In Indian law, there are various Women’s rights against arrest.
The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favor 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 the 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.
In accordance to the intention of framers of Indian Constitution, the special provision have been made in substantive laws and procedural laws enacted by the government for women from time to time i.e. Section 56 of Code of Civil Procedure provides that a woman cannot be arrested in the execution of the decree of payment of money.
CONSTITUTIONAL SAFEGUARD
The affirmative action for women and children was recognized in the case of Government of A.P. v. P.B. Vijaya Kumar that the insertion of Clause (3) of Article 15 in relation to women in recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality.
The Hon’ble Court time and again has reiterated that the court will not restrict the measures taken by the government which are strictly beneficial in nature and within the scope of Article 15(3) of the Indian Constitution. Though the action of the government prima facie be against the other provision of the constitution but will not infringe upon it if it is within the ambit of Article 15(3).
The idea behind inserting Article 15(3) was to recognize the fact that women in this country have been discriminated against and ill-treated which have made them handicapped. In order to bring them in equal footing with the men of the country so that they can participate in the socio-economic activities of the nation article 15(3) empowered the government to make positive discrimination or to take affirmative action. Thus the framer of the constitution wanted to eliminate this discrimination by enabling the government to take affirmative action which shall not be in violation of provisions of the constitution.
Therefore making special provisions for women in respect of employment or post under the state, is an integral part of Article 15(3), and the power conferred under this clause, is not whittled down in any manner by Article 16.
In Air India Cabin Crew Association v. Yeshawinee Merchant, the Hon’ble Supreme Court has held that the Articles 15 and 16 of the Constitution of India prohibit discriminatory treatment but not preferential or special treatment to women, which is a positive measure in their favor.
The incorporation of this article, anchored under the unique concept of ‘protective discrimination’ symbolizes constitutional recognition of deeply entrenched discrimination of women prevailing in Indian society. The scheme is also in full realization of the fact that “formal equity” alone may not suffice in a country plagued with age-old patriarchal culture and history that has perpetuated undermining of women and hence the need for effectuating women protection. Women’s Rights Against Arrest Under Various Law
In Yusuf Abdul Aziz v. State of Bombay, the question for determination before the Hon’ble Supreme Court was the validity of section 497 of the Indian Penal Code. Section 497 of the Indian Penal Code was challenged on the ground of being unreasonable as it exempts wife from the ambit of the offense of adultery and therefore it should be interpreted restrictively. Women’s Rights Against Arrest Under Various Law
The ground on which the section 497 of the Indian Penal Code was challenged was completely rejected as Article 15(3) does not intend to restrict the legislative power of the legislation. It was argued before the Hon’ble Court that Clause (3) of Article 15 of the Constitution should be confined to provisions that are beneficial to women and cannot be used to give them a license to commit and abet crimes. Women’s Rights Against Arrest Under Various Law
However, the Hon’ble Court came to a conclusion that from a bare reading of the clause (3) of Article 15, no such restriction exist and neither the Hon’ble Court was satisfied with the argument of the learned Counsel that exemption from the punishment will give them a license to commit the offense.
The Hon’ble Supreme Court in a plethora of case has stressed upon the fact that Article 15(3) should be interpreted in wide terms rather giving a restricted or narrow interpretation for the welfare of women. Viewed from this perspective, it seems to us that legislation intended for affirmative action in respect of a girl child must not only be liberally construed and interpreted but must override any other legislation that seeks to restrict the benefit made available to a girl child. This would only emphasize the spirit of Article 15(3) of the Constitution.
On 29th November 1948, Prof. K.T. Shah had debated over the Article 15(3) of the Indian Constitution then Article 9(2) of drafted Constitution and had suggested for amendment of the said article in the draft Constitution (“Nothing in this Article shall prevent the State from making any special provision for women and children”) so that it would read: “Nothing in this Article shall prevent the State from making any special provision for women and children or for Scheduled Castes or backward tribes, for their advantage, safeguard or betterment.”
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It must be distinguished from the preceding article. At any rate, that this is a provision for discrimination in favor of women and children, to which Dr. B.R. Ambedkar wanted to add the Scheduled Castes or backward tribes. This discrimination is in favor of particular classes of our society which, owing to an unfortunate legacy of the past, suffer from disabilities or handicaps. It may require special treatment; and if they do require it, they should be permitted special facilities for some time so that real equality of citizens is established.
The rage for equality which has led to providing equal citizenship and equal rights for women has sometimes found exception in regard to special provisions that, in the long-range, in the interest of the country or of the race, exclude women from certain dangerous occupations, certain types of work. It is not intended in any way to diminish their civic equality or status as citizens. It is only intended to safeguard, protect, or lead to their betterment in general; so that the long-range interests of the country may not suffer. Women’s Rights Against Arrest Under Various Law
In the case of Sri Mahadeb Jiew v. Dr. B.B. Sen, the Hon’ble Calcutta High Court was of the view that the special provision for women in Article 15(3) cannot be construed as authorizing discrimination against women.
It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. “Its object is to strengthen and improve the status of women. This “special provision”, which the State may make to improve women’s participation in all activities under the supervision and control of the State can be in the form of either affirmative action or reservation.” Women’s Rights Against Arrest Under Various Law
In the case of Veena Madhukant v. State Bank of India & Ors, the Hon’ble Court held that a woman cannot be arrested for recovery of debts due to bank under Bank and Financial Institutions Act, 1993.
SAFEGUARD PROVIDED UNDER CIVIL PROCEDURE CODE
Where the decree is for payment of money, it can be executed by arrest and detention of the judgment debtor. However, a woman cannot be arrested or detained for the purpose of execution of the decree.
Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money. This section exempts all women from arrest in the execution of a decree for the payment of money. In Moonshee Buzloor Ruheem v. Shumsoonissa, it was held that a woman may however be detained in the civil prison in execution of a decree for restitution of conjugal rights.
Since the amendment in 1923, the decree for restitution of conjugal rights is enforceable only by the attachment of the property of the defendant. A woman cannot be arrested in execution of a decree for the payment of money; at the same time, if the plaintiff is a woman and her suit is for the payment of money, she may be required to give security for the defendant’s costs. Women’s Rights Against Arrest Under Various Law
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The Hon’ble Court in the case of Shrikrishna Eknath Godbole v. Union of India held that a woman cannot be arrested or detained for the execution of the decree of payment of money. The view that Article 15(3) is intended to benefit women has also been accepted in Cyril Britto v. Union of India wherein it was held that prohibition from arrest or detention of women in the execution of a money decree.
Under Section 56 of the Code of Civil Procedure is a special provision calculated to ensure that a woman judgment-debtor is not put to the ignominy of arrest and detention in civil prison in execution of a money decree and that this provision is referable to Article 15(3) of the Constitution.
The woman is the incarnation of ahimsa. Ahimsa means infinite love, which again means infinite capacity for suffering- GANDHIGIRI
CONCLUSION Women’s Rights Against Arrest Under Various Law
Special provisions have been made for women in order to bring them on par with the men in Indian society. The intention of the framers of the Indian Constitution can be inferred from the constituent Assembly debates where they advocated for the special provisions for women by authorizing the government to take certain affirmative actions in favor of women so that the women participation in the different sphere can be enhanced.
The framers of the Indian Constitution specifically had debated over the fact that women in India from centuries have been subjected to discrimination there is an inherent need to provide special provision for the upliftment of women. It is not intended in any way to diminish their civic equality or status as citizens. It is only intended to safeguard, protect, or lead to their betterment in general; so that the long-range interests of the country may not suffer.
Author: This article has been written by Nivedita Sharma, Student of BBA LLB at Symbiosis Law School, Hyderabad.
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