WOMEN AND LAW: A COMPARATIVE ANALYSIS OF THE UNITED STATES

AND INDIAN SUPREME COURTS EQUALITY JURISPRUDENCE.

By
Eswarachari. Karthik .
Reg No: 15BLA1057.

INTRODUCTION:

Gender inequality has a long and extensive history in both the United States and India. The
constitutions of both the countries guarantee equality before the law. Indias constitution
mandates equality for women, where as the U.S. Constitution guarantees equal protection of
the law without any stated designation of planned beneficiaries. Most noticeable is Indias
Commitment to agreeing with action and protective discrimination centuries of exclusion of
women from politics, Education, and public employment 1 .The supreme court of India relies
on formal equality theory, special provisions for women and disenfranchised groups, the
court frequently has been willing to embrace a model of substantial equality. The supreme
court of India, relying on International law, has approached the problem of gender violence as
an equality issue, finding that freedom from gender violence is a fundamental constitutional
right. India and United states share a long history of general discrimination against women.
Both the countries women were denied the right to vote: united states until 1920 (Nineteenth
Amendment was ratified) and in India until 1950 when the constitution was enacted. In
India, women comprise 9% of Indian parliament. In United States women compromise
only 14% of U.S congress and 22.5% of state legislatures.2 In India Indira Gandhi served as
prime minister for 15 years. First Women was appointed to the supreme court of India a 40
years after independence, and typically only one of the 26 is female. Where as if we compare
in United states Women comprise 22.8% of federal judiciary and 23.75% of state appellate .
1.

Touro Law, Women and Law, page number 559.

2.

National conference of state Legislatures, http://www.ncsl.org.

Gender Discrimination claims in Supreme Court of India

Indian supreme courts interpretation of the various equality guarantees found in the
constitution has been uneven, alternating between formal and substantive equality. It is
important to keep in mind the various ways in which Indians constitution authorizes
protectionist approach. According to Kellner ( 1995) four media pedagogy approaches. The
protectionist approach is based on the limitation in the view point of media to guide the
audiences perception. The Constitution of India is radically different from the U.S.
constitution when it comes to addressing social inequalities. Indian constitution recognizes
that formal equality alone. Equality is one of the magnificent corner of Indian democracy. 3
When you come to the system of protective discrimination authorizing special protection
for historically vulnerable groups. The U.S. Constitution begins with Article 14 Equal
protection clause of the U.S. Constitution, guarantees equal protection of the laws.4

Decisions concerning action and Reservations of women

Indian supreme court has upheld the reservation of seats for women in municipal elections
in managing committees of state cooperative societies, and in employment. Reservation of
seats for women in educational institutions have been legislated by the states and repeatedly
upheld by the High courts. The Indian supreme courts interpretation of Muslim law has has
sought to protect women rights. For example, the court has construed Muslim law in way that
treats the impotence of a husband as a group of divorce, thus entitling a wife to
maintenance, and it has also constricted a Muslim husbands ability to unilateral divorce his

3.

Government of Andhra Pradesh v. Vijayakumar, A.I.R. 1995 S.C. 1648.

4.

Article 14 provides : The state not deny any person to equality before the law or equal protection of
laws with in the territory of India.

wife. The most famous of Indian supreme courts decisions in the area of personal laws is the
Shah Bano case, which has come to symbolize the struggle in India between secularism and
minority rights.5

Domestic Violence Against Women

Domestic Violence is a human right issue. It is most commonly applied to an intimate relationship
between two adults in which one partner uses a pattern of assault to assert power and control over the
other partner. And what gives push to such sort of abusive behaviour, it may be Personality disorder,
Low self- esteem, Lack of assertiveness, Stress, Violent atmosphere during childhood, Dependency
etc. It is recently recognized as a major public health issue. It is the least reported and most prevalent

forms of cruelty in the society. According to Sec 498-A, husband or relative of husband of a
woman subjecting her to cruelty whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine. Under IPC,1860- Dowry
death, forceful termination of pregnancy amounts to violence at home, when is driven to
Commit suicide, Causing hurt, Unlawful confinement, Material rape, Misappropriation of
wifes property, Matrimonial cruelty are offence in the form of Domestic Violence against
woman.

In order to deal with the social evils prevailing in the society-

The Dowry Prohibition Act was enacted in 1961. According to section 3 of this Act the
giving and taking of dowry is a criminal offence.
Sati Prevention Act, 1987 was enacted, which is curbed in the last century. Satis form of
Domestic Violence which means burying alive of widow along with the body of her deceased

5.
6.

Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844).
www.Manupatrafast.com/ Articles.

husband.
National Commission for women has been set up in 1990 by central government.
The National Commission have also constituted commission to be known as the state
Womens Commission.
Then enacted the Pre-natal Diagnostic Techniques Act 1994- This Act regulates the
forceful termination of female foetus it permits termination of pregnancy only for medical
purposes.7
Domestic Violence Act empowered women in India. The Act recognize Domestic Violence as a
punishable offence before the enactment of this legislation, no remedy was available to the relations
outside marriage. As a result of which most of the women opt to suffer. The section 2(a) of this
Act empowers the women to file a case against the person with who she is having domestic
relationship, with whom she shared household and who has subject her to Domestic Violence.

IMPORTANT CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA

The principle of gender equality is enshrined in the Indian Constitution in its Preamble,
Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only
grants equality to women, but also empowers the State to adopt measures of positive
discrimination in favor of women. Within the framework of a democratic polity, our laws,
development policies, Plans and programs have aimed at womens advancement in
different spheres. India has also ratified various international conventions and human rights
instruments committing to secure equal rights of women. Key among them is the ratification
of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW)
7.

www.Manupatrafast.com/Articles.

in 19938.

CONSTITUTIONAL PROVISIONS

The Constitution of India not only grants equality to women but also empowers the
State to adopt measures of positive discrimination in favor of women for neutralizing
the cumulative socio economic, education and political disadvantages faced by them.
Fundamental Rights, among others, ensure equality before the law and equal protection
of law; prohibits discrimination against any citizen on grounds of religion, race, caste,
sex or place of birth, and guarantee equality of opportunity to all citizens in matters
relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the
Constitution are of specific importance in this regard.

Constitutional Privileges

Equality before law for women (Article 14)

(i)

(ii) The State not to discriminate against any citizen on grounds only of religion, race, caste,

sex, place of birth or any of them (Article 15 (i))

(iii)
(3))

The State to make any special provision in favour of women and children (Article 15

(iv)

Equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the State (Article 16)

(v)

The State to direct its policy towards securing for men and women equally the right to
an adequate means of livelihood (Article 39(a)); and equal pay for equal work for
both men and women (Article 39(d))

8.

International Convention Human rights instruments( http://www.ohchr.org/s ).

(vi)

To promote justice, on a basis of equal opportunity and to provide free legal aid by
suitable legislation or scheme or in any other way to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities (Article 39 A)

(vii)

The State to make provision for securing just and humane conditions of work and for
maternity relief (Article 42)

(viii) The State to promote with special care the educational and economic interests of the
weaker sections of the people and to protect them from social injustice and all forms
of exploitation (Article 46)
(ix)

The State to raise the level of nutrition and the standard of living of its people (Article
47)

(x)

To promote harmony and the spirit of common brotherhood amongst all the people of
India and to renounce practices derogatory to the dignity of women (Article 51(A)
(e))

(xi)

Not less than one-third (including the number of seats reserved for women belonging
to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be
filled by direct election in every Panchayat to be reserved for women and such seats
to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))

(xii)

Not less than one- third of the total number of offices of Chairpersons in the
Panchayats at each level to be reserved for women (Article 243 D (4))

(xiii) Not less than one-third (including the number of seats reserved for women belonging
to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be
filled by direct election in every Municipality to be reserved for women and such
seats to be allotted by rotation to different constituencies in a Municipality (Article
243 T (3))
(xiv)

Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the

Scheduled Tribes and women in such manner as the legislature of a State may by law
provide (Article 243 T (4))9 .

LEGAL PROVISIONS

To uphold the Constitutional mandate, the State has enacted various legislative measures intended
to ensure equal rights, to counter social discrimination and various forms of violence and atrocities
9.

Amendments of constitution of India..( http://lawmin.nic.in/).

and to provide support services especially to working women.

Although women may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc, the
crimes, which are directed specifically against women, are characterized as 'Crime against Women'.
These are broadly classified under two categories.

The Crimes Identified Under the Indian Penal Code (IPC)

(i)

Rape (Sec. 376 IPC)

(ii)

Kidnapping & Abduction for different purposes ( Sec. 363-373)

(iii) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
(iv) Torture, both mental and physical (Sec. 498-A IPC)
(v) Molestation (Sec. 354 IPC)
(vi) Sexual Harassment (Sec. 509 IPC)
(vii)

Importation of girls (up to 21 years of age)10.

The Crimes identified under the Special Laws (SLL)

Although all laws are not gender specific, the provisions of law affecting women
significantly have been reviewed periodically and amendments carried out to keep place with
the emerging requirements. Some acts which have special provisions to safeguard women
and their interests are:

(i)

The Employees State Insurance Act, 1948

(ii)

The Plantation Labour Act, 1951

(iii)

The Family Courts Act, 1954

(iv)

The Special Marriage Act, 1954

(v)

The Hindu Marriage Act, 1955

(vi)

The Hindu Succession Act, 1956 with amendment in 2005

10. Indian Penal code, 1860.

(vii)

Immoral Traffic (Prevention) Act, 1956

(viii)

The Maternity Benefit Act, 1961 (Amended in 1995)

(ix)

Dowry Prohibition Act, 1961

(x)

The Medical Termination of Pregnancy Act, 1971

(xi)

The Contract Labour (Regulation and Abolition) Act, 1976

(xii)

The Equal Remuneration Act, 1976

(xiii)

The Prohibition of Child Marriage Act, 2006

(xiv)

The Criminal Law (Amendment) Act, 1983

(xv)

The Factories (Amendment) Act, 1986

(xvi)

Indecent Representation of Women (Prohibition) Act, 1986

(xvii) Commission of Sati (Prevention) Act, 1987

(xviii) The Protection of Women from Domestic Violence Act, 2005.11

SPECIAL INITIATIVES FOR WOMEN

(i)

National Commission for Women

In January 1992, the Government set-up this statutory body with a specific
mandate to study and monitor all matters relating to the constitutional and legal safeguards
provided for women, review the existing legislation to suggest amendments wherever
necessary, etc.

(ii)

Reservation for Women in Local Self -Government

The 73rd Constitutional Amendment Acts passed in 1992 by Parliament
ensure one-third of the total seats for women in all elected offices in local
bodies whether in rural areas or urban areas.

(iii)

The National Plan of Action for the Girl Child (1991-2000)

11. Acts which were enacted under Indian law, that the crimes identified under special laws, provisions
and Amendments of women to safeguard.

The plan of Action is to ensure survival, protection and development of the

girl child with the ultimate objective of building up a better future for the girl
child.

(iv) National Policy for the Empowerment of Women, 2001

The Department of Women & Child Development in the Ministry of Human

Resource Development has prepared a National Policy for the Empowerment
of Women in the year 2001. The goal of this policy is to bring about the
advancement, development and empowerment of women.

*****

REFERENCES

1. http://www.tourolaw.edu/.
2. http://www.ohchr.org/.
3. http://www.manupatrafast.com/articles/.
4. Amendments of Indian constitution.
5. Indian Penal code, 1860.