By Neha Sharma, NLU Jodhpur
“Editor’s Note: The society may have advanced, but the condition of women in our country fails to improve. Even today, we hear of numerous instances of cruelty against women. This paper attempts to identify the causes for the unequal treatment meted out to women in the country, even after different legislations and judgements in their favour. It traces the development of law enacted to protect women, starting from the British rule in India and studies the constitutional provisions that provide for their welfare. It also goes on to analyse the rule of judicial pronouncements that has been instrumental in helping women gain their rights. The paper suggests solutions on how to improve the current situation of women.”
Man and woman are two halves of humanity. Neither can reach its highest creative excellence without the cooperation of the other. Through the ages we have placed woman on a pedestal of ‘mother of mankind’. Paradoxically, the most horrendous cruelties have been inflicted upon her, often without reason and mostly without just cause.[i] Though we have entered the new millennium, the status of women has not improved, mainly due to the traditional bias and prejudice towards that section of the society, which has remained, for no fault of theirs, discriminated against all these years. The discrimination stems not so much from legislative insufficiency as from the attitudinal bias of the society.[ii] Contemporaneous legislation, laws, treaties and conventions have unequivocally established equal rights for men and women as a global norm. In spite of all this, discrimination continues.
It is a harsh reality that women have been ill-treated in every society for ages and India is no exception. The irony lies in fact that in our country where women are worshipped as Shakti, the atrocities are committed against her in all walks of life. She is looked down as commodity or as a slave, she is not only robbed of her dignity and pride outside her house but also faces ill-treatment and other atrocities within the four walls of her house. Women are discriminated at two levels, firstly they suffer because of their gender and secondly due to grinding poverty.[iii] Social and economic inequalities also contribute in no small measure to the continued denial of human rights to Women in general and to the disadvantaged and poor amongst them in particular. Gender equality in most cases boils down only to a myth.
Women are deprived of economic resources and are dependent on men for their living. In modern times many women are coming out to work but have to shoulder the double responsibility. Firstly, a woman has to work where she is employed and secondly, she also has to do all the house hold work. Her general status in the family and in the society has been low and unrecognized.[iv]
From the cradle to grave, females are under the clutches of numerous evils acts like discrimination, oppressions, violence, within the family, at the work places and in the society. The root cause of all the evil practices faced by the women are: (1) illiteracy, (2) economic dependence, (3) caste restrictions, (4) religious prohibition, (5) lack of leadership qualities and (6) apathetic and callous attitude of males in the society.
Women Oriented Legislations: A Move To Facilitate Gender Justice
In our society, a girl is socialized from her tender age to be dependent on males. Her existence is always subject to men. In her childhood she is under the protection of her father, after marriage under the protection of her husband and in old age at the mercy of her sons. The patriarchal system in India made women live at the mercy of men, who exercise unlimited power over them.[v] Over the years, radical changes have been introduced in the laws pertaining to women, which not only recognize their rights, but also afford protection against exploitation.[vi] In order to ameliorate the condition of women in India Legislature enacted the large volume of enactments and many of these legislations were enacted in colonial period which are as follows:
(1) 1829, Abolition of Sati;
(2) 1856 Widow Remarriage made legal;
(3) 1870 Female infanticide banned;
(4) 1872 inter caste, intercommunity marriages made legal;
(5) 1891 age of consent raised to 12 years for girls;
(6) 1921 women get rights to vote in Madras province;
(7) 1929 Child Marriage Restraint Act was passed;
(8) 1937 women get special rights to property;
(9) 1954 Special Marriage Act was passed;
(10) 1955 Hindu Marriage Act was passed;
(11) 1956 Suppression of Immoral Traffic in Women and Girls Act was passed;
(12) 1961 Dowry Prohibition Act was passed;
(13) 1981 Criminal Law Amendment Act was passed;
(14) 1986 The Indecent Representation of Women (Prohibition) Act was passed;
(15) 1987 Commission of Sati (Prevention) Act was passed.
Apart from these above mentioned laws, there are some enactments pertaining to industry which contain special provisions for women such as: The Workmen Compensation Act, 1921; Payment of Wages Act, 1936; Factories Act, 1948; Maternity Benefit Act, 1961; Minimum Wages Act, 1948: Employees State Insurance Act 1948 and Pensions Act ,1987. In addition to this, the Constitution of India which is regarded as the supreme law of the land too gives special protection to women.
The provisions which deal with women’s rights in the Constitution are as follows; Article 14 expresses that the State shall not deny to any person the equality before the law and equal protection of laws with in the territory of India. Article 15(1) prohibits the State to discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth pr any of them. Article 15(3) permits the State to make special provisions for women and children. Article 16 provides that there shall be equality of opportunity for all citizens and they shall not be discriminated on the basis of religion, race, caste and sex. Article 39(a) of the Constitution provides that the state in particular direct its policy towards securing that citizen, men and women equally, have the right to an adequate means of livelihood. Article 39(e) of the Constitution provides that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 51(A)(e) of the Constitution provides that it will be the duty of every citizen to renounce practices derogatory to the dignity of women.
Further, Indian Penal Code, Criminal Procedure Code and Indian Evidence Act too, have some provisions which provide protection and a sense of security to women. Recently the Government’s piecemeal approach to protect women has taken a step forward enacting a law providing protecting women from domestic violence. With the establishment of National and State Human Right Commissions and National Commission for Women, gender issues are receiving greater attention.
The adoption of the Criminal Law Amendment Act 2013 by the Indian Parliament, converges with the recent global spotlighting of violence against women, including the adoption of a declaration on the elimination and prevention of violence against women and girls.[vii] The constant justification for a focus on the criminal law to address violence against women has been that prevention will take time. However, criminal law initiatives that further entrench a sexually sanitised regime fail to distinguish between sexual speech and unwelcome remarks, and target all sexual behaviour that does not conform to a sexually conservative script as reprehensible, make the battle to centre rights all that much harder. The new law in India retains the language and provisions dealing with the “outraging of the modesty” and chastity of a woman and then simply expands the range of activities that threaten or blemish this antiquated understanding of female sexuality. This approach cannot be a recipe for empowerment nor foster progressive change in thinking on matters of sex and sexuality.[viii]
Perhaps the most significant and pervasive issue left unaddressed by the new law is the everyday sexism that pervades the workplace, the public arena, the media and the educational system. No amount of censorship of sexual images can address the problem of sexism, the performance of which was on full display in the Indian Parliament during the debates on the new law. While sexual harassment, including unwelcome sexually coloured remarks, is criminalised, a focus on deterrence does not eradicate sexism nor produce respect for women. It merely empowers the state and the criminal law.
Chief Justice Anand rightly points out that the fight of women for their rights is not a fight “against men”. It is fight against unjustified traditions and the male created laxman rekha which women are not supposed to cross. He advocates CAMA- Change of Attitude, Motivation and Awareness of the society as the essence of ensuring gender justice in all spheres.
Gender Justice via Judiciary
After independence, the founding fathers of the nation wanted to reform the society and were keen to establish an egalitarian society. To achieve this end, they used law as an instrument to check the gender discrimination; number of laws were enacted to meet this end but due to strong patriarchal mentality and unfavourable social environment they failed to accomplish their goal. The social engineering through law was not fully achieved, while some rights enshrined under the enactments were enjoyed and accepted by the society, most of them remained only in papers due to lack of public support.[ix] Many evils are still practiced against women such as bigamy, child marriages, dowry and they are harassed in one or the other way. Malnutrition and illiteracy are growing at an alarming rate; rape and molestation have become daily phenomenon, the future of the nation seems bleak with the mushrooming rate of female foeticide.
Although, the Indian Judicial System has independently and effectively intervened on the issue of women emancipation. For instance, in C.B.Muthamma v. Union of India[x] , the validity of the Indian Foreign Service (Conduct an discipline) Rules of 1961 was challenged which provided that a female employee to obtain a written permission of the Government in writing before her marriage is solemnized and at any time after a marriage a women member of the service may be required to resign from service. The Supreme Court held that such provision is discriminatory against women and hence unconstitutional. The Supreme Court made it clear that we do not mean to universalize or dogmatise that men and women are equal in all occupation and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrated, the rule of equality must govern.
In Air India v. Nargesh Mirza,[xi] the Supreme Court struck down the provision of rules which stipulated termination of service of an air hostess on her first pregnancy as it arbitrary and abhorrent to the notions of a civilzed society. In Pratibha Ranu v. Suraj Kumar,[xii] the Supreme Court held that the stridhan property of a married women has to be placed in her custody, and she enjoys complete control over it, The mere fact she is living with her husband and using the dowry items jointly does not make any difference and affect her right of absolute ownership over them. Another landmark judgement was given by the Apex Court in the case of Gita Hariharan v. Reserve Bank of India,[xiii] in this case the Court interpreted Section 6 of the Hindu Minority and Guardianship Act 1956 and held that the mother could act as the natural guardian of the minor during the father’s lifetime if the father was not in charge of the affairs of the minor.
In Vishaka and Others v. State of Rajasthan,[xiv] the Supreme Court held that sexual harassment of working women at her place of an employment amounts to violation of rights of gender equality and right to life and liberty which is clear violation of Article 14, 15 and 21 of the Indian Constitution. The Court further observed that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facts of gender equality including prevention of sexual harassment or abuse.
Further, the Hon’ble Supreme Court in this case said that, as there is no law relating to sexual harassment in India, therefore the provisions of International Conventions and norms are to be taken into consideration, and charted certain guidelines to be observed at all work places or other institutions, until a legislation is enacted for the purpose.
In Apparel Export Promotion Council v. A.K. Chopra,[xv] again Supreme Court reiterated Vishaka ruling and said that attempts of sexual harassment of female results in violation of fundamental rights to gender equality enshrined under Article 14 and 21 of the Constitution. The Court further stated that international instruments such as the convention on the Elimination of All Forms of Discrimination against Women and the Beijing Declaration cast obligations on the state to take appropriate measures to prevent gender inequalities and protect the honour and dignity of women.
In spite of having so many enactments remedying the women situation as well as judgments of the Supreme Court protecting women, the downtrodden and poor conditions of women has not been improved.
In India, the new law represents a trend in South Asia to equate justice with the death penalty and stringent imprisonment terms. Yet empowerment for women cannot lie in merely attaching a death sentence on to the crime of rape, or increasing the mandatory minimum sentences for rape. Empowerment rests in the ability of women, sexual minorities, and religious minorities to be able to walk on the streets free from the fear of sexual violence, sexual harassment and rape.
The young women and men born in the crucible of globalisation and neo-liberal economic reforms are unlikely to be discouraged from demanding a gender-friendly and egalitarian workspace. And there is still a possibility that the new law in India will be challenged in the Supreme Court for violating women’s right to equality as well as excluding sexual minorities from its protection. Human rights for all must be made the focal point in good governance. “There can be no doubts about the inevitability of the human rights regime as the foundation of a good value based society. For human rights take a backward step, if gender justice is not achieved.” Though acknowledging that the government is formulating women empowerment policies, it is not a one man-job, the entire humanity will have to join hands to achieve the objective.
Edited by Kudrat Agrawal
[i] A.S.Anand, Justice For Women (Concerns And Expressions), v (2002).
[iii]Vijay Pal Singh, Gender Justice In India, available at http://www.legalserviceindia.com/articles/gen_j.htm.
[iv] Supra note 3.
[v]Meenu Agrawal, Women Empowerment And Globalization (A Modern Perspective), 160 (2009).
[vi]Amita Dhanda & Archana Parashar, Engendering Law (Essays In Honour Of Lotika Sarkar), 401 (1999.).
[vii]Ratna Kapur, Gender Justice, Uninterrupted, The Hindu, March 29, 2013, http://www.thehindu.com/opinion/lead/gender-justice-interrupted/article4559007.ece.
[ix]Women Empowerment And Gender Justice, available at http://www.hcmadras.tn.nic.in/jacademy/Article/Women%20Empowerment%20and%20Gender%20Justice-Dipak%20Mishra.pdf.
[x] C.B.Muthamma v. Union of India, AIR 1979 SC 1868.
[xi] Air India v. Nargesh Mirza, AIR 1981 SC 1829.
[xii] Pratibha Ranu v. Suraj Kumar, 1985 (2) SCC 370.
[xiii] Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
[xiv] Vishaka and Others v. State of Rajasthan, (1997) 6 SCC 241.
[xv] Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625.