By Sumit Kumar Suman, CNLU
The terms “winds of change” may be interpreted in the broad sense. It may be interpreted in respect of Indian legal system, Indian Judicial system, Indian culture and society as well and winds of change for women in India and in politics. Here in this present essay researcher mainly focuses on the point of “winds of change” in respect of the Indian legal system, the issue with regard to women safety.
A good legal system represents good governance in the country. We may say that India is a vibrant democracy and we may, further, proudly say that Indian society reflects ‘unity in Diversity’.[i] In any democracy, a citizen should be able to get Justice. If a person is not able to get justice, it is really atrocious. Law in India has evolved from religious prescription to the current constitutional and legal system and we have today, traversing through secular legal systems and the common law.
India has a recorded legal history starting from the Vedic age and some sort of civil law system may have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. So far as the status of women in ancient times is concerned according to scholars women carried equal status to the men. There are so many cases in which the Supreme Court mainly focuses or we can say that prescribed guidelines with respect to women safety in India. Here certain guidelines have been given as follows:
- The duty of employer or other responsible persons in workplaces and other institutions- It means it shall be the duty of employer or other responsible persons in workplaces and other institutions to prevent the commission of acts of harassment (sexual harassment) of the women and have to take necessary precautionary measures.
The Supreme Court also defines the term sexual harassment and said that it includes these following behavior:
1. Physical contact and advances;
2. A demand or request for sexual favors;
Sexually colored remarks;
1. showing pornography; and
2. any other unwelcome physical, verbal, non-verbal conduct of sexual nature.
Now, Women in India-a better half of Indian society, today, are becoming the most vulnerable section as far as their safety and security are concerned.
INDIAN LEGAL SYSTEM WITH RESPECT TO WOMEN SAFETY
So far as present essay topic is concerned with regard to the Indian legal system, the aim of the topic is to try and find out what are the changes in the legal system so far as present scenario is concerned. As regard to the women safety, what are the present function of our legal system and what are the changes that have taken place? So far as our Indian legal system is concerned there are so many enactments has been made with regard to woman safety.
Some of those enactments has been given below:
Women specific legislation
1. The Dowry Prohibition Act, 1968 (Amended In 1986).
2. The Indecent Representation Of Women (Prohibition) Act, 1986.
3. The Commission Of Sati (Prevention) Act, 1987 (3 Of 1988).
4. Protection Of Women From Domestic Violence Act, 2005, and
5. The Sexual Harassment Of Women At Workplace (Prevention, Prohibition, And Redressal) Act, 2013.
1. The Constitution Of India;
2. The Indian Panel Code, 1860;
3. The Criminal Procedure Code, 1973;
4. The Indian Evidence Act, 1872;
5. The Hindu Marriage Act, 1955;
6. The Hindu Succession Act, 1956;
7. The Special Marriage Act, 1954;
8. The Indian Divorce Act, 1969;
9. The Foreign Marriage Act, 1969 (33 Of 1969);
10. The Maternity Benefit Act,1961 (53 Of 1961);
11. The Child Marriage Restraint Act, 1929;
11. National Commission For Women Act, 1990, among other legislation.
As we know that the Indian constitution is the suprema lex, from where all the other laws derive their sanctity or validity. So far as the constitutional provisions are concerned, the principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles.
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.
The Constitution of India does not only grant 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.
There are some Fundamental Rights which, ensure equality before the law and equal protection of laws; and 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. These following articles are prescribed in this regard:
Article 14 – deals with the equality before the law for women;
Article 15(3) – deals with the power of the state, it means it says that state can make any special provision in the favour of women and children;
Article 16 – talks about Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State;
Article 39(a) talks about the State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood;
Article 39(d) which deals with the equal pay for equal work for both men and women as well.
Article 42 which talks about the power of the state and it says that state can make provisions relating to or for the securing just and human conditions of work and for maternity relief.
Now we come to the point of legal provisions with related to women. 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’, ‘Theft’ 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 Indian Penal Code 1860 and the Criminal Procedure Code, 1973
2. Sexual Assault (Section 376)
3. Kidnapping & Abduction for different purposes ( Section 363-373)
4. Homicide for Dowry, Dowry Deaths or their attempts (Section 302/304-B)
5. Torture, both mental and physical (Section 498-A)
6. Molestation (Section 354)
7. Sexual Harassment (Section 509)
8. Importation of girls (Section- 366-B)
9. Maintenance of wives, children and parents (Section 125-128, CrPC.)
10. The crimes identified under specified under special laws.Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments are carried out to keep pace with the emerging requirements. Some Acts which have special provisions to safeguard women and their interests are:
1. The Employees State Insurance Act, 1948
2. The Family Courts Act, 1954
3. The Special Marriage Act, 1954
4. The Hindu Marriage Act, 1955
5. The Hindu Succession Act, 1956 with an amendment in 2005
6. Immoral Traffic (Prevention) Act, 1956
7. The Maternity Benefit Act, 1961 (Amended in 1995)
8. Dowry Prohibition Act, 1961; and etc.
So we can say that there are many laws which have been made for women’s safety, for instance, the Hindu personal law under which, prior to 2005 amendment in Hindu Succession Act 1956, a daughter had no right to inherit the ancestral property. But now after the 2005 amendment, a daughter has also equal right to ancestral property.
So, under the Mitakshara school of Hindu law, a woman in the Joint Hindu family had the right only to maintenance or sustenance but not the inheritance of property prior to the 2005 amendment. Consequently, if a partition took place in the coparcenary (joint family) property, then each male coparcener was entitled to a share. But a daughter did not get a share. The daughter would only get a share as one of the heirs on the death of coparcener. But when 2005 amendment come in to role daughter also treated as a coparcener.
So, far as the Indian judicial system is concerned, it plays a significant role in interpreting the law. The Supreme Court, from time to time gave guidelines and decision in the respect of woman safety or interpret the law protection for the woman.
SHORTCOMINGS OF THE INDIAN LEGAL SYSTEM
As we know that the Indian Legal system is mostly based on the Common law of the England. The Indian Judicial System is one of the oldest legal systems in the world. It is part of the inheritance India received from the British after more than 200 years of their Colonial rule, and that is why there are many similarities the Indian legal system shares with the English Legal System.
So far as the present scenario in respect of Indian legal system with regard to woman safety there are several problem which are must be taken into the consideration like the fixing of the age of minor for the purpose of marriage or other purpose. If we look towards our Judicial system then we find so many problems in regarding the pending of cases. Three crore cases are pending before our Indian Courts.
According to the Law Commission of India, there are twelve judges for the every one million citizen. As we know that the Indian judicial system is also so complex and it takes so many times for the disposal of the case. Due to corruption the Indian Judicial system also takes more time for disposal of the case. One thing is also clear about our legal system it lacks in-house self correcting mechanism.
In many countries, the system of jury ensures the involvement of common citizens in judicial decision-making. Jurists also says that the judiciary is an integral part of the society and its interaction with the local populace is a healthy thing. In fact, its linkages with the society must be strengthened and nurtured. But in Indian Judicial system is concerned, things are different the Indian judiciary still is as an extension of the colonial regime. The British set up the system as a symbol of imperial power and the court procedures were meant to make the natives servile. The historic aloofness should have changed in the last six decades, but the judicial officers have failed to come closer to the ground to meet the common man.[ii]
So as far as the interaction of Judiciary with the Academic is concerned, in almost all democratic countries of Europe, there has been a long tradition of the interaction of the judiciary with the academic brains. That serves to provide feedback and guidance to both. In fact, universities offer fertile ground to cultivate and grow fresh ideas and have the potential to act as think tanks. But so far as Indian Situation is concerned, it is quite the reverse. So far as our unsatisfactory legal as well as judicial system is concerned, the reason for that unsatisfactory situation lies in India’s social structure and attitudes which are very much conditioned by entrenched habits of discrimination.
So as far as the author’s concluding part is concerned, in the course of this essay, we found that this theme is itself clear and has pointed out what are the changes that has come in our legal system and what the changes that are about to come. To conclude, the author would like to say that Indian women have come a long way and proven that she is capable of doing anything and being an equal partner in the growth and prosperity of the nation. Women are one of the pillars of the society and it would be very difficult to imagine a society without the presence of women.
Even our judiciary and legislature has also accepted the fact that women are one of the most important elements of society and their exploitation would not be accepted at any cost. So we must give them due care and respect and understand their efforts towards the welfare of the society at large. Thus we can find many constitutional as well as legal provisions with respect to women safety.
So far as the author’s suggestions are concerned, with regard to women safety as follows:
1. To create an environment so that women feel involved in the making of economic and social policies.
2. To give an equal share in social, economic, and political aspects;
3. To remove discrimination against women by implementing various laws;
4. To encourage equal treatment of women in the society;
5. Involvement of the Voluntary Organizations and NGOs in awareness programmes.
Formatted on February 18th, 2019.
[i] How Healthy is Indian Judicial System? http://socialissuesindia.wordpress.com/2012/03/03/how-healthy-is-indian-judicial-system/available at http://www.topcafirms.com/index.php/white-paper/3626-indian-legal system-problems may-not-end-soon/