lawyers in India

Gender justice in India

Written by: Vijay Pal Singh - Research Scholar
Immigration Law in India
Legal Service
  • It is a harsh reality that women have been ill-treated in every society for ages an 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 sections of life. She is being looked down as commodity or as a slave, she is not robbed of her dignity and pride outside her house but she also faces ill-treatment and other atrocities within the four walls of her house. They are considered as an object of male sexual enjoyment and reproduction of children. They are real dalits (downtrodden) of the society. They are discriminated at two levels, firstly they suffer because of their gender and secondly due to grinding poverty.

    Women are deprived of economic resources and are dependent on men for their living. Women works are often confined to domestic sphere, she had to do all house hold works, which are not recognized and unpaid. In modern times many women are coming out to work but has to shoulder the double responsibility; one she has to work where she is employed and secondly she also has to do all the house hold works, moreover, she is last to be considered and first to be fired as she is considered to be less productive than her counterpart. Her general status in the family and in the society has been low and unrecognized.
    From the cradle to grave, females are under the clutches of numerous evils acts as discriminations, oppressions, violence, within the family, at the work places an din the society.

    The root cause of all the evils 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.

    In our society girls are socialized from their 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 to live at the mercy of men, who exercise unlimited power over them. 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) !961 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, !948: 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 provision which deals with women rights 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 Indian Judicial System has independently and effectively intervened on the issue of women emancipation. For instance, in C.B.Muthamma V. Union of India 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, 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 civilized society. In Pratibha Ranu V Suraj Kumar 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[4], 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, 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 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 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, again Supreme Court reiterated Vishka ruling and said that attempts of sexual harassment of female results in violation of fundamental rights to gender equality enshrined under Article 14 an d21 of the Constitution. The Court further stated that international instrument such as the convention on the Elimination of All Forms of Discrimination against Women and the Beijing Declaration casts obligations on the state to take appropriate measures to prevent gender inequalities and protect the honour and dignity of women.

    Apart from theses cases there are many other cases in which the Apex Court had given the judgments, helping to give a dignified status to the women, for example Madhu Kishwar V State of Bihar, Gaurav Jain V Union of India, Delhi Domestic Working Women's Forum V Union of India, Bodhisathwa Gautam V Subhra Chakraborty.

    In spite of having so many enactments dealing with women and judgments of the Supreme Court protecting women the downtrodden and poor conditions of women has not been improved and she still faces all types of atrocities and legislature and judiciary some what fails to provide respect to women in society.
    After independence the founder father 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. Many evils are still practiced on women such as bigamy, child marriages are still in practice, dowry demands are still on rise, and women are still harassed for dowry. Malnutrition and illiteracy are growing at alarming rate, rape and molestation have become daily phenomenon, and moreover still we see women as commodity as one of the songs of the movie depicts her as Tu cheez badi hai mast mast.

    It is said that the law without the public opinion is nothing but a bundle of papers. The gap between the men and women cannot be bridged by just enacting laws without any public support and opinion as social engineering laws are different from penal laws which are just related to injuries and punishment and are deterrent in nature but social engineering laws enacted to uplift the norms of the society and are progressive in nature and therefore it should be backed by the will of the people for whom it is enacted. It is also be clear that centuries old practice can not be eliminated in one or two days it take much time. And when laws are enacted to bring radical change in society and are not backed by the will of the people or laws are ahead of public opinion then it has to face great resistance and opposition from the conservative thinking of the society and they are like dead law, which have no effect on society.

    In India the most of the laws were not effective as they were ahead of public opinion and willingness of the people to change the society and give the women the status of equality in society too lacked, so in order to give women their respective position in the society strong public opinion should be created trough education, seminars and by taking the help of various other instruments of the society such as media etc, so that the people of the society should get educated about and change their centuries old thinking and willingly implement the laws enacted for the emancipation for women.

    To improve the status of the women in the society the need of the hour is that laws should be enacted but they should be backed by strong public willingness and public opinion because so long as conservative social thinking remain deep rooted in the society laws will not be able to achieve their ends. It must be asserted that social reforms is in social thinking, behaviour and law would be effective only if they are backed by major section of the society.
    As it rightly said, by Wendell Phillips: Law is nothing unless close behind it stands a warm living public opinion.

    The author can be reached at: [email protected] / Print This Article

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