428216293-Affirmative-Action-Law.doc - AFFIRMATIVE ACTION LAW FAIR DRAFT \u2018AFFIRMATIVE ACTION FOR WOMEN IN INDIAN CONSTITUTION\u2019 INTRODUCTION

428216293-Affirmative-Action-Law.doc - AFFIRMATIVE ACTION...

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AFFIRMATIVE ACTION LAW FAIR DRAFT AFFIRMATIVE ACTION FOR WOMEN IN INDIAN CONSTITUTION’
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INTRODUCTION Condition of women in India has not been historically very good. As is evident from Manusmriti, women did not have much rights as compared to men. Further, the women are physically weaker than men and due to this fact also, they have been exploited. Due to such continuous unfavorable treatment, the social status of women has become really bad. That women are naturally a weaker sex was first acknowledged by US supreme court in the case of Muller vs Oregon 1908 1 . In this case, the US SC observed that due physical structure and performance of maternal functions, women are at a disadvantage in the society and thus it is society's responsibility to implement favorable laws to bring them on the same lavel as men.The makers of Indian Constitution also understood this fact and have provided several provisions for elevating the status of women and giving them a level playing field. The following is a brief description of such provisions. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes
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have aimed at women’s 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) in 1993. 1. Muller v. Oregon, 52 L.Ed. 551.
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Page-2 Fundamental Rights Guaranteed to women under the Constitution :— Part III of the Constitution, consisting of Articles 12 to 35, relating to Fundamental Rights, is considered the ‘heart’ of the Constitution. The fundamental rights are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual status. As per Justice P. N. Bhagwati : “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent 2 .” Article 14 — Equality before Law :— Article 14 : It says that the state shall not deny any person equality before law and equal protection of law in the territory of India. While this article is general in nature, it forms the bedrock for all other provisions. The principle of equality adopted in the this article is that "like should be treaded alike". This is the key principle for a social welfare state to ensure social and economic equality. The right to equality with out the capability and the means to avail the benefits equally would be a cruel joke on the weaker sections. This concept of equality permeates throughout the entire constitution. This article facilitates the existence of other provisions that might seem discriminatory but are, in fact, not.
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