Constitutional Protection of Women and Children in India

By | January 10, 2020

Last Updated :

Abstract

The article lists out the constitutional provisions exclusively relating to women and children which are devised to ensure their safety and security and to guarantee equal opportunity for their progress to attain full potential as every other citizen. Thus these provisions which we come across range from affirmative action in the form of reservations to institutional setups for facilitating women empowerment and child welfare.

Introduction

In every country of the democratic composition, the constitution is the governing set of a basic legislative framework which is the source of all future legislation. The provisions in the pre-written constitution act as the justification grounds upon which every law is tested.

And only when the broad condors as envisaged by the constitution is confirmed by the proposed legislation will it be operational. In short, any law or rule to be framed springs from takes its birth from the fundamental values enshrined in the constitution. And the constitution determines the essence and character of the legislation.

The same has been true in the case of the Indian constitution. The democratic polity that our constitution –framers envisaged our country to be it is no surprise that it contained some special provisions made exclusively for certain sections of the society which they believed special attention due to their historically disadvantaged position.

These group of the Indian population may be a numerically small group who was subjected to the majority oppression. As in the case of Dalits and ethnic minorities. Or it could also be about groups who were subjected to unfair treatment due to their apparent inability to claim a just treatment due to their traditionally exploited or neglected positions. Women generally and children of certain sections were subjected to such an extreme level of deprivation.

In recognition of this unique situation, special safeguards guaranteeing their protection was embedded into the basic framework of the constitution.

Constitutional Protection for Children

According to international law, a child means every human being below the age of 18 years. This definition is provided in the united nations Convention on the Rights of Children. The key points thus universally accepted regarding childhood is as follows

  • All persons below the age of 18 are children
  • Childhood is a process through which every human being passes
  • Children have different experiences as they mature
  • All children need to be protected from abuse and exploitation

Why do children require protection?

Childhood is the formation year if any individual. Any abuses that they will be subjected to during this time may have a lasting impact on the child’s character. Abuses or exploitation of any kind may stifle the proper development of the child’s personality.

Due to their apparent lack of individual agency they are often more vulnerable to a mental or physical attack on them. As they cannot find a solution for these problems, neither will they be able to seek help on their own.

In most cases, they may not be able to either distinguish and identify these episodes of exploitation nor will be able to properly bring them to the attention of the guardians which means that children’s protection and welfare clinches on pro-activeness from the part of concerned authorities and guardians.

Hence children are the most affected than any other age group by the actions and inactions of the government and society which they live in. Additionally, in most societies, children are often viewed as their parent’s properties.

Children in most cases are not considered as individuals with their own capacity to make choices. Or in other words, a Child’s life is for better or for worse is decided by his /her parents until they attain maturity.

Also, children belong to different levels of capacities and degrees of maturity as they grow older. That is a child who belongs to the age group 15 years may be different in capacities and needs to those below or above that hence each of them needs to be treated accordingly. Thus these differences are respectively incorporated into the constitutional safeguards designed for children.

Constitutional Provisions

The Constitutional safeguards aimed at guarding the rights of children are set up along the lines of the UN Convention on the Rights of the Child. These are encompassed in the fundamental rights as well as in the Directive Principles of State Policy.

While the fundamental rights are non-violable to any extent, DPSP principles allow for considerable freedom in leaving the government with discretion regarding matters of legislation. Though DPSPs are non-justifiable in nature; their non-implementation cannot be questioned in the court, they are an essential tool with which the court has enlarged the scope and extent of fundamental rights to bring in meaningful interpretations.

These interpretations delivered as judgments have nudged the government to incorporate appropriate legislative reforms and constitutional amendments aimed at ensuring greater safety and security for children. This was the case with the 86th amendment of the constitution by which the Right to Education became a part of the Fundamental Rights.

The Exclusive Constitutional Guarantees for Children are ;

For Ensuring Elementary education

  • Right to free and compulsory elementary education for all children in the age group of 6-14 years (Article 21 A)

The Right to free and compulsory elementary education became a part of the constitution by the 86th amendment in the year 2002. By this, the constitution for the first time recognized education as a necessary and compulsory human right and the obligation to ensure elementary education was vested upon the state.

Thus the 86th amendment gave the Right to Education constitutional and fundamental status which was until then only been part of the Directive Principles of State Policy, therefore, leaving a large space for government discretion with respect to its implementation.

  • Right to early childhood care and education to all children until they complete the age of six years. (Article 45)

Article 45 stressed on the importance of state-sponsored compulsory elementary education to children up to 14 years of age.

For ensuring safety

  • Right to be protected from any hazardous employment till the age of 14 years. (Article 24)

The Article prohibits the employment of children in factories etc. No child below the age of fourteen years shall be employed to work in any factories or mines or engaged in any other hazardous employment. The violation of which would lead to the detention of the preparator.

  • Right to be protected from being abused and forced by economic necessity to enter the occupations unsuited to their age or strength (Article 39(e))

Article 39 (e) mandates that no child is to be forced into vocations against their will at a tender age and that their health is not endangered from working in hazardous working conditions. The provision is envisaged as a safeguard against children being pushed into work at an early age due to abject poverty and being subjected to the extraordinary burden.

For ensuring equal opportunities

  • Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against moral or material abandonment.(Article 39 (f))

Article 39 (f) underlines that childhood is the most critical stage of an individual’s development and holds that no child shall be deprived of a decent chance to develop and attain progress in life due to conditions or situations beyond his/her control. These may be lack of economic or health-related issues or otherwise.

Again, there are additional Rights to Children as equal citizens of India

  • Right to equality (Article 14)
  • Right against Discrimination(Article 15)
  • Right to personal liberty and due process of law. (Article 21)
  • Right to be protected from trafficking and being forced into bonded labour (Article 23)
  • Right of minorities for the protection of their interests (Article 29)
  • Right to weaker sections of the people to be protected from social injustice and all forms of exploitation (Article 46)
  • Right to nutrition and standard of living and improved public health(Article 47)

Constitutional Provisions for Women

Similarly, the constitution provides women with specific safeguards in lieu of their disadvantaged and discriminated position. It also takes into account the possibility of women being subjected to harassment sexually and physically and provides adequate preventive measures for the same.

In this sense, the Indian constitution can be seen as a progressive document which identifies as one of its prime objectives the empowerment of women. Accordingly, the rights and safeguards aimed for the protection and promotion of women’s rights are as follows.

  • Against Discrimination

Starting from early medieval time up until the modern period till the advent of the British colonial reforms women folk were not allowed to have the education and most of them lacked even basic literacy. Similarly, the status of married women was not one in line with the principles of a civilized society as they were considered as the property of their husbands who exercised unjustifiable and total control over their life. Most women didn’t hold any property and had zero right to inheritance

  • Article 15 (1) states that the state shall not discriminate against any citizen of India on the ground of sex.

Historically women in India were denied an equal status compared to their male counterparts. The Article ensures that women are treated equally with full political and civil rights as that of men in all aspect of the civil-political and social life.

  • The state is empowered to make any special provisions for women. (Article 15(3)

By this article, the constitution urges the state to take affirmative action or positive discrimination to further the cause of women. Thus the government is empowered to provide reservations for women when and where it is deemed necessary.

  • No citizen shall be discriminated against or be ineligible for any employment of office under the state on the ground of sex. (Article 16 (2))

Article 16 (2) prohibits discrimination against women while making appointments to government posts and offices.

  • The state is to secure for men and women equally the right to an adequate means for livelihood. Article 39 (a)

  • The state is to secure equal pay for equal work for men and women. Article 39 (d)

Article 39(a) and (e) ensure women equal economic opportunities and prohibits discrimination in the pay front and holds the state responsible to ensure that both men and women have access to adequate livelihood.

  • Against Abuse and Exploitation

Constitutional protection from forced captivity, trafficking and all other forms of physical exploitation are provided for women. It also ensures that the specific needs of women are provided for adequately in the respective places of work.

  • Traffic in human beings and forced labour is prohibited. Article 23(1)

  • The state is required to ensure that the health and strength of women are not abused and they are not forced into entering a vocation against their choice due to economic necessities. (Article 39 (e)
  • The state shall make provisions for ensuring just and humane conditions for work and maternity relief. (Article 42)

  • Affirmative Action for the empowerment of women

The constitution as its framers had envisaged it to be an  instrument of social transformation also give forth measures and institutional mechanisms to ensure equal participation of women in governance and political decision -making

  • (Article 243-D (3)) necessitates that one-third of the total number of seats to be filled by direct elections in every Panchayat shall be reserved for candidates.

  • One-third of the total number of seats to be filled by direct election in every municipality shall be reserved for women (Article 243-T(3))

  • Similarly, the offices of chairpersons shall be reserved for women in such manner as the state legislature may provide. (Article 243-T(4))

Conclusion

Women and children as a group having been subjected to exploitation and abuse and occupying a historically disadvantaged were provided with special and exclusive provisions in our constitution to ensure that their rights are adequately protected and the episodes of such abuses cease by proper intervention from the state. These provisions places a legal and moral obligation from the part of the government to enact laws and setup enforcement mechanisms to prevent violence against women and children.

Nevertheless, their exact impact and the extent to which they may have made such an impact in a given society as always depends on the efficient application of these principles via proper laws.


References

  1. legalservicesindia.com
  2. Law Relating to Women and Children, S.C Tripathi, Vibha Arora,6th Edition,2015

  1. An Introduction to Special laws relating to Women in India(Opens in a new browser tab)