CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA

 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 favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes 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.           CONSTITUTIONAL PROVISIONS

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour 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

(i)      Equality before law for women (Article 14)

(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)     The State to make any special provision in favour of women and children (Article 15 (3))

(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))

(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))

(ix)        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))

(x)          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)) 

2.           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 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. 

(1)         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)

(2)         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 pace 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

(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  

3.           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 73^rd 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)

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.

Bill to make divorce easier may be dropped

Bill to make divorce easier may be dropped: Concerned about “illegitimate and live-in relationships,” the NDA government may reverse a process set in motion by the UPA government to make getting a divorce easier for Hindu couples. Following

Groups opposing the Marriage Laws (Amendment) Bill contend that it will cause an increase in "illegitimate and live-in relations and thereby a fall of the institution of marriage and family values."

Concerned about “illegitimate and live-in relationships,” the NDA government may reverse a process set in motion by the UPA government to make getting a divorce easier for Hindu couples.

Following several years of discussion, the UPA government introduced the Marriage Laws (Amendment) Bill, proposing amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, to make “irretrievable breakdown of marriage” a ground for divorce. The Bill was passed by the Rajya Sabha in 2013, but could not be taken up for discussion in the Lok Sabha.

Though the present government had initially considered tabling the Bill again, Law Minister Sadananda Gowda, in response to a question in the Lok Sabha on December 18, 2014, admitted that the government was having second thoughts about it. He said the government was examining the implications of bringing the Bill as more than 70 representations had been received against it from senior citizen groups and non-governmental organisations such as Save Indian Family and Centre for Reforms. Save Indian Family is an umbrella organisation of various groups which fight for men’s rights.

“In these representations, grave and far-reaching legal, social and economic implications of the proposed amendments to marriage laws have been raised,” Mr. Gowda said.

These groups contend that such an amendment will bring down the marriage rate in the country.

Bill sought to remove lacuna

Groups opposing the Marriage Laws (Amendment) Bill contend that it will cause an increase in “illegitimate and live-in relations and thereby a fall of the institution of marriage and family values.”

They fear crime rate and undue litigation will increase.

“In this background, the government is examining the aforesaid implications alleged to be involved in the proposal to amend the marriage laws,” Law Minister Sadananda Gowda said.

Under the current law, divorce is granted if a couple jointly files an application by mutual consent. In case the divorce is contested, then the husband or the wife has to prove certain grounds under which a marriage can be dissolved.

These include adultery, cruelty, insanity, desertion or medical reasons such as communicable disease. The Amendment Bill essentially sought to remove this lacuna by allowing either the husband or the wife to contend that there has been an irretrievable breakdown in the marriage.

Under the law, any one party can file for divorce on this ground after a three year period of separation.

The wife also has the right to contest a divorce if she can prove she will be in grave financial hardship. The first proposals for amendments to the Hindu Marriage Act came from the Law Commission in 1978. Since then the Supreme Court has on a number of occasions recommended the inclusion of irretrievable breakdown of marriage as a ground for divorce.

The Benami Transactions (Prohibition) Amendment Bill, 2015

The Benami Transactions (Prohibition) Amendment Bill, 2015 was introduced in Lok Sabha on May 13, 2015 by the Minister of Finance Mr. Arun Jaitley.  The Bill seeks to amend the Benami Transactions Act, 1988.  The Act prohibits benami transactions and provides for confiscating benami properties. The Bill seeks to: (i) amend the definition of benami transactions, (ii) establish adjudicating authorities and an Appellate Tribunal to deal with benami transactions, and (iii) specify the penalty for entering into benami transactions.  The Act defines a benami transaction as a transaction where a property is held by or transferred to a person, but has been provided for or paid by another person.  The Bill amends this definition to add other transactions which qualify as benami, such as property transactions where: (i) the transaction is made in a fictitious name, (ii) the owner is not aware of denies knowledge of the ownership of the property, or (iii) the person providing the consideration for the property is not traceable. The Bill also specifies certain cases will be exempt from the definition of a benami transaction.  These include cases when a property is held by: (i) a member of a Hindu undivided family, and is being held for his or another family member’s benefit, and has been provided for or paid off from sources of income of that family; (ii) a person in a fiduciary capacity; (iii) a person in the name of his spouse or child, and the property has been paid for from the person’s income; and The Bill defines benamidar as the person in whose name the benami property is held or transferred, and a beneficial owner as the person for whose benefit the property is being held by the benamidar.  Under the Act, an Authority to acquire benami properties was to be established by the Rules.  The Bill seeks to establish four authorities to conduct inquiries or investigations regarding benami transactions: (i) Initiating Officer, (ii) Approving Authority, (iii) Administrator and (iv) Adjudicating Authority.  If an Initiating Officer believes that a person is a benamidar, he may issue a notice to that person.  The Initiating Officer may hold the property for 90 days from the date of issue of the notice, subject to permission from the Approving Authority.  At the end of the notice period, the Initiating Officer may pass an order to continue the holding of the property. If an order is passed to continue holding the property, the Initiating Officer will refer the case to the Adjudicating Authority.  The Adjudicating Authority will examine all documents and evidence relating to the matter and then pass an order on whether or not to hold the property as benami. Based on an order to confiscate the benami property, the Administrator will receive and manage the property in a manner and subject to conditions as prescribed.  The Bill also seeks to establish an Appellate Tribunal to hear appeals against any orders passed by the Adjudicating Authority.  Appeals against orders of the Appellate Tribunal will lie to the high court. Under the Act, the penalty for entering into benami transactions is imprisonment up to three years, or a fine, or both.  The Bill seeks to change this penalty to rigorous imprisonment of one year up to seven years, and a fine which may extend to 25% of the fair market value of the benami property.  The Bill also specifies the penalty for providing false information to be rigorous imprisonment of six months up to five years, and a fine which may extend to 10% of the fair market value of the benami property. Certain sessions courts would be designated as Special Courts for trying any offences which are punishable under the Bill.  The Initiating Officer or the Adjudicating Authority may impound or retain any books of accounts that it may feel is required for the inquiry, for a period not exceeding three months from the date of attachment of the property. The Adjudicating Officer, after hearing the person whose property is attached, may make an order for the confiscation of the property held benami.  The Administrator shall have the power to receive and manage the property which has been confiscated.  The Administrator shall issue the notice for the surrender or forcible takeover of possession of the benami property. Any person aggrieved by an order of the Adjudicating Officer shall appeal to the Appellate Tribunal.  Any person aggrieved by the Appellate Tribunal in turn may appeal to the High Court. Any person who enters into benami transactions, or abets or induces another person to enter into such transactions shall be punishable with an imprisonment for six months to two years, and liable to a fine of up to 25 per cent of the fair market value of the property held in benami.  In addition, any person who wilfully gives false information shall be liable to an imprisonment of three months to two years and a fine of up to 10 per cent of the market value of the property.  The Bill provides for Special Courts to try such cases.

Rs 2 lakh fine for not answering tax queries

NEW DELHI: Failure to answer questions from the tax department can entail a penalty of up to Rs two lakh from the next financial year under the new black money law, which has got the assent of the President.

The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 provides for a minimum penalty of Rs 50,000.

Besides, tax authorities would be able to send summons or notices via electronic mails (emails) and fax to seek information from those under probe for suspected black money stashed abroad.

The Act got the President's assent on Tuesday and will come into force from April 1, 2016.

The new law, which has provisions to deal with the problem of the undisclosed foreign income and assets, was passed in the Rajya Sabha on May 13, two days after it got the Lok Sabha nod.

A person shall be liable to a penalty if he has, without reasonable cause, failed to answer any question put to him, by a tax authority in the exercise of its powers, the Act says.

The penalty will be imposed if he fails to sign any statement made by him in the course of any proceedings which a tax authority may legally require him to sign and also for their failure to attend or produce books of account or documents called in response to summons issued to him.

The penalty "shall not be less than fifty thousand rupees but which may extend to two lakh rupees", it said.

The service of any notice, summons, requisition, order or any other communication may be made by delivering or transmitting a copy to a person by post or by such courier service as may be approved by the Central Board of Direct Taxes (CBDT).

It can also be issued in the form of any electronic record and "by any other means of transmission of documents, including fax message or electronic mail message, as may be prescribed".

The CBDT may make rules providing for the addresses including the address for electronic mail or electronic mail message to which the communication may be delivered or transmitted to a person, as per the Act.

A notice or any other document required to be issued, served or given under the Act by any tax authority shall be authenticated by that authority.

"Every notice or other document to be issued, served or given for the purposes of this Act by any tax authority shall be deemed to be authenticated, if the name and office of a designated tax authority is printed, stamped or otherwise written thereon," it said.

The person shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice, issued for assessment, was not served upon him, not served upon him in time or served upon him in an improper manner.

However, this provision shall not apply, if the person has raised the objection before the completion of the assessment, the Act said.