Over the changing course of time, significant attempts have been made in the Constitution of India to address a cycle between the aspects of Individual Freedom and Social Justice. The Preamble of the Indian Constitution enshrines social, economic and political justice in accordance with the Liberty and Equity of all citizens as its objectives. Constitution of India guarantees certain Fundamental Rights and Fundamental Duties to its citizens. Some are Right to Equality, Right to Freedom of Speech and Expression, Right to Religion and the Right to Constitutional Remedies. Rights are essential for the development of society and human personality.
Women are ensured a very unique position in every society. Their contribution is seen in every sphere of life. Despite the facts on-paper, women suffer in a disadvantaged position on accounts of several barriers and impediments, majorly relating to Customs and Social Barriers. India is no exception, being a country of hoaxes and paradoxes.
The Constitution of India attempts to enumerate fundamental rights and by setting limits within which they can be curtailed. The Constitution permits reasonable restrictions to be imposed on any individual’s liberties. In the landmark case of A. K. Gopalan v. State of Madras, it was held that;
There cannot be any such thing as absolute and uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The enjoyment of all rights is subject to such reasonable conditions as may be deemed by the governing authority essential to the safety, peace, order and morals of the community.
Article 19(1) (a) of the Constitution secures to every citizen the Right to Freedom of Speech and Expression. This clause being read with clause (2) provide that the said right shall not prevent the operation of a law relating to the matter specified therein. Under clause (2) reasonable restrictions are instituted for freedom of speech and expression. It means the right to express one’s convictions and opinions freely by word of mouth, writing, printed modes, etc. A democratic government indulges great importance to this because without the freedom of speech, appeal to reason cannot be made which is the basic of democracy. Women criticise other women for not following the family customs. The way a woman interacts, dressing, occupation is often attributed for judging a woman’s character.
In the case of Chandra Raja Kumari v. Police Commissioner Hyderabad, it has been held that the Right to Live includes right to live with human dignity. Therefore, holding of beauty contest is repugnant to the dignity and decency towards women and violates Articles 21 of the Constitution of India. Under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956, the Government is empowered to prohibit the beauty contests as objectionable performance, on the circumstances if it is grossly indecent or obscene or intended for blackmailing.
The Constitution of India provides that women shall be entitled to equal rights and privileges for their betterment and upliftment. These are:
- Article 14: Right to equality in law
- Article 15: Right to social equality
- Article 16: Right to social equality in employment
- Article 39 (a): Right to adequate means of livelihood
- Article 39 (d): Right to equal pay for equal work
- Article 39 (e): Right that the health and strength of workers both men and women are not abused
- Article 42: Right to just and humane conditions of work and maternity relief
- Article 46: Right to improvement in employment opportunities and conditions of the working women. But, our customs and beliefs.
Article 15 (3):
Special Provision for women and children:
It signifies that Special Provisions can be made for Women and Children but not against them. Hence, Clauses (1) to (3) of Article 15 of the Constitution of India imply that the State can discriminate in favour of women against men, but it cannot discriminate in favour of men against women. The Special Provisions which the State may make to improve women’s participation in all activities under the control and supervision of the State can be in the form of reservations or affirmative action. In Choki v. State of Rajasthan, the Court has held it valid on the ground that it makes special provision for women and therefore it is protected under Article 15 (3).In Anjali Roy v. State of West Bengal, the court held that Article 15 (3) provides for only special provisions for the benefits of women and children and does not require that absolutely identical treatment as those enjoyed by males in similar matters must be afforded to them.
Article 15 (3) of the Constitution empowers the State to make special provisions for women. It is based on ‘protective discrimination’ keeping in view the weak physical position of women. Article 21 states Right to Life and Personal Liberty is not just a mere right to protect one’s body but the guarantee under this provision plays a larger scope. Right to Life means the right to lead a meaningful and dignified life. Hence, the State shall guarantee to every pregnant working woman all the facilities and assistance that she requires while protecting her employment as well as her own and her child’s body and health.
A country’s culture is generated and developed by enhancing equal rights and freedom towards women. It cannot be denied that a proliferation of obscene art, literature or depiction lowers the whole moral tone of a community, but what matters is how the society understands and commits to it by not disobeying women. A culture helps its members both women and men equally to get the desired objectives and avoid what is harmful for the well-being of the society.
Restrictions on Education of Women:
Education is one of the most critical areas of empowerment for women. Although under Article 21 of the Constitution of India, right to education has been made mandatory for the government to provide compulsory free education to all, the high rate of women’s education is still a distant dream. Government policies such as Sarva Shiksya Abhiyan and Beti Bachao Beti Padhao have been successful only to an extent; firstly, in saving the girl child from Female Foeticide and in bringing the girl child back to the schools. But the retention rates of female in the schools are lower as compared to their male counterpart. This is particular in the rural areas in India.
The reasons associated with this is that the parents in rural areas expect girls to look after the siblings while they are at daily-wage works, working with the family as seasonal labour during the cultivation period and managing the household. Hence, the universalization of primary education in India for the women remains a remote daydream even in 2020.
Restrictions due to Dowry:
The presence of Dowry in Indian culture and customs has created a startling impact worldwide. Almost every country has witnessed the cruel cases of Dowry Deaths in India. Deaths of the women at their matrimonial home have been recorded at a higher rate from early 1960s. Dowry disputes are a serious problem. The National Crime Records Bureau in its report had disclosed in the year 2012 around 8233 newly wedded brides killed for dowry. Section 498A of Indian Penal Code was introduced in 1983 to protect a married woman from being subjected to cruelty. It deals to provide protection to women against dowry-related harassment and cruelty. On the other hand, it became an easy tool for women to misuse it and wreak revenge from their NRI husbands or to file a false case. The Dowry Prohibition Act finds loopholes for not being adequately put into working in India. It has been discovered that a number of states neither have Dowry Prohibition Officers nor do they made it obligatory to keep the record of things/gifts given and received.
Restrictions relating to Preference for a son:
Giving birth to a son is a phenomenon, historically rooted in the patriarchal system of our society. The strong preference for having a son emerged with the transition of the Indian society from primitive stage which used to be primarily a matrilineal to feudal stage where agriculture emerged as the primary established occupation of the people to be controlled by the male. The concept of owning a private property emerged and the properties began to be divided among the families. The families having control over the bigger part of the land felt pride. Hence, in such landowning society, sons were seen as the major contributors and heirs to the family workforce as compared to daughters.
The reality witnessed by the society finds it a bitter fact that Women have been restricted for practicing their Right to Freedom of Free Speech and Expression. Women herself impose restrictions on another woman in a family or a joint family. Society restricts the Women in the 21st Century what to wear, how to wear & when to wear.
“The views of the authors are personal“
A. K. Gopalan v. State of Madras
Chandra Raja Kumari v. Police Commissioner Hyderabad
Choki v. State of Rajasthan
Anjali Roy v. State of West Bengal