Constitutional rights of women and children

The Constitution of India prohibits discrimination in the name of caste, ground, gender or religion but women and children of the Indian society have had to face it every now and then. In this article, Justice Madan B. Lokur has elaborated how over time, certain laws were made for their development but they either lacked implementation or awareness. With the country celebrating its 71st Republic day, the need is to analyse the implementation of these laws and welfare schemes enacted for the benefit of women and children.

New Delhi:In the 71st year of our republic, we need to assess the extent to which we have taken advantage of the proactive support our Constitution provides for women and children. The fundamental rights chapter of our Constitution provides for equality before the law and equal protection of the laws. It also prohibits discrimination only on grounds of religion, race, caste, sex, place of birth or any of them.

Then the mandate in Article 15(3) - “Nothing in this article shall prevent the State from making any special provision for women and children.” This is a clear indication that the framers of our Constitution recognized the obligation of mainstreaming women in our polity and positively accepted the importance of care and protection of children. Are we advancing their vision?

Equality for women and their rights began with a few bumps in the early years of the republic, but the passage of the Hindu Code in the mid-1950s opened a window, so to speak. The progress was slow but steady. The Maternity Benefit Act and the Dowry Prohibition Act came to be enacted in 1961. But laws alone cannot change everything in society. For example, Section 304B of the Indian Penal Code makes dowry death a heinous offence. Has this stopped the evil of dowry deaths? Data from the National Crime Records Bureau (NCRB) suggests that there is a dowry death almost every hour. Similarly, have the recent laws for the protection of women from domestic violence and the prevention, prohibition and redressal of sexual harassment of women at workplace really been effective? These laws were necessary and have been a long time in coming, and the good news is that they have come and have empowered women to assert some of their rights envisaged by the Constitution.

The Directive Principles of State Policy (DPSP) require the State to secure that all men and women have the right to an adequate means of livelihood and that there is equal pay for equal work. The Constitution also provides for reservation of seats for women (including for scheduled castes and tribes) in panchayats and municipalities. But then, we have public statements (including from the top echelons of power) suggesting that the place for women is in the home. It is common knowledge that quite a few women are actually proxies on some reserved seats. Therefore, laws alone are not enough - we need a mindset change to achieve the empowerment desired and visualized by the framers of our Constitution.

Article 25 of the Universal Declaration of Human Rights recognizes the entitlement of childhood to special care and assistance. In keeping with this entitlement, our Constitution provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. The DPSP requires the State to direct its policy towards securing the tender age of children is not abused and they are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These are lofty ideals but have we done enough to protect these rights of children?

National policies have been framed for the benefit of voiceless children, particularly for the girl child. The Juvenile Justice Act has been enacted for their care and protection. Similarly, the right to free education until the age of fourteen has also been recognized. However, the ground reality is terribly disappointing.

Child labour still persists in large measure despite the remarkable efforts of Kailash Satyarthi. In the last few months, the death of hundreds of infants due to poor medical facilities have shocked us. Statistics provided by the NCRB suggest that more than 250 children go missing every day. The recent conviction of several persons accused of systematically sexually abusing more than 30 young girls in a shelter home makes it obvious that children are not being given their due as required by our Constitution. The NCRB also tells us that while crimes committed by juveniles are reducing, crimes against children have shown a considerable increase between 2016 and 2018. The Right to Education Act was enacted almost nine years ago. It has given benefits, but to what extent?

Infrastructure needs and the lack of qualified teachers have denied many children their basic right to quality education. Therefore, the questions that we as a progressive society and a vibrant democratic republic have to answer is: what have we actually achieved, why have there been some very visible failures, and what are the available remedies. But first, there is a crying need to acknowledge that times are changing.

Women had realized long ago that they have rights, but now these rights are being asserted and the Constitution encourages them to do so on grounds of equality and their dignity. This is a fact that no one, including our leaders, can or should ignore or try to suppress. The rights of children, comprising about 37% of our population and the future of our country, have been overlooked or given little importance over the last 71 years. We must recognize their rights and give them some flesh and blood. We need to conduct a social audit of the implementation of the laws and welfare schemes enacted and framed for the benefit of women and children. It is only an impartial and objective analysis, such as the one that exposed the horrendous state of affairs in a shelter home, that can bring out the ground reality.

What is the roadmap before us in the 71st year of our republic? The sustainable development goals, accepted by leaders of 193 countries including India, is the answer. We need to work together in a democratic manner to achieve these goals that include the rights of women and children, in the coming decade, and only then will we prosper – but we have miles to go before we sleep.

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