Rights and they saw to it that the essence and the Spirit of the Universal Declaration was
incorporated in the Constitution.
Human rights are an integral part of the concept of human dignity which are protected by
different provisions of the Constitution of India. It is a harsh reality that women have been ill-
treated in every society for ages and India is not an exception to this universal problem. The
elimination of gender-based discriminations is one of the fundamentals of the constitutional
edifice of India. In fact, the constitution empowers the state to adopt measures of positive
discrimination in favour of women for neutralizing the cumulative discriminations and
deprecations’ which women face.
Article 14 to 18 of the Constitution guarantee the right to equality to every citizen of India.
Article 14 embodies the general principles of equality before law and prohibits unreasonable
discrimination between persons. Article 14 embodies the idea of equality expressed in
Preamble. The succeeding Articles 15,16,17 and 18 lay down specific application of the
general rules laid down in Article 14. Article 15 relates to prohibition of discrimination on the
grounds of religion, race, caste, sex or place.
Principle of equality is fundamental in formulation of any policy by the State and glimpse of
it can be seen in Articles 38, 39, 39-A, 43 and 46 of the Constitution embedded in Part-IV of
the Constitution.1
ARTICLE 14: declares that ‘the State shall not deny to any person equality before the law
or equal protection of laws within the territory of India.’
Thus, Article 14 uses two expressions “equality before law” and “equal protection of the
law”. Both these expressions have, however been used in the Universal Declaration of
Human Rights.2 The first expression is of English origin and the second expression has been
taken from the American Constitution. Both these expressions aim at establishing what is
called ‘equality of status’ in the Preamble of the Constitution.
According to Article 14 of the Constitution of India - All individuals, including women are
equal in the eyes of the law and they are also entitled to enjoy equal protection of laws within
1
State of Punjab vs. Senior Vocational Staff Masters Association, AIR 2017 SC 4072
2
Article 7 of the UDHR says “all are equal before law and are entitled without any discrimination equal
protection of law.”
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the territorial jurisdiction of India. It signifies that all persons irrespective of gender, should
be treated equally in similar circumstances. The State should not make any discrimination
between one person and another, and the law should be administered equally.
Article 14 permits classification but prohibits class legislation the equal protection of
law guaranteed by article 14 does not mean that all laws must be general in character.
It does not mean that the same laws should apply to all persons. It does not mean that
every law must have universal application for, all persons are not, by nature,
attainment or circumstances in the same position. The varying need of different
classes of persons often require separate treatment. From the very nature of society
there should be different places and the legislature controls the policy and enacts laws
in the best interest of the safety and security of the state. In fact, identical amount to
unequal circumstances would amount to inequality. Thus, a reasonable classification
is permitted for the develop society. Article forbids class-legislation but it does not
forbid reasonable classification. The classification, however, must not be “Arbitrary,
artificial or evasive” but must be based on some real and substantial Distinction
bearing a just and reasonable relation to the object sought be achieved by the
legislation.
Special provision for Women and Children and SC, ST & backward classes:
Article 14 of Indian constitution law says that all are equal in the eye of law. No one
can prevent the state from making any special provisions for women and children. For
examples, special seating arrangement for women in buses, trains, metros trains is not
unconstitutional. It was held by court that “reservation of some seats for women in
college.”
According to section 497 of Indian penal code, adultery is consider as offence when it
committed by men, not consider offence if committed by women thus women cannot
be Prosecuted for abetters. It is clear that it makes special provision for women and
which is valid Under constitution law article 15(3). Section 437 of cr.p.c., 1973
restricts the release of an accused person a capital offence on Bail except women,
children under age of 16 years or ill or infirm persons. in Choki v. State of Rajasthan,
the court has held that it valid on the grounds make special Provision for women and
therefore, it is protected under article.
ARTICLE 15: Article 15 of the Constitution of India deals with prohibition against
discrimination- It prohibits the state to make any types of discrimination against any citizen
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including women on grounds of race, caste, gender, ethnicity, religion, place of birth and
socio-economic background. It states that all citizens are entitled to enjoy equal rights
regarding access to shops, hotels, restaurants, banks, infrastructure, public places etc. But the
state has the right to make any special provisions for women and children and also for,
scheduled castes, scheduled tribes and other backward classes.
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
Equality is the magnificent cornerstone of the edifice of the Indian constitution. Yet, its
Authors elected to embed a seemingly simple but significant sub-section 3 of Article 15,
authorizing 'special provisions for women (and Children)'. The incorporation of this Article,
anchored under the unique concept of 'protective discrimination', symbolizes constitutional
recognition of deeply entrenched discrimination of women prevailing in Indian society. The
scheme is also in full realization of the fact that 'formal equality' alone may not suffice in a
country plagued with age-old patriarchal culture and history that has perpetuated
undermining of women and hence the need for effectuating women protection. Accordingly,
Article 15(3) shines as the luminous head of the entire constellation of women welfare
legislations of India's post-constitution era.
Indian higher judiciary has mostly been reciprocating the constitutional empathy for women
and has shown no hesitations, save a few instances, to uphold initiatives covering women's
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reservation in public employment, co-operatives, panchayat raj bodies, educational
institutions; women's right to property under Hindu Succession Act etc. The Apex Court has
enthusiastically amplified the scope of Article 15(3) holding it wide enough to cover the
entire range of State activity. Moreover, the same Court has upheld 'laws that treat women
more favourably than men', and has also interpreted 'ambiguous laws' via pro-women stances,
thus validating the concept 'protective discrimination'.
LANDMARK JUDGEMENTS
The Supreme Court in Muthamma v. Union of India3 and Air India v Nagresh Mirza4-
Struck down discriminatory service conditions requiring female employees to obtain
government permission before marriage and denying married and pregnant women the right
to be employed.
In Vishaka v State of Rajasthan5, the Supreme Court observed that equality in employment
can be seriously impaired when women are subjected to gender-specific violence, such as
sexual harassment in the workplace. Therefore, the Supreme Court issued guidelines to
ensure that the women have equal working conditions and are protected from sexual
harassment.
In Cases relating to public employment, the courts have quashed the discriminatory
provisions that gave advantages to men and imposed disabilities on women.
In Maya Devi v. State of Maharashtra6, the requirement of husband’s consent for wife’s
application for public employment was struck down as an anachronistic obstacle to women’s
equality and economic justice.
Since article (15(3) itself hints substantive approach, its application for giving special
educational facilities, for giving representation in local bodies and for protection in places of
work has a substantive dimension. Upholding a service rule that preferred women in
recruitment to public employment to the extent of 30% of posts, the Supreme Court stated in
Government of A. P. v. P. K. Bijayakumar7 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
3
(1979) 4 SCC 260
4
AIR 1981 SC 1829
5
AIR 1997 SC 3011
6
1986(1) SCR 743
7
AIR 1995 SC 164
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behind this Article Making special provision for women in respect of employments or posts
under the state is an integral Part of Article 15(3)”.
Interpretation of the guardianship law in the light of Article 15 by the Supreme Court in
Githa Hariharan v. Reserve Bank of India8, could equate the position of mother to that of
father in the matter of guardianship.
In its land mark judgment, the Apex Court in Air India v. Nergesh Meerza9, has held that a
woman shall not be denied employment merely on the ground that she is a woman as it
amounts to violation of Article 14 of the Constitution. In the present case where in
airhostesses of Indian Air Lines and Air India have challenged the service rules which state
that: Airhostesses shall not marry for the first four years of their joining, they will lose their
jobs if they be become pregnant. They shall retire at the age of thirty-five years, unless
managing director extends the term by ten years in his discretion. The Supreme Court
suggested that the first provision is legal, as it would help in promotion of the family
planning programmes, and will increase the expenditure of airlines recruiting airhostesses on
temporary or ad-hoc basis, but the second and third provisions to be declared as unethical,
callous, cruel, detestable, abhorrent, unreasonable, and unconstitutional and an open insult to
Indian womanhood. Thus, the above decision of the Apex Court has greatly elevated the
status.
Denial of Seniority promotion on Ground of Sex: Rules regarding seniority and promotion
in the Indian Foreign service was challenged before the Apex Court in Miss. C. B.
Muthamma v. Union of India10. Where it has been held that the Rules relating to seniority
and promotion in Indian Foreign Service which make discrimination only on ground of sex is
not only unconstitutional but also a hangover of the masculine culture of hand cuffing the
weaker sex. In the instant case a writ petition was filed before the Apex Court it was
contended that she had been denied promotion to Grade I on the ground of Sex, which
violated Article 15 of the Constitution of India, 1950. The Apex Court allowed the petition
and held that Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961
which requires that an unmarried woman member should take permission of the Government
before she marries. After marriage, she may be asked any time to resign if it is felt that her
family life affects her efficiency as of right to be appointed to the service (I.F.S.) contravenes
8
AIR 1999 SC 1149
9
AIR 1981 SC 1829
10
AIR 1979 SC 1868
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Article 15 of the Constitution. In view of the above decision, now these provisions have been
deleted.
In another case11, it was contended that Section 497, I. P. C. is violative of Articles 14 and 15
of the Constitution on the ground that it makes an irrational classification between men and
women in that: (i) it confers upon the husband the right to prosecute the adulterer but it does
not confer any right upon the wife to prosecute the woman with whom her husband has
committed adultery; (ii) it does not confer any right on the wife to prosecute the husband who
has committed adultery with another woman and (iii) it does not take in cases where the
husband has sexual relation with an unmarried woman with the result that it amount to having
a free license under the law to have extra marital relationship with unmarried woman.
However, the Apex Court rejected these aforesaid contentions and held that it cannot be said
that in defining the offence of adultery so as to restrict the class of offender to men any
constitutional provision is infringed. It is commonly accepted that it is the man who is
seducer and not the woman. In this case the Apex Court observed that this position may have
undergone some changes over the years that women may have started seducing men but it is
for the legislature to take note of this transformation and amend Section 497 appropriately.
Special Provisions for Women and Children: As aforesaid under Article 15 of the Indian
Constitution the State is empowered to make special provisions for women and children. For
instance, making of special seating arrangement in trains or buses is in no way
unconstitutional.
Reservation of Seats for Women in College: The Bombay High Court in Detta
treya v. State of Bombay12, has held that reservation of some seats in women’s
colleges is not unconstitutional. The court observed that establishment of educational
institution exclusively for women is not hit buy Article 15 of the Constitution.
Granting Licenses for Opening Liquor Shop: The Allahabad High Court in Smt.
Savitri v. Bose13, has held that Article 15(1) of the Constitution protect women from
being discriminated on the ground of sex. Accordingly, the decision of the excise
authorities to prefer men over women in granting licenses for opening of liquor shops
was struck down as coming within the prohibition of Article 15(1). It was further held
that such a discrimination was not permitted under Article 15(3) of the Constitution
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Smt. Sowmi thrivishnu v. Union of India and another, 1985 Cr. L.J. 1302 (SC).
12
AIR 1953 Bomb. 311.
13
AIR 1972 All. 305.
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which authorizes the State to make special provisions for women as the special
provision can give some advantage to women and cannot be to their detriment.
Scope of Article 15(4) of the Constitution: The Apex Court in Dr. Preeti Srivastava
v. The State of Madhya Pradesh14, explained the scope and ambit of Article 15(4),
which was added by the Constitution first Amendment of 1951. It enables, the State to
make special provisions for the advancement of 1951. It enables, the State to make
special provisions for the advancement of women inter alia, Scheduled castes and
Scheduled tribes, notwithstanding Article 15(1) and 23(2). The working of Article
15(4) is similar to that of Article 15(3). Article 15(3) was there from the very
inception. In enables special provisions being made for women and children
notwithstanding Article 15(1) which imposes the mandate of non-discrimination on
the ground (among others) of sex. This was envisaged as a method of protective
discrimination. This same protective discrimination was extended by Article 15(4) to
(among others) of sex. This was envisaged as a method of protective discrimination.
This same protective discrimination was extended by Article 15(4) to (among others)
Scheduled cases and Scheduled Tribes. As a result of the combined operation of these
Articles, an array of programmers of Compensatory or protective discrimination have
been pursued by the various states and Union Government. Since every such policy
makes a departure from the equality norm, though in a permissible manner for the
benefit of the backward, it has to be designed and worked in a manner conducive to
the ultimate building up of an egalitarian non discriminating society.
14
1999 (7) Supreme 81.
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BIBLIOGRAPHY
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