Women were subject of oppression over the years but gradually and slowly the conditions and the situations changed. This positive change in the aspect of the women’s growth and development in the society can be seen through the process of laws and several legislation being adopted and implemented in the Indian society. These changes and amends over the years make it possible for women to be given the equal status that they deserve and have the best of the opportunities for their welfare and progress in the community.
Legislation and Laws introduced
The Constitution provisions were under the Articles 14 and 15 which provides for the right to equality and the right to not be discriminated on the basis of sex, religion etc. these Constitutional provision under the Part III protects the rights of the women and declares the unconstitutional practices against women. It provides for the power of the legislature to make special laws for the protection and welfare of women in the society at large. It also provides for the equal opportunity to be given to the women in relation to the opportunities at the workplace and the employment in the State (Article 16). These are the part of the fundamental rights guaranteed by the Constitution. Under the Directive Principle of the State Policy, it is the duty of every state to ensure that the women and men get the equal pay for the equal work done and there is no discrimination on that basis (Article 39(d)). Women are also provided maternity leave rights. Under the provision of Article 243 D and 243 T, it provides for the reservation of seats (not less than one- third of the seats) for women in Panchayat as well for Municipality respectively. It also provides for reservation in case of the seats for women in the office of the Chairperson.
The Women’s Reservation Bill or the Constitution (108th Amendment) Bill, 2008 which has not yet been passed over but has expired and no longer valid dealt with the provision for the reservation of the seats for women in the Parliament where the representation was very less but women are still yet denied the right.
The Protection of Women from Domestic Violence Act, 2005 was brought with the view that the violence, the atrocities and the crimes against the women in their household itself as a grave rise and it has become for women not only outside but even inside their house the condition as threatening. Women are beaten brutally; they are treated as an object or servant and are not given the respect and individuality that they deserve. Women are subjected to sexual and mental violence depriving their conditions. Because of these reasons this act was brought forward in the Indian legislation to give women the requisite rights that they deserve and they can get their rights enforced if these are infringed.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has brought forth for the protection of women where it has become unbearable for women to work because of the sexual advances and inappropriate work environment towards women. They are a subject of unequal treatment if they do not respond to these advances and are put the blame on. They cannot even go to report these cases because of no stringent laws earlier. But after this Act, 2013, women come forward with these pleas and put the real culprit behind the bars for hampering their dignity.
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 is being put forward. The Bill highlights that the women are put into the trade forcefully and they are sold to the people as they are goods or commodity having no individual existence. It is the gruesome kind of act which is in the dire need of the legislation where women are subjected to sexual cruelties, they are raped, put into the prostitution business and forced into the labour and other aggravated forms of offences are committed against them. These are so horrifying incidences which are held with women so much so that they hamper the dignity of the women and torture them physically and mentally. Though, there are certain legislation in the Indian Penal Code (Section 363, 366 and 370) which are relating the punishment for the trafficking but a complete statute under that parameter is a necessary requirement. It provides for seven years of punishment for the trafficking or the importation of women for illegal purposes so as to treat them with aggravated stance of mentality and harming their dignity. The laws in relation to the Immoral Trafficking (Prevention) Act, 1956 are there but these are limited in scope.
The Prohibition of Child marriage Act, 2006 provides for the penal punishment for anyone who engages in the child marriage of a person. A woman below the age of 18 years and a man below the age of 21 years, if they get married then that are considered as child marriage. The National Commission for women’s Act, 1990 provides for a forum where the rights of the women, their constitutional and legal rights are maintained and safeguarded. It is basically a regulatory and statutory body of the government. Another important phenomena is the Surrogacy Bill, 2016 where the regulation regarding the surrogacy can be made sure comply with the law and not go against it by the medical practitioner in the garb and selfishness to have more money.
The development after the case of Nirbhaya on the Criminal Law (Amendment) Act, 2013 was brought. The progress made through this bill by the bringing of the new offences into the Indian Penal Code, 1860 like the sexual harassment of the women under Section 354A where the sentence can be of three years of imprisonment for the sexual advances against women. It also provides for new offence Voyeurism where a person sees the women doing her private act or clicks her picture or makes a video of that and causes the dissemination of that data to other people then it will lead to the offence of voyeurism under Section 354C where the punishment can be of three years.
Acid Attack is a phenomena which is at a high risk causing the life of the women in danger and to inflict the kind of harm and grievous hurt on her which she suffer not only physically but mentally as well but the wrongdoer doesn’t get caught. But under Section 326A of the Indian Penal Code, the punishment is of ten years which court can increase to the imprisonment for life. It also deals with the offence stalking making it punishable with three years of imprisonment in the eyes of law. It also covers staking in the information technology phase where with the advancement in the technology the risk of the stalking of women and snatching their personal information violates their right to privacy and can be harmful. It is given under Section 354 D of the Code, 1860.
The changes have been made in the rape provisions where its definition is expanded to include penetration and other phenomena’s. It also provides that any sexual intercourse with a women below the age of 18 years is rape whether it is with her consent or not. Under Section 376A, where a woman is left in the vegetative state to die as happened Nirbhaya’s case after the rape, the highest punishment which can be provided is of death penalty to the guilty person. It also brought changes in the Indian Evidence Act, 1872, where if the woman who was raped her consent is not there shall be presumed phenomena for which it is not required to provide evidence for it. Once the women says that she did not give the consent, then court shall presume that there was no consent and will not proceed to take any further evidence for it. Another thing added was that the character of the women will not be questioned as to if she is a prostitute or she has illicit relation. Rape is a rape and her past character cannot change that fact.
The very recent development in the Criminal Law (Amendment) Act, 2018 has led to the more safety and security of women in the society. The rape laws have been made stringent and other provisions have been added by the Parliament in the Indian Penal Code, 1860 for an effect change in the women’s legislation. In this amendment, the punishment for a person who commits rape on a woman of age below sixteen years will be imprisoned to twenty years. It also provided for the death penalty for the rape committed on the women below the age of twelve years. Under the Criminal Procedure Code, it had provided that the person accused under the rape provision asking for bail has to be informed about it to the Public Prosecutor within 15 days. It also inserted the provision that the appeal under the rape provisions shall be dismissed with six months. This speedy disposal of cases of rape is an important provision so as to meet the ends of justice for women.
Some landmark judgements
The case of the Independent Thought V Union of India (2017) 10 SCC 800 is an important one in this phenomenon where the rape provisions which were discriminatory in nature were the nature of dispute. Under the Section 375 of the Indian Penal Code, 1860, the Exception 2 of the said section which provided that if a married women is above the age of 15 years and below the age of 18 years, then that comes under the exception of rape and the sexual intercourse between her and her husband will be considered as rape. The important thing to note here is that a person below the age of 18 years is considered as a minor not capable of making his own decisions and has the protection of him from his guardian or parents. The another important point to be noted is that under the Hindu Marriage Act, 1956, Section 5 of the Act provides that a marriage will not be a valid marriage if some of the conditions are not followed. One of the important conditions is that the women should be above the age of 18 years and the males above 21 years. This means that the marriages that happen between the age of 15 and 18 years are that of the child marriage which is also an offence and not permitted.
In the view of this conflicting situations the Hon’ble Supreme Court of India, held that the Exception 2 has indeed invalid provisions but since the power of repealing the provision lies with the Parliament of India, they can only alter the provision to increase the 15 years to 18 years making it in consonance of the other provisions and not in conflict.
The Indian Young Lawyers Association & ors. V. The State of Kerala & ors. Writ Petition (Civil) No. 373 of 2006 [Sabarimala Judgement (2018)] is an important case in the progress of the women’s rights where women were not allowed to enter the Sabarimala temple that were of the menstruating age (10 years to 50 years) as they were considered as impure so they were denied entry into the temple and offer their prayers. This judgement has been an evolutionary one giving the women rights to enter the temple and practice their religion. The Supreme Court said that this bar on the entry is highly discriminating and arbitrary in nature being violative of the constitutional provisions of Article 14 which provides for right to be treated equally and Article 15 which provides for no discrimination on the ground of sex, religion etc., and also violative of the right under Article 25 which provides for the freedom of a person to practice his religion and profess it. Thus, the judgement is a landmark judgement where it gives the women their rights which they were deprived off for years. But, the important thing to note is that even with the judgement which came in September, 2018 the women were not allowed entering by the mass of procession that took place and violence. It was not until January, 2019 that the women started entering the temple to offer their prayers.
Under the recent development in the case of Navtej Singh Johar & ors. V. Union of India Writ Petition (Criminal) No. 76 of 2016, where the rights of the LGBTQ community are recognised giving them the much importance and preference in the society, in the workplace and various avenues. Under Indian Penal Code, 1860, Section 377 had criminalised the sexual intercourse between people of the same sex. This part of the provision was held to be unconstitutional and interfering with a person’s human rights and therefore against the Article 14 and Article 2 which provides for equality before law and right to life and liberty respectively. This marked as a landmark judgement by the Supreme Court recognising the rights of LGBTQ people in the society.
In the case Shayara Bano V. Union of India Writ Petition (C) No. 118 of 2016, where the issue arose was that of the triple talaq where the Muslim husband can say talaq three times and it will amount to the dissolution of marriage between the Muslim husband and wife. This is a personal law under the Muslim community followed over the years where the husband who could get the divorce just by saying this word three times. A marriage is holy event and this breaking off the marriage through this way is discriminatory and arbitrary to the women where they had to further suffer the consequence. Triple talaq can be done in any form be it in oral way of saying talaq three times, or in the writing or even in the electronic form where text message send by the husband to women will lead to the divorce. This is completely unreasonable and takes away the right of the women in marriage as having no say at all. Shayara Bano, a Muslim lady filed the case when her husband divorced her through this method of Muslim personal law. Thus, the Supreme Court held that triple talaq is against the Constitution of India and prohibited this practice in the present judgement saying it to be unreasonable towards women’s right.
In Hiral P. Harsora & ors. V Kusum Harsora 2016 (10) SCC 165 case, the court held that the fact that the women who were subjected to domestic violence among their households by the relatives of the husband were not allowed filing the case against the relatives. This amounted to gross indiscrimination towards women and they were not able to get the culprit behind the bars and are to live in the fear and among the violence inflicted as they cannot even go to the court to get their rights asserted. This was thus an arbitrary provision not allowing women get their prerogative in the eyes of law. Therefore, the Supreme Court of India held that under the Protection of Women from Domestic Violence Act, 2005, the scope of the definition respondent was limited and was unreasonably restricted and so the court expanded its provisions to include the relatives of husband as well.
In the case of Mukesh & anr. V. State for NCT of Delhi & ors. (Nirbhaya case) Criminal Appeal Nos. 607-608 of 2017, where a woman was beaten and gang raped in bus which was such a heinous crime to shake the very soul of every human being. One of the accused in the case was a minor and they all left the women in vegetative state naked thrown on the side of the road. The accused were given the punishment of death expect the minor who was sent to juvenile home. The question that arose that such an atrocious crime done and still the minor is not tried as major as seeing the nature of the act, it can be said that he knew the nature and the consequence of the act. This judgement brought forth the Criminal Law (Amendment) Act, 2013 for the safeguards of the rights of the women.
In conclusion, it can definitely be said that there has been a progress in the women’s laws and legislations which have paved the way for the growth and development of women in each and every sphere of life. These laws not only make sure that women are protected in every sphere of their life but also to help the women in excelling in all the avenues and grab the opportunities in life. Thus, this is an important development which leads overall welfare of the country as a whole where every individual is treated equally.
Author: Arushi Anand,
Vivekananda Institute of Professional Studies, 4th Year