Women and Law

Women and Law Sachin Mishra LL.M. 4th semester (2nd Year) Department of Law (Faculty of Legal Studies M.J.P.R.U.) Mahatma Jyotiba Phule Rohilkhand University, Bareilly Abstract The principle of gender equality is inspired the framers of the constitution and they give space to gender equality in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only provides equality to women, but also empowers the State to adopt measures to protect the rights of women and also supports the reasonable classification in favor of women. On the basis of our Constitution the statutes of our country, development policies, Plans and programs have aimed at women’s advancement in the society. Our country India has also signatory member of various international conventions and human rights instruments committing to secure equal rights of women like UDHR and in recently the Convention on Elimination of All Forms of Discrimination against Women (CEDAW – 1993). Based on the Laws and provisions enacted to protect the women in India we divide these into three sub headings, Firstly the Constitutional Provisions - The Constitution not only provides equality to women, but also empowers the State to adopt measures to protect the rights of women and also supports the reasonable classification in favor of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Constitutional provisions ensures 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. Second is Legal Provisions – Based on Constitutional principle, Indian Government 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 to all types of women whether they are house maker or working women. Crime against Women are broadly classified as The Crimes Under the Indian Penal Code (IPC) such as Rape (Sec. 376 IPC), Kidnapping & Abduction for different purposes (Sec. 363-373), Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC), Torture, both mental and physical (Sec. 498-A IPC), Molestation (Sec. 354 IPC), Sexual Harassment (Sec. 509 IPC), and The Crimes identified under the Special Laws. Some acts have special provisions to safeguard women and their interests like The Special Marriage Act, 1954, The Hindu Marriage Act, 1955, The Hindu Succession Act, 1956 with amendment in 2005, Immoral Traffic (Prevention) Act, 1956, The Maternity Benefit Act, 1961 (Amended in 1995), Dowry Prohibition Act, 1961, The Medical Termination of Pregnancy Act, 1971, The Prohibition of Child Marriage Act, 2006, Commission of Sati (Prevention) Act, 1987, The Protection of Women from Domestic Violence Act, 2005. And lastly the Special Initiatives For Women like 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., The National Plan of Action for the Girl Child (1991-2000) and National Policy for the Empowerment of Women, 2001 and recently the National Policy for the Empowerment of Women, 2016 is under draft stage. Keywords: Women and Law, Constitution of India, Universal Declaration on Human Rights, Gender Equality, Fundamental Rights, Women Harassment, Sexual Harassment, National Women Commission, Domestic Violence, Women empowerment. Women and Law Introduction Women are called as the half of world’s population, as other humans women also have right to live a dignified and secured life. It is a harsh reality of our society that women have been ill-treated in the society from the beginning of the society. The irony lies in the fact that in our country that one side women are worshipped as ‘Goddess Shakti’, and in other side she is ill treated and face atrocities in their life. In most cases the women are being considered as commodity or as a slave or an object of sexual pleasure or an object of child production. The Constitution not only provides equality to women, but also empowers the State to adopt measures to protect the rights of women and also supports the reasonable classification in favor of women. Constitutional provisions ensures 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. Based on Constitutional principle, Indian Government 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 to all types of women whether they are house maker or working women. Crime against Women are broadly classified as The Crimes Under the Indian Penal Code (IPC) such as Rape, Kidnapping & Abduction for different purposes, Dowry Deaths or their attempts, Torture both mental and physical, Molestation, Sexual Harassment, Stalking. Some acts have special provisions to safeguard women and their interests like The Hindu Succession Act, Immoral Traffic (Prevention) Act, 1956, The Maternity Benefit Act, 1961 (Amended in 1995), Dowry Prohibition Act, 1961, The Medical Termination of Pregnancy Act, 1971, The Prohibition of Child Marriage Act, 2006, Commission of Sati (Prevention) Act, 1987, The Protection of Women from Domestic Violence Act, 2005. In January 1992, the Government set-up the National Commission for Women to study and monitor all matters relating to the constitutional and legal safeguards provided for women and reviews the existing legislation to suggest amendments wherever necessary. Law alone cannot change the society overnight, but it can certainly ensures the women to seek the proper mechanism and remedies for the violation of their rights. However, Indian judiciary has been very sensitive to women and women related issues. The apex court took special interest in discharging its legal and constitutional obligations and safeguarding the interest of women in changing the current societal situation and demands. The battle for gender justice has been a long –drawn struggle. Hence there is a need to address various issues like creation of maternity fund, ban on sex determination tests, reservation for women in government jobs, treating bride burning and dowry deaths as murders, provisions of public toilets and smokeless chulhas in villages, more hostels for single women in urban areas, making them as joint owners of house and land and making women co-sharers in the wealth and incomes of their husbands to bring women at par with men in the society. Women and Constitutional law The Constitutional of India guarantees the right to equality and equal protection before the law, right to life and provides reasonable classification in the favor of women. It prohibits all types of discrimination against women and lays a mechanism for securing equal opportunity to women in their life. The important provisions for women are described in Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV). The Constitution of India contains various provisions, which provide for equal rights and opportunities for both men and women. The salient features are as follows:- Article 14 guarantees the State shall not deny equality before the law and equal protection of the laws, Article 15 prohibits discrimination against any citizen on the ground of sex, but Article 15(3) empowers the State to make positive discrimination in favor of women and children, Article 16 provides for Equality of Opportunity in the matters of public employment that is reasonable classification for the reservations, Article 21 provides the protection of life and personal liberty, Article 21A of the Constitution has an obligation to provide free and compulsory education for all children in the age group 6-14 years. Article 23 prohibits trafficking in human beings and forced labor, Article 39 (a) and (d) directs the State to provide equal means of livelihood and equal pay for equal work, Article 42 provides the provision for just and humane conditions of work and maternity relief, Article 45 ensures that the State shall endeavor to provide early childhood care and education for all children until they complete the age of 6 years, Article 51A (e) imposes a fundamental duty on every citizen to renounce the practices derogatory to the dignity of women, Article 51 A (k) has enforced a fundamental duty on the parent/guardian to provide opportunities for education to his/her child between the age of 6 to 14 years. Article 243 D (3) provides that not less than 1/3rd 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 T (3) provides that not less than 1/3rd of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality, Article 243 (4) provides reservation of offices of Chairperson in Municipalities for SC & ST and Women in such a manner as the legislature of a State, may by law provide, Women and Criminal Law and other Special Legislations 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. There are two types of crimes on the place of their occurrence which are against the women are as follows, Firstly the Crimes against Women With in the family - There are mainly three types of crimes against women in India that are occur within the family like Sati, where the victim is a widow; Dowry death or harassment, where the victim is the bride-wife; and domestic violence, where victims are females. Besides these there are child marriages, prohibition of widow remarriage, and abortion of girl child or killing of girl child in foetus. Secondly, Crimes against women in Public or in society context, women are victims of trafficking linked to prostitution and/or rape, stigmatization in society, sexual harassment in public and work place (It includes such unwelcome sexually determined Behavior whether directly or by implication as Physical contact and advances, or A demand or request for sexual favors, or Sexually colored remarks, or Showing pornography, or Any other unwelcome physical, verbal or non-verbal conduct of sexual nature), stalking, molestation, acid attack and etc. Based on the types of Criminal Law for the Women are broadly classified under two categories. 1. The Crimes Under the Indian Penal Code, 1860 Section 166-A, imposes the liability of Public servant in discharge of their duty and make punishable the certain acts in disobeying direction of law, and makes punishable the act of failure to record any information given to him under subsection 1 of section 154 of the CrPC in relation to cognizable punishable u/s 326-A & B, section 354, section 354-B, section 370 & 370-A, section 376 to section 376-A,B, C,D,E or section 509. Section 166-B, provides provision of punishment for non treatment of the victim in section 357-C of CrPC. Section 292 & 294 provides provision for the punishment for the obscenity.  Section- 312- Causing miscarriage without good faith or without the purpose of saving the life of the women is punished with imprisonment of 3 yrs or with fine. If the women be quick with child shall be punished with imprisonment for 7 yrs or with fine. Sec. 313, 314 & 316- Causing miscarriage without women consent shall be punished with imprisonment for term which may extend to 10 yrs shall also be liable to fine. Sec. 315 Act done with intent to prevent child being born alive or the cause it to die after birth shall punished for 10 yrs. Section 354- Punishment for use of assault or criminal force to woman with intension to outrage her modesty. Section 354-A, provide provision for the punishment for the sexual harassment. Section 354-B, punishment for the use of assault or criminal force to woman with intent to disrobe. Section 354-C & D for the Voyeurism and Stalking Sec. 361 & 363 – Punishment for the Kidnapping of minor girl from legal guardian  Sec. 366- Kidnapping, abduction or inducing women to compel her to marry. Sec.366-A- Procuration of a minor girl. Sec.366-B- Importation of girl from foreign country, etc., has a bearing on curbing conditions which may lead towards trafficking and prostitution. Sec. 372 and 373 penalize buying and of minor girls for purposes of prostitution. Section 375 & 376 Punishment for rape Section 376-A,B,C,D,E provide provisions for the punishment for causing death or resulting persistent vegetative state of rape victim, and sexual intercourse by husband during legal separation, sexual intercourse by the person in authority, gang rape, and repeatedly doing of these crimes respectively. Section 498-A for the Dowry Death Section 509 for the intended act to insult the modesty of women by words, gesture or any other act. 2. The Crimes identified under the Special Laws: - Although all acts and laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and the amendments carried out to keep pace with the emerging requirements. Some acts have special provisions to safeguard women and their interests like The Family Courts Act, 1954, provides the establishment of family courts for speedy trail of family disputes. Legal services Authorities Act provides the free legal aids to women The Special Marriage Act, 1954, helps the any major woman to marry any major man besides any caste or religion and it legalized these marriages. The Hindu Marriage Act, 1955, encourages monogamy and provides specific divorce grounds to the woman. The Hindu Succession Act, 1956 with amendment in 2005, recognizes the right of woman in inherent property equally to man. Immoral Traffic (Prevention) Act, 1956, helps in protecting women from trafficking for the purpose of prostitution. The Maternity Benefit Act, 1961 (Amended in 1995), ensures the working women in any establishment for the maternity leave and other maternity benefits. Dowry Prohibition Act, 1961, prohibits the giving or taking of dowry at marriage or after marriage. The Medical Termination of Pregnancy Act, 1971, allows the termination of pregnancy in certain cases on humanitarian and medical grounds. Pre- Conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, prevents the sex determination of child before or after a woman conceives. This helps to reduce the illegal abortions. The Equal Remuneration Act, 1976, ensures the equal payment or wages for the women and men for similar work. It discourages the discrimination on the basis of gender in the recruitment.  The Prohibition of Child Marriage Act, 2006, provides rules to prohibit the child marriages. The Criminal Law (Amendment) Act, 1983 and 2013 and 2018, amends the many section in IPC, CrPC and Evidence Act Indecent Representation of Women (Prohibition) Act, 1986, provides protection from the improper representation of women via any advertisement, publication, writing, painting, figures or any other manner. Commission of Sati (Prevention) Act, 1987 is for the demolition of Sati Pratha The Protection of Women from Domestic Violence Act, 2005, ensures the protection for women who are in relationship and are subjected to constant physical, mental, sexual, verbal and emotional violence. Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act 2013, makes provisions and rules for the protection women at workplace whether it is private or public sector by sexual harassment. Indian Judiciary for the Women to provide Gender Justice The judiciary through its proactive role of judicial activism, the judiciary in a number of cases related to the women rights has struck down the discriminatory provisions of law and rules on basis of Constitution and International Standards, such as, In C. B. Muthamma vs. Union of India5 wherein the service rules requiring a female employee to obtain permission of the Government in writing before her marriage and denying her right to be appointed on the ground that the candidate is a married woman was held to be discriminatory against women. In Air India vs. Nargeesh Meerza the service condition that terminated the services of an Airhostess on becoming pregnant was struck own as being discriminatory. In Vasantha vs. Union of India7 Section 66 of the Factories Act which prohibited night shift work for women held to be discriminatory. In Madhu Kishwar v. Union of India and in C. MasilamaniMudliar and others v. The idol of Swaminathaswami Thirukoil and others property rights for women were upheld. In M/s Mackinnon and Co Ltd vs. Audrey D ‘Cost provided for equal wages. In Bodhi Sattwa Gautam v. Subhra Chakroborthy court provided the compensation in rape cases. In Vishaka vs. State of Rajasthan, apex court formulates the guidelines for the working women in workplace regarding sexual harassment. In Municipal Corporation of Delhi v. female workers (Muster Roll case) ensured maternity benefit for contract workers. In Gita Haiharan case regarding guardianship rights interpreted the provisions in favour of women dealing with the rights of woman to be a guardian for the minor child, the principles of the Convention have been applied to hold the provisions of the Hindu Guardianship and Minority Act, 1956, as being discriminatory. The Daniel Latiffs case enabled Muslim woman to seek maintenance from divorced husband. In Joseph shine vs. Union of India case Supreme Court declared the Section 497 of IPC unconstitutional and arbitrary to the women’s right of dignity. Women Commissions National Women Commissions: The National Commission for Women was established in January 1992 under the 1990 National Commission for Women Act. The prime objective of the women commission to study and monitor all matters relating to the constitutional and legal safeguards provided for women and reviews the existing legislation to suggest amendments wherever necessary. Women and Human Rights Commission: The Protection of Human Rights Act, 1993 provides for the constitution of a National Human Rights Commission 1993 and State Human Rights Commission for better protection of Human Rights and enforcement of the same. The NHRC has the powers of a civil court to summon persons and record evidence and investigate both suo-moto and individual complaints of violation of human rights. Every proceeding before the Commission is a judicial proceeding under the law. National Policy for the Empowerment of Women (2001): The goal of this Policy is to bring about the advancement, development and empowerment of women, the objectives of this Policy include. Creating an positive economic and social environment for the development of women to enable them to realize their full potential The de-jure and de-facto enjoyment of all human rights and fundamental freedom by women. Equal participation in decision making of women in social, political and economic life of the nation. Equal access to healthcare, quality education, career and vocational guidance, employment, equal remuneration, occupational health and safety, social security and public office etc to the women in the nation. Strengthening legal systems to eliminate the all forms of discrimination against women  Changing societal attitudes and community practices by active of both men and women. Mainstreaming a gender perspective in the development process. Elimination of discrimination and all forms of violence against women and the girl child; and building the partnerships with civil societies and NGOs for women. Conclusion Now a day it is a harsh reality of our society that women have been ill-treated in the society from the beginning of the society and India is not only a country with this problem but in most of the countries have same situation. Women are treated as commodity or as a slave, she is not only robbed of her dignity and pride outside her house but she also faces atrocities and ill treatment within their house also by her near and dears. In most cases the women are being considered as an object sexual pleasure and object of child production. The principle of gender equality is inspired the framers of the our constitution and they give space to gender equality in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. Besides the constitutional provisions various laws reinforce safeguards women against discrimination and these laws provide base for the positive discrimination for women. Constitutional provisions ensures 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. Based on Constitutional principle, Indian Government 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 to all types of women whether they are house maker or working women. Some common types of Crimes  against Women are Rape, Kidnapping & Abduction for different purposes, Dowry Deaths or their attempts, Mental and physical torture, Molestation, Sexual Harassment. Various acts and statutes was enacted to safeguard women and their interests like The Special Marriage Act, 1954, The Hindu Marriage Act, 1955, The Hindu Succession Act, 1956 with amendment in 2005, Immoral Traffic (Prevention) Act, 1956, The Maternity Benefit Act, 1961 (Amended in 1995), Dowry Prohibition Act, 1961, The Medical Termination of Pregnancy Act, 1971, The Prohibition of Child Marriage Act, 2006, Commission of Sati (Prevention) Act, 1987, The Protection of Women from Domestic Violence Act, 2005. The National Commission for Women aims to study and monitor all matters relating to the women and review the existing legislation with necessary amendments to protect them. Law alone cannot change the society overnight, but it can certainly ensures the women to seek the proper mechanism and remedies for the violation of their rights. Indian judiciary also has been very sensitive to women and women related issues. The battle for gender justice has been a long drawn struggle. The sustained efforts of several social reformers, even in the face of resistance from social orthodoxy, have given impetus to the course of gender justice and Constitutional provisions, various laws and judgments of courts have made the important contribution in the gender justice. . Bibliography and References Constitution of India The Indian Penal Code 1860 Code of Criminal Procedure 1973 Mukherjee C., Rustagi P. & Krishnaji N. (2001), Crimes against women in India: Analysis of official Statistics, pp. 4070-4080 available at: http://www.jstor.org/stable/4411293 (accessed on 23-09-2020) CSPA -The Commission of Sati Prevention act, (N. 3 of 1988) available at http://wcd.nic.in/commissionofsatiprevention.html (accessed on 23-09-2020) DPA -The Dowry Prohibition act (Act. No. 28 of 1961) available at http://wcd.nic.in/dowryprohibitionact.html(accessed on 23-09-2020) ITPA- The Immoral Traffic prevention Act, 1956, available at: http://ncpcr.gov.in/Acts/Immoral_Traffic_Prevention_Act_(ITPA)_1956.pdf (accessed on 23-092020) POWDVA- The Protection of Women from Domestic Violence act (2005) available at http://www.vakilno1.com/bareacts/Domestic-Violence/Domestic-Violence-Act-2005.html (accessed on 23-09-2020) http://www.ncw.nic.in (accessed on 23-09-2020)    4 1 7 8 5 ?1 ? 9 3