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Gender jurisprudence and its context in India

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Jurisprudence of gender in India

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Gender jurisprudence and its context in India

  1. 1. 0 Table of Contents Table of Cases ....................................................................................1 I. Introduction ..............................................................................3 II. Scope of Examination ................................................................3 III. Constitutional Provisions...........................................................3 Constitutional Privileges..................................................................4 IV. Legal Provisions.........................................................................5 Crimes under the Indian Penal Code (IPC) .......................................5 Special Legal Provisions for Crimes Against Women.........................6 International Covenants ..................................................................6 V. Need for Judicial Intervention in Securing Rights.......................7 VI. Legislative Interpretation of Art. 14 ............................................7 VII. Judicial Intervention................................................................11 Against Exploitation ......................................................................11 Preservation of Female Dignity.......................................................13 Employment & Reservation for Women..........................................15 Mitigation of Severity of Law ..........................................................15 VIII. Judicial Law-Making................................................................17 IX. Illustrative Downside of Judicial Intervention...........................18 X. Author’s Viewpoint ..................................................................19 Bibliography.....................................................................................20
  2. 2. 1 Table of Cases 1. Abdul Aziz v State of Bombay, AIR 1994 SC 321 2. Agarwal v. Uttar Pradesh AIR 1993 SC 1440 3. Air India v. Nargesh Meerza, AIR 1981 SC 1829 4. Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 5. Apparel Exp. Promotion Council v. Chopra, AIR 1999 SC 625 6. Ara v. Uttar Pradesh, AIR 2002 SC 3551 7. BS Lokhande and Anr. v. State of Maharashtra and Anr (AIR 1965 SC 1564) 8. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoli, (1996) 8 SCC 525 9. C. Rajakumari v. Commissioner of Police, Hyderabad, AIR 1998 AP 302 10. Cehat and Ors. v. Union of India 2003 (10) SCALE 11, (2003) 8 SCC 412 (2003) 11. Chairman, Ry. Bd. v. Das, AIR 2000 SC 988 12. Chandra v. Bihar, 1996 AIR 88 13. Chanmuniya v. Virendra Kumar Singh Khushwaha and Anr (2011) 1 SCC 141 14. Choki v. State of Rajasthan, AIR 1971 Raj. 10 15. Dattatreya v. State of Bombay AIR 1953 Bom.311 16. Govt. of Andhra Pradesh v. Vijayakumar AIR 1995 SC 1648 17. Gupta v. Uttar Pradesh (2005) 5 SCC 172 18. Kaushal v. Kaushal, AIR 1978 SC 1807 19. Lakshmi v. Punjab University AIR 2003 SC 3331 20. Lily Thomas v. Union of India AIR 2000 SC 1650 21. Madan Mohan Singh and Ors. v. Rajni Kant and Anr [2010] INSC 631 22. Madhu Krishnan v. State of Bihar,(1956) 5 SCC 148 23. Miss Radha Bai v. The Union Territory of Pondicherry Represented By Its Chief Secretary, 1995 AIR 1476 1995 SCC (4) 141 – Jt 1995 (4) 34 1995 Scale (2) 842 24. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 25. Miss C.B. Muthamma v. Union of India, AIR 1979 SC 1868
  3. 3. 2 26. Mrs. Githa Hariharan & Anr v. Reserve Bank Of India & Anr AIR 1999, 2. SCC 228 27. Mrs. Rupan Deol Bajaj & Anr v. Kanwar Pal Singh Gill & Anr 1996 AIR 309, 1995 SCC (6) 194 28. Municipal Corporation of Delhi v. Female workers (Muster Roll) & Anr, 2000 ICIR 879 29. Ran Raj Rajeshwari v. The State of Uttar Pradesh, AIR 1954 All. 608 30. Reddy v. Andhra Pradesh (1993) 4 SCC 439 31. Sadhu Singh v. Gurudwara Saheb Narike 2007 (1) HLR (SC) 1 32. Satpathy v. Dixit AIR 1999 SC 3348 33. Smt. Sarla Mudgal v. Union of India AIR 1995 SC 1531 34. Sesharathamma v. Manikyamma (1991) 3 SCR 717 35. Shri Ramakant Rai and Health Watch U.P. and Bihar v. Union of India and Singh v. Ramendri Smt. AIR 2000 SC 952 36. Smt. Bimla Rani & Ors v. Appellate Authority, 113 (2004) DLT 441, (2005) IILLJ 148 Del, 2005 (1) SLJ 481 Delhi 37. State of Jammu and Kashmir v. Dr. Susheela Sawhney AIR 2003 JK 83, 2003 (1). 38. State Of Maharashtra and Anr v. Madhukar Narayan Mardikar AIR 1991 SC 207 (1990) 39. State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 40. Suresh Kumar Koushal & Anr v. NAZ Foundation & Ors Civil Appeal No. 10972 of 2013 41. Suresh Kumari v State of Haryana, 1995 (4) Crimes 643 C.P.S.14 42. The Union Territory of Pondicherry Represented By Its Chief Secretary 1995 AIR 1476 1995 SCC (4) 141-Jt 1995 (4) 34 1995 Scale (2) 842 43. Union of India v. Prabhakaran (1997) 11 SCC 638 44. Vishaka v. State of Rajasthan AIR 1997 SC 3011 45. Vishal Jeet v Union of India, AIR 1990 SC 1412 46. NALSA vs Union of India Writ Petition (Civil) No. 400 of 2012.
  4. 4. 3 I. Introduction 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 favor of women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes 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. II. Scope of Examination Since the ambit of the subject is large, I have found it necessary to confine my research paper to brief examination of constitutional and legal provisions for women and their interpretation by Indian courts in three selected fields, viz. interpretation of Art. 14, exploitation and dignity, employment and reservations and the steadily expanding ambit of such interpretation. III. Constitutional Provisions The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favor 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.
  5. 5. 4 Constitutional Privileges India’s Constitution grants women the following specific 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)) 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
  6. 6. 5 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)) xiii. 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)) xiv. 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) IV. 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. Crimes under the Indian Penal Code (IPC)  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)  Importation of girls (up to 21 years of age)
  7. 7. 6 Special Legal Provisions for Crimes Against Women 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. Suppression of 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 The Criminal Law (Amendment) Act, 1983 xiv. The Factories (Amendment) Act, 1986 xv. Indecent Representation of Women (Prohibition) Act, 1986 xvi. Commission of Sati (Prevention) Act, 1987 xvii. The Protection of Women from Domestic Violence Act, 2005 International Covenants India is a signatory to all the following international conventions that bear specific references to women’s rights: i. Universal Declaration of Human Rights, 1948 ii. Convention on the Political Rights of Women, 1954 iii. The International Covenant on Civil and Political Rights, 1966
  8. 8. 7 iv. International Covenant on Economic, Social and Cultural Rights, 1966 v. Beijing Principles of the Independence of the Judiciary, 1995 vi. Declaration on Elimination of Violence against Women 1993 and Convention on Elimination of all forms of Discrimination against Women (CEDAW) V. Need for Judicial Intervention in Securing Rights Notwithstanding such impressive array of laws, the World Economic Forum’s Measuring the Global Gender Gap Report, 2012 places India’s gender gap at 105th rank, up from 113 in 20111 . India’s 105th rank and score of 0.6442 is bettered by Sri Lanka with its 39th rank and score of 0.7122. Surprisingly, a developing country like the Philippines ranks 8th with an enviable score of 0.7757, immediately after Denmark but two ranks above developed Switzerland. The US Council of Foreign Relations states that rape complaints increased by 25% from 2006-11 with a low conviction rate of 26%, while NCRB statistics showed a 7.1% rise in crimes against women since 20102 . How have courts dealt with such executive indifference to women’s rights? VI. Legislative Interpretation of Art. 14 In a landmark judgement in State of West Bengal v. Anwar Ali Sarkar3 , the Apex Court noted that: ….the State in the exercise of its governmental power must have necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies…….indeed the very idea of classification is that of equality…… In Madhu Krishnan v State of Bihar4 , the Court noted that although women formed half of the Indian population they have always been discriminated against men, suffered 1 Table 3a: The Global Gender Gap Index 2012 rankings: comparisons with 2011, 2010, 2009, 2008, 2007 and 2006 2 Xu, Beina: Backgrounder: Governance in India: Women’s Rights, Council on Foreign Relations, extracted on Jan 15, 2014 from http://www.cfr.org/india/governance-india-womens-rights/p30041 3 1952 SCR 284 4 (1956) 5 SCC 148.
  9. 9. 8 denial and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all kinds of inequities indignities, incongruities and discrimination. Having laid down the fundamental rules of equality before the law under Art. 14, the Court embarked on a series of interpretations of the statutes in force. In its landmark judgment the Apex Court in Air India v Nargesh Meerza5 held that a woman shall not be denied employment merely on the ground that she is a woman as it amounts to violation of Article 14 of the Constitution. In this case, air-hostesses of Indian Air Lines and Air India challenged the service rules which stated that: Air-hostesses shall not marry for the first four years of their joining; they will lose their jobs if they become pregnant. They will retire at the age of 35 years, unless the Managing Director extends the term by ten years at his discretion. The Supreme Court of India suggested that the first provision was legal, as it would help in promotion of the family planning programmes, and would increase the expenditure of airlines recruiting air-hostesses on temporary or ad hoc basis, but the second and third provisions were declared as unethical, abhorrent, unreasonable, arbitrary, unconstitutional and an open insult to Indian womanhood. In a similar case, Air India Cabin Crew Association v. Yeshawinee Merchant and others6 , the Apex Court directed that air hostesses in Air India would continue in service till they attained the age of 58 years, like their male counterparts. Rules regarding seniority and promotion in the Indian Foreign Service was challenged before the Apex Court in Miss C.B. Muthamma v Union of India,7 where it was held that the rules relating to seniority and promotion in the Indian Foreign Service which discriminated only on ground of sex was not only unconstitutional but also a hangover of the masculine culture of handcuffing the weaker sex. In this instant case a writ petition was filed before the Apex Court wherein it was contended that she had 5 AIR 1981 SC 1829 6 RD-SC 291 7 AIR 1979 SC 1868
  10. 10. 9 been denied promotion to Grade I on the ground of sex, which violated the Art. 15 of the Constitution of India, 1950. The Apex Court allowed the petition and held that Rule 8 (2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 which required an unmarried woman member to take permission of the Government before the marriage and that after the marriage, she may be asked any time to resign if it is felt that her family life affected her efficiency contravened Art. 15 of the Constitution of India. In view of the above decision, now these provisions have been deleted. In Smt. Bimla Rani & Ors v. Appellate Authority, it was held that equal pay for equal description of work was liable to be paid to female employees and not by mere change of designation8 . The Supreme Court, in Municipal Corporation of Delhi v. Female workers (Muster Roll) & Anr9 said: We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular woman employees to the benefit of maternity leave and not those who are engaged on casual basis or on muster roll on daily wage basis. In the offence of adultery, S. 497 of the Indian Penal Code, 1860 punished only the male counterpart and exempted the woman from punishment. The constitutional validity of S. 497 of the IPC was challenged on the ground that it violated Art. 14 and 15(1) of the Constitution. In Abdul Aziz v State of Bombay,10 the Apex Court upheld the validity of the provision on the ground that the classification was not based on the ground of sex alone. The Court relied upon the mandate of Art. 15(3) of the Constitution of India to uphold the validity of the said proviso of the Code. However, in the present case the petitioner contended that even though the woman may be equally guilty as an abettor, only the man was punished, which violates the right to equality on the ground of sex. It was contended that Section 497, IPC violated Art. 14 and 15 of the Constitution on the ground that it makes an irrational classification between men and women in that: 8 113 (2004) DLT 441, (2005) IILLJ 148 Del, 2005 (1) SLJ 481 Delhi 9 2000 ICIR 879 10 AIR 1994 SC 321
  11. 11. 10 (i) it contents upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband committed adultery; (ii) it does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and (iii) it does not take in cases where the husband has sexual relation with an unmarried woman with the result that it amounts to having a free licence under the law to have extra marital relationship with unmarried woman. However, the Apex Court rejected these contentions and held that it could be said that in defining the offence of adultery so as to restrict the class of offender to men, any constitutional provision is infringed. In Ran Raj Rajeshwari v The State of Uttar Pradesh,11 wherein the issue related to a discriminatory provision in a status was adjudicated under the UP Court of Wards Act, 1912. According to this Act a male proprietor could be declared incapable in managing his property only on one of the five grounds mentioned therein and that too after giving him an opportunity of showing cause as to why such a declaration should not be made, a female proprietor could be declared incapable to manage her property on any ground and without giving her any show cause notice. The Allahabad High Court held that this provision was bad because it amounted to sexual discrimination that violated Art. 15(1) of the Constitution of India. In Apparel Export Promotion Council v. A.K. Chopra12 , the court found that the distinction between attempt to molest and completed act erroneous in context of dismissal of employee for sexual harassment. In fact, in Chairman, Ry. Bd. v. Das13 , Apparel Exp. Promotion Council v. Chopra14 , and Vishaka v. Rajasthan15 , the Apex Court approached the issue of gender based violence by relying on the international 11 AIR 1954 All. 608 12 (1999) 1 S.C.C. 759 13 AIR 2000 SC 988 14 AIR 1999 SC 625 15 AIR 1997 SC 3011
  12. 12. 11 legal norm of gender violence being an issue of equality, and that freedom of it is a fundamental right protected under the constitution. Specifically the court had tried to incorporate CEDAW into its analysis. VII. Judicial Intervention Against Exploitation Art. 23 of the Constitution provides the right against exploitation. The constitutional provision prohibits traffic in human beings. In this context traffic in human beings includes “devadasi system”. The Apex Court in Vishal Jeet v Union of India,16 observed that trafficking in human beings was prevalent in India for a long time in the form of selling and purchasing of human beings for prostitution for a price just like that of vegetables. On the strength of Art. 23(1) of the Constitution, the legislature passed the Immoral Traffic (Prevention) Act, 1956 abolishing the practice of prostitution and other forms of trafficking including “devadasi system”. The court further observed that this Act was made in pursuance of the international convention against immoral traffic which India had signed. In Ara v. Uttar Pradesh17 , Singh v. Ramendri Smt.18 , Satpathy v. Dixit19 , Sesharathamma v. Manikyamma20 and Kaushal v. Kaushal21 , the Court interpreted ambiguous laws in a manner that was protectionist towards women-such such as labeling women as being destitute after divorce. In Mohd. Ahmed Khan v. Shah Bano Begum22 , the Court determined that a Muslim woman who was divorced should be paid alimony. The case created a lot of controversy since Muslim religious leaders did not want the court to interpret religious concepts in the area of family without religious authority. In Lily Thomas v. Union of India23 , and Smt. Sarla Mudgal v. Union of India24 , 16 AIR 1990 SC 1412 17 AIR 2002 SC 3551 18 AIR 2000 SC 952 19 AIR 1999 SC 3348 20 (1991) 3 SCR 717 21 AIR 1978 SC 1807 22 AIR 1985 SC 945 23 AIR 2000 SC 1650 24 AIR 1995 SC 1531
  13. 13. 12 the Court negated the right of Hindu men to convert to Islam to avail of Muslim protectionist marriage laws, such as for exercising polygamy. In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoli25 , the Court held that “personal laws conferring inferior status on women is anathema to equality.” In State Of Maharashtra And Anr v. Madhukar Narayan Mardikar26 , the Court opined that even a woman with easy virtue was entitled to privacy and no one could invade her privacy as and when he liked. So also, it was not open to any and every person to violate her person as and when he wished. Therefore, merely because she is a woman of easy virtue, her evidence could not be thrown overboard. In Cehat And Ors. vs Union Of India27 , the Court took on the unique role of actually monitoring the implementation of the law and issuing several beneficial directives over the course of three years during which the case was proceeding in court. This petition put the issue of sex selection and sex selective abortion on the national agenda and as a consequence there have been heightened activities on this issue by government and non- governmental agencies alike. In Miss Radha Bai v. The Union Territory of Pondicherry Represented By Its Chief Secretary28 , when Radhabai, Secretary to Mr. D Ramchandran, the then Minister for State, protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favor, with back pay and perks from the date of dismissal. Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr29 changed the meaning of the terms, modesty and privacy in such a way that any kind of harassment or inconvenience done to a woman’s private or public life would be considered an offence. 25 (1996) 8 SCC 525 26 AIR 1991 SC 207 (1990) 27 2003 (10) SCALE 11, (2003) 8 SCC 412 (2003) 28 1995 AIR 1476 1995 SCC (4) 141 - Jt 1995 (4) 34 1995 Scale (2)842 29 1996 AIR 309, 1995 SCC (6) 194
  14. 14. 13 Preservation of Female Dignity The issue of whether beauty contests violated Constitutional provisions, the Andhra Pradesh High Court in C. Rajakumari v Commissioner of Police, Hyderabad30 held that if a beauty contest indecently represent any woman by depicting in any manner the figure of woman, form, body or any part thereof in such a way so as to have the effect of being indecent, or derogatory to or degrading women, or likely to deprive, corrupt and injure the public morality would violate the provisions of the Indecent Representation of Women (Prohibition) Act, 1986 and would also be unconstitutional as it violated Art. 14, 21 and 51-A of the Constitution of India. In Shri Ramakant Rai and Health Watch U.P. and Bihar v. Union of India and Others31 , it was held that women had the human right to voluntary sterilization services that were not coercive, discriminatory or violent. The court asked state governments to take steps to regulate doctors and other providers who perform sterilization procedures. The mandate of S. 437 of the Code of Criminal Procedure, 1973 permits distinction in favour of women even if there appears to be a reasonable ground for believing that they have been guilty of an offence punishable with death or imprisonment for life.32 In other words this section prohibits release of a person accused of a capital offence on bail except women and children under 16 years of age or sick or infirm person. In Choki v State of Rajasthan,33 the Rajasthan High Court held that it was valid on the ground that it makes special provision for women and therefore, it was protected under Article 15(3) of the Constitution. In Ara v. Uttar Pradesh34 , Singh v. Ramendri Smt.35 , Satpathy v. Dixit36 , Sesharathamma v. Manikyamma37 and Kaushal v. Kaushal38 , the Court interpreted ambiguous laws in a manner that was protectionist towards women-such such as 30 AIR 1998 A.P. 302 31 Civil Writ Petition No 209/2003 32 Suresh Kumari v State of Haryana, 1995 (4) Crimes 643 C.P.S. 14. 33 AIR 1971 Raj. 10. 34 AIR 2002 SC 3551 35 AIR 2000 SC 952 36 AIR 1999 SC 3348 37 (1991) 3 SCR 717 38 AIR 1978 SC 1807
  15. 15. 14 labeling women as being destitute after divorce. In Mohd. Ahmed Khan v. Shah Bano Begum39 , the Court determined that a Muslim woman who was divorced should be paid alimony. The case created a lot of controversy since Muslim religious leaders did not want the court to interpret religious concepts in the area of family without religious authority. In Lily Thomas v. Union of India40 , and Smt. Sarla Mudgal v. Union of India41 , the Court negated the right of Hindu men to convert to Islam to avail of Muslim protectionist marriage laws, such as for exercising polygamy. In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoli42 , the Court held that “personal laws conferring inferior status on women is anathema to equality.” In State Of Maharashtra And Anr v. Madhukar Narayan Mardikar43 , the Court opined that even a woman with easy virtue was entitled to privacy and no one could invade her privacy as and when he liked. So also, it was not open to any and every person to violate her person as and when he wished. Therefore, merely because she is a woman of easy virtue, her evidence could not be thrown overboard. In Miss Radha Bai v. The Union Territory of Pondicherry Represented By Its Chief Secretary44 , when Radhabai, Secretary to Mr. D Ramchandran, the then Minister for State, protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favor, with back pay and perks from the date of dismissal. Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr45 changed the meaning of the terms, modesty and privacy in such a way that any kind of harassment or inconvenience done to a woman’s private or public life would be considered an offence. 39 AIR 1985 SC 945 40 AIR 2000 SC 1650 41 AIR 1995 SC 1531 42 (1996) 8 SCC 525 43 AIR 1991 SC 207 (1990) 44 1995 AIR 1476 1995 SCC (4) 141 - Jt 1995 (4) 34 1995 Scale (2)842 45 1996 AIR 309, 1995 SCC (6) 194
  16. 16. 15 Employment & Reservation for Women The Bombay High Court in Dettatreya v State of Bombay,46 held that reservation of some seats in women’s college was not unconstitutional. The court observed that establishment of educational institution exclusively for women was not hit by Art. 15 of the Constitution. In Govt. of Andhra Pradesh v. Vijayakumar47 , the court upheld affirmative action for women in public employment. In Agarwal v. Uttar Pradesh48 and Reddy v. Andhra Pradesh49 , the Court held that reservation of seats for women in municipal boards and boards of cooperative societies were protected by Art. 15(3) of the Constitution. In Gupta v. Uttar Pradesh50 , Lakshmi v. Punjab University51 , Union of India v. Prabhakaran52 , Pansari v. Orissa53 , Chandra v. Bihar54 and Kavitha v. Tamil Nadu55 , the Court upheld the reservation of seats for women in public institutions Mitigation of Severity of Law In the landmark judgement delivered by the Jammu and Kashmir High Court in the case of State of Jammu and Kashmir v. Dr. Shusheela Sawhney56 the court held that the daughter of a permanent resident of the State of Jammu and Kashmir by marrying a non- permanent resident did not lose her status as permanent resident of the State of Jammu and Kashmir to hold, inherit and acquire immovable property in the State of Jammu and Kashmir. It was also held that right of employment of a woman who is in employment of the State and at the time of initial appointment is permanent resident of the State can continue to be in employment of the State even after her marriage with the non- permanent resident57 . 46 AIR 1953 Bom. 311 47 AIR 1995 SC 1648 48 AIR 1993 SC 1440 49 (1993) 4 SCC 439 50 (2005) 5 SCC 172 51 AIR 2003 SC 3331 52 (1997) 11 SCC 638 53 AIR 2000 SC 1531 54 1996 AIR 88 55 1992 AIR 359 56 AIR 2003 J K 83, 2003 (1) 57 2003(1) JKJ p.35.
  17. 17. 16 In Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr58 , the Supreme Court diluted the severity of the Hindu Adoption and Maintenance Act which declares a father as the sole natural guardian by expanding the definition of natural guardian and declaring the circumstances in which a Hindu Mother could also be treated as a natural guardian59 . Courts have also stepped in to contemporary areas such as male-female cohabitation and rights accruing therefrom. In the case of Madan Mohan Singh and Ors. V. Rajni Kant and Anr.60 , the Court relied upon a decision reported in AIR 1992 SC 756 where it was held that if man and woman are living under the same roof and cohabiting for number of years, there will be a presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate. In the case of Chanmuniya v. Virendra Kumar Singh Khushwaha and Anr.61 , has laid down: We are of the opinion that a broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre- condition for maintenance under S. 125 of the Cr PC, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under S. 125. However the Supreme Court itself in the case of Sadhu Singh v. Gurudwara Saheb Narike62 has held that “wife or widow” in the context of marriage, succession or maintenance enactments are of restrictive legal character imply relationships that result from a recognized legal mode of marriage and would not include a relationship which is not recognized by law. In B.S. Lokhande and Anr. v. State of Maharashtra and Anr63 , 58 AIR 1999, 2. SCC 228 59 1999 AIR 1149 1999( 1 )SCR 669 1999( 2 )SCC 228 1999( 1 )SCALE490 1999( 1 )JT 524 60 [2010] INSC 631 61 2011) 1 SCC 141 62 2007 (1) H.L.R., (S.C.) 1 63 (AIR 1965 SC 1564)
  18. 18. 17 the Apex Court stated that merely because the couple lived together as husband and wife, the status of wife was not conferred on the woman in such a relationship. VIII. Judicial Law-Making In Cehat And Ors. vs Union Of India64 , the Court took on the unique role of actually monitoring the implementation of the law and issuing several beneficial directives over the course of three years during which the case was proceeding in court. This petition put the issue of sex selection and sex selective abortion on the national agenda and as a consequence there have been heightened activities on this issue by government and non-governmental agencies alike. In 1997, in a landmark case before the Apex Court stemming from the brutal gang rape of a publicly employed social worker at work Vishaka v. State of Rajasthan65 , the Court stated that a woman’s constitutional rights to life (with dignity), to equality and to practice any profession or carry out any occupation under Art. 14 & 19, demanded safeguards against sexual harassment in the workplace. In the absence of legislative safeguards, the Court, stated that an “affective alternative mechanism” was needed to prevent violations of these fundamental rights in the workplace. To that end, the Court established guidelines (Vishaka Guidelines) with regards to the prevention and redress of sexual harassment in the workplace. These set out a series of obligations on employers to prevent or deter acts of sexual harassment and to remedy occasions where such acts take place. The Court stated that the Vishaka Guidelines were to be treated as a declaration of law and to apply until relevant protective legislation was enacted by the Parliament. The Court in Medha Kotwal Lele vs. Union of India directed States and the Bar Council of India to take certain measures so that the Visakha Guidelines did not remain “lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population – the women”. 64 2003 (10) SCALE 11, (2003) 8 SCC 412 (2003) 65 AIR 1997 SC 3011
  19. 19. 18 IX. Illustrative Downside of Judicial Intervention Notwithstanding major changes in social mores and the emergence of hitherto unknown (in India) forms of relationships, including online social media and same sex, Indian courts have consistently upheld the constitutional validity of Section 497, ostensibly to keep women out of the purview of criminal law. It is obvious that no adultery can be committed unless a woman is a consenting partner. The judicial perception that only a man can be “an outsider”, who has potential to invade the peace and privacy of the matrimonial unit and to poison the relationship between the unfaithful wife and her husband, therefore, seems to be, with due respect, less convincing and unrealistic. “An outsider woman”, can, like “an outsider man”, be equally capable of “invading” the matrimonial peace and privacy as well as of “poisoning” the relationship of not only her own matrimonial home but also that of her paramour. Similarly, the judicial opinion that Section 198(1) read with Section 198(2) CrPC, disqualifying the wife of an unfaithful husband for prosecuting him for his promiscuous behaviour, with due respect, is unconvincing and illogical. Such judicial reasoning, in ultimate analysis, unfortunately endorses the patriarchal, property-oriented and gender-discriminatory penal law of adultery. It conveys that a man is entitled to have exclusive possession of, and access to, his wife's sexuality, and a woman is not eligible to have such an exclusive right and claim over her husband. She is, therefore, not entitled to prosecute either her promiscuous husband or the “outsider woman” who has poisoned (or colluded with her promiscuous husband to do so) her matrimonial home. The Apex Court, thus, failed to take contemporary insight of this gender-biased law of adultery although it has, from time to time, asserted that it is for the legislature to take cognizance of the social “transformation” and not for it. What is even more surprising is that the Apex Court has not hesitated in steadily expanding the scope of Art. 21 for all Indians, including women. Courts have also been reticent about recognizing the LGBT community as the ‘third sex’. Although the Delhi High Court granted recognition to this community in Suresh Kumar Koushal & Anr v. NAZ Foundation & Ors66 , upon appeal the Apex Court 66 CIVIL APPEAL NO.10972 OF 2013
  20. 20. 19 overruled the High Court and upheld the validity of S. 377 of the IPC. It was not until NALSA vs Union of India67 that the Apex Court declared that Transgendered People were the 'third gender' and that they had equal rights as any other gender. The petitioner in this case was the National Legal Services Authority (NALSA). X. Author’s Viewpoint While the legal framework for protection of women and legal/judicial processes tedious and expensive, indeed often too complicated for the common woman, timely and inexpensive enforcement remains the biggest hurdle in assuring the efficacy of such framework. Many laws such as those relating to S. 377, 497, 498-A, etc. deserve to be repealed and replaced with more contemporary ones that are in synch with rapidly changing social lifestyles and attendant social mores. Family courts are a welcome part solution to enforcement but sheer numbers overwhelm them. Even within the existing legal framework, courts often allow meagre compensation for alimony, maintenance of children and unrealistic compensation for the loss of a partner. In a large country like India, where exploitation of the indigent and women are more the rule than an exception, enforcement remains slave to executive indifference. There is little courts can do, save for an occasional intervention in favor of those that seek its protection. Religious laws often compound human misery in matters of property, inheritance, marriage, maintenance, et al, lending greater credence for existing Indian laws to be replaced by a uniform civil code. As Mr. Nani Palkhivala, the celebrated Indian jurist encapsulated the state of the nation: …..the most persistent tendency in India is to have too much government but too little administration; too many laws and too little justice; too many public servants and too little public service; too many controls and too little welfare. 67 Writ Petition (Civil) No. 400 of 2012
  21. 21. 20 Bibliography All Criminal Law Reporter All India Reporter (SC) Beijing Principles of the Independence of the Judiciary, 1995 extracted on Jan 25, 2015 from lawasia.asn.au/objectlibrary/147?filename=Beijing%20Statement.pdf Commission of Sati (Prevention) Act, 1987 Constitution of India extracted on Jan 15, 2015 from http://indiacode.nic.in/coiweb/welcome.html Convention on the Political Rights of Women, 1954 extracted on Jan 20, 2015 from https://treaties.un.org/doc/.../1954/07/19540707%2000.../Ch_XVI_1p.pdf Declaration on Elimination of Violence against Women 1993 and Convention on Elimination of all forms of Discrimination against Women (CEDAW) extracted on Jan 26, 2015 from http://www.un.org/womenwatch/daw/cedaw/ Dowry Prohibition Act, 1961 Indecent Representation of Women (Prohibition) Act, 1986 Indian Penal Code extracted on Jan 15, 2015 from districtcourtallahabad.up.nic.in/articles/IPC.pdf International Covenant on Economic, Social and Cultural Rights, 1966 extracted on Jan 24, 2015 from www.who.int/hhr/Economic_social_cultural.pdf Services Law Journal Suppression of Immoral Traffic (Prevention) Act, 1956 Supreme Court Supplementary without volume Supreme Court/High Court cases from www.indiankanoon.com The Employees State Insurance Act, 1948 The Contract Labor (Regulation and Abolition) Act, 1976 The Criminal Law (Amendment) Act, 1983 The Equal Remuneration Act, 1976 The Factories (Amendment) Act, 1986 The Family Courts Act, 1954 The Hindu Marriage Act, 1955 The Hindu Succession Act, 1956 with amendment in 2005 The International Covenant on Civil and Political Rights, 1966 extracted on Jan 22, 2015 from https://treaties.un.org/doc/Publication/.../volume-999-I-14668-English.pdf The Maternity Benefit Act, 1961 (Amended in 1995) The Medical Termination of Pregnancy Act, 1971 The Plantation Labor Act, 1951 The Prohibition of Child Marriage Act, 2006 The Protection of Women from Domestic Violence Act, 2005 The Special Marriage Act, 1954 Universal Declaration of Human Rights, 1948 extracted on Jan 18, 2015 from http://www.un.org/en/documents/udhr/

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