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Introduction:
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 civilzed 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.
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Gender justice in India
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The
author can be reached at: vijaypalsingh3@legalserviceindia.com /
