Judicial Activism and Empowerment of Indian Women
Judicial Activism and Empowerment of Indian Women
Women’s empowerment is a noted concept in social change, which is much discussed, often elusive and sometimes abused. Yet in the context of development, women’s leadership and agency in social change have been levers for women’s empowerment within communities. Women have sought to fight entrenched interests for community benefits, and have garnered through their collective strength, a new identity. Women’s rights around the world are an important indicator to understand global well-being.
“Creating the environment which imparts equal status to women in family, society and country is the sole motive behind various facets of programmes being run for women empowerment.” –Pratiba Patel, President of India (Express newspaper apr.14, 2011)
Though Women have a unique position in every society whether developed, developing or underdeveloped, she still belongs to a class or group of society which is in disadvantaged position on account of several social barriers and impediments. This is particularly due to the various roles they play during various stages of their life, as a daughter, sister, wife, and mother etc. However, she tries too hard to stand equal to that of the men. The historical phase of development of women very well portrays the empowerment of women, in different periods.
During the Vedic period women enjoyed a fair amount of freedom and equality. The Vedic period can be termed as feminine glory. Women participated in all spheres like men. They studied in Gurukulas and enjoyed equality in learning Vedas. In Aitereya Upanishad, the wife was called as companion of husband. In the Rig-Veda, the wife was blessed to live as a queen in the house of her husband. The word Thampati, so often used in the Veda, characterizes both wife and husband.
According to MacDonnell and Keith, this word signifies the high status of women in ancient India. Men and Women together performed religious duties and carried out other function. In the Mahabharata the wife was called the root of Dharma, prosperity and enjoyment. No man was allowed to perform religious duties without his wife. Thus, like the status of women in the contemporary western world, the status of women in India was based on liberty, equality and co-operation.
Post – Vedic period:
In post – Vedic period the status of women suffered a setback when various restrictions were put on women’s rights and privileges by Manu. This decline dates back to the period of the Manusmriti and the increasing authority of man. The birth of a daughter which was not a source of anxiety during the Vedic period became the source of disaster for the father. Education, which had been an accepted norm for women, was neglected and later on girls were totally denied access to education. Despite the overall social and cultural subordination of women, it is surprising to find that law givers recognized the right to property, particularly that which was known as streedhana, women’s property.
 Medieval Period:
With invasion of India by Alexander and the Huns, the position of women was further degraded. Their education and training came to a sudden halt. For reasons of security, movement outside was restricted which in turn denied opportunities in community affairs. Uneducated and devoid of any status, they came to be treated as chattels. Social evils like sati, child marriage, and female infanticide arose. Women suffered great disabilities. The evil of dowry had become deep–rooted and the system of Devadasi has already spread. The medieval period saw women living oppressed in the feudal social order and patriarchal families.
The attitude, behaviour and living pattern of Hindu society changed drastically during the British regime due to education and western impact on the socio-cultural life of India. During the period there were two major movements which affected the position of women. There were the Social Reform Movement of the nineteenth century and the Nationalist Movement of the twentieth century. Both these movements raised the question of equal status of women. The issues which attracted the attention of the nineteenth century social reformers were sati, ill-treatment of widows, the ban on widow remarriage, polygamy, child marriage, denial of property rights and education to women. The Reformers thought that by giving women access to education and by enacting progressive legislation social change could be initiated.
Raja Ram Mohan Roy, Ishwar Chandra Vidyasagar, M.G. Ranade, Mahatma Phule, Lokhitwadi, Aurobindo and others from all parts of the country raised their voice against the unjust practices while revivalists like Dayamanda saraswati, swami Vivekananda and Annie Besant Believed in receiving the old Vedic society presumed to be ideal for women. Mahatma Gandhiji too, vehemently criticized the custom of child marriage, prohibition of widow remarriage, temple prostitution and the custom of purdah.
The nationalist movements not only draw a large number of women to political activity but also generated strength and confidence among women which helped them to organize and fight for their cause. The formation of the All India Women’s Conference in 1927 was a crucial event in women’s march towards equality. Many laws were enacted which tried to eradicate certain social evils. These included an Act legalizing remarriage of widows, child marriage Restraint Act 1978, an Act recognizing Hindu women’s right to property, etc. Besides the social legislation, there were other laws affecting women’s work status, such as limiting hours of work in organized industries, prohibiting night work, restricting work in mines, establishment of crèches for the children of the women workers etc.
Thus in short, during the British rule, awareness was created for the removal of social malaises, while education and organizing political participation increased women’s mobility.
PRESENT STATUS OF WOMEN IN INDIA:
The most important event after independence has been the drafting of the Constitution of this country enshrining the principles of equality, liberty and social justice. The framers of the Constitution were aware of the problem of emancipation of the female sex. They realized that equality was important for the development of the nation. It was evident that in order to eliminate inequality and to provide opportunities for the exercise of human right it was necessary to promote education and economic interests of women. It became the objective of the state to protect women from exploitation and provide social justice. All these ideals were enshrined in the Preamble of the Constitution.
The Preamble to the Constitution of India resolved to secure to all its citizens justice–social, economic and political; liberty of thought, expression, belief, faith and worship, equality of status and opportunity; and to promote among them fraternity assuring the dignity of an individual and the unity of the Nation. To attain these objectives, the Constitution guarantees certain fundamental rights and freedom, such as freedom of speech and expression, protection of life and personal liberty. The principles of gender equality and protection of women’s right have been the prime concerns right from the days of Independence. Accordingly, the country’s concern in safeguarding the rights and privileges of women found its best expression in the Constitution of India.
Article 14, confers the equality before the law or the equal protection of the law to every person. It not only prohibits discrimination but also makes various provisions for the protection of women. And there is a prohibition of any discrimination on grounds of religion, race, caste, sex or place of birth, however, Art. 15(3) empower the state to make any special provision for women and children. And also equality of opportunity is guaranteed for all the citizens in matters relating to employment or opportunity to any office under the state, forbidding discrimination on the grounds only of inter alia sex.
Article 19(1) (a) deals with the Freedom of speech and expression and Article 19(1) (g) provides for the Freedom to practice any profession or to carry out any occupation, trade or business. Article 21 ensures that “No person shall be deprived of his life or personal a liberty except according to the procedure established by law”. Women have a right to lead a dignified, honourable and peaceful life with liberty.
DIRECTIVE PRINCIPLES OF STATE POLICY
Article 39 mentions that the state shall direct its policy towards providing to men and women equally the right to means of livelihood and equal pay for equal work. The state is directed to make provisions for ensuring just and humane conditions of work and maternity relief.And there is a fundamental duty imposed on every citizen to renounce the practices derogatory to the dignity of women.
In short, Fundamental Rights and Directive Principles provide the framework to achieve the ideals of the Preamble of the Constitution. Fundamental Duties too, recognize upholding the dignity of women as one of the duties. The perceptions on Fundamental Rights and the guidelines of Directive Principles of State Policy, is well reflected in various progressive labour legislations such as:
▪ Industrial Dispute Act, 1947
▪ Minimum Wages Act, 1948
▪ Factories Act, 1948
▪ Maternity Benefit Act, 1961
Inspired by the constitutional safeguards, the State has enacted various legislative measures to provide protection to women against social discrimination, violence and atrocities and to prevent child marriages, dowry, rape and practice of sati, etc., the Equal remuneration Act of 1976 provides for equal pay to men and women for equal work. The Hindu Marriage Laws Amendment Act 1955 has been amended by the Marriage Laws Amendment Act of 1976 to provide for the right of a girl to repudiate a child marriage before attaining maturity whether the marriage has been consummated or not.
The Act 1956 for Suppression of Immoral Traffic against Women and girls was amended in 1986 to make the sexual exploitation of female, a cognizable offence. It was renamed as “The Immoral Traffic (Prevention) Act of 1986”. An amendment brought in 1984 to the Dowry Prohibition Act, 1961 made women’s subjection of cruelty a cognizable offence.
A second amendment to the Act in 1986 makes the husband or in-laws punishable, if a woman commits suicide within 7years of her marriage and it has been proved that she has been subject to cruelty. The Child Marriage restraint Act of 1929 raises the age for marriage of a girl to 18 years from 15years and that of a boy to 21years. The Factories Act of 1948 provides for establishment of crèche where 30 women are employed. The Medical Termination of Pregnancy Act of 1971 legalized abortion by qualified professional on humanitarian or medical grounds. The enactment “Indecent representation of women (prohibition) Act, 1987” has also been passed to protect the dignity of women and prevent violence against them as well as their exploitation.
Some of the other measures which were taken for the progress of women were that in pursuant to a request by the United Nations General Assembly to prepare a report on the status of women in India (CSWI) was constituted in 1971. The terms of reference of the committee was to examine the Constitutional, legal and administrative provisions that have a bearing on the social status of women, their education and employment and to asses the impact of these provisions during the last two decades on the status of women in the country, particularly in the rural sector and to suggest more effective measures; It was also to consider the development of education among women and determine the factors responsible for the slow progress in some areas and suggest remedial measures and to survey the problem of working women, including discrimination in employment and remuneration.
In order to examine the status of women, as house wives and mothers in the changing social pattern and their problems in the sphere of further education and employment, the committee was to undertake survey or case studies on the implication of the population policies and family planning programmers on the status of women in addition to the above mentioned aspect. It was empowered to suggest any other measure which would enable women to play their full and proper role in building up the nation.
The committee submitted its report entitled ‘Towards Equality’ in December 1974. The report was a landmark in the social history of India heralding a conscious change in attitudes, behaviour, law, establishment of special institutions and creating both infrastructure and environment for equality for women. The National Commission for Women was set up as a statutory body on 31st January 1992 under the National Commission for Women Act, (1990) to review constitutional and legal safeguards for women and recommend amendments to meet lacunae, inadequacies in such laws, participate in economic development of women and evaluate the progress made. However, there are many areas of inequality where working women still strive to overcome like: More women are in lower skilled part time work; Women are promoted less and earn less; Women are not equally represented in Government as Men; Women undertake significantly more of household work and childrearing than men and are often depicted as weaker sexes and are sexualized.
Over the years, the general public has come to repose absolute faith in the Judiciary. The Supreme Court of India has responded to issues of gender justice in a positive manner. Some of the decisions given by the apex court in the recent past has significantly advanced the cause and dignity of women. In Nigammar vs. Chikkaiah Case (2000) compulsory blood test to determine paternity was held to be violative of fundamental right of life or liberty. In Chandrimadas Case (2000), the Supreme Court has held that where a national Bangladeshi woman was gang raped, compensation can be granted under public law (Constitution) for violation of Fundamantal rights on the ground of Domestic Jurisprudence based on Constitutional provisions and Human Rights jurisprudence. In John Vallamatton V. Union of India (2003), the Supreme Court struck down section 118 of Indian Succession Act, 1925 restricting bequeathing of property for religious or charitable use except in the manner provided therein.
It was that the right to equality of women vis-à-vis their male counterparts is accepted worldwide and it will be immoral and illegal to discriminate women on the ground of sex. In CEHAT V. Union of India (2001), the Supreme Court referred to the repercussions of unhindered female infanticide effecting overall sex ratio in various States. The Court issued directions to Central government, State government, Union Territories, and appropriate authorities for the implementation of the enacted Act, further in CEHAT & Others. Petitioners V. Union of India & Others Respondents (2002), the apex court made the registration of the clinics with ultrasound machines mandatory and directed the State governments to take suitable action for creating awareness in public. In this way, judiciary has acknowledged the concept of ‘Gender Equality’.
The formal equality given by the Constitution and the Law is however, not equivalent of substantive equality which enables enjoyment of all rights on an equal basis. While formal equality has afforded women access to areas of Education, empowerment and even political participation, on terms that are often equal to those by men, it is in the so-called private sphere, in areas such as marriage and the family that women continue to be denied equal rights. In the present situation, women are better educated and have entered all possible fields proving their might. They hold more jobs worldwide, yet most women continue to suffer from occupational segregation in workplace. There are artificial barriers, created by attitudinal and organizational prejudices, barring women from top executive jobs. Women, though more educated are not more equal.
Gender equality is a multifaceted concept which implies equality of opportunity in economic as well as socio-political and legal aspects. Gender equality is not just morally right, it is pivotal to human progress and sustainable development. Economic opportunity does not mean their mere presence but includes the quality of women’s economic involvement. In developed countries, women may gain employment with relative ease, but their employments are usually transitory and are paid less than men. Herald Sun, an Australian newspaper has also recently raised issues relating to this. The question of gender equality is a very old and burning problem.
Twenty years ago in Mexico the First World Conference on Women inspired a movement that has helped, to reduce gender inequality worldwide. Illiteracy among women is declining, maternal mortality rates are beginning to fall, and more women are participating in labour force than ever before. Now a days, women has broken their ill-social shackles and are ready to face the contemporary challenges without any help and hesitation and consequently, March 8, is formally observed and celebrated in several countries, including India as a mark of integrated achievements towards the equality of rights, status and dignity of women and their equal participation in economic, social and cultural development in contemporary world scenario.
To curb down the menace of existing gender inequality many steps have been taken at the national as well as the international levels, but still a lot needs to be done to stamp out the growing violation of women’s dignity. Is there Gender Equality in Reality? I would say in the Gender Equation, women are evidently the victims. At this juncture, society needs to see women as dynamic promoters of social transformation, and have a powerful influence on their ability to control their environment and contribute to economic development. There should be a kind of positive respect for women. Only then, her rights can be well protected and nurtured.
Physical violence is only the tip of the ice berg, what we don’t see below the surface is the lack of respect. Once we ensure that society in general and men in particular show a positive kind of respect to women, to their wives, the other rights are bound to follow in normal course. Though umpteen steps are taken in this direction like discouraging discrimination, lengthy legislations invoking equality but the picture is still disheartening and remains only in the talks. And the war on inequality, discrimination, violence and unempowerment is still continuing, making the road to success a not-reachable one.
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 24 November 2016
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