Role of Judiciary in Maintaining a Gender Just World

Introduction:

“There is no occasion for women to consider themselves subordinate or inferior to men.”

– By Mahatma Gandhi

In the 21st Century, women are excelling in every field of work whether it is academics or sports. Today, women are standing on equal grounds with men; they get equal opportunities, wages, and equal legal rights.  But this current scenario was never the same a few decades back. At those times women were oppressed and exploited by the male dominant society.

Back then traditional Indian mentality was that the men are the head of the family and women are only meant for doing household works. He will protect his family and will fulfil all the basic needs of the family by earning money. While the women will remain in the roof of his husband and will take care of the family by doing household chores. Before the British invaded India, women in India were not allowed to work outside the home and earn. They were not considered ‘person’ as well. After the British period, there was a constant increase in the status of women occurred.

The time changed when the judiciary recognised the women’s rights as human rights and gave various landmark judgements which boosted women’s empowerment and a gender-just world. Due to this, modern society has slowly accepted the significant role of women outside of homes, and women are gaining more and more recognition as leaders in both the private sector and public service.

This article talks about what was the position of women in the past, what legislative initiatives were taken by the Parliament and it also talks about the various landmark judgments given by the judiciary which helped in maintaining a gender-just world.

Historical Background

From the ancient ages to the current era, women‘s status whether it be socially, or politically, or economically has kept changing constantly. In ancient India, women were regarded as Goddess and they had equal status with men. In the early Vedic period women’s were very educated and there are references of women sages such as Maitrayi in our ancient texts. However, in Manusmriti, women were stated to be in a subordinate position to men.[1]

In the 19^th century, women‘s socio-political rights were reduced in extent and they were made fully dependent upon the male members of the family. They were not given education, neither were they allowed to work and also were not allowed to take any decision. During this period the condition of women got worsened. But the British rule brought western ideas into the country which changed the thinking of a few Indian about the women’s rights.[2]

Raja Ram Mohan Roy was one of the few Indians who stood up for the rights of women and he also questioned the prevailing discriminatory practices against women. He forced the British to abolish the ill-practice of Sati. Similarly, several other social reformers such as Ishwar Chandra Vidyasagar, Swami Vivekananda, etc. worked for the uplift the status of women in India. For instance, the Widow Remarriage Act of 1856 was the result of Ishwar Chandra Vidyasagar‘s movement for improving the conditions of widows. In the year 1929, the Child Marriage Restraint Act was passed due to the efforts of Mahhommad Ali Jinna, Mahatma Gandhi called upon the young men to marry the child widows and urged people to boycott child marriages.[3]

The Constitutional makers also had the view that women should be given equal status in the new India and all types of discriminatory practices must be stopped. To make this happen, they added certain provisions in the Constitution of India which would help in empowering women and give them equal rights.

Legal Statues and Legislative Initiatives

India‘s Constitution makers made a firm decision to provide equal rights to both women and men. The Constitution of India is the law of the land. It provides various articles that secure all the rights of an individual. The Indian Constitution safeguards women‘s rights by putting them at par with men socially, politically, and economically.[4]

Preamble

The Preamble to the Constitution of India assures justice, social, economic and political; equality of status and opportunity and dignity to the individual. Thus it treats both men and women equal.[5]

Fundamental Rights

• Article 14 of the Constitution of India ensures the right to equality
• Article 15(1) prohibits discrimination on the basis of sex.
• Article 15(3) empowers the State to take affirmative actions in favour of women.
• Article 16 provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office.

Directive Principles of State Policy

Directive Principles of State Policy also contains various provisions regarding women empowerment and it is the duty of the government to apply these principles while making laws.

• Article 39 (a) provides that the State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood.
• Article 39 (d) mandates equal pay for equal work for both men and women.
• Article 42 provides that the State to make provision for securing just and humane conditions of work and for maternity relief.

Fundamental Duties

Article 51 (A) (e) states that, expects from the citizen of the country 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.

Government Policies and Schemes for Women Empowerment

In the year 2001, the Government of India launched a National Policy for Empowerment of Women. The specific objectives of the policy are as follows:

• Making of a domain through certain financial and social approaches for the full advancement of women to empower them to understand their maximum capacity.
• Making of a domain for satisfactions in every single basic liberty and principal opportunity by women on equivalent premise with men in all political, monetary, social, social and common circles.
• Giving equivalent admittance to support and dynamic of the women’s in the social-political and monetary existence of the country.
• Providing equivalent admittance to women to health care, quality education at all levels, career and vocational guidance, employment, equal remuneration, occupational health and safety, social security and public life etc.
• Strengthening legitimate frameworks that are focused on the disposal of all forms of discrimination against women.
• Changing societal perspective and community practices by active participation and involvement of both men and women.
• Mainstreaming a gender perspective in the development process.
• Elimination of discrimination and all forms of violence against women and the girl child.
• Building and strengthening partnerships with civil society, particularly women‘s organizations.[6]

The Ministry of Women and Child Development is the nodal agency of the government for all matters pertaining to welfare, development, and empowerment of women. It has evolved schemes and programs for their benefit. The Ministry has come up with many schemes for the betterment and empowerment of women are like Swashakti, Swayamsidha, STEP, and Swawlamban.^[7]

Landmark Judgements

Vishaka v. State of Rajasthan

In this case, a social worker from Rajasthan, named Bhanwari Devi, was brutally gang-raped by five men when she tried to prevent child marriage. In this case, the trial court acquitted the five accused. An NGO that worked for Women‘s Education and Research named Vishaka took her case into consideration along with four more NGO’s and they filed a petition before the Supreme Court of India on the issue of sexual harassment at the workplace. As a result, the Supreme Court commissioned the Vishaka guidelines on which defined the term sexual harassment and also the judgement helped in maintaining a safe working environment for women.[8]

Mary Roy v State of Kerala

In this case, Women from the Syrian Christian community in Kerala were prevented from inheriting property due to a custom that they follow. This decree was challenged by Mary Roy who is a woman’s right activist and an educator. She filed a case against her elder brother when she was denied an equal share in the family’s inheritance. This plea was rejected by the lower court. But, the Kerala High Court overruled it and then in 1986, the Supreme Court delivered a landmark judgment that granted Syrian Christian women the right to seek an equal share in their father’s property.[9]

ShamimaFarooqui v. Shahid Khan

This case dealt with Wife’s right to receive maintenance under section-125 Code of Criminal Procedure. In this case, the Apex Court held that women cannot be treated as beggars and their grace cannot be lowered in a rightful claim to maintenance after divorce if the husband has since then retired from his service.[10]

Vineeta Sharma v. Rakesh Sharma

This landmark judgement is the most recent case where judiciary preserved maintaining a gender-just world. In this case, a three-judge bench of Justices Arun Mishra, S Nazeer and M R Shah said the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer the status of coparcener on the daughter born before or after amendment in the same manner as a son with the same rights and liabilities.[11]

 The bench said, “The rights can be claimed by the daughter born earlier with effect from September 9, 2005, with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before December 20, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005.”[12]

The verdict makes it clear the amendment to the Hindu Succession Act, 1956 granting equal rights to daughters to inherit ancestral property would have retrospective effect.

Conclusion

It has been rightly said by Swami Vivekanand, “The Best thermometer to the progress of the nation is its treatment of women”. Therefore, due recognition becomes all the more important. Every person should come forward to ensure equal status for women in all spheres of life.

Most of the women, don’t even know, about their legal rights as women and also as a person. Today, women even don’t say anyone about what they suffer so that their family’s recognition will get affected and no marriage proposals would come for such a woman whose modesty is outraged.

For a gender-just world, it is necessary to have a Uniform Civil Code, however, it has yet been a dead matter, even there’s no evidence of any official activity for framing of the Uniform Civil Code.

The judiciary in India has taken notice of the unequal position of Indian women in personal laws through several cases and by repeatedly emphasizes on the necessity of uniform laws in personal matters of all the citizens. The Supreme Court of India for the first time directed the Indian Parliament to frame a Uniform Civil Code in 1985 in the case of Shah Bano Begum case. This was the first step that was taken by the judiciary to make a gender-just world and empower women.

---

References:

[1] Kabeer, N. (2005). Gender equality and women’s empowerment: A critical analysis of the third millennium development goal 1. Gender & Development, 13(1), 13–24. https://doi.org/10.1080/13552070512331332273

[2] Ibid.

[3] Bohra, S. C. (2018). ROLE OF INDIAN JUDICIARY IN WOMEN EMPOWERMENT. International Journal of Pure and Applied Mathematics, 120(5), 1781–1798. https://acadpubl.eu/hub/2018-120-5/2/167.pdf

[4] https://www.indiacelebrating.com/social-issues/women-empowerment/

[5] Ibid.

[6] Ibid.

[7] Upadhyay, R. (n.d.). WOMEN’S EMPOWERMENT IN INDIA An Analytical Overview. Retrieved August 29, 2020, from https://asiafoundation.org/resources/pdfs/womensempowermentindiabriefs.pdf

[8] Bohra, S. C. (2018b). ROLE OF INDIAN JUDICIARY IN WOMEN EMPOWERMENT. International Journal of Pure and Applied Mathematics, 120(5), 1781–1798. https://acadpubl.eu/hub/2018-120-5/2/167.pdf

[9] Ibid.

[10] Ibid.

[11] Mahajan, S. (2020, August 11). Daughters become equal coparceners at birth even if born prior to 2005 amendment to Hindu Succession Act: Supreme Court. Bar and Bench – Indian Legal News. https://www.barandbench.com/news/litigation/supreme-court-daughter-equal-coparcener-amendment-hindu-succession-act

[12] Mahajan, S. (2020, August 11). Daughters become equal coparceners at birth even if born prior to 2005 amendment to Hindu Succession Act: Supreme Court. Bar and Bench – Indian Legal News. https://www.barandbench.com/news/litigation/supreme-court-daughter-equal-coparcener-amendment-hindu-succession-act