Sensitivity of Indian Judiciary towards Women Empowerment in India

Sensitivity of Indian Judiciary towards Women Empowerment in India

Author: Shreya Saxena,
Prof.: Student, BBA.LL.B IIIyr,
 Jamnalal Bajaj School of Legal Studies,
 Banasthali Vidyapith, Rajasthan.



    Introduction


    Certain progressions in the recent times have shown and made it noticeable to the people of our country that the dominating status of the masculine gender and the prevalence of the unfair patriarchal society in our nation have started to observe descend, which might acquire promptness in the near future.

    Women in India have rights equal to those of men of this country. They occupy almost half population of the country and are involved in the growth and development of the country with the proportion almost equal to that of men.It is totally evident and perceptible that women in modern India are not at all hesitating to join the high offices as some of the examples may be quoted –
    Smt. Pratibha Patil as the President of India,
    Meira Kumar and Sumitra Mahajan as thespeakers of Lok Sabha,
    SushmaSwaraj as the Union Minister of External Affairs and also the first femaleLeader of Opposition in India,
    It is a long list to go and hereby raises a question of utmost importance- What is ‘Women Empowerment’? The sprightly approach to this concept says it simple that it means the emancipation of women from the vicious grips of social, economic, political, caste and gender-based discrimination that is predominant in our society since early times. It means granting women the freedom to make life choices. One can say that Women empowerment does not mean ‘deifying women’. It rather means replacing ‘patriarchy’ with ‘parity’.
    On a general basis, women empowerment includes empowerment within the family and thereby empowerment in the society in which we live, we breathe and are going to grow as individuals. Contribution of women in making decisions, earning for themselves and their families, sharing of the basic needs like food, shelter and clothing and also commanding respect for self is a prerequisite to the empowerment of women in the social order of a country. Active participation of women is also required and is essential in the procedures of development namely policy making, planning, organising, implementing, controlling and evaluating along with their male counterparts. The defiance of gravity in the social status of women, increasing prospects related to education, obtaining employment opportunities, sharing economic means as well as resources, raising the standards of living, active participation of women in governance and so on constitute the process of ‘empowerment of women’ in letter and spirit. This empowerment in some way or the other is among those prolific reasons for the development of a country.

    Kofi Annan has thus rightly said, ‘There is no tool for development more effective than the empowerment of women in a country’.
    However, the expression – ‘behind the curtains’ is completely apt in its usage here. The bitter reality is that the condition of women in India is still driven by an underlying stigmatization. Indian women are endlessly facing problems that are out of the count such as sexual harassment, violent victimization through the heinous offen
    ces like those of rape, acid attacks, some others like dowry deaths, forced prostitution, and many more.   

      Historical Background of Women Empowerment in India:


    The history of women cannot be considered as linear, nor does it have a well- organised structure. It is, in fact, avital, though mostly invisible, part of a saga civilization[1].  From ancient to modern period, there were and are various aspects like social, political and economic where the circumstances for women in our countrywere not the same and they still keep changing with the passage of time. In ancient India, women had equal status with that of men. In the early Vedic period Women were very educated. But with the gradual applications of famous treatises along the stretches – the status of women was clearly relegated to a subordinate position to that of men. All and different kinds of discriminatory practices started to take form such as child marriage, the devadashi pratha, nagar vadhu system, the sati pratha and several such examples in heaps. Women’s socio-political rights were curtailed and they were made to be fully dependent and at the mercy of the male members of the family. Their right to education, right to work and to take decisions were taken away. During medieval period the condition of women got worsened and degenerated with the advent of the Muslim rulers in India. However the British rule paved the ways by introducing western ideas into our nation.A number of Indians were enlightened and became highly influenced by the modern concept of freedom, liberty, equality and justice. Raja Ram Mohan Roy was one such enthusiastic person and carried the load to question the prevailing discriminatory practices against the women of our country. Those were his unrelenting efforts that left the British with no other choice but to abolish the ill-practice of Sati. There were various other social reformers such as Swami Vivekananda, Ishwar Chandra Vidyasagar, Acharya Vinoba Bhave and the like who worked for the elevation of women in India. The Widow Remarriage Act of 1856 is a noteworthy instance which was the result of Ishwar ChandraVidyasagar’s movement for improving the conditions of the widows. These efforts gradually gained support of the political groups in our country at that time. The Indian National Congress supported the first women’s delegation which met the Secretary of State and demanded the political rights of women in 1917. The Child Marriage Restraint Act in 1929 was passed due to the hard work of Mahatma Gandhi who called upon the young mento marry the child widows and counselledand thereby urged people to boycott child marriages[2]. During the struggles for freedom of our nation from the British, almost all the leaders of thisskirmish were of the opinion that women should be given one and the same status with that of men in free India and all types of discriminatory practices had to be put to stop. And for that to happen, it was thought fit and suitable to inculcatecertain provisions of similar nature in the Constitution of India which would help in eradicating age-old customs and traditions which were exploitative in application. Inclusion of certain provisions which would help in empowering women socially, economically and politically became one of the immediate requirements.

    In India, there are various laws and edicts aiming towards the empowerment of women in the areas of personal, labour, services, criminal and social and economic matters. The primary instance has to be the fundamental law of the land, The Constitution of India which guarantees equality for the feminine gender.[3]Hereby it would be proper to refer some of the most essential legislations pertaining to empowerment of women.
    ·        Constitution of India, 1950:The Constitution of India being considered the supreme law, not only guarantees equality to women but also empowers the State to adopt measures so as to eliminate any sort of negative discrimination against women.
    Article 14 of the Constitution of India guarantees equality before law.
    Article 15 disallows discrimination on the grounds of sex.
    Article 16 states about equality of opportunity for all citizens in matters relating to employment.
    The 73rd and 74th amendments to the Constitution of India provided for reservation of seats (at least 1/3) in the local bodies ofPanchayats and Municipalities for women[4]. The instances can go on and forth.
    ·        Indian Penal Code, 1860:The sections 292, 293 and 294 provide for punishment in sale and exhibit of obscene books and contain retributions for obscene acts in public places. The section 304Bof this code deals with the offence of Dowry Death. Sections 312 to 318 talk about retributions for causing Miscarriage. Section 354 provides punishment for outraging the modesty of any women. Section 366deals with Kidnapping for marriage against the will of a woman. The section 366A deals with Procuration ofminor girls for sexual purposes.Section 376 deals with the punishment for the heinous offence of Rape. Section 494 protects women from Bigamy. Section 509 provides punishment for Articulating words andgestures or acts intended to insult the modesty and dignity of a woman.
    ·        Indian Evidence Act, 1872:Sections 113(a), 113(b) and 114(c) provide for conjecturesas to abetment or instigation of suicide committed by a married woman within 7 years of her marriage, as to dowry death of awoman and as to absence of consent of woman for sexual intercourse.
    ·        Hindu Adoption Maintenance Act, 1956:Section 18A provides for compulsory obligations ofhusband to maintain as well as upkeep his wife. Section 18(2) provides right of wife to live separately and Section 19provides formaintenance of a widow by her father-in-law.
    ·        The Hindu Marriage Act, 1955:Section 13(2) of the Act provides for some special grounds for the wife so as to present apetition for divorce in the court of law. Section 13(b) provides equal rights for wife so as to get divorce by conjointor mutual consent.Section 24 of the Act provides for relief for provisional maintenance and interim expenses. Section 25 ofthe Act provides for rights of a wife to seek permanent alimony and maintenance and Section 26 of the actprovides for right to claim custody of the children.
    ·        The Dowry Prohibition Act, 1961: Under the provisions of this Act, demanding of dowryeither before marriage, during marriage and or after the marriage by the husband, the in-laws or people associated under similar relations is an offence.
    ·        The Factories Act, 1948: The provisions of this Act provide for health, safety, welfare,andworking hours for women labourers working in the factories. 

    The Sensitivity of Indian Judiciary towards Woman Empowerment

    ‘Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaahkriyaah’
            Manusmriti (3.56)
    The above written lines are the often quoted sayings of Manu when translated in to a simpler language mean – wherever women are given their due respect, even the deities like to reside there and where they are not respected, all actions remain unfruitful[5].

    These lines have been taken into account at various instances by the Supreme Court of India, specially mentioning, while adjudicating the verdict for the infamous  ‘Nirbhaya Rape Case[6]’ which happened in the national capital of Delhi in the year 2012 whereby the brutality with the prosecutrix of the incident took to another level. This and many other cases in point show that the Indian judiciary has always been eager to provide justice to the female victims and bring them to the same level as that of the men in our society so as our nation can move forward towards development and therefore out of the group of the ‘third world countries’. We shall hereby search and go through some historical aspects about how the Indian Judiciary gradually came forward with the role of interpretation and implementation of statutes relating to the administration of justice to the feminine in our nation.

    Justice is universally considered to be the function of the sovereign. It is an attribute of human conduct. In earlier times, there was not that much proportion of directions of justice to the people in general. Back then, specialised institutions such as Courts were not present in the earlier societies for the settlements of disputes. It is factual to note that the earliest procedures and modes of justice took the form of ‘revenge’ which was a private matter. In course of time, the kings acquired the authority to maintain law and order and likewise assumed the responsibility as well as accountability of justice adjudication and punishing those who committed crimes of any sort- be it simple or brutal against what was considered to be the ‘king’s peace’ by the British. Therefore with the emergence and the consolidation of state’s power, the administration of justice came to be regarded as falling in its entirety within the dominion and purview of the state[7].

    The administration of justice is thus the primary task of the judiciary, thus one of the essential organs in the exercise of democracy in our country. Former CJI J.S. Verma rightly said that, “The judiciary always bears in mind that justice is to be administered according to law and the chief law is the public good.”[8]Hereby several laws enacted by the government of India have direct and indirect bearing on the status of women. Since the laws and regulations have been enacted, the women have been approaching the judiciary to get an affirmation for the safeguard and maintenance of their rights and interests. Women from time to time have been seeking justice against social discrimination, sexual harassment at work places, violence, rape, dowry and immoral trafficking etc. It is noticeable that the Indian Judiciary has been very sensitive to the women and the issues related to them.

    Our country has a unified judicial system with the Supreme Court at its top, unlike the situation in the United States of America[9] which has a federal legal system where there is a clear cut separation in the jurisdiction of each of the state level Courts with the US Supreme Court interfering with the state legal system only in the extreme circumstances. On the other hand, our country has a hierarchy of Courts in a structure like that of a ‘pyramid’ with the Supreme Court standing like a sentinel on the ‘qui vive’ at the apex and is holding the crucial position of the legal guardian and protector of the Constitution of India. The Constitution of our nation has assigned it the role to ensure rule of law including the supremacy of law in the country. For this purpose, the Supreme Court has been conferred with wide powers of judicial review according to the Article 13 in the part III of the Constitution of India. Below the Supreme Court are the High Courts in the states and below the High Courts is a vast network of the subordinate Courts.

    Our Constitution provides for express provisions for confirmatory actions in favour of women. These express provisions prohibit all types of discrimination against women and lay a carpet for safeguarding and securing equal opportunities to women in all walks of life, including those of education, employment and participation. Our Judiciary has played an active role in enforcing and strengthening the constitutional goals towards protection of the rights of the women of the land. The Courts in India have tried to interpret laws in consonance with various international treaties and conventions, an important one being the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) which was ratified by India in 1993[10].

    The active role of the Indian judiciary in enforcing and strengthening the constitutional goals en route for protection of the rights of women of the land can be assessed by the analysis of the following case laws wherein some landmark judgements were passed by the judicial authorities.

     Vishakha v. State of Rajasthan[11]:
    The Supreme Court observed that equality in employment can be seriously impaired when women are subjected to gender specific violence; such as sexual harassment at work places. Therefore the Supreme Court issued several guidelines thereby ensuring equality in opportunity and justice to the women and their safeguard from such offe
    nces.


     Rupan Dool Bajaj v. Kanwar Pal Singh Gill[12]:
    The Supreme Court rejected the contention of the defence of the absence of any immoral intention and also of the triviality of the issue and observed the above case from a women’s perspective. Court thus observed that, intention was immaterial if the offence was likely to outrage the modesty and dignity of appellant, as the alleged act was committed in the presence of a gathering comprising the elite of society.

     Mackinon Mackenzie v. Audrey D’Costa[13]:
    The Supreme Court observed that there was discrimination in payment of wages to lady stenographers and such discrimination was being perpetuated under the garb of a settlement between an employer and an employee. Therefore the Court made it mandatory to pay equal remuneration to lady stenographers as their male counterparts.

     GithaHariharan v. Reserve Bank of India[14]:
    The Supreme Court relied on gender equality principles enshrined in the Indian Constitution, widely interpreted the word “after” in the provision under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and upheld the constitutional validity of the same. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of  the HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the said act can be a father or a mother – whoever among them is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father[15].
     Air India v. NargeshMeerza[16]:
    This case dealt with the women’s right to equality as enshrined under the article 14 of the Constitution of India. In this case the Supreme Court struck down the clause of retirement of air hostess on attaining 35 years of age or on marriage within first 4 year of service or on first pregnancy as being arbitrary and unreasonable and clearly violated theabove said article of the Indian Constitution.

      Joint Women’s Programme v. State of   Rajasthan[17]:
     The Supreme Court in this case directed the states of Rajasthan and Haryana to proceed with the investigation of two so-called dowry deaths. The decision also directed the two states to create Special Dowry Cells at the state level to investigate dowry deaths through special investigative units and authorized the ministry dealing with social welfare and women’s problems to designate one or two leading women social workers to be associated with the Cells.

      Railway Board vs. Chandrima Das[18]:
    The Supreme Court concluded that the victim could recover under public law due to the violation of her fundamental rights, enshrined in the declarations and the Indian Constitution as this case was a case of gang-rape under the public law because the accused were employees of the national railways. The case included a discussion of the application of United Nations resolutions domestically, including the Declaration on the Elimination of Violence against Women and the Universal Declaration of Human Rights.

    Laxmi v. Union of India[19]:
    In this case the Supreme Court took cognizance of the number of cases related to acid attacks against women which were and are on the rise and therefore imposed stringent regulations on the sale of acid in 2013.
    ·       ShamimaFarooqui v. Shahid Khan[20]: 
    The Supreme Court held that women could not be treated as beggars at any cost and their grace could not be lowered in exercise of their rightful entitlement to maintenance after divorce if the husband has since then retired from his service.
    It can hereby be concluded that the Indian Judiciary has been efficient in protecting women‘s rights and empowerment of women. Thus, it can be clearly observed that besides the legislature, the judiciary also plays a very vital role in the cases of women empowerment. Our judiciary thus empowers the women of our country by its both traditional and activist role whereby the traditional role of judiciary is to provide justice through the interpretation of laws. Another role of judiciary is the activist role which is popularly known as ‘Judicial Activism’. Where, if there is no particular law for a specific offence the Indian judiciary applies its activist power and adjudicates the judgements according to its own discretion. At present, women empowerment is popular issue in our country and is a concept undergoing the stages of progress. However, there are still so many areas of women empowerment where there is no law for the protection of women and; in that case the Indian judiciary is the last hope and resort. One shall still not lose hope as the Indian Judiciary has taken up the implementation role along with the interpretational role it already had since our nation’s independence. These positive steps taken by our judiciary are one of the reasons; our country is on an escalation towards its development. The above conclusion thus affirms the words of Jawaharlal Nehru –
    “You can tell the condition of a nation by looking at the status of its women”





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    [1]Neera Desai and UshaThakker, Women in Indian Society; 2001
    [2] R. Gattaiah, Women Empowerment in India and Judicial Activism; 2017
    [3]Mamta Mokta, Empowerment of Women in India: A Critical Analysis (July, 2014)

    [4] KK Ghai, 73rd And 74th Constitution Amendments and Reservation for Women, http://www.yourarticlelibrary.com/constitution/73rd-and-74th-constitution-amendments-and-reservation-for-women/40440

    [5] Naveen Sanagala, Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaahkriyaah: Women are honoured where, Divinity blossoms there; https://hindupad.com/yatra-naryastu-pujyante-ramante-tatra-devata-women-honored-divinity-blossoms/
    [6]Mukesh&Anr.VsState for NCT of Delhi &Ors, CRIMINAL APPEAL NOS. 609-610 OF 2017
    [7]Kamala Sankaran and Ujjwal Kumar Singh, Towards Legal Literacy, (2008), p.27
    [8]J.S. Verma, New Dimensions of Justice, (2000), p. 12
    [9]The United States has a dual system of Courts. There is a judicial hierarchy at the state level, which has a state Supreme Court at its top. To deal with the matters relating to federal law, there is a separate hierarchy of Courts.
    [10]R. Gattaiah, Women Empowerment in India and Judicial Activism; 2017
    [11]Vishakha v.State of Rajasthan, AIR 1997 SC 3011.
    [12]RupanDool Bajaj v. Kanwar Pal Singh Gill, AIR 1996 SCC 309: 1996 Cr. L.J. 381.
    [13]Mackinnon Mackenzie v. Audrey D’Costa, AIR 1987 SC 1281.
    [14]GithaHariharan v. Reserve Bank of India, AIR 1999 SC 1149.
    [15]Cornell Law School: Legal Information Institute, Hariharan v. Reserve Bank of India; https://www.law.cornell.edu/women-and-justice/resource/githa_hariharan_v_reserve_bank_of_india
    [16]Air India v. NargeshMeerza, (1981) 4SCC 335.
    [17]Joint Women’s Programme v. State of Rajasthan, AIR 1987 SC 2060.
    [18]Railway Board v. Chandrima Das, (2000)2 SCC 465: AIR 2000 SC 989.
    [19]Laxmi v. Union of India, WP(Cr.L.) No. 129 of 2006.
    [20]ShamimaFarooqui v. Shahid Khan, CRIMINAL APPEAL No.S 564-565 of 2015.

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