WOMEN: PROTECTIVE DISCRIMINATION IN CONTEMPORARY WORLD SUBMITTED TO MS. M S. ANKITA ANKITA SHUKLA S HUKLA
SUBMITTED BY MD ABID HUSSAIN ANSARI ST
1 SEMESTER LLM – FAMILY LAW
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INTRODUCTION - BRIEF Our Indian society has always been full of inequalities from times immemorial. Initially, it was a caste ridden, stratified hierarchical society, and a particularly a segment of the society had been denied the basic human rights were neglected as well. If we talk about their bare rights such as education, wages, living conditions, social status were dictated by the whims of the upper strata of society, reducing them to destitution, just because we had this stratification and unreasonable discrimination in our Indian society that was deep rooted like anything. Being an agrarian society, mostly, the capital was limited and was in the hands of few groups of our society and most of the populations have been not given any economic justice so that they can uplift their status and living of standard as compared to the upper strata of our own society. So, the economic backwardness brought social awkwardness which consequently made them downtrodden and thus depriving them even of the dignity of life. In a society like India where compartmentalised on caste basis, upper castes controlled the levers of power enabling them to run their whips, prejudicial to the interests of lower segments of the society. The lower castes had to serve the upper castes without having any say and grievance redressal mechanism available to them. This was one of the inhumane and barbaric conditions perpetuated for centuries, till ‗WE THE PEOPLE‘ realised the malady impelling the framers of our constitution to think and to provide various safeguards in the Constitution of India for the Protective Discrimination which should be given to those who are in real need in order to uplift their strata and conditions as well. 1 Protective discrimination is a kind of affirmative action policy of granting special privileges to the neglected section of the society and the underprivileged sections of society, most commonly women in the contemporary world. The practice of discrimination of racial and caste discrimination is mostly prominent in India, where it has been enshrined in the constitution and institutionalized just to provide the uniformity. Be it a developed state or any other developing one or any other democratic society in the world, they faces this challenge of harmonising two essentially contradictory political concepts —
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Vimal Chandra, “Constitutional Safeguards,” Seminar, No. 177, 1974, pp 16-21.
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1. Equality before the law (Rule of Law) irrespective of religion, caste, creed, race, and gender. 2. And the other, social justice at the cost of the same commitment for equality before the law. If we compare the other developed democracy, even the United States of America is no exception to this rule and has taken recourse to affirmative action to ensure justice for the less privileged sections of the society at the cost of individual merit and equality of all citizens before the law. In Indian Society, a large number of people have experienced social discrimination through ages on the account of its peculiar institution called the CASTE SYSTEM , various efforts have been made to provide redress mechanism for these under-
privileged sections of our society, through the policy framework of reservations or quotas for them in jobs, seats in educational institutions and legislatures, and in governmental aid, loans and other developmental assistance. This issue was taken into consideration by the framers of the Constitution while drafting the law of the land. 2 In all, four under-privileged categories have either received benefits under the scheme or have been seeking such benefits, namely the Scheduled Castes (SCs) and the Scheduled Tribes (STs), the Other Backward Classes (OBCs), the religious minorities or sections
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thereof, and lately, the women. 4 It is an accepted fact that both the men and women are considered to be of equal nature and play an important role in development in society and creation of their families. Right from the ancient ages where the legal equality of women has been challenged and one of the major concerns of movement all over the entire world. Nothing has been given in any religious text, be it Hindu sources of law or Islamic Sources of law. It is just the distortion among the common masses with respect to the interpretation of these gender based issues. In India, the debate of Gender has always shaped the legal & cultural landscape of all times. Here, the women are in a minority group in terms of power & influence and has no say in the process. After the independence, we have incorporated the principles of equality, liberty & social justice but al so provided for being discrimination in favour of a woman in the constitution of the country and that‘s the protective discrimination.
2
H. Kotani, Caste System, Untouchability a nd the Depressed , Manohar Publishers, New Delhi, 1997, p. 5. A.K. Vakil, Reservation Policy and Scheduled Castes in India, Ashish Publishing House, New Delhi, 1985, p. 2. 4 S.M. Mehta, A Commentary of Indian Constitutional Law , Deep & Deep Publications, New Delhi, 1990, p. 110. 3
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We have the legislature which forces to provide different rights & enact various laws in order to improve the women‘s condition in the society which was initially criticized by society itself. While the women attempt to empower themselves economically, they are faced with the problems of sexual harassment at the workplace & domestic violence every moment just to provide certain favours for unreasonable acts. I must say that our society is patriarchal all the time when we saw an attempt by the legislature to implement 33% reservation of seats in legislative assembly, all the parties strongly opposed it and neglected the concept of women empowerment. So, it was also observed by the court of law that still the concept of women empowerment has not taken its place in its real sense. I have tried to focus over the condition and the position of women in the society, also to point out what are the issues which make protective discrimination a challenging one in the contemporary world.
DISCRIMINATION OF WOMEN - EVOLUTION5 Under the common law, women were treated as chattels. The Hindu sage, Manu, condemned women to eternal bondage. The Greeks, in their period of highest culture imprisoned their women within their house & denied them all rights. The Spartans often destroyed women who could not give birth to healthy children even the most civilised empire of Roman granted its women no legal rights. In the end it can be said that women everywhere suffered subordination & were assigned a purely functional role. The theory of justice developed by John Rawls combined freedom & equality in the analysis of the meaning of the justice. His concept of justice is composed of two cardinal principles, a. Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others, b. Social & economic inequalities are to be arranged so that they can reasonably be expected to be everyone‘s advantage & in such a manner that the positions & offices to which they are attached are open to all.
DISCRIMINATION BY SOCIETY In India, people can die and kill anyone in the name of religion; customs, age-old prejudices which has degraded the position of women. Gradually, Low rates of participation in
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http://www.irjcjournals.org/ijmssr/aug2014/4.pdf
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education, lack of economic independence, value biases operating against them, etc., have resulted in the women being dependent on men folk and other institutions of authority. They are usually ignorant of their rights and even if they are not, they are denied such access to justice. The issues related to women are being raised and discussed in various forums, in the recent times and gaining more and more support, recognition from all over. But despite the enactment of laws, formulation of reformative legal processes, provision of legal aid to the needy, extensive use of the provision of Public Interest Litigation, conduct of Family Courts, Women/Family counselling centres, etc., women in India still has to wait to turn their dreams into reality. The problem has to be visualized in a wider context and cannot be viewed in isolation from the status of women in the society. 6
OFFENCES AGAINST WOMEN In the US, a woman is raped every 6 minutes; a woman is battered every 15 seconds. In North Africa, 6,000 women are genitally mutilated each day. This year, more than 15,000 women will be sold into sexual slavery in China. 200 women in Bangladesh will be horribly disfigured when their spurned husbands or suitors burn them with acid. More than 7,000 women in India will be murdered by their families and in-laws in disputes over dowries. Violence against women is rooted in a global culture of discrimination which denies women equal rights with men and which legitimizes the appropriation of women's bodies for individual gratification or political ends. Every year, violence in the home and the community devastates the lives of thousands live of women. 7 Now I shall deal with the fact relating to offences against women. The offences are of various types. They find mention in many enactments. These under- mentioned provisions are enumerated in Indian Penal Code, 1860: Section 304-B (dowry death), Section 313-316 (Causing miscarriage), Section 354(Assault or criminal force to woman), Section 361(kidnapping from lawful guardianship), Section 366 (kidnapping, abducting or inducing a woman), Section 372 (selling minor for purposes of prostitution), Section 376 (rape), Section 376-A (intercourse by a man with his wife during separation), Section 376-B (intercourse by public servant with woman in his custody), Section 376-D (intercourse by a ny member of the
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Article on Social etiology of v iolence against women in India b y B.R Sharma, www.sciencedirect.com e://localhost/C:/Documents%20and%20Settings/satyashree/My%20Documents/Violence%20Against%20Wo m en%20-%20A%20Fact%20Sheet.htm 7
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hospital with any woman in that hospital), Section 494 & 495 (bigamy), Section 498 (enticing or taking away or detain a married woman), Section 498-A (dowry cruelty). These are the main offences under the IPC against women. Certain offences are general against all women and certain offences are applicable in respect of married women. 8
CONSTITUTIONAL PROVISION In India, male domination with a complementary suppression of women has been continuing since pre historic times. There has been discrimination between the male & female child, between men & women. Women are considered as good & chattels. Discrimination de-empowers because discrimination in any form affects the human capabilities. The framers of the constitution were well conscious of the discrimination & equal treatment mated out to the fairer sex, from time immemorial. They included certain general as well as specific provisions for upliftment of the status of women. They provided equality of status & of opportunities explicitly at some places & implicitly in all other places on par with men as citizen of India. 9 POLITICAL RIGHT
Political empowerment of women has been brought by the 73rd & 74th amendment which reserve seats for women in gram panchyat & municipal bodies. Illiteracy, lack of political awareness, physical violence & economic dependence are a few reasons which restrain women from taking part in the political process of the country. ECONOMIC RIGHT
Economic rights have been guided by the provision of the fundamental rights & DPSP. There is a total lack of awareness regarding economic right amongst women. Laws have been made to improve their conditions in mater relating wages, maternity benefits, equal remuneration & property to provide the necessary protection in these areas.
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Law relating to Children & Women by Mamta Rao, Dr. S. R. Myneni Women & Law, Gender justice by Dr. N. K . Chakrabarty & Dr. Shachi Chakrabarty, vol.ii ,first ed 9 Dr. S. R. Myneni Women & Law
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SOCIAL JUSTICE
For giving social justice step has been taken to codify personal law in our country. Certain areas like domestic violence, Sexual harassment at the work place were untouched. Implementation of MTP Act & other Act also help to provide social justice to the women. 10 ARTICLE 14 - Equality before law for women. ARTICLE 15 (I) - 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 (3) - This provision of constitution permits the state to positively discriminate
in favour of women to make special provisions to ameliorate their social condition political, economic & social justice. 11 ARTICLE 16 - Provide equality of opportunity for all & prohibits discrimination against
women.12 ARTICLE 21 - Gender equality becomes elusive in the absence of the right to live with
dignity. 13 ARTICLE 39A - This provision directs state to direct its policy towards securing those
citizens. 14 ARTICLE 39D - Equal pay for equal work for both men and women.
ARTICLE 42 - The State to make provision for securing just and humane conditions of work and for maternity relief ARTILCE 44 - This provision directs the state to secure for citizens a uniform civil code
applicable throughout the territory of India with a view to give gender justice. Though the government has not yet implement UCC in the country. To protect the right of women in all section of society this UCC is very much effective. 15
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Valsamma Paul v. Cochin University, (1996) 3 SCC 545. Air India v. Nargesh Meerza, (1981) 4 SCC 335 12 Soemithri Vishnu v. Union of India, 1985 supp SCC 137. 13 Bodhisattwa Gautam v. Subhra Chkrabarty, (1996) 1 SCC 490. 14 State of Haryana v. Rajpal Sharma, AIR 1997 SC 449 15 Mohd.Ahmed Khan v. Shah Banu Begum, (1985) 2 SCC 556: 1985 SCC (Cri) 24 11
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ARTICLE 46 - 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 243 - Reservation of women in Municipalities & Panchayats has been provided in
this provision. 16
ROLE OF JUDICIARY In judiciary always try to pronounce landmark judgment whenever any question of law involved in any case. SC repeatedly interpreted various provision of constitution as well as IPC to provide justice to the disadvantage section of the society whether regarding workers, child or women.. SC always tries to uphold the dignity of women in various cases as well as take initiative to stop crime & discriminatory attitude towards women by the society at large. Even in few cases gave direction to the govt. to implement the law in a proper manner & also to make new law so that there should be no discrimination against the women in the public life. In various cases we observed this attitude of the apex court while delivering their judgment. In the case of Rupen Deo Baj aj v. Kanwar Pal Singh Gil l 17, the Supreme Court said that the assault or criminal force to woman as an offence under this section should not be treated lightly as it is quite a grave offence. In certain western countries privacy to person and even privacy to procreation are r egarded a s very sacrosanct rights and if this offence is studied in that prospect the offence would clearly show that it affects the dignity of women and, therefore, the accused of this offence, when proved, should be appropriately dealt with. Also, in the matter of People' s Un ion f or D emocratic Rights v. Poli ce Commi ssion er , D elh i, 18
Poli ce H eadquart er an d another , the supreme court after holding that the accused was
guilty of offence under section 354 of IPC, awarded, to the victim, compensation which is to be recovered from the salary of the guilty officers. 19 In the case of Tukaram v. State of M ahar astra , which is popularly known as Mathura trial
the session‘s judge found evidence insufficient to convict the accused. BMHC reversed the
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Reservation of women in local bodies v Pravakaran, AIR 1997 (11) SCC 638. 1995 SCC 1059 (Cr) 18 (1989) 4 SCC 730 19 (1979) 2 SCC 143: 1979 SCC (Cr) 381 17
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decision. SC again reversed the judgment of HC. The decision of the court was highly criticized. In State of M aharashtra v. M.N.Mardikar 20, it has been empathically laid down that there is rule or prudence requiring corroboration of the victims in a case of rape. At this juncture I may state that sometimes the trial courts give emphasis on absence of physical injuries, lack of corroboration by medical evidence, non-raising of alarm, no evidence of showing resistance and such other ancillary factors. From these angles the prosecution is disbelieved or the court arrives at the conclusion that there is consent. In State of Pu nj ab v. Gurmi t Singh 21, in this it was held by the SC that unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused when her testimony inspires confidence & is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, amounts to adding insult to injury. There are other landmark judgment where the apex court by interpreting various provision of law tried to protect the right of women… few of those cases are 22
Chairman r ailway board v. Chandrima Das .
The other offences which relate to women and have become wanton and excessive are offences under section 304-B and 498-A. the apex court has given a broader meaning to the concept of cruelty enshrined under section 498-A of IPC 23. In the case of Satvir Si ngh v. , it was held by the SC, That section 306 IPC read with sec113 of I.E Act has State of Pu nj ub only enable the court to punish the husband or his r elative who subjected a women to cruelty & such women commits suicide within 7years of her marriage. 24 In Vi shaka v. State of Raj asthan 25 , it was held by the SC that gender equality includes protection from sexual harassment & right to work with dignity& this right has received global acceptance and now finally it can be reflected through a legislation on Sexual Harassment at Workplace, 2013.
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(1991) 1 SCC (1996) 2 SCC 384 :1996 SCC (Cri)316 22 (2000) 2 SCC 465 : AIR 2000 SC 988 23 Premwati v. State of M.P; Hemchand v. State of haryana 24 (2001) 8 SCC 633: 2002 SCC (Cri) 48 25 ( 1997) 6 SCC 241: AIR 1997 SC 3011 21
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Also, after the Shahbano Case, Danial Laitif case, certain protection has been given and that‘s good for the society. Now, we have Shaiyaara Bano case regardind the ban on triple talaq, the fight is still on. 26 In the case of CEHAT v. Union of I ndia , is a land mark case deals Sex Determination - Pre
– Natal Diagnostic Techniqu es (regulation & prevention of misuse) Act, 1994. In the matter of Gazul a Dasar atha Rama Rao v. State of A ndhr a Pradesh 27, it was held by the Supreme Court that the Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under the State. Article 15 does not mention descent as one of the prohibited grounds of discrimination as Article 16 does. While speaking of the importance of Indian Constitution, one can see in the following statements in the matter of Sajj an Si ngh v. State of Raj asthan 28, it was rightly pointed and observed by the Supreme Court that: “Our Indian constit ution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court may have to face from time to time. Naturally, in a progressive and dynamic society the shape and appearance of these problems are boun d to change with the inevitable consequence that the relevant words are used in the Constitution and may also change their meaning and significance. That is what makes the task of dealing with constitutional problems dynamic rather than static ‖ In the matter of R. Chital ekha and Another v. State of M ysor e and Others and Triloki Nath v. State of J & K and K.C Vasanth K umar v. State of Kar nataka . The apex explaining the meaning of Class observed that ‘The quintessence of
„Class‟
is that a group of persons
having common traits or attributes coupled with retarded social, materials (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of ‘any backward class of citizens’ under Arti cle 16 (4) of the Constitution.’ Further in R. Chi tral ekha case , it was stated that ‘…..what we intend to emphasize is that under no circumstance a
“CLASS” can
be equated to a
“CASTE” ,
though the caste of an
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(2001) 5 SCC 577 AIR 1961 SC 564 28 (1965) I.S.C.R. p. 932 at p. 948 27
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individual or a group of individual may be considered along with other relevant factors in putting him in a particular case’ 29 In the case of Sheoshanker v. State of M .P , the court of law held that Article 14 declares
that ‘the State shall not deny to any person equality before the law or the equal pr otection of the laws within the territory of India.’ It means that law treats equally all individuals without any discrimination right from the top to the bottom. All persons are treated equally in the equal and similar circumstances. The phrase ‘equality before the law is of English origin’ and ‘equal protection of the law’ is taken from American constitution. Both the phrases appear to be same, but they do not convey the same meaning. The former has a negative concept towards having and showing of special privilege in favor of individuals whereas the latter has a more positive concept implying equality of treatment in equal circumstances. In I ndra Sawhney v. Union of I ndia , it was firmly held that protective discrimination or affirmative action implies to provide facilities and opportunities not only among individuals, but also amongst group of people, securing adequate means of livelihood to its citizens and to promote with special care the educational a nd economic interest of the weaker section s of the people, including in particular the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. There are list of legal precedents which talks about the Protective Discrimination and is very helpful for them.
SPECIAL 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) 29
AIR., 1951 Nagpur 53
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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.
CONCLUSION I just want to share my experience and some of the findings/observations: 1. Though we enter in the age of liberalization globalization privatization but still there are number of dowry death caused in the societies & which is increasing during this period also. 2. 33% Reservation in the legislation process is still pending in the parliament. This shows the unwillingness of the legislature to give more right to the women. 3. So many laws have been made by the legislature but there is lack of proper implementation so the state like Rajasthan is least female educated state (12%). 4. The condition of women in urban area to some 5. extent has been improved but the condition of the women in rural area is still in very bad condition they are uneducated even don‘t availed medical facility away from nutrition. 6. Number of crime against women is increasing day by day in the societies, even after Nirbhaya kand the the crime against women is still increasing. I would like to suggest due to all these reason the government should take steps for the implementation of those international laws which was passed in the international convention & adopted by India like other country. The political party should not play bad game regarding women bill. The government should try to remove all difficulties for upliftment of women community which may cause by the religious extremist of the society. Hope this assignment to some extent enlightens the area where the women are still in disadvantage condition & the various laws which may help this community to restore their right in the society.
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