LAWS RELATED TO WOMEN: INDIAN PERSPECTIVE

Introduction

The women’s rights movement of the last century unified women around a number of issues that were seen as fundamental rights for all citizens; they included: the right to own property, access to higher education, reproductive rights, and suffrage. Women’s suffrage was the most controversial women’s rights issue of the late nineteenth and early twentieth centuries and divided early feminists on ideological lines. After women secured the right to vote in 1917, the women’s rights movement lost much of its momentum. World War I and II encouraged women to do their patriotic duty by entering the workforce to support the war effort. Many women assumed they would leave the working world when men returned from service, and many did. However, other women enjoyed the economic benefits of working outside the home and remained in the workforce permanently. After WWII, the women’s rights movement had difficulty coming together on important issues[1].

It was not until the socially explosive 1960s that the modern feminist movement would be re-energized. In the four decades since, the women’s movement has tackled many issues that are considered discriminatory toward women including: sexism in advertising and the media, economic inequality issues that affect families, and violence against women. Women in India now participate fully in areas such as education, sports, politics, media, art and culture, service sectors, science and technology, etc. Indira Gandhi, who served as Prime Minister of India for an aggregate period of fifteen years, is the world’s longest serving woman Prime Minister. The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard.

Important Constitutional and Legal Provisions For Women In India

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and 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. Though the constitution has provided equality of both the sexes man and women but biological condition of the female and developed sense of subordination demand extra protection for them. The reason is that “women’s physical structure and the performance of certain functions place her at a disadvantage in the struggle for subsistence and her physical well- being becomes an object of public interest and care in order to preserve the strength and vigour of the race”. Thus the law and justice demands additional privileges and safeguards for maintaining proper socio- legal status of women in the society.

Constitutional Provisions

-The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in
this regard.

Constitutional Privileges

  • Equality before law for women (Article14)
  • 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))
  • The State to make any special provision in favour of women and children (Article 15 (3)
  • 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)); and equal pay for equal work for both men and women (Article 39(d))
  • 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)
  • The State to make provision for securing just and humane conditions of work and for maternity relief (Article42)
  • 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)
  • 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 Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article243 D(3))
  • 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))
  • 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)
  • 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))

 

State Initiatives for Women

  • 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.
Reservation For Women In Local Self –Government. The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.

  • The National Plan Of Action For The Girl Child (1991-2000)

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

  • National Policy For The Empowerment Of Women, 2001

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

Some acts which have special provisions to safeguard women and their interests are:

The Dowry Prohibition Act 1961 prohibits the request, payment or acceptance of a dowry “as consideration for the marriage”, where “dowry” is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal, per section 3(2). Asking for or giving of dowry can be punished by imprisonment of up to six months, a fine of up to Rs. 15000 or the amount of dowry (whichever is higher), or imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states[2].

The Immoral Traffic (Suppression) Act (SITA) (1956) is the primary law dealing with the status of sex workers. According to this law, prostitutes can practise their trade privately but cannot legally solicit customers in public. Organised prostitution (brothels, prostitution rings, pimping, etc.) is illegal. As long as it is done individually and voluntarily, a woman can use her body in exchange for material benefit. In particular, the law forbids a sex worker to carry on her profession within 200 yards of a public place. Unlike as is the case with other professions, sex workers are not protected under normal labour laws, but they possess the right to rescue and rehabilitation if they desire and possess all the rights of other citizens.

The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. Primarily meant to provide protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives, the law also extends its protection to women living in a household such as sisters, widows or mothers. Domestic violence under the act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition[3].

The Family Courts Act, 1954

The Court established to conclude upon matters relating to family law like matrimonial reliefs, custody of children, and maintenance for wife and children etc. is termed as Family Court. The Status of Women Committee in 1975 together with the report of the 59th Law Commission recommended the Central Government to establish a separate judicial forum to settle family disputes immediately before the beginning of the trial proceedings. Hence it was decided to establish a family court in India by the Act of 1984. The Family Court shall have the same status as that of a District Court and shall exercise the jurisdiction accordingly and also empowered to initiate suits and proceedings in par with the conditions stipulated by the Act. Where there is any chance for settlement of the dispute between the parties, the Family Court shall postpone the proceedings and take steps for settlement at the earliest. Under the Act a party to the dispute cannot claim the service of a legal practitioner as of right, but the Court shall have the power to appoint a legal profession. An aggrieved party may, however, prefer an appeal to the High Court from an order of the Family Court. The High Court shall frame rules in the matters connected there with, after publishing in the Gazette. The Act also confers power on the Central and State Government to formulate rules as prescribed under the Act.

The Special Marriage Act, 1954 Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century. The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment has 3 major objectives: to provide a special form of marriage in certain cases, to provide for registration of certain marriages and, to provide for divorce.

The Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to making divorce easier on ground of irretrievable breakdown of marriage was introduced in the parliament in 2012. The Bill replaces the words “not earlier than six months” in Section13-B with the words “Upon receipt of a petition.” It also provides a better safe guard to wife by inserting Section 13D by which the wife may oppose the grant of a decree on the ground that the dissolution of the marriage will resulting rave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. New Section 13E provides restriction on decree for divorce affecting children born out of wedlock and states that a court shall not pass a decree of divorce under Section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.

The Maternity Benefit Act, 1961 (Amended in 1995) Section8 of the Act reads a follows after April 2, 2008: “Payment of medical bonus. (1) Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of one thousand rupees, if no prenatal confinement and post-natal care is provided for by the employer free of charge. (2)The Central Government may before every three years, by notification in the Official Gazette, increase the amount of medical bonus subject to the maximum of twenty thousand rupees.

The Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971 with the intention of reducing the incidence of illegal abortion and consequent maternal mortality and morbidity. The MTP Act came into effect from 1 April 1972 and was amended in the years 1975 and 2002. Pregnancies not exceeding 12 weeks may be terminated based on a single opinion formed in good faith. In case of pregnancies exceeding 12 weeks but less than 20 weeks, termination needs opinion of two doctors. The Act clearly states the conditions under which a pregnancy can be ended or aborted, the persons who are qualified to conduct the abortion and the place of implementation. Some of these qualifications are as follows: Women whose physical and/or mental health were endangered by the pregnancy, Women facing the birth of a potentially handicapped or malformed child, Rape Pregnancies in unmarried girls under the age of eighteen with the consent of a guardian, Pregnancies in “lunatics” with the consent of a guardian, Pregnancies that are a result of failure in sterilization.

The Equal Remuneration Act, 1976 An Act to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters, connected there with or incidental thereto. Apart from the above mentioned legal and constitutional provisions the Government of India has set up few special initiatives for the protection and empowerment of women.

National Commission for Women is a statutory body of the Government of India, generally concerned with advising the government on all policy matters affecting women. It was established in January 1992 under the provisions of the Indian Constitution, as defined in the 1990 National Commission for Women Act.The objective of the NCW is to represent the rights of women in India and to provide a voice for their issues and concerns. The subjects of their campaigns have included dowry, politics, religion, equal representation for women in jobs, and the exploitation of women for labour[4]. They have also discussed police abuses against women.The commission regularly publishes a monthly newsletter, RashtraMahila in both Hindi and English.

Reservation for Women in Local Self –Government: The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.

The National Plan of Action for the Girl Child for 1991- 2000, is a specially formulated action plan by the Government of India to protect and promote the Girl Child. This plan seeks to prevent female foeticide and infanticide, eliminate gender discrimination, provide safe drinking water and fodder near homes, rehabilitate and protect girls from exploitation, assault and abuse.

National Policy for the Empowerment of Women, 2001[5]: The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a ―National Policy for the Empowerment of Women” in the year 2001. The goal of this Policy is to bring about the advancement, development and empowerment of women[6]. The Policy will be widely disseminated so as to encourage active participation of all stakeholders for achieving its goals.

The Indian Penal Code of 1860 further elaborated the provisions regarding protection of women’s rights like cruelty by husband and relatives to be an offence under Section 497, outraging modesty of women to be an offence under Section 354, causing miscarriage, dowry death, rape, acid attack, voyeurism, etc. all are defined to be offences of criminal nature that penalises such wrongdoers[7].

CONCLUSION

Within the framework of a democratic polity, our laws, development policies, Plans and programmes have aimed at women‘s advancement in different spheres. From the Fifth Five Year Plan (1974-78) onwards has been a marked shift in the approach to women‘s issues from welfare to development. In recent years, the empowerment of women has been recognized as the central issue in determining the status of women. The National Commission for Women was set up by Act of Parliament in 1990 to safeguard the rights and legal entitlements of women. The 73rd and 74th Amendments (1993) to the Constitution of India have provided for reservation of seats in the local bodies of Panchayats and Municipalities for women, laying a strong foundation for their participation in decision making at the local levels. 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.

The women‘s movement and a wide-spread network of non-Government Organisations which have strong grassroots presence and deep insight into women‘s concerns have contributed in inspiring initiatives for the empowerment of women. However, there still exists a wide gap between the goals enunciated in the Constitution, legislation, policies, plans, programmes, and related mechanisms on the one hand and the situational reality of the status of women in India.

 

[1] “Women in History”. National Resource Centre for Women. Archived from the original on 2009-06-19. Retrieved 24 December 2006.

[2] “Status of Women in India” by ShobanaNelasco, p.11

[3]Mahapatro, Meerambika; Gupta, R N; Gupta, Vinay K (August 26, 2014). “Control and Support Models of Help-Seeking Behavior in Women Experiencing Domestic Violence in India”. Violence and Victims 29 (3): 464–475.

[4]S.K.Pachauri, Woman and Human rights.

[5] “National Policy For The Empowerment Of Women (2001)”. Retrieved 24 December 2006.

[6] Chowdhury, Renuka (26 October 2006). “India tackles domestic violence”. BBC News. 2006-10-27. Retrieved 25 April 2012.

[7] Y.R. Manohar, 33rd Edition, 2010, the Indian Penal Code.

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