Paper-7 Module-24

Women and Law: An Overview

(A) Personal Details

Role Name Affiliation

Principal Investigator Prof. Sumita Parmar Allahabad University,

Allahabad

Paper Coordinator Prof. Kiran Gupta

&

Dr.Vageshwari

Deswal

Faculty of Law

Delhi University

Faculty of Law, DU.

Content

Writer/Author (CW)

Prof. Kiran Gupta

&

Prakash Sharma

Faculty of Law

Delhi University

&

Assistant Professor,

Faculty of Law,

University of Delhi.

Content Reviewer (CR) Dr.Vageshwari

Deswal

Faculty of Law, DU.

Language Editor (LE) Prof. Sumita Parmar Allahabad University

(B) Description of Module

Subject Name Women’s Studies

Paper Name Women and Law

Module Name Women and Law: An overview

Module ID Paper-7 Module-24

Pre-requisites None

Objectives: This course study describes its objectives as

including:

1. Raising awareness about international law

pertaining to women.

2. Ensure full understanding of the prevailing

constitutional rights of women.

3. Realizing the importance of judicial

initiatives towards empowerment of

women.

4. Concluding remarks on various modules

covered in the course.

Keywords Empowerment, intervention, development,

direction, recognition, opportunity,

declaration, convention, universal, structure,

provision.

I. Introduction

Women emerged as a distinct interest group in the 19th century primarily because

of the bourgeoisie democratic revolutions of the 17thand 18th century that excluded

women from their concept of equality. This distinction was based on gender. Since

then women as a commune have waged a struggle for recognition of their rights as

human beings. Women execute a multilateral role in society - as a breadwinner

of her family, as a caretaker of her family, as a mother, wife, daughter and service

provider to the society. In spite of the fact that the women’s contribution to the

country’s development is equal to that of their male counterparts, they still

experience a number of limitations that restrain them from complete and full

development and growth.

It was against this background that the governments all over the world felt

the need to prioritize the interests of women and their participation at every stage

of the development process. Women as a core group of concern emerged as a

major theme in the Millennium Development Goals. The Millennium Development

Goals are the eight goals set by the United Nations in 2000 which will serve as a

yardstick to determine the progress made in the obliteration of global poverty.

However these goals are far from being realized in a country like India.

The term women’s empowerment implies the ability of woman to take all personal

decisions related to her throughout her life, independently - decisions that will

ensure her success and happiness in life. The presence of a vast multitude of

women as workers and producers in the unorganized sector, where earnings are

low, employment seasonal and insecure, supportive services woefully inadequate

or even non-existent, growth opportunities few and collective organization weak,

has brought into sharp focus the failure of the mainstream to alleviate their

predicament. Employment in organized industry has done much to draw women

out of the family and household. The wages earned through industrial employment

have given them a measure of independence, besides being able to contribute to

household earnings. However, the struggle of women continues, irrespective of

the fundamental changes in their material conditions through income generation,

asset-formation and the ownership of property. In fact women in India are often

deprived of even their fundamental right to dignity,leave alone the question of

gender equality.

II. International Conventions

The international arena has conceptualized human rights as well as women’s

rights, as per the principles and definitions provided by international laws. With

the declaration of the United Nations charter, the world formed a resolution to

reverse the traditional prejudice against women. The International Law seeks to

protect the rights of the women by taking into account the issues concerning them.

Various International Conventions and Declarations like The Universal

Declaration of Human Rights (UDHR) 1948, read with Covenant on Civil and

Political Rights (ICCPR), Covenant on Economic, Social and Cultural Rights

(ICESCR) ensure overall concerns, pertaining to women. Collectively the efforts

of the world moves towards gender equality and women’s empowerment, but still

women and girls continue to suffer discrimination and violence in every part of the

world. Gender equality is not only a fundamental human right, but a necessary

foundation for a peaceful, prosperous and sustainable world. According women

and girls equal access to education, health care, decent work, and representation in

political and economic decision-making processes will fuel sustainable economies

and benefit societies and humanity at large.

In this regard the Convention on the Elimination of all forms of Discrimination

against Women (CEDAW), 1979, pursues non-discrimination as an international

norm for promoting equality in International Law. Further Declaration on the

Elimination of Violence against Women (DEVAW) 1993, recognizes the urgent

need for the universal application to women of the rights and principles with regard

to equality, security, liberty, integrity and dignity of all human beings.

The Convention against Torture and other Cruel, Inhuman or Degrading Treatment

or Punishment (CAT) 1988, is an international human rights treaty, under the

review of the United Nations, which aims to prevent torture and other acts of cruel,

inhuman, or degrading treatment or punishment around the world. It acknowledges

violence against women as an obstacle to the achievement of equality,

development and peace. Violence against women constitutes a violation of the

rights and fundamental freedoms of women and impairs or nullifies their

enjoyment of those rights and freedoms. Further, violence against women is a

manifestation of historically unequal power relations between them, which have

led to domination over and discrimination against women by men and the

prevention of the full advancement of women. The Vienna Conference on Human

Rights, 1993, through its Vienna Declaration and Programme of Action (VDPA),

draws attention to the importance of women's rights and the rights of the girl-child,

Part I, para 18 stating: “The human rights of women and of the girl-child are an

inalienable, integral and indivisible part of universal human rights. The full and

equal participation of women in political, civil, economic, social and cultural life,

at the national, regional and international levels, and the eradication of all forms of

discrimination on grounds of sex are priority objectives of the international

community.” The VDPA also explicitly recognizing gender-based violence, sexual

harassment and exploitation, with Part I, para 18 going on to state: “Gender-based

violence and all forms of sexual harassment and exploitation, including those

resulting from cultural prejudice and international trafficking, are incompatible

with the dignity and worth of the human person, and must be eliminated. This can

be achieved by legal measures and through national action and international

cooperation in such fields as economic and social development, education, safe

maternity and health care, and social support.” The VDPA concludes by

proclaiming women's rights and gender-based exploitation as legitimate issues for

the international community. Part I, para 19 concluding that: “The human rights of

women should form an integral part of the United Nations human rights activities,

including the promotion of all human rights instruments relating to women. The

World Conference on Human Rights urges Governments, institutions,

intergovernmental and non-governmental organizations to intensify their efforts for

the protection and promotion of the human rights of women and the girl-child.”

The Fourth World Conference on Women, Beijing, 1995, prepared the Beijing

Platform for Action on women empowerment. It provides the rationale and a clear

call to action for the principle of shared power and responsibility to be established

amongst women and men at home, in the workplace and in the wider national and

international communities.The follow-up to the Beijing declaration was seen in

2000, wherein the General Assembly decided to hold a 23rd special session to

conduct a five-year review and appraisal of the implementation of the Beijing

Platform for Action, and to consider future actions and initiatives. “Women 2000:

Gender Equality, Development, and Peace for the Twenty-First Century” took

place in New York, and resulted in a political declaration and further actions and

initiatives to implement the Beijing commitments. In 2005, a 10-year review and

appraisal of the Beijing Platform for Action was conducted as part of the 49th

session of the Commission on the Status of Women. Delegates adopted a

declaration emphasizing that the full and effective implementation of the Beijing

Declaration and Platform for Action is essential to achieving the internationally

agreed development goals, including those contained in the Millennium

Declaration. Further in 2010, a 15-year review of the Beijing Platform for Action

took place during the Commission’s 54th session in 2010. Member States adopted

a declaration that welcomed the progress made towards achieving gender equality,

and pledged to undertake further action to ensure the full and accelerated

implementation of the Beijing Declaration and Platform for Action. In the mid-

2013, the UN Economic and Social Council requested the Commission on the

Status of Women to review and appraise implementation of the Platform for

Action in 2015, in a session known as Beijing+20. To inform deliberations, the

Council also called on UN Member States to perform comprehensive national

reviews, and encouraged regional commissions to undertake regional reviews.

Further, the Universal Declaration on Democracy, 1997, affirmed that democracy

presupposes a genuine partnership between men and women in the conduct of the

affairs of society in which they work in equality and complementarity, drawing

mutual enrichment from their differences. The optional protocol to CEDAW, 2000,

forms a body that monitors States parties compliance with the CEDAW and also

receives and consider complaints from individuals or groups within its jurisdiction.

India is not party to this optional protocol.

III. Constitutional Provisions

India has adopted the guiding principles of international law and has brought forth

within its Constitution, the fundamental rights and duties governing society. It has

adopted a twofold structure of fundamental rights of citizens in general and women

in specific. Part III of the Indian Constitution attaches paramount importance to the

fundamental rights and freedoms. The Constitution guarantees equality before law

and assures equal protection of laws to all citizens irrespective of their caste, creed,

religion, place of birth and sex. The plain reading of the Constitution is suggestive

of the fact that it does not only devise measures to weed out inequality otherwise

rooted in historical conditions but also provides for preventing the perpetuation of

inequality, so that it does not pass on from one generation to the other in the form

of legacy. It not only embodies in it the concept of gender parity but also expressly

forbids discrimination based on sex. While guaranteeing equality of status and

opportunity to women, the Constitution under Article 15(3) provides for

affirmative action in their favor. The right to life placed under Article 21 of the

Constitution, constitutes a superstructure meant to protect, directly or indirectly

any negation of the right to life. Few other constitutional provisions are:

Equality before law for women (Article 14).

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(1)).

Equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the State (Article 16).

The State to direct its policy towards securing for men and women equally

the right to an adequate means of livelihood (Article 39(a)).

Equal pay for both men and women (Article 39(d)).

To promote justice, on the basis of equal opportunity and to provide free

legal aid by suitable legislation or schemes 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 39A).

The State to make provision for securing just and humane conditions of

work and for maternity relief (Article 42).

The State to promote with special care the educational and economic interest

of the weaker sections of the society and to protect them from social

injustice and all forms of exploitation (Article 46).

The State to raise the level of nutrition and the standard of living of its

people (Article 47).

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))

Not less than one-third (including the number of seats reserved for women

belonging to the Scheduled Caste and 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)).

Not less than one-third of the total number of offices of chairpersons in the

Panchayats to be reserved for women (Article 243D (4)).

Not less than one-third (including the number of seats reserved for women

belonging to Scheduled Caste and 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)).

Reservation of offices of chairpersons in municipalities for the scheduled

caste, scheduled tribes and women in such a manner as the legislature of the

State may by law provide (Article 243 T (4)).

IV. Judicial initiative towards empowerment of women

Though a plethora of legislations exists, due to ineffective enforcement, women are

exploited. The socio-politico structure of society has found ways to circumvent the

provisions of various legislations and block attempts against women’s

empowerment. Due to the failure of the legislations to protect women, the judiciary

came forward to protect the interests of women. Judicial interventions have

ensured that all procedural shackles are removed. The judiciary has encouraged the

widest possible coverage of the legislations by liberal interpretations. The judiciary

has shifted from a doctrine approach to the pragmatic approach, which is

conducive to protecting all interests in the society. The courts have shown great

enthusiasm in granting the constitutional provisions for all women. The judiciary

by its landmark judgments has filled up the gap created by the legislative

machinery. It has actually, in many instances, extended a helping hand to women,

when the legislature has denied them the same. In extending support, the Indian

judiciary has sought help from the Indian Constitution, International Declarations

and Conventions. In the Municipal Corporation of Delhi v. Female Workers

(Muster Roll), AIR 2000 SC 1274, the Supreme Court extended the benefits of the

Maternity Benefit Act, 1961 to the muster roll (daily wagers) female employees of

the Delhi Municipal Corporation. The court directly incorporated the provisions of

Article 11 of CEDAW, 1979 into the Indian law. In Chairman, Railway Board v.

ChandrimaDass, AIR 2000 SC 988, the apex court awarded compensation of 10

lakhs to a foreigner, who was a victim of rape by Railway employees, under

Article 21 of the Indian Constitution. In GithaHariharan v. Reserve Bank of India,

AIR 1999 SC 1149, court interpreted section 6(a) of the Hindu Minority and

Guardianship Act, 1956 and section 19(b) of the Guardians and Wards Act, 1890,

which provide that mother is the natural guardian of minor child after father, in

such a way that father and mother both get equal status as natural guardians of a

minor. In Mohammed Ahmed Khan v. Shah Bano, AIR 1985 SC 945, the Supreme

Court granted right of maintenance under section 125 of Criminal Procedure Code

to a divorced married woman notwithstanding the Muslim personal laws which

restricts it to iddatperiod only. In Government of Andhra Pradesh v. P.B. Vijay

Kumar, AIR 1995SC 1648, the apex court held that the issue of reservation for

women in State services was upheld under Article 15(3) of the Indian Constitution.

In UttrakhandMahilaKalyanParishad v. State of Uttar Pradesh, AIR 1992 SC

1695, the court struck down discriminatory rules of education department of

government of Uttar Pradesh. In Vishakha v. State of Rajasthan, AIR 1997 SC 301,

the Supreme Court took a serious note of the increasing menace of sexual

harassment at workplace. Considering the inadequacy of legislation on the issue,

the court even assumed the role of legislature and defined sexual harassment and

laid down instruction for the employers. Further in Apparel Export Promotion

Council v. A.K. Chopra, AIR 1999 SC 625, the apex court found all facets of

gender equality including prevention of sexual harassment in the fundamental

rights granted by the Indian Constitution. In C.B. Muthamma v. Union of India,

AIR 1979 SC 1868, a service rule whereby marriage was a disability for

appointment to foreign services was declared unconstitutional. In Sobha Rani v.

Madhukar, AIR 1988 SC 121, apex court held dowry demand as enough to

amount to cruelty. Prathibha Rani v. Suraj Kumar, AIR 1985 SC 628, court upheld

women’s right to stridhan. In Gaurav Jain v. Union of India, AIR 1997 SC 3012,

the Supreme Court laid down guidelines including the necessity of counseling the

women to retrieve from prostitution and rehabilitate them. In ABC v.The State

(NCT of Delhi), AIR 2015 SC 2569 Supreme Court has given permission to

unmarried women to mention her name as legal guardian and held that there is no

need to mention name of the child’s fathers in passport or any other relevant

documents. In Indira Sharma v. K.V. Sharma, AIR 2014 SC 309, the court

accorded protection to women in live-in relationships under the Domestic Violence

Act, 2005 stating that where the nature of relationship is such that the person is not

married but are living together have a right to be protected.

V. Concluding Remarks

In India we have different views regarding women and their position in society. In

early times, on one hand, it was believed that where women are honored, gods feel

delighted, while on the other hand, in the times of Manu, she was considered a

non-independent and a weak human being who is protected by her father, when

young, by husband in her youth, and by son in her old age. It was felt in those days

that women were never fit for freedom.

The situation changes through efforts of various social reformers like Raja Ram

Mohan Roy, PanditIshwar Chandra Vidhyasagar and others, to effect social reform

in the society. A plethora of laws were enacted to re-correct the social set-up and

develop a conscience against the pitiable and unequal position of women in

society. Enactments like Sati Prohibition Act, 1830, Hindu Widow’s Remarriage

Act, 1856, Special Marriage Act, 1872, Child Marriage Restraint Act, 1929, Hindu

Women’s Right to Property Act, 1937, Dissolution of Muslim Marriages Act,

1939 were passed to improve the status and conditions of women. The Indian

Penal Code 1860 contains a separate chapter on crimes against women.Withthe

rise of some consciousness amongst society and participation of politically

conscious women during struggle for Independence, a new impetus was given to

the socio-economic battles and legal struggle.

The family laws in India, although having separate enactments and customs pose

similar problems relating to divorce, succession, maintenance, adoption, marriage

etc. The multi-religious society governed through separate religious laws demands

commonality, atleast for the laws concerning women. Women need special

protection to safeguard them from physical or moral exploitation. The

comprehensive review of various family laws are covered in modules.

The protection accorded to women through existing criminal laws of this country

and its role in protecting women and safeguarding their status and interests

requires careful approach. The reported rise in crimes against women reflects the

constant fight for dignity and equal rights amongst women. The picture depicts a

sad state that too after affirmed constitutional safeguards. Few of the modules

covered under this course, portray these aspects in details.

The women participation in workforce has necessitated a debate over the adequacy

of the protective measures adopted by Indian parliament through various

legislations, keeping in mind Constitutional safeguards. The legislative measures

so adopted, from time to time, with a view to provide equal rights to women at

workplace, have not produced the desired results either due to lacunae in the

legislative provisions or due to some deficiency in the enforcement machinery. A

detailed analysis of laws concerning women and labour laws are dealt specifically

in few modules.

Any form of discrimination hampers the growth and prosperity of societyand the

family, and renders more difficult the development of full potentials of women in

the service of their nation’sand humanity. Role of Indian judiciary in realizing

rights of women is commendable and is dealt briefly in the earlier part of the

module. Law commission in its various reports has also contributed to a great deal

to protect women from the injustice and mitigate their miseries and sufferings.

Various enactments in the post independence era benefitting women are result of

such national as well as international endorsements.

Having giving due regards to the developments, received worldwide, towards

women empowerment, a lot of efforts is still required. The whole existing situation

calls for correcting social attitudes and outlook and demands futuristic thoughts.

Enforcement of legally justified basic rights to women has been a cause of concern

that requires special attention.