WOMEN: PROTECTIVE DISCRIMINATION IN

CONTEMPORARY WORLD
SUBMITTED TO MS. ANKITA SHUKLA

SUBMITTED BY
MD ABID HUSSAIN ANSARI
1ST SEMESTER
LLM FAMILY LAW
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INTRODUCTION - BRIEF
Our Indian society has always been full of inequalities from times immemorial. Initially, it
was a caste ridden, stratified hierarchical society, and a particularly a segment of the society
had been denied the basic human rights were neglected as well. If we talk about their bare
rights such as education, wages, living conditions, social status were dictated by the whims of
the upper strata of society, reducing them to destitution, just because we had this stratification
and unreasonable discrimination in our Indian society that was deep rooted like anything.
Being an agrarian society, mostly, the capital was limited and was in the hands of few
groups of our society and most of the populations have been not given any economic justice
so that they can uplift their status and living of standard as compared to the upper strata of
our own society. So, the economic backwardness brought social awkwardness which
consequently made them downtrodden and thus depriving them even of the dignity of life. In
a society like India where compartmentalised on caste basis, upper castes controlled the
levers of power enabling them to run their whips, prejudicial to the interests of lower
segments of the society.
The lower castes had to serve the upper castes without having any say and grievance
redressal mechanism available to them. This was one of the inhumane and barbaric
conditions perpetuated for centuries, till WE THE PEOPLE realised the malady impelling
the framers of our constitution to think and to provide various safeguards in the Constitution
of India for the Protective Discrimination which should be given to those who are in real need
in order to uplift their strata and conditions as well. 1
Protective discrimination is a kind of affirmative action policy of granting special privileges
to the neglected section of the society and the underprivileged sections of society, most
commonly women in the contemporary world. The practice of discrimination of racial and
caste discrimination is mostly prominent in India, where it has been enshrined in the
constitution and institutionalized just to provide the uniformity.
Be it a developed state or any other developing one or any other democratic society in the
world, they faces this challenge of harmonising two essentially contradictory political
concepts

Vimal Chandra, Constitutional Safeguards, Seminar, No. 177, 1974, pp 16-21.

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1. Equality before the law (Rule of Law) irrespective of religion, caste, creed, race, and
gender.
2. And the other, social justice at the cost of the same commitment for equality before
the law.
If we compare the other developed democracy, even the United States of America is no
exception to this rule and has taken recourse to affirmative action to ensure justice for the less
privileged sections of the society at the cost of individual merit and equality of all citizens
before the law. In Indian Society, a large number of people have experienced social
discrimination through ages on the account of its peculiar institution called the CASTE
SYSTEM, various efforts have been made to provide redress mechanism for these underprivileged sections of our society, through the policy framework of reservations or quotas for
them in jobs, seats in educational institutions and legislatures, and in governmental aid, loans
and other developmental assistance. This issue was taken into consideration by the framers of
the Constitution while drafting the law of the land. 2
In all, four under-privileged categories have either received benefits under the scheme or
have been seeking such benefits, namely the Scheduled Castes (SCs) and the Scheduled
Tribes (STs), the Other Backward Classes (OBCs), the religious minorities or sections 3
thereof, and lately, the women. 4
It is an accepted fact that both the men and women are considered to be of equal nature and
play an important role in development in society and creation of their families. Right from the
ancient ages where the legal equality of women has been challenged and one of the major
concerns of movement all over the entire world. Nothing has been given in any religious text,
be it Hindu sources of law or Islamic Sources of law. It is just the distortion among the
common masses with respect to the interpretation of these gender based issues. In India, the
debate of Gender has always shaped the legal & cultural landscape of all times. Here, the
women are in a minority group in terms of power & influence and has no say in the process.
After the independence, we have incorporated the principles of equality, liberty & social
justice but also provided for being discrimination in favour of a woman in the constitution of
the country and thats the protective discrimination.

H. Kotani, Caste System, Untouchability and the Depressed, Manohar Publishers, New Delhi, 1997, p. 5.
A.K. Vakil, Reservation Policy and Scheduled Castes in India, Ashish Publishing House, New Delhi, 1985, p. 2.
4
S.M. Mehta, A Commentary of Indian Constitutional Law, Deep & Deep Publications, New Delhi, 1990, p. 110.
3

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We have the legislature which forces to provide different rights & enact various laws in order
to improve the womens condition in the society which was initially criticized by society
itself. While the women attempt to empower themselves economically, they are faced with
the problems of sexual harassment at the workplace & domestic violence every moment just
to provide certain favours for unreasonable acts. I must say that our society is patriarchal all
the time when we saw an attempt by the legislature to implement 33% reservation of seats in
legislative assembly, all the parties strongly opposed it and neglected the concept of women
empowerment. So, it was also observed by the court of law that still the concept of women
empowerment has not taken its place in its real sense. I have tried to focus over the condition
and the position of women in the society, also to point out what are the issues which make
protective discrimination a challenging one in the contemporary world.

DISCRIMINATION OF WOMEN - EVOLUTION5

Under the common law, women were treated as chattels. The Hindu sage, Manu, condemned
women to eternal bondage. The Greeks, in their period of highest culture imprisoned their
women within their house & denied them all rights. The Spartans often destroyed women
who could not give birth to healthy children even the most civilised empire of Roman granted
its women no legal rights. In the end it can be said that women everywhere suffered
subordination & were assigned a purely functional role. The theory of justice developed by
John Rawls combined freedom & equality in the analysis of the meaning of the justice. His
concept of justice is composed of two cardinal principles,
a. Each person is to have an equal right to the most extensive basic liberty compatible
with a similar liberty for others,
b. Social & economic inequalities are to be arranged so that they can reasonably be
expected to be everyones advantage & in such a manner that the positions & offices
to which they are attached are open to all.

DISCRIMINATION BY SOCIETY
In India, people can die and kill anyone in the name of religion; customs, age-old prejudices
which has degraded the position of women. Gradually, Low rates of participation in

http://www.irjcjournals.org/ijmssr/aug2014/4.pdf

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education, lack of economic independence, value biases operating against them, etc., have
resulted in the women being dependent on men folk and other institutions of authority.
They are usually ignorant of their rights and even if they are not, they are denied such access
to justice. The issues related to women are being raised and discussed in various forums, in
the recent times and gaining more and more support, recognition from all over. But despite
the enactment of laws, formulation of reformative legal processes, provision of legal aid to
the needy, extensive use of the provision of Public Interest Litigation, conduct of Family
Courts, Women/Family counselling centres, etc., women in India still has to wait to turn their
dreams into reality. The problem has to be visualized in a wider context and cannot be
viewed in isolation from the status of women in the society. 6

OFFENCES AGAINST WOMEN

In the US, a woman is raped every 6 minutes; a woman is battered every 15 seconds. In North
Africa, 6,000 women are genitally mutilated each day. This year, more than 15,000 women
will be sold into sexual slavery in China. 200 women in Bangladesh will be horribly
disfigured when their spurned husbands or suitors burn them with acid. More than 7,000
women in India will be murdered by their families and in-laws in disputes over dowries.
Violence against women is rooted in a global culture of discrimination which denies women
equal rights with men and which legitimizes the appropriation of women's bodies for
individual gratification or political ends. Every year, violence in the home and the community
devastates the lives of thousands live of women.7
Now I shall deal with the fact relating to offences against women. The offences are of various
types. They find mention in many enactments. These under- mentioned provisions are
enumerated in Indian Penal Code, 1860: Section 304-B (dowry death), Section 313-316
(Causing miscarriage), Section 354(Assault or criminal force to woman), Section
361(kidnapping from lawful guardianship), Section 366 (kidnapping, abducting or inducing a
woman), Section 372 (selling minor for purposes of prostitution), Section 376 (rape), Section
376-A (intercourse by a man with his wife during separation), Section 376-B (intercourse by
public servant with woman in his custody), Section 376-D (intercourse by any member of the

Article on Social etiology of violence against women in India by B.R Sharma, www.sciencedirect.com
e://localhost/C:/Documents%20and%20Settings/satyashree/My%20Documents/Violence%20Against%20Wo
m en%20-%20A%20Fact%20Sheet.htm
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hospital with any woman in that hospital), Section 494 & 495 (bigamy), Section 498 (enticing
or taking away or detain a married woman), Section 498-A (dowry cruelty).
These are the main offences under the IPC against women. Certain offences are general
against all women and certain offences are applicable in respect of married women. 8

CONSTITUTIONAL PROVISION
In India, male domination with a complementary suppression of women has been continuing
since pre historic times. There has been discrimination between the male & female child,
between men & women.
Women are considered as good & chattels. Discrimination de-empowers because
discrimination in any form affects the human capabilities. The framers of the constitution
were well conscious of the discrimination & equal treatment mated out to the fairer sex, from
time immemorial. They included certain general as well as specific provisions for upliftment
of the status of women. They provided equality of status & of opportunities explicitly at some
places & implicitly in all other places on par with men as citizen of India.9
POLITICAL RIGHT
Political empowerment of women has been brought by the 73rd & 74th amendment which
reserve seats for women in gram panchyat & municipal bodies. Illiteracy, lack of political
awareness, physical violence & economic dependence are a few reasons which restrain
women from taking part in the political process of the country.
ECONOMIC RIGHT
Economic rights have been guided by the provision of the fundamental rights & DPSP. There
is a total lack of awareness regarding economic right amongst women. Laws have been made
to improve their conditions in mater relating wages, maternity benefits, equal remuneration &
property to provide the necessary protection in these areas.

Law relating to Children & Women by Mamta Rao, Dr. S. R. Myneni Women & Law, Gender justice by Dr. N. K.
Chakrabarty & Dr. Shachi Chakrabarty, vol.ii ,first ed
9
Dr. S. R. Myneni Women & Law

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SOCIAL JUSTICE
For giving social justice step has been taken to codify personal law in our country. Certain
areas like domestic violence, Sexual harassment at the work place were untouched.
Implementation of MTP Act & other Act also help to provide social justice to the women. 10
ARTICLE 14 - Equality before law for women.
ARTICLE 15 (I) - 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 (3) - This provision of constitution permits the state to positively discriminate
in favour of women to make special provisions to ameliorate their social condition political,
economic & social justice. 11
ARTICLE 16 - Provide equality of opportunity for all & prohibits discrimination against
women.12
ARTICLE 21- Gender equality becomes elusive in the absence of the right to live with
dignity.13
ARTICLE 39A - This provision directs state to direct its policy towards securing those
citizens.14
ARTICLE 39D - Equal pay for equal work for both men and women.
ARTICLE 42 - The State to make provision for securing just and humane conditions of work
and for maternity relief
ARTILCE 44 - This provision directs the state to secure for citizens a uniform civil code
applicable throughout the territory of India with a view to give gender justice. Though the
government has not yet implement UCC in the country. To protect the right of women in all
section of society this UCC is very much effective. 15

10

Valsamma Paul v. Cochin University, (1996) 3 SCC 545.

Air India v. Nargesh Meerza, (1981) 4 SCC 335
12
Soemithri Vishnu v. Union of India, 1985 supp SCC 137.
13
Bodhisattwa Gautam v. Subhra Chkrabarty, (1996) 1 SCC 490.
14
State of Haryana v. Rajpal Sharma, AIR 1997 SC 449
15
Mohd.Ahmed Khan v. Shah Banu Begum, (1985) 2 SCC 556: 1985 SCC (Cri) 24
11

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ARTICLE 46 - 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 243- Reservation of women in Municipalities & Panchayats has been provided in
this provision.16

ROLE OF JUDICIARY
In judiciary always try to pronounce landmark judgment whenever any question of law
involved in any case. SC repeatedly interpreted various provision of constitution as well as
IPC to provide justice to the disadvantage section of the society whether regarding workers,
child or women.. SC always tries to uphold the dignity of women in various cases as well as
take initiative to stop crime & discriminatory attitude towards women by the society at large.
Even in few cases gave direction to the govt. to implement the law in a proper manner & also
to make new law so that there should be no discrimination against the women in the public
life. In various cases we observed this attitude of the apex court while delivering their
judgment.
In the case of Rupen Deo Bajaj v. Kanwar Pal Singh Gill 17, the Supreme Court said that the
assault or criminal force to woman as an offence under this section should not be treated
lightly as it is quite a grave offence. In certain western countries privacy to person and even
privacy to procreation are regarded as very sacrosanct rights and if this offence is studied in
that prospect the offence would clearly show that it affects the dignity of women and,
therefore, the accused of this offence, when proved, should be appropriately dealt with.
Also, in the matter of People's Union for Democratic Rights v. Police Commissioner, Delhi,
Police Headquarter and another 18, the supreme court after holding that the accused was
guilty of offence under section 354 of IPC, awarded, to the victim, compensation which is to
be recovered from the salary of the guilty officers.
In the case of Tukaram v. State of Maharastra 19, which is popularly known as Mathura trial
the sessions judge found evidence insufficient to convict the accused. BMHC reversed the

16

Reservation of women in local bodies v Pravakaran, AIR 1997 (11) SCC 638.
1995 SCC 1059 (Cr)
18
(1989) 4 SCC 730
19
(1979) 2 SCC 143: 1979 SCC (Cr) 381
17

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decision. SC again reversed the judgment of HC. The decision of the court was highly
criticized.
In State of Maharashtra v. M.N.Mardikar20, it has been empathically laid down that there is
rule or prudence requiring corroboration of the victims in a case of rape. At this juncture I
may state that sometimes the trial courts give emphasis on absence of physical injuries, lack
of corroboration by medical evidence, non-raising of alarm, no evidence of showing
resistance and such other ancillary factors. From these angles the prosecution is disbelieved
or the court arrives at the conclusion that there is consent.
In State of Punjab v. Gurmit Singh21, in this it was held by the SC that unless there are
compelling reasons which necessitate looking for corroboration of her statement, the court
should find no difficulty in acting on the testimony of a victim of sexual assault alone to
convict an accused when her testimony inspires confidence & is found to be reliable. Seeking
corroboration of her statement before relying upon the same, as a rule, amounts to adding
insult to injury. There are other landmark judgment where the apex court by interpreting
various provision of law tried to protect the right of womenfew of those cases are
Chairman railway board v. Chandrima Das.22
The other offences which relate to women and have become wanton and excessive are
offences under section 304-B and 498-A. the apex court has given a broader meaning to the
concept of cruelty enshrined under section 498-A of IPC 23. In the case of Satvir Singh v.
State of Punjub, it was held by the SC, That section 306 IPC read with sec113 of I.E Act has
only enable the court to punish the husband or his relative who subjected a women to cruelty
& such women commits suicide within 7years of her marriage. 24
In Vishaka v. State of Rajasthan25, it was held by the SC that gender equality includes
protection from sexual harassment & right to work with dignity& this right has received
global acceptance and now finally it can be reflected through a legislation on Sexual
Harassment at Workplace, 2013.

20

(1991) 1 SCC
(1996) 2 SCC 384 :1996 SCC (Cri)316
22
(2000) 2 SCC 465 : AIR 2000 SC 988
23
Premwati v. State of M.P; Hemchand v. State of haryana
24
(2001) 8 SCC 633: 2002 SCC (Cri) 48
25
( 1997) 6 SCC 241: AIR 1997 SC 3011
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Also, after the Shahbano Case, Danial Laitif case, certain protection has been given and thats
good for the society. Now, we have Shaiyaara Bano case regardind the ban on triple talaq, the
fight is still on.
In the case of CEHAT v. Union of India26, is a land mark case deals Sex Determination - Pre
Natal Diagnostic Techniques (regulation & prevention of misuse) Act, 1994.
In the matter of Gazula Dasaratha Rama Rao v. State of Andhra Pradesh 27, it was held by
the Supreme Court that the Article 14 guarantees the general right of equality; Articles 15 and
16 are instances of the same right in favour of citizens in some special circumstances. Article
15 is more general than Article 16, the latter being confined to matters relating to
employment or appointment to any office under the State. Article 15 does not mention
descent as one of the prohibited grounds of discrimination as Article 16 does.
While speaking of the importance of Indian Constitution, one can see in the following
statements in the matter of Sajjan Singh v. State of Rajasthan 28, it was rightly pointed and
observed by the Supreme Court that:
Our Indian constitution is an organic document and it is intended to serve as a guide to the
solution of changing problems which the Court may have to face from time to time. Naturally,
in a progressive and dynamic society the shape and appearance of these problems are bound
to change with the inevitable consequence that the relevant words are used in the
Constitution and may also change their meaning and significance. That is what makes the
task of dealing with constitutional problems dynamic rather than static
In the matter of R. Chitalekha and Another v. State of Mysore and Others and Triloki Nath
v. State of J & K and K.C Vasanth Kumar v. State of Karnataka. The apex explaining the
meaning of Class observed that The quintessence of Class is that a group of persons
having common traits or attributes coupled with retarded social, materials (economic) and
intellectual (educational) development in the sense not having so much of intellect and ability
will fall within the ambit of any backward class of citizens under Article 16 (4) of the
Constitution.
Further in R. Chitralekha case, it was stated that ..what we intend to emphasize is that
under no circumstance a CLASS can be equated to a CASTE, though the caste of an

26

(2001) 5 SCC 577

AIR 1961 SC 564
28
(1965) I.S.C.R. p. 932 at p. 948
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individual or a group of individual may be considered along with other relevant factors in
putting him in a particular case
In the case of Sheoshanker v. State of M.P 29, the court of law held that Article 14 declares
that the State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India. It means that law treats equally all individuals without
any discrimination right from the top to the bottom. All persons are treated equally in the
equal and similar circumstances. The phrase equality before the law is of English origin and
equal protection of the law is taken from American constitution. Both the phrases appear to
be same, but they do not convey the same meaning. The former has a negative concept
towards having and showing of special privilege in favor of individuals whereas the latter has
a more positive concept implying equality of treatment in equal circumstances.
In Indra Sawhney v. Union of India, it was firmly held that protective discrimination or
affirmative action implies to provide facilities and opportunities not only among individuals,
but also amongst group of people, securing adequate means of livelihood to its citizens and to
promote with special care the educational and economic interest of the weaker sections of the
people, including in particular the Scheduled Castes and Scheduled Tribes and to protect
them from social injustice and all forms of exploitation.
There are list of legal precedents which talks about the Protective Discrimination and is very
helpful for them.

SPECIAL INITIATIVES FOR WOMEN

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.
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.
THE NATIONAL PLAN OF ACTION FOR THE GIRL CHILD (1991-2000)
29

AIR., 1951 Nagpur 53

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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.
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.

CONCLUSION
I just want to share my experience and some of the findings/observations:
1. Though we enter in the age of liberalization globalization privatization but still there
are number of dowry death caused in the societies & which is increasing during this
period also.
2. 33% Reservation in the legislation process is still pending in the parliament. This
shows the unwillingness of the legislature to give more right to the women.
3. So many laws have been made by the legislature but there is lack of proper
implementation so the state like Rajasthan is least female educated state (12%).
4. The condition of women in urban area to some
5. extent has been improved but the condition of the women in rural area is still in very
bad condition they are uneducated even dont availed medical facility away from
nutrition.
6. Number of crime against women is increasing day by day in the societies, even after
Nirbhaya kand the the crime against women is still increasing.
I would like to suggest due to all these reason the government should take steps for the
implementation of those international laws which was passed in the international convention
& adopted by India like other country. The political party should not play bad game regarding
women bill. The government should try to remove all difficulties for upliftment of women
community which may cause by the religious extremist of the society.
Hope this assignment to some extent enlightens the area where the women are still in
disadvantage condition & the various laws which may help this community to restore their
right in the society.

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