JURIS

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

CONTEMPORARY PROBLEM IN THE STATE OF AFFAIRS OF WOMEN

SUBMITTED TO : MR. MANORANJAN KUMAR [FACULTY FOR JURISPRUDENCE] SUBMITTED BY :

PIYUSH KUMAR (R. NO.344) [3

RD YEAR

,6

TH SEMESTER

]

PROJECT ON: CONTEMPORARY PROBLEM IN THE STATE OF AFFAIRS OF WOMEN

ACKNOWLEDGEMENT

I

TAKE

THIS

OPPORTUNITY

TO

EXPRESS

M Y

H U M B L E G R A T I T U D E A N D P E R S O N A L R E G A R D S T O M R . M A N O R A N J A N K U M A R F O R I N S P I R I N G M E A N D G U I D I N G

M E A N D

DURING ALSO

THE FOR

COURSE HIS

OF

THIS

COOPERATION

PROJECT AND

W O R K

G U I D A N C E

FROM TIME TO TIME DURING THE COURSE OF THIS PROJECT

WORK

ON

THE

TOPIC

“CONTEMPORARY

P R O B L E M S I N T H E S T A T E O F A F F A I R S O F W O M E N ” .

“I EXPRESS MY GRATIT UDE TO THE FACULTY, „JURISPRUDENCE‟ FOR THE CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS BEEN THE BASE FOR THIS SMALL PIECE OF WORK ON THE TOPIC “ CONTEMPORARY PROBLEMS IN THE STATEOF AFFAIRS OF WOMEN ” YOURS SINCERELY PIYUSH KUMAR ROLL NO. 344

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RESEARCH METHODOLOGY

SUBJECT: JURISPRUDENCE TOPIC: CONTEMPORARY PROBLEM IN THE STATE OF AFFAIRS OF WOMEN OBJECTIVES:

1. To understand the problems in the state of affairs of women 2. To analysis the problems and statues provided to grant remedies to women

RESEARCH METHODOLOGY:

Keeping the objectives in mind, material was collected with the help of different books and then it was compiled to make the theoretical part of the project. The methodology of my research is doctrinaire method. RESEARCH TOOLS:

The research of this project was carried with the help of the Internet and Library of Chanakya National Law University. FOOTNOTING STYLE:

In whole of my project uniform footnoting style is adopted in conformity Chanakya National Law University, Patna footnoting style.

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TABLE OF CONTENTS

1. INTRODUCTION…………………………………..……………………………..05 2. DOCTRINE OF EQUALITY……………………………………………………...06-07 3. THE EVOLUTION OF EQUALITY JURISPRUDENCE………………………...08-09 4. THE SUPREME COURT AND PERSONAL LAWS……………………………..10-13 5. EMERGENCY DAYS-TURNING POINT………………………………………..14-15 6. VIOLENCE AND DIGNITY………………………………………………………16-20 7. IMPORTANT CONSTITUIONAL AND LEAGAL PROVISION FOR WOMEN IN INDIA………………………………………………………………………….21 8. CONCLUSION…………………………………………...………………………..27 9. BIBLIOGRAPHY………………………………………………………………….28

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INTRODUCTION

The demand for a self-made Constitution by the Indian people arose in the context of the conclusion of the Second World War. The horrors of the holocaust had just shaken the world conscience. In quick succession, sovereign states adopted the United Nations Charter and the Universal Declaration of Human Rights and Fundamental Freedoms (UDHR). It is against this backdrop that the Constituent Assembly sat to its task. Equality, which had until then been politically and legally unattainable under colonial rule, now became an important national goal. It is a testament to the power of institutional sexism that women, despite making up 51% of the population, are a minority group. This is changing, but not fast enough. In fact, our culture seems to be moving backwards sometimes clinging to theories of gender that paint women as irrational and feeble-minded, laws that exercise lurid control over women's bodies, and school policies created to resegregate the next generation of girls into subservience.

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Is feminism relevant? When people ask whether something is relevant, that usually means they don't like it. People who ask whether religion is relevant, for example, aren't usually the same people who wash the chalices in the sacristy; people who ask whether the civil rights movement is relevant aren't usually the same people who pound the pavement at NAACP rallies; people who ask whether politics is relevant don't usually run for office. But many people, both inside and outside of the feminist movement, have questioned its relevance. The dominant voices in the feminist movement have historically been those of upperclass heterosexual white women with economic means living in industrialized countries. In recent years, the scope of feminism has broadened to better include women in developing nations, indigenous women, immigrant women, women of color, lesbians, bisexual women, and transwomen. In 1993, the term "third-wave feminism" was coined to describe this new, more comprehensive feminist movement.

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http://civilliberty.about.com/od/gendersexuality/tp/Womens-Rights-Issues.htm

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DOCTRINE OF EQUALITY The equality doctrine in our Constitution and its evolution through judgements of the Supreme Court is integral to our „gendered‟ appraisal of the apex court. It is therefore necessary to articulate the conceptual basis on which judgements of the Court will be evaluated. Given that the right to non-discrimination based on sex is not negotiable, at the very least, the Constitution and the Supreme Court are both expected to ensure formal equality between the sexes. Since discrimination is often invidious and linked to the social construct of gender, it is not enough to define equality in formal terms. It is still necessary to conceptualize equality in a manner that will result in the eradication of historical disadvantage. The formal equality model, in which the law relies on sameness or similarity as an aid for classification, mandates equality for equals; dissimilar classes need not be similarly treated. Then there is the substantive equality model. In this paradigm, it is not the form but the substance or the effect which serves as an aid for classification. If equal treatment of subjects, classified and treated as similar on the basis of sameness results in divergent impacts, the substantive equality model rings the alarm. The principal equality clause of our Constitution is a replication of the American guarantee. The guarantee is against the State and it is in the negative, i.e. „the State shall not deny‟. It relates to equality before the law, and equal protection of the laws. Its brevity enhances its omnipotence

enabling creative judges to read within it equality of results. It needs once again to be emphasized that the Constitution left it to the courts to give life to the equality code. It did not elaborate on how, in a given situation, the equality code was to be applied. While the equality clause protects all persons, citizens are specifically protected by a supplementary provision (henceforth „supplementary provision‟). Again couched in the negative, the supplementary provision injuncts the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. There cannot be a greater negation of the prohibition on sexual discrimination, than to restrict it only to biological discrimination. Discrimination is always on the basis of sex in its gendered state. The use of the word „only‟ in this Article has enabled courts to segregate sex from gender and uphold blatantly discriminatory legislation. A classical example is a case decided in 1981 where airhostesses (AH) were seeking parity with male Assistant Flight Purses (APP). While the Court held the rule terminating

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employment of the AH on first pregnancy as patently unconstitutional, it had no hesitation in validating discrimination between the AH and APP on the basis of methods of recruitment, falling back on the logic that the discrimination was on the basis of recruitment and sex (females 2

were not eligible for recruitment as APP) and not sex alone ( Air India v. Nargesh Meerza ). In yet another departure from the then prevailing human rights norm, the second clause of the supplementary provision proceeds to confer rights in rem against any disability from accessing public places, wells, restaurants. etc., another exa mple of our framers‟ keen desire to eliminate existing caste practices. It is arguable that neither during the framing of the Constitution, nor during the fifty years that have followed, nor indeed even in the jurisprudence of the Supreme Court, have women enjoyed the preferential treatment that caste has at the hands of lawmakers. The reason for this, perhaps, is that there has been no clear political articulation of their interests. It is only in the post-Beijing period that we begin to see the Supreme Court view discrimination against women as an issue of the power relationship that sustains a system requiring legal redress. The third clause to the supplementary provision states: „ Nothing in this article shall 3

prevent the State from making any special provision for women and children ‟ (henceforth

special provisions clause). It is an altogether different matter that not many post-independence laws or judicial decisions can trace their origins to this special provision. The seventy-third and seventy-fourth constitutional amendments making reservations for women in panchayats and municipalities form part of the Constitution itself and cannot be attributed to the special provisions clause. A challenge to the two amendments is pending in the Supreme Court on the ground of denial of equality, which is said to be a basic feature of the Constitution. The Supreme Court will no doubt be called upon to articulate its concept of equality and spell out more clearly the interrelation between the equality clause, the supplementary provision, and the special provisions clause. Case law indicates that the special provisions clause has been used to justify, the regulation of female sexuality based on the weaker sex approach to gender issues. An example of this approach may be seen in the cases where the provisions dealing with adultery have been challenged in the Supreme Court. Clearly negating the ideology of spoils, the Constitution proceeds to guarantee equality in matters of public employment to all citizens 2 3

(1997) 6 SCC 241. Article 15 (3) of the Indian Constitution.

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(henceforth „employment provision‟). Sex is a prohibited marker for ineligibility for employment

and public office. The employment provision includes a clause (henceforth „reservations clause‟) which reserves for the State, power to „make provision for the reservation in matters of employment for certain backward classes.

The Early Years Land reforms were conceived of as one of the primary vehicles through which the social revolution would take place in a predominantly agrarian society. The early years of the Supreme Court witnessed battles over land reforms. The Court was unable to rid itself of the conservative Anglo-Saxon colonial jurisprudence in which most of the judges were trained. Champakam Dorairajan questioned a government order which disqualified her in preference to a low caste candidate. The apex court struck down the order on the doctrine of formal „equality‟. Parliament stung back with the First Amendment to the Constitution reaffirming its understanding of equality. The land reforms were integral to the Nehruvian understanding of empowerment and equality. The apex court clearly had quite a different perception of equality and ways of arriving at it. While most states had passed land reform Acts, almost all excluded the married daughter from the definition of „family‟ unit, and much of this litigation was therefore of no relevance to women. While Champakam and Bela Bannerjee were both women and while they both obtained justice from the Supreme Court and on both occasions the Court had occasion to consider the empowerment model of equality, in none was gender justice the issue. It was a telling comment on the times. Yet, gender, silent half of the population would be very greatly affected by the mode of equality being adopted by the courts.

The Evolution of Equality Jurisprudence The Court tended to prefer a classificatory approach to equality as more and more challenges to state action were brought under the equality clause. This premium on classification was frowned upon by some judges. In A.S. Iyer v Balasubramanyarn Justice Krishna Iyer quoted the

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PROJECT ON: CONTEMPORARY PROBLEM IN THE STATE OF AFFAIRS OF WOMEN 4

observation in Lachman Das v. State of Punjab that: “The doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification.” The Iyer Court was at pains to emphasize that judges may interpret, even make viable, but not whittle down or undo the essence of the Article. However, while working out the „equality code‟, the Court found itself entrapped in discourse of reasonable classification‟. If the classification based on intelligible differentia and if it had a rational nexus with the object of the state action, the Court would negative any challenge

founded on the equality clause. Before an analysis of judicial decisions on women, it would be useful to look into the approach of the court to the employment provision and the reservation clause. The apex court has drawn from this integrationist model to sustain reservations for women made under the special provisions clause. It must however be said that, by and large, in matters of employment courts: have been vigilant in protecting women‟s right to equality, be it in terms of a restriction on the continued employment of married women or refusal of promotion in the Indian foreign Service on grounds of marriage. The courts have zealously safeguarded equality rights whenever they related to the public domain. The discourse on grounds of sex only must be positioned between the formalistic and substantive model of equality. The supplementary provision and the employment provision prohibit discrimination on grounds of sex only. However, sex is intrinsically gendered and socially conditioned. For example, in 1977 a high court negatived a challenge to a land reforms legislation which excluded an adult daughter from the definition of family members who could claim separate land relying on her disability to be a coparcener (which itself was a custom founded 5

gender Nalini Rajan Singh v. State ). The discrimination was based on sex, plus property (no note was made of the fact that property itself was related to sexual status, as inheritance laws favoured men). Substantive equality takes cognizance of this reality and would strike at 4 5

1963 AIR 222, 1963 SCR (2) 353. AIR 1977 Pat. 171.

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discrimination based on sex plus gendered dimensions of sex, though, strictly speaking, such discrimination is not on grounds of sex alone. Conversely, substantive equality would sustain discrimination based on the sex plus gendered aspect of sex if the object of such action is to minimize the sex inequality.

Special Provisions Clause As stated, the apex court has interpreted the special provisions clause as a facet of our dynamic „equality code‟. The approach has ranged from protectionism to correctivism. In a similar protectionist vein, the apex court has validated the criminal provision on adultery, which does not permit the wife to initiate a prosecution against the husband or against the adulteress. These decisions also gave a new form to the special provisions clause one which not only empowered the State to take positive measures for the alleviation of women but also validated provisions discriminatory towards men.

The Supreme Court and Personal Laws As women faced the greatest rights violation in the private sphere, and these were more socio-economic and familial than politico-civil, the most significant branch of law which begs scrutiny is the realm of personal laws. In India each community was governed by its own customary law. Most of the familial laws were discriminatory towards women and reinforced the oppression of women within their family. By the time the provincial legislature came into being, the dominant community, i.e. Hindus, and the minority community, i.e. Muslims, were divided along communal lines and both put in place legislation that they perceived as being in the interest of their communities. The Constitution included a provision to recognize pre-constitutional laws only if they conformed to the fundamental rights (henceforth „recognition clause‟). All such laws thereafter stood recognized and continued after the Constitution came into force. The Bombay High Court has held in the negative, and immunized personal laws, from judicial scrutiny of whether they 6

violated any fundamental rights. (State v. Narasu Appa Mali ). While the recognition clause, though inclusive, specifically addresses customs or usage having the force of law, the court has 6

AIR 1952 Bom. 84.

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proceeded on semantic considerations such as the omission of the term „personal laws‟ in the recognition clause in contrast to its specific citation in the schedule to the Constitution. Further, reference was made to the salutary principle in the Constitution exhorting the State to strive for a uniform civil code to infer a tacit approval for the perpetuation of personal laws. Another patently unsound justification proffered, was that personal laws were based on scriptural texts and not customs and usage. While the decision of the high court was clothed in „reason‟, the Supreme Court, when it had its opportunity to address the recognition clause, immunized personal laws without recording any reason at all. Curiously, both courts were motivated by public concern. The high court in ensuring that a bigamist did not escape the net, and the apex court, in preventing usurpation of 7

property by raising the defence of caste disability. ( Krishna Singh v. Mathura Ahir ) The apex court revisited the recognition clause in another case in 1996 (C.Masilamani Mudaliar 8

v. Idol of Sri S.S. Thirukoil ). While the case could have been disposed of by an interpretation

of a testament, the Court made forays into the dangerous territories of the recognition clause and observed: “The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women are anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void (under the recognition clause) if they violate fundamental rights.” The Supreme Court has not however spoken in one voice, and at most the same time another bench of the Supreme Court has categorically stated that personal laws were beyond the 9 reach of fundamental rights ( Ahmedabad Women’s Action Group v . Union of India ). The

Supreme Court, in refusing to give full effect to the recognition clause, has not made a break with the political legacy of the past. It has continued to allow women to be governed by the law of religion without subjecting such laws to the test in the crucible of constitutionality.

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(1980) 2 SCR 660. (1996) 8 SCC 525. 9 (1997) 3 SCC 573. 8

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The Story of a Wife, a Daughter, and a Mother The unresolved relationship between the right to equality and the right to freedom of religion surfaced dramatically in the Shah Bano case. It comes as no surprise that the battle was fought over the terrain of the rights of women. What was at stake was the right of a divorced Muslim woman to claim maintenance from her former husband under section 25 of the Criminal Procedure Code (CrPC). In response to her claim, her husband squarely stated that to compel him to pay maintenance would be in conflict with his personal laws. The Supreme Court was presented with an opportunity to discuss the recognition clause and decide the issue as an equality issue. It failed to do so. Instead, it launched into a debate on the content of the Koran and was at pains to explain that the Code was not in conflict with the Koran. Parliament then enacted the Muslim Women‟s (Protection of Rights on Divorce) Act, 1986, which basically disabled Muslim women from availing of the provisions of section 125 of the CrPC and effectively denied them maintenance after divorce. The protest over the Shah Bano

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case thus

ended up being a protest over the authority of the Court to pronounce on the interpretation of the Koran, rather than a straightforward protest over the right of women to equality. In 1982 Mary Roy had challenged the Travancore Christian Succession Act (TCSA) on the ground that it put an upper limit of Rs. 5000 for the inheritance of the daughter leaving the entire estate to the son. The Supreme Court held that with the coming into force the Indian Succession Act the TCSA stood repealed and hence it was not necessary to decide the issue. Since the Indian Succession Act gave equal inheritance rights daughters, in effect women governed by the TCSA succeeded in getting equal rights. Yet the efforts made by the Christian community to set aside that judgement by introducing bills in the Assembly, only indicate that it might have been better for the Court to decide the core issue of equality as the legislature is bound by the limitation of fundamental rights. In the case of Madhu Kishwar v. State of Bihar

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the constitutionality of certain

provisions of the Chota Nagpur Tenancy Act, 1908, disentitling tribal women from inheritance rights fell for consideration. The Court while upholding the discriminatory provisions, read down the impugned provisions to preserve their constitutionality. The Court ruled that destitute women could assert a right of occupation against the male inheritors. It was unwilling in this case to 10 11

1985 AIR 945, 1985 SCC (2) 556. (1996) 5 SCC 125.

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declare that the custom of inheritance which disinherited the daughter offends Articles 14, 15, and 21 on the basis that customs differ from tribe to tribe and region to region. It is noteworthy that by the time the case came up for decision in the Supreme Court, the tribal woman petitioner had died and even the minimal relief granted by the Court was incapable of enjoyment. While she was alive, she faced constant harassment from the community for having taken the matter to the Supreme Court. As the recent ruling in the Geetha Hariharan case, Geetha Hariharan had challenged the Hindu Minority and Guardianship Act, 1955. The law was blatantly discriminatory, yet the Court chose to avoid giving a finding of unconstitutionality and instead, used the interpretative tool of „reading down‟ the law to include the mother was also the „natural‟ guardian of a child. These cases indicate that the reluctance of the Court is not confined to entering the realm of minority rights alone. It is therefore not possible to say that the Court avoids getting into the politics of the minority community alone. Rather, the Court has been reluctant to work out the inter relationship between Article 14 and Article 25 in a meaningful way, at least when it co mes to women‟s issues. The result has been that although in the Shah Bano

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case the woman appeared to have

won the battle for a pittance of maintenance, the larger war was lost. The Christian community owns the large majority of these and has been zealously able to safeguard its rights. Women within the community however have not found the same sanctuary in the Supreme Court which continues to recognize discriminatory personal laws, leaving it to the legislature to make appropriate changes. Rather, Muslim, Christian, Hindu and tribal women have received a „hands off‟ approach. The truth is that the history of law relating to women is also the history of property law and to disturb the status quo would be to seriously question the existing property ownership patterns in a society based on male lines. The only case in which the Supreme Court tangentially dealt with the misuse of the 13

continued existence of separate personal laws was Sarla Mudgal v. Union of India . The Court was faced with a situation in which a Hindu husband was prosecuted for bigamy for having married a second rime after converting to Islam. The Court held that a Hindu marriage could only be dissolved according to the Hindu Marriages Act, 1955. The judgement is significant not only because it enabled a woman to prosecute a dishonest spouse for bigamy, but also because it 12 13

1985 AIR 945, 1985 SCC (2) 556. AIR 1995 SC 1531.

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held that the dispute would not be decided by Muslim Personal Law but that it had to be decided according to „justice, equity and good conscience‟. This was a heroic attempt by the Court to resolve issues of conflict of laws so that „Hindu law on the one hand and Muslim law on the other hand could operate in their respective fields‟.

Emergency Days — The Turning Point While remaining largely absent from the consciousness of the Court in the early years, women were also absent from legal discourse. Women‟s issues were put on the national agenda in December 1974 with the submission of the report Towards Equality. The report has been a benchmark for the women‟s movement in the country and has become a part of the movement‟s engagement with the law. It was the first concrete step in post-independence. India to state that equality for women was not negotiable and was indeed a constitutional promise awaiting fulfilment. If women were to participate in national development the promise of equality must be redeemed. These were times perilously close to the internal emergency that was declared in June 1975. The primary concern of all movements, including the women‟s movement was the restoration of civil liberties. It was in the cradle of the civil liberties consciousness that the 14

Supreme Court‟s decision in Mathura

case ignited the first indigenous legal battle for gender

justice. Mathura, a 16-year.old tribal girl was raped by two policemen within the premises of a police station. The sessions court acquitted the policemen on the ground that since Mathura had eloped with her boyfriend she was „habituated to sexual intercourse‟ and hence she could not be raped. The court further held that Mathura was of „loose morals‟ and that the sexual intercourse was with her consent The high court convicted the policemen and held that mere passive or helpless surrender induced by threats or fear cannot be equated with desire or will and hence cannot be deemed as consent. The Supreme Court stepped in to set aside the conviction and exonerate the police stating that since Mathura had not raised any alarm and since there were no visible marks of injury on her body, allegations of rape were untrue. As such, the basis was that there was insufficient evidence that the prosecutrix resisted the sexual intercourse. Four law teachers wrote a letter to the Chief justice of India protesting against the judgement. The review petition that was filed was dismissed and the judgement remains to this day as testimony to the 14

AIR 1979 SC 185.

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insensitivity to the rights of women. In a period of heightened awareness of civil liberties, one would have expected the Court to correct the bias that was so obvious in the decision. The potential of the Court having been exhausted, the women‟s movement took so law reform. The campaign for changes in rape laws that followed the verdict led the women‟s movement to attempt to challenge the prevailing legal and social understanding of rape and „consent‟. It is no 15

coincidence that the Mathura

case became the symbol of protest of the women‟s movement

over issues of violence.

Violence and Dignity Unfortunately the Court has on many occasions approached rape as man‟s uncontrollable lust rather than as an act of sexual violence against women. In one such case the sentence for the rape of a young girl by her cousin was reduced on the basis that: “Youth overpowered by sex stress in excess. Hyper sexed Homo sapiens cannot be rehabilitated by humiliating or harsh treatment. As part of the curative course for the prisoner should be designed to rid his aphrodisiac overflow and restore him into safe citizenship. The accused is barely 22 years. He has a young wife and family to look after. Given correctional course his erotic aberrations may wither away. Taking an overall view of the criminal and familial factors involved, the societal proneness to sex and people‟s abhorrence of released prisoners, sentence is reduced.” However, despite such obstacles, post-Mathura the Court has gradually begun to demonstrate remarkable sensitivity to issues of sexual violence against women. A case in point was Bharwada Bhoginbhai Hrijibhai v. State of Gujarat

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where the Court held that in the Indian

context, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration is „adding insult to injury‟. The Court went on to ask: why should the evidence of the girls or a woman who complains of rape or sexual molestation be viewed with the aid of spectacles ringed with doubt or disbelief? To do so is to justify the charge of male chauvinism in a male dominated society. There have also been setbacks such as the controversial Suman Rani 17

Rape case Premchand v. State of Haryana where the Supreme Court reduced the mandatory minimum sentence of ten years imposed on two police officers found guilty of raping a young 15

AIR 1979 SC 185. AIR 1983 SC 753. 17 AIR 1989 SC 937. 16

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woman on the basis of the „peculiar facts and circumstances of the case coupled with the conduct of the victim girl‟. These „peculiar facts‟ referred to the argument of the accused that the victim was a woman of questionable character and easy virtue with lewd and lascivious behaviour. To the apex court‟s credit, the march of the law of rape in the past two decades has been spectacular. The Court has gradually come around to the view that corroboration of the evidence of the victim of rape was not essential and a conviction could rest even on the sole testimony of the victim, if credible. Delay in the registration of an FIR has also been addressed in several judgements and the Court has ruled that mere delay in lodging the FIR does not raise the inference that the complaint was false. The Court has also come down heavily on judgements that have cast a stigma on the character of the victim. It has ruled that the Court must use self-restraint in recording such finding, even if the girl is found to be habituated to sexual intercourse. Past promiscuous behaviour of the prosecutrix is no ground to condone rape. Minor contradictions or insignificant discrepancies in the statement of the prosecurrix should not be a ground for throwing out an otherwise good prosecution case. The occasional contradictory judgements of the Court can perhaps be explained by differences in approach and the world-views of individual judges. There have been very few cases, whether in the sphere of criminal law or in that of civil law, that have dealt with the economic aspects of the breakdown of marriage and of violence. 18

One of the path-breaking judgements in criminal law was Pratibha Rani v. Suraj Kumar . The Supreme Court made very creative use of sections 405 and 406 of the IPC and introduced the concept of criminal breach of trust into matrimonial law. The Court reiterated that stridhan is a woman‟s separate property and is held in trust for her by her husband or in-laws. It is repayable on demand and if the husband or the in-laws fail to return it they can be prosecuted for breach of trust. There was, however, a dissenting judgement in that case. When an occasion arose later, in the case of Rashmi Kumar v Mahesh Kumar Bhadra

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a Bench of three judges of the Court

confirmed the majority view of the Pratibha Rani Court. These two cases have established an expeditious remedy for many women who are thrown out of the matrimonial home without their stridhan and have made its recovery possible.

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(1985) 2 SCC 370. (2006) 2 SCC 757.

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PROJECT ON: CONTEMPORARY PROBLEM IN THE STATE OF AFFAIRS OF WOMEN 20

The case of Bodhisattva Gautam v. Chakraborthy

is one in which the Supreme Court

yet again used provisions of criminal law to deal with a difficult situation. The appellant, a Bodhisattva Gautam (the irony of the name can hardly be missed), had persuaded a woman to have sexual intercourse with him on the promise of marriage. He then went through a fake form of marriage with her. She was twice pregnant and on each occasion he compelled her to undertake an abortion. He then abandoned her on the plea that she was never lawfully married to him. In these circumstances, she lodged a complaint against him under sections 312, 420, 493, 496 and 498A of the IPC. He applied to the high court to quash the prosecution which it refused to do. The appeal to the Supreme Court resulted in a historic judgement where the Court took suo motu notice of the facts in the complaint, and issued a notice to him to show cause why he should

not be compelled to pay maintenance to the woman he had cheated. The Court held that offences like rape were crimes against the person‟s most basic cherished human rights, namely the right to life. The Court held that under Article 32 it could take suo motu notice of the facts and directed the appellant to pay interim maintenance of Rs. 1000 per month to the woman pending the prosecution.

Dignity Issues The remedy of Restitution of Conjugal Rights that compels a wife to reside with her spouse is an archaic provision of law which is most offensive to the dignity of women. The substantive test was applied by one high court to invalidate the matrimonial remedy for restitution of conjugal rights: a remedy which on paper was available to either spouse but would operate more to significantly alter the status of women in India. Another high court frowned upon the challenge and eventually the challenge was negatived by the Supreme Court, which endorsed the high court‟s view that: “Introduction of Constitutional Law in the home is most inappropriate. It is like introducing a bull in a china shop. In the privacy of the home and the married life, neither Article 21 nor Article 14 has any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of Constitutional Law will have the effect of weakening the marriage bond.” These cases exhibit the dual nature of the attitude the Supreme Court towards issue affecting women directly. In some cases the Court treats the family as private and beyond the reach of law (for example the cases relating to restitution of conjugal 20

(1996) 1 SCC 490.

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rights). At other times the Court sees the family as private and in need of protection (for example the cases relating to adultery). These cases further show how the public private divide has been used flexibly and usually to the detriment of women. Interestingly, in this case the Supreme Court discussed the reasoning of the Andhra Pradesh High Court in holding the provision unconstitutional. The high court had examined the issues in detail and come to the conclusion that the provision for restitution of conjugal rights was a savage and barbarous remedy violating the right of privacy and human dignity. The high court, in what is a commendable judgement, held that the provision denied the woman her free choice whether, when, and how her body was to become a vehicle for the procreation of another human being. Further, the court recognized that a decree for restitution of conjugal rights would deprive a woman of her choice as when and by whom her body should be allowed to be sensed and lose control over her most intimate decisions. The Supreme Court seems to have disregarded the right of privacy of the woman as an entity different from the marriage itself. The Supreme Court reasoned that conjugal rights in the Indian context were not creations of the statute but were rights inherent in the institution of marriage itself. While indulging itself in rhetoric about the beauty of living together in a marriage filled with love and sharing, the Supreme Court failed to take note of the many reasons why women may want a separation, including the prevalence of domestic violence. While rape is an issue that has attracted judicial attention, domestic violence has not. Presumably rape happens among strangers and is therefore addressed as a crime, whereas domestic violence within the family and to introduce constitutional law would be like the much- mentioned „bull in a china shop‟. 21

The case of Rupan Deol Bajaj v. KP Singh Gill widely covered by the press, is one that it many ways reflects the increasing sensitivity of the Supreme Court to feminist concerns. In a case where a male high level police officer had, among a series of actions, slapped the posterior of a woman IAS officer in public view, the Supreme Court directed the Chief Judicial Magistrate to take cognizance of offence under sections 354 and 509 of the IPC, i.e. assault or use of criminal force on a woman with the intent to outrage her modesty and insulting the modesty of a woman by words, acts or gestures. The Supreme Court in this case held that the order of the high court quashing FIR was unjustified in view of the offences being made out prima facie. The Court, in the course of this decision was required to interpret the term 21

AIR 1996 SC 309.

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„modesty‟. It held in this case that the ultimate rest for ascertaining whether modesty has been outraged is whether the action of the offender could be perceived as one that is capable of shocking the sense of decency of a woman. The interesting point that the Court made was that in doing so, the test would have to be on an understanding of the contemporary societal standards, thereby setting a precedent of subjectivity. The Court held that the alleged actions of the officer amounted to outraging of the modest y of a woman as it was an affront to the normal sense of‟ „feminine decency‟ and also an affront to her dignity. It is important to note that the Supreme Court clearly stated that the presence of sexual overtones was not necessary for an outrage to he established. The attendant circumstances consisting of overtures were sufficient indicators of intention required under the provision. The other important aspect of this case is rejection of the argument that the injury should not be perceived, as a wrong as the injury caused was so slight that no reasonable person would complain of it. The Court considered the principle that whether an act is trivial would depend on the nature of the injury, the position of the parties, the knowledge or intention with which the act is committed, and other related circumstances. Emphasis was laid on the fact that there can be no absolute standard or degree of harm that may be regarded as so slight that a person of ordinary sense and temper would not complain of the harm. On this basis, the Court held that section 95 IPC could not in the circumstances apply, as the ignominy and trauma of having to suffer the outrage of a slap on her posterior and continued behaviour of that kind despite her objections could not in any circumstances be considered as trivial. This is perhaps the first of the cases of sexual harassment that the Court recognized as such and dealt with squarely as an issue concerning the dignity of women in public spaces. The most articulate case demonstrating the growing concern on issues of dignity is undoubtedly that 22

of Vishaka v . State of Rajasthan . Although the immediate cause for filing of the PIL was the gang rape of a social activist in a village of Rajasthan, this case is the first comprehensive attempt at analysis of the issue of rights of working women against sexual harassment in workplaces. This PIL was brought to the Court with the aim of finding suitable methods for the realization of gender equality in the work place and to bring about change in the realities of the politics at these through judicial processes in the absence of legislation to this effect. The Supreme Court held that women have rights to gender equality, to work with dignity and to a working environment safe and protected from sexual harassment or abuse. Significantly, 22

AIR 1997 SC 3011.

19


the Court recognized that in the absence of a suitable legislation to enforce such rights, international conventions, so far as they are consistent with the constitutional spirit, can be relied upon. The Supreme Court considered the provisions in the Beijing Statement of Principles of the Independence of the Judiciary, 1995, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Protection of Human Rights Act, 1993, in clarifying the issues as to judicial activism and legislation by the judiciary. The Supreme Court held that every incident of sexual harassment at the workplace results in the violation of the fundamental rights of gender equality and the right to life and liberty. Interestingly, the Court also considered that the effect of such violation is also a violation of the woman‟s right of freedom to practice any profession, occupation, trade or business under Article 19(l)(g) of the Constitution. To make the writ of mandamus effective, the Court drafted a set of guidelines for the enforcement of such rights. There is no doubt that this is by any standards, a milestone in the development of the gender justice mechanism in our law. The issues and concerns are reasonably exhaustive and there are safeguards in the guidelines themselves to provide space for addressing new issues that may come up or be recognized in the future. However, the judgement seems to lack the foresight that would be necessary for the effective implementation of the guidelines. One would like to believe that the judgement came out the way it did thanks to the presence of a woman judge on the Bench; a judge who herself had been to several international conferences on women including Beijing. The judgement in Vishaka was followed by Apparel Export 23

Promotion Council . This case brings to the forefront enforcement issues by clarifying, that sexual harassment is misconduct in service law making the accused person liable to dismissal.

23

AIR 1999 SC 625.

20


IMPORTANT CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles . The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and program s have aimed at women‟s advancement in different spheres. India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) in 1993.

1.

CONSTITUTIONAL PROVISIONS The Constitution of India not only grants equality to women but also empowers the

State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard.

Constitutional Privileges

(i)

Equality before law for women (Article 14)

(ii)

The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (I))

21


(iii)

The State to make any special provision in favour of women and children (Article 15 (3))

(iv)

Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)

(v)

The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))

(vi)

To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A)

(vii)

The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)

(viii)

The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)

(ix)

The State to raise the level of nutrition and the standard of living of its people (Article 47)

(x)

To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e))

(xi)

Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))

(xii)

Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4))

22


(ix)

Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T (3))

(x)

Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4))

2.

LEGAL PROVISIONS To uphold the Constitutional mandate, the State has enacted various legislative measures

intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc, the crimes, which are directed specifically against women, are characterized as 'Crime against Women'. These are broadly classified under two categories.

(1)

The Crimes Identified Under the Indian Penal Code (IPC) (i)

Rape (Sec. 376 IPC)

(ii)

Kidnapping & Abduction for different purposes ( Sec. 363-373)

(iii)

Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)

(iv)

Torture, both mental and physical (Sec. 498-A IPC)

(v)

Molestation (Sec. 354 IPC)

(vi)

Sexual Harassment (Sec. 509 IPC)

(vii)

Importation of girls (up to 21 years of age)

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(2)

The Crimes identified under the Special Laws (SLL) Although all laws are not gender specific, the provisions of law affecting women

significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. Some acts which have special provisions to safeguard women and their interests are:

(i)

The Employees State Insurance Act, 1948

(ii)

The Plantation Labour Act, 1951

(iii)

The Family Courts Act, 1954

(iv)

The Special Marriage Act, 1954

(v)

The Hindu Marriage Act, 1955

(vi)

The Hindu Succession Act, 1956 with amendment in 2005

(vii)

Immoral Traffic (Prevention) Act, 1956

(viii)

The Maternity Benefit Act, 1961 (Amended in 1995)

(ix)

Dowry Prohibition Act, 1961

(x)

The Medical Termination of Pregnancy Act, 1971

(xi)

The Contract Labour (Regulation and Abolition) Act, 1976

(xii)

The Equal Remuneration Act, 1976

(xiii)

The Prohibition of Child Marriage Act, 2006

(xiv)

The Criminal Law (Amendment) Act, 1983

(xv)

The Factories (Amendment) Act, 1986

(xvi)

Indecent Representation of Women (Prohibition) Act, 1986 24


(xvii) Commission of Sati (Prevention) Act, 1987 (xviii) The Protection of Women from Domestic Violence Act, 2005

3.

SPECIAL INITIATIVES FOR WOMEN (i)

National Commission for Women

In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc. (ii)

Reservation for Women in Local Self -Government

rd

The 73 Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas. (iii)

The National Plan of Action for the Girl Child (1991-2000)

The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child. (iv)

National Policy for the Empowerment of Women, 2001

The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a “National Policy for the Empowerment of Women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.

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CONCLUSION This brief survey indicates that the theoretical problematic of „equality‟ enshrined in Article 14 has not been satisfactorily resolved by the Court. In particular, the interrelationship between Article 15 and 15(3) has never been addressed. Article 15(3) has been marginalized and almost relegated to the position of a non-justiciable directive principle. As against this, the Court has been very comfortable with Article 16 and has reiterated that Article 16(2) is not an exception to Article 14 but an aspect of it. Although, in the initial years women did not figure at all in legal discourse, in the later years, there has been a dynamic interaction between the Court and the women‟s movement. The Court is still all too „male‟. Women, especially on the Bench and at senior levels, are very poorly represented. If feminist jurisprudence is to move forward, this will have to change. The Court has come a long way from Mathura to Vishaka ; from viewing women as sexual objects to active participants in the public life of the nation entitled to live and work with dignity. There has been a growing trend to raise the level of the rights debate and to recognize chat statutory rights exist to breathe life and meaning into fundamental rights. Sooner, if not later, the Court will be called upon to resolve the question of the constitutional validity of Personal Laws. Reservations for women in panchayats will raise issues of substantive quality for decision. An increasing number of women on the Bench will hopefully change the perception of women from being passive recipients of rights and in need of protection to being fully autonomous in their decision-making and equal participants in public life. This millennium should belong to the woman. Let us hope this great institution will take the lead in ensuring that it does.

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BIBLIOGRAPHY

BOOKS 

Tripathi Mani, B.N., Jurisprudence: Legal Theory, Allahabad Law Agency, Delhi, 2006.



Dwivedi, S.P., Jurisprudence and Legal Theory, Central Law Publications, Lucknow, 2003.



Aggrawal, Nomita, Jurisprudence: Legal Theory, Central Law Publications, Allahabad, 2005.



Kumar, N.Krishna, Jurisprudence and Comparative Law, Central Law Publications, Allahabad, 2007.



Salmond, John, Jurisprudence, Sweet and Maxwell, London, 1966.

WEBSITES 

http://www.jstor.org/pss/4515041



http://www.scribd.com/doc/23041149/Jurisprudence



http://www.archive.org/details/cu31924021182112



http://jurisonline.in/2010/05/administration-of-justice-its-necessities-and-kind/



http://www.britannica.com/EBchecked/topic/1271640/Salmond-on-Jurisprudence>.



http://rapidshare.com/files/238155770/Jurisprudence_by_Salmond.pdf



http://chestofbooks.com/business/law/Legal-Method/Introduction-By-John-W-SalmondPart-3.html

DICTIONARIES th



Bryan A. Garner, 8 ed., Black’s Law Dictionary



P. Ramnath Aiyar, 3 ed., 2005 Advanced Law Lexicon Vol. 1

rd

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JURIS

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