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Ours is a traditional society where women have been socially, economically, physically,

physiologically and sexually exploited from time immemorial, sometimes in the name of
religion, sometimes on the pretext of writings and the scriptures and sometimes all the social
sanctions.

From the cradle to the grave, females are the victims of numerous vicious acts such as
discrimination, oppression and violence within the family, at the workplace and in the society.

The term “discrimination” is defined as the effect of a law or established practice that
confers privileges on a certain class or that denies privilege to a certain other class because of
grace age, sex, nationality, region or handicap or differential treatment, especially failure to treat
all persons equally when no reasonable distinction can be found between those favoured and
does not favoured.

Discrimination against women shall mean “any distinction, exclusion or restriction based
on the basis of sex which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, of their marital status, on the basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field”.

In ancient India, women were respected and there was general dignity. Manu says:
“Where women are honoured, gods are happy. Where women are not respected, all efforts come
to naught”. [Ramante Tatra Devataah; Yatrai tatstu no poojayante: Sarvastatra phala kriya; Yatra
nariastu poojyante. (Manusmriti III, 56).

Women continue to suffer discrimination, whichever community or country they belong


to. [Noor Mohammad Bilal: Gender Justice: International and Constitutional Perspectives,
XKULR (2003), p. 116]

Koran says “Men have authority over women because Allah has made the one superior to the
other, and because they spend their wealth to maintain them. Good women are obedient. They
guard their unseen parts because Allah has guarded them. As for those whom you fear
disobedience, punish them and send them to beds apart and beat them if they don't obey you.
Take no further action against them if they obey you, Allah is high and supreme”. [Giri Raj
Shah: The Encyclopedia of Women's Studies (Gyan Publishing House, New Delhi), Vol. 1,
1995, p. 5]

Holy Bible lays down- “Wives, submit yourself into your own husbands as unto the
Lord”. [Percival Spear: A History of India (Penguin Books, England), Vol. 2, Reprint 1983, p. 6]

Judiciary has played splendid role in shaping the contours of ‘gender justice’ through
several innovative judgements. Mary Roy v. State of Kerala [(1986) 2 SCC 209] is one such
instance. It was an epoch making judgement which was far reaching effect in shaping the rights
of Christian women for the inheritance of their parents’ properties. By this judgement, the
Supreme Court brought Christian women on a par with men under Indian Succession Act 1925
[Act No. 39 of 1925], which does not distinguish between sons and daughters. In this case, Mary
Roy challenged the constitutional validity of the provisions of Travancore Christian Succession
Act 1916, which discriminated sons and daughters while succeeding to the father's property.

“Right to Equality does not become meaningful where the social reality is one of
inequality” [S.P. Sathe: Gender, Constitution and the Courts, Engendering Law, Essays in
honour of Lotika Sarkar, Amita Dhanda and Archana Parashar ( Eastern Book Company,
Lucknow, 1999), p. 129.]. This means that the concept of gender equality will remain hollow and
illusory so long as the ground realities do not reflect it.

Justice Yatindra Singh writes:

If we think about gender equality, there is no reason why we will not achieve it. And by
God's grace-despite male chauvinism-we will. [Justice Yatindra Singh: Gender Justice: Women’s
Rights-A Legal Panorama AIR 2002 (Jour.) pp. 163-176.]

Convention mandates State Parties to condemn discrimination against women in all its
forms and to follow a policy of eliminating discrimination against women. For satisfying this
objective the convention prescribe some measures:

a) The convention requires the state parties to establish legal protection of rights of women
on the equal basis with men and it should ensure through competent National Tribunal
and public institutions.
b) The convention mandates the state parties to take all necessary steps including
legislation, to modify or abolish existing laws, regulations, customs and practices which
discriminate against women.
c) The convention also requires a state parties to repeal all national penal provisions, which
constitutes discrimination against women.
[Article 2, Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW) 1979.]

A written Constitution, an independent judiciary with powers of judicial review, rule of


law and separation of powers, free elections to legislature, accountable and transparent
democratic Government, fundamental rights are some of the principles and norms which
promote constitutionalism in the country. [M.P. Jain: Indian Constitutional Law (LexisNexis
Butterworth, Wadhwa, Nagpur), 6th Ed. 2010, p. 7.]

The preambular pledge

The Preamble of the Constitution is framed with great care and deliberation so that it
reflects the high purpose and normal objectives of the Constitution makers. [Pradeep Jain v.
Union of India. AIR 1984 SC 1420]

It is the key to open the mind of the makers. [in Re Berubari Union case 1960 SC 845]

While discussing the provisions relating to Fundamental Rights in the constituant


assembly, Pandit Jawaharlal Nehru, emphasized: “A fundamental right should be looked upon
not from the point of view of any particular difficulty of the movement, but as something that
you want to make permanent in the Constitution. [Constituent Assembly Debates, Vol. 12 at p.
729].

In Maneka Gandhi v. Union of India [AIR 1978 SC 597], Bhagwati J observed:

Fundamental Rights weave a ‘pattern of guarantee’ on the basic structure of human


rights, and impose negative obligations on the state not to encroach on individual Liberty in its
various dimensions.
In a nutshell, the Supreme Court has displayed judicial creativity of a high order in
interpreting the fundamental rights especially during the last two decades. While delivering
judgement in Ajay Hasia [Ajay HAsia v. Khalid Mujib AIR 1981 SC 487 (493)], Bhagwati, J.
has observed:

It must be remember that fundamental rights are constitutional guarantees given to the
people of India and not only really paper hopes or fleeting promises as long as they find a place
in the constitution, they should not be allowed to be emasculated in their application by narrow
and constructed judicial interpretation.

Equality is one of the magnificent cornerstones of Indian democracy. [Thommen, J. in


Indira Sawhney vs Union of India 1993 SC 477 1992 Supp (3) SCC 217]

The doctrine of equality before law is necessary quality of rule of law which pervades the
Indian Constitution. [Ashutosh Gupta vs state of Rajasthan AIR 2002 SC 1533]

This principle has been reiterated by the Supreme Court thus:

Equality is a basic feature of the Constitution of India

State of Karnataka air 2001 SC to 6264

In M. Nagaraj vs Union of India, [2007 SC 71] the constitution bench of the Supreme Court has
declared in unequivocal terms that the content of Article 14 got expanded conceptually; and
comprises the doctrine of promissory estoppels, non arbitrariness, compliance with natural
justice, eschewing irrationality, etc.

Elaborating the concept of life and personal liberty the Supreme Court in Francis Coralie Mullin
v. Union Territory of Delhi, [AIR 1981 SC 746] said that the right to life is not restricted to mere
animal existence. The right to life includes the right to live with human dignity.

In Burdwan Mukti Morcha v. Union of India [AIR 1984 SC 802], Bhagwati, J. held:

It is a fundamental right of everyone in this country to live with human dignity.

According to Prof. Allan Westin, the term “privacy” means ‘the state of Solitude a small group
of intimacy’. The concept of privacy has multiple dimensions.