Chapter 1 2

The Role of Law in Empowering Women in India

Historical Perspective of Women in India

The woman in our country has always been

accorded the status not only equal but above men.
Since ancient time anything nurturing human life
was worshipped as a female identity, i.e., the
nature as Prakriti Devi, the earth as Prithvi
Devi, the forests as Van Devi and so on. The
tides of time have affected the status of women
from worshipped to the exploited.

During the Vedic period the Woman in India

have always been issues of concern. Rig Veda is
the only scripture among those of all religions
in which the Divine Truths are revealed to women
sages also. There are more than thirty women
sages in Rig Veda with specific hymns associated
with them. There are numerous hymns in the Rig
Veda indicating the high status accorded to women
in the Vedic society. One of the hymn (Rig Veda
10.27.12), explicitly states that the practice of
a lady choosing her husband was in vogue. The Rig
Veda’s marriage hymn (10.85), explicitly states
that the daughter-in-law should be treated as a
queen, samrajni and bride was exhorted to address
the religious assembly.1

1 Indian Feminism in Vedic perspective, by Shashi Prabha Kumar Reader, Journal of

Indian Studies, Vol. 1 1998
 Chapter 1 3
The Role of Law in Empowering Women in India

This is noteworthy that various names and

epithets are used to denote women in Vedic
literature. Apart from Jaya, Jani and Patni woman
is designated as Devi, as she is divine; Ida, as
she is worshippable; Simhi, as she is courageous;
Suyama, as she is self-disciplined; Vishruta, as
she is learned.2

The Vedic period was glorified by the

tradition. Many rishis were women and several of
them authored slokas in the Vedas. Some of these
rishis are Ghoshala, Godha, Vishwara, Apala,
Upanishad, Brahmjaya, Aditi, Indrani, Sarma,
Romsha, Lopamudra, Shaswati and many others. Even
married women were known to be acknowledged
authorities on the Vedas.3

Though we admire and preach them in the name

of Durga, Saraswati, Parvati and Kali, we also
abuse her in the form of Child-marriage, Female
infanticide as well as foeticide, Sati, Sexual
harassment, Dowry and so on. The status of women
in India has been subject to many great
alterations over the past few millenniums. From a
largely unknown status in ancient times through
the low points of the medieval period, to the

2 Indian Feminism in Vedic perspective, by Shashi Prabha Kumar Reader, Journal of

Indian Studies, Vol. 1 1998
3 Women and the Veda by Raghbendra Jha an Article @
http://www.ivarta.com/columns/OL_070503.htm
 Chapter 1 4
The Role of Law in Empowering Women in India

promotion of equal rights by many reformers, the

history of women in India has been lively. The
status of women has varied in different time
periods.

It is believed as well as recorded by the

historians, that women benefited equal status
with men in all spheres of life in ancient India.
In the early Vedic period women were educated and
they used to participate in all the important
rituals. It is truly in this period that women
were treated as Durga and Parvati. There was a
special thread ceremony in which girls were tied
threads of honour based on merit. During Post-
Vedic period this ceremony was replaced by
‘child-marriage’, which afterwards transformed
into an evil act which is bothering the society
even today. Child-Marriage by this time was
started on a large scale because of many holy
books. Girls were married when they were infants.
They were sent to their husband’s house when they
attained puberty. Girls were not permitted to
gain education.

Some idea of the position of women under

Hinduism could be gleaned from the classic Hindu
Dharmashastra ‘Manu-smriti”, is the best known,
this describes the duties of women as follows:
 Chapter 1 5
The Role of Law in Empowering Women in India

“by a girl, by a young woman, or even by an

aged one, nothing must be done independently,
even in her own house. In childhood a female must
be subject to her father, in youth to her
husband, when her lord is dead to her sons; a
woman must never be independent4. In fact the
women were prevented from performing religious
rites, and even the knowledge of the Vedas was to
be kept away from them.5

The condition of Women in Indian society was

worsening during the medieval period. At this
point of time child-marriage, sati, female
infanticide was practiced largely. India got
secluded by arrival of Muslims in India and they
introduced the ‘purdah’ system i.e. to cover
their heads fully with a ‘veil’ on Muslim women.
The Rajput women of Rajasthan practiced an evil
commonly known as ‘jauhar’. Jauhar was the
practice of the voluntary immolation of all the
wives and daughters of defeated warriors, in
order to avoid capture and consequent molestation
by the enemy. Even polygamy was also practiced by
most Hindu Kshatriyas. Polygamy is a practice
where a husband married more than once. At the
same time many women excelled in arts,
literature, and music. Women were also rulers in

4 Laws of MANU, Chapter V, Page 147-8

5 Laws of MANU, Chapter IX, Page 18
 Chapter 1 6
The Role of Law in Empowering Women in India

the medieval period. Some of the great women

rulers were Razia Sultan, the only women ruler to
reign over the throne of Delhi. The Gond Queen
Durgavati ruled for fifteen years, before she
lost the battle to mughal emperor Akbar`s general
Asaf Ali. Sati was also practised where women
were forced to jump in the burning funeral of
their dead husband. ‘Devdasi’ was prevalent in
south India where girls were married to deity or
trees. This practise had destroyed the lives of
many girls as they were physically molested and
sexually exploited by many pundits/pujaris. So we
can say that the status of women in the Medieval
India was hectic and the main discrimination was
started from that period.

Hindu religion considered, sons as essential

to the family, since sons alone could offer
oblations to their departed ancestors and save
them from suffering a spell in hell. The daughter
could not perform these rites and was therefore
considered as inferior to the son. The ancient
Roman, Greek, and Egyptian civilizations were no
exception wherein the status of woman was
inferior to that of the man. England, which
boasts of an ancient democratic tradition, gave
its women a right to vote only in the year 1928.
Like the Hindu religion, other religions such as
 Chapter 1 7
The Role of Law in Empowering Women in India

Islam and Christianity also placed women on a

much lower pedestal than that of men.

The Traditional status of a man and woman was

that of the husband as the provider and protector
of the wife, family and its members. The wife’s
first duty, therefore, was to submit herself to
the authority of her husband and to remain under
his roof and protection. This mindset or
philosophy was prevalent worldwide. The earlier
judicial pronouncements explain it very clearly
as in 1909 the House of Lords expressly held that
the women did not fall within the meaning of the
term ‘person’6. The similar view was taken for
married women in 1872 by Justice Joseph Bradley
of the U.S. Supreme Court in Bradwell vs.
Illinios7. Just after two years of Bradwell vs.
Illinois the U.S. Supreme Court admitted that
women are persons and citizens but they have no
right to vote8. The Nineteenth Constitutional
Amendment to Federal Constitution in August, 1920
provided female citizens of the United States the
right to vote. The Supreme Court of Canada
unanimously decided negatively for the
appointment of women to the Senate of Canada as
women were not included in the term ‘persons’ as

6 Nairn v University of St Andrews [1909] AC 147

7 [1873] 83 U.S. 130 (Wall.)
8 Minor v. Happersett [1875] 88 U.S. 162
 Chapter 1 8
The Role of Law in Empowering Women in India

per their verdict9. In appeal, the Privy Council

brought the argument to an end declaring that the
word ‘person’ included both sexes10.

In India the Calcutta, in Re Regina Guha11

and the Patna, in Re Sudhansu Bala Hazra12 High
Courts rejected the applications of women for
enrolment under the Legal Practitioners Act. The
full benches of these courts held that the women
were not included in the term ‘person’.

To some extent it is observed that our

country witnessed improvements in the status of
Women after the arrival of British. There were
many women reformers who worked for the
betterment and upliftment of their other female
counterparts. The begum of Bhopal discarded the
purdah and fought in the revolt of 1857. Many
reformers like Ishwarchandra Vidyasagar, Jyotiba
Phule with his wife Savitribai Phule undertook
several measures to eradicate social evils from
the society. Sir Sayyed Ahmad Khan established
the Aligarh Muslim University for the spread of
education among the Muslims. He also eliminated
the purdah system among muslim women. Many Acts

9 Edwards v. Canada (Attorney General)[1928] S.C.R. 276

10 Edwards v. Canada (Attorney General)[1928] S.C.R. 276
11 AIR 1922 Cal 161
12 AIR 1922 Pat 269
 Chapter 1 9
The Role of Law in Empowering Women in India

were passed for the upliftment of women among

which Widow Remarriage Act of 1856 was important.

The Universal Declaration of Fundamental

Human Rights asserts that all sexes should enjoy
equal rights. This is reinforced by the Indian
Constitution and the various pro-women
legislation passed in this country. However, both
from the ground reality and the type and number
of cases that reach the courts, one finds that
women are not treated as equal partners in all
areas of planning and developmental activities in
the country.

Indian women have not to struggle for

Constitutional and legal rights which stands
given to them. Since the days of independence
struggle, the achievements in the area of women’s
rights are many. Education has become a
Fundamental right of every child. Health
infrastructure and gender budgeting and
allocations for better family health have
improved. There is no discrimination in
competitive examinations, recruitment and
employment. There is no taboo for women to
contest and occupy the highest echelons of power.
The Judicial decisions have improved women’s lot
here and there. Changes in the laws to prosecute
and punish with stringent punishments are
 Chapter 1 10
The Role of Law in Empowering Women in India

available. Many amongst the 100,000 odd women

elected to Panchayats spread all over India are
getting ready to participate duly in the
Parliamentary and the Assembly elections. There
is now a wide base developing where women are
getting a hold in the Indian political arena.

Indian women now chip in all activities such

as education, politics, media, art and culture,
service sectors, science and technology, and so
on. Indian women were also given liberties and
rights such as freedom of expression and
equality, as well as right to get education. But
still at this moment in time, we are fighting for
crisis such as dowry, female infanticide, sex
selective abortions, health, domestic violence,
etc. Another harmful practise is the Dowry system
where gift of money or valuables are given by the
bride’s family to the groom’s at the time of
their marriage. This is the new harassment in the
name of wedding gift. Women are killed if they
bring fewer dowries after marriage. The term
Bride Burning is criticized within India itself.
Women today are educated but they still, are
illiterate in terms of knowing their rights
properly.

The trend of Women empowerment is backed by

the Constitution of India. Over the decades,
 Chapter 1 11
The Role of Law in Empowering Women in India

various laws and the National Policy, the Plans,

Programmes and allied strategies for
implementation of national and international
periodic reviews and assessments too have further
strengthened this trend in that women’s welfare
and development is an on-going active concern of
this nation. But can we say that this mega-trend
has benefitted all women? Do not, women at large,
still remain unreached by the aforesaid bounty?13

There is no doubt in this fact that our

socio-economic development has been uneven and
has not touched millions of women. These women
somehow survive in spite of not having awareness
of their own rights. The question is that whether
the existing legislations or enforcement or
efforts are not adequate? The child mortality
rate, foeticide, infanticide, child marriages,
rampant in some of the Indian States. There are
the gaps in between our laws and their
implementation. These are stark realities that
still persist. Why ensured legal rights fail us
again and again is a perennial question.

Be it health or education, system after

system, the story remains unchanged. Health is of
course a big casualty, maybe because of short

13Search for a vision statement on women’s empowerment; [2002] National

Commission for Women, New Delhi
 Chapter 1 12
The Role of Law in Empowering Women in India

sighted plans or absence of required

infrastructures. The women and children still
continue to suffer even after 60 years of our
political independence. The UN and other Donor
agencies funding, also, often do not reach the
people for whom it is meant. The basic
infrastructure though minimum in number has not
been effectively functioning. People of the
villages are still not active partners in
developmental programmes.

A woman in India, as in many other countries

is born to fight for her rights at every step.
She is silenced by emotional ties, family norms,
values, proprieties etc. Mostly her inability as
a non-economic entity stems as the main cause of
several of her problems in life. Ninety-nine
percent of Indian women have neither a social, an
economic nor a legal Persona.

In the male-dominant society, women are

denied property rights. The daughters are not
equal to their brothers. The Medical Termination
of Pregnancy Act has been made to give woman a
choice to decide about abortion or exercise
choice to limit the size of her family. But they
still, are not able to make the choice on their
own.
 Chapter 1 13
The Role of Law in Empowering Women in India

The Archaic concept of women being inferior

to men continued even after independence. There
is a vast gap in empowerment and freedom enjoyed
even by a microscopic number of women and the
large majority who are illiterate, ignorant and
poor.

Man is, or should be, woman’s protector and

defender. The natural and proper timidity and
delicacy which belongs to the female sex
evidently unfits it for many of the occupation of
civil life. The Constitution of the family
organization, which is founded in divine
ordinance, as well as in the nature of things,
indicates the domestic sphere as that which
properly belongs to the domain and function of
woman-hood.

The founding fathers of our Constitution

understood the need for protective discrimination
in favour of women and as such, while providing
for equality of all persons under Article 14, for
prohibition of discrimination on the grounds of
religion, race, caste, sex or place of birth,
under Article 15 and equality of opportunity in
matters of public employment under Article 16 of
the Constitution, specifically provided for
protection in favour of women under Article 15(3)
of the Constitution, which enables the State to
 Chapter 1 14
The Role of Law in Empowering Women in India

make any special provision for women and

children.

Article 21 of the Constitution of India

reinforces right to life. Life in its expanded
horizon includes all that which gives meaning to
a person’s life including culture, heritage,
tradition and dignity of person. For its
meaningfulness and purpose, every woman is
entitled to elimination of obstacles and
discrimination based on gender. Women are
entitled to enjoy economic, social, cultural and
political rights without discrimination and on a
footing of equality. Article 23 of the
Constitution specifically prohibits Traffic in
human beings. The Directive Principles of State
Policy contained in Part IV of the Constitution
incorporate many directives to the State to
improve the status of women and for their
protection. Article 39(a) requires the State to
direct its policy towards securing for its
citizens, men and women equally, the right to an
adequate means of livelihood. Article 39(d)
requires the State to secure equal pay for equal
work for men and women. Article 39(e) directs the
State not to abuse the health and strength of
workers, men and women. Article 42 directs the
State to make provisions for securing just and
humane conditions of work and for maternity
 Chapter 1 15
The Role of Law in Empowering Women in India

relief. Article 44 directs the State to secure

for its citizens a Uniform Civil Code throughout
the territory of India. Equally in order to
effectuate fundamental duty to develop scientific
temper, humanism and the spirit of enquiry and to
strive towards excellence in all spheres of
individual and collective activities as enjoined
in Article 51 A(h) and (j) of the Constitution of
India, facilities and opportunities not only are
to be provided for, but also all forms of gender
based discrimination should be eliminated. The
State should create conditions and facilities
conducive for women to realize the right to
economic development including social and
cultural rights. The 73rd and 74th Amendments to
the Indian Constitution provide for reservation
of seats for women in elections to panchayats and
Municipalities. Under Clause (3) of Article 243-
D, not less than one-third of the total number of
seats to be filled by direct election in every
Panchayat shall be reserved for women. Similar
reservation in Municipalities is prescribed by
Clause (3) of Article 243-T of the Constitution.

The General Assembly of the United Nations

adopted a Declaration on December 4, 1986 on The
Development or the Right to Development, in which
India played a crusading role for its adoption
and ratified the same. Human rights for woman,
 Chapter 1 16
The Role of Law in Empowering Women in India

including the girl child are an integral and

indivisible part of the universal human rights.
The full development of personality, fundamental
freedoms and equal participation by women in
political, social, economic and cultural life are
concomitants for national development, social and
family stability and growth, culturally, socially
and economically. All forms of discrimination on
ground of gender are violative of fundamental
freedoms and human rights.

The Vienna declaration on the elimination of

all forms of discrimination against women, in
short CEDAW, was ratified by the U.N.O. on
December 18, 1979. The Government of India which
was an active participant to CEDAW, ratified it
on June 19, 1993, and acceded to CEDAW on August
8, 1993 with certain reservations. The Preamble
of CEDAW reiterates that discrimination against
women violates the principles of equality of
right and respect for human dignity. By operation
of the relevant articles of CEDAW, the State
should take all appropriate measures including
legislation to modify or abolish gender based
discrimination in the existing laws, regulations,
customs and practices which constitute
discrimination against women.
 Chapter 1 17
The Role of Law in Empowering Women in India

The intensity of change witnessed during

recent years in the sphere of women and the law
is not an accident or a sporadic occurrence.
There is an increased awareness in society of the
injustice done to women in the past. Worldwide
movement for women’s rights has not left India
untouched. The rights and position of women, in
several of their facets, have received close
attention at the hands of the Law Commission of
India, whose contribution in this area has been
of immense value. More than all, judicial
intervention on various issues concerning women
has been largely progressive and liberal.

Judicial activism through the process of

affirmative action and protective discrimination
in favour of women has been, to a large extent,
instrumental in the growing empowerment of women
and in providing the necessary framework within
which the woman of today is able to move around
with confidence, assert her rights and gradually
progress towards a position wherefrom they can
stand on an equal footing with men in all walks
of life.

To make law keep its promise, it behoves on

the judiciary to help actualization of statutory
objectives, the Constitutional mandates and
legislative initiatives.
 Chapter 1 18
The Role of Law in Empowering Women in India

Judicial interpretation of gender

jurisprudence in diverse situations has explained
and expanded the law, some of them containing
positive directives to make empowerment a living
reality. Even court rulings, however supreme and
inviolable, are not self-operative. The executive
using its police powers must act or other
agencies invested with State power must be
created to make law perform. In the words of the
Judge, the watershed of human rights
jurisprudence is marked by the epic event of the
Indian Constitution coming into force on 26th
January, 1950. But the struggle to give meaning
to the jurisprudence of justice to women from
foetus to ashes is still a continuing process
resisted at every turn by masculine strategists
giving specious reasons and scriptural
citations14.

All types of suffrage, humiliation, social

negligence and deprivations have forced women to
stand and demand their share of human rights. A
number of oppositions and women-movements have
forced the world to change attitudes and to make
specific provisions for their rights on national
and international levels.

14Search for a vision statement on women’s empowerment; [2002] National

Commission for Women, New Delhi