By Dr. T Padma., LLM., PhD (Law)
Author & LLD Scholar (APUL)
“Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind”.
The world today is a man’s world, where woman is never a woman in her own right. She is first the daughter, next the wife, and the last the mother of man. The position of Indian women is no better when compared to other parts of the world. No Society can claim to be a just one if the woman is not treated with respect and accorded equal treatment with the man. History bears witness to the undeniable reality of masculine superiority and feminine subordination. The endeavour of the reformists throughout has been to eradicate the subordination of woman and reduce the masculine superiority. Women were treated throughout in all ages and in all societies in a manner different from men.
The modern society is not only a regulator, but also a provider and protector. Gender justice qua women implies (i) Non-discrimination on the basis of sex (ii) Equality with men in status and opportunities (iii) special protection because of their biological reproductive role; and (iv) More favourable treatment than men in order to effectively achieve gender equality.
A glance at the history of women in society provides an insight as to how the law-givers and philosophers proclaimed the unequal status of women in many parts of the World. Manu held the view that women could never claim either independence or freedom. In the laws of Manu, Manu observed:-
“….. In childhood a women should be under her father’s control, in youth her husband’s and when her husband is dead, under her son’s”
It is undoubtedly true that ancient Hindu Society was well associated with Manu and the rules laid down by him were considered bending on everyone. Dharma was akin to rule of law. Manusmriti is based on “divine inspiration”.
Courage of man is shown in his authority to command and that of a woman is obeying and as Socrates observed: “Silence is a women’s glory”. In England, the position was in a way better than Indian women. Florance Fenwick Miller, who happened to be the first woman to qualify in medicine considered the position of woman thus: “… Under the arbitrary domination of another’s will, and dependent for decent treatment exclusively on the goodness of heart of the individual master”. When an attempt was made to provide equal rates of wages for both men and women by the councilors of a local authority, it was vehemently objected to by Lord Atkinson who observed: “…. The councilors acted unlawfully by becoming such ardent feminists and by being guided by some eccentric principles of social philosophy”
A contrast of significant measure, we may find in India in 1976, when the equal remuneration Act was given effect to. It took nearly (51) years to restore what the councilors did in 1925 in U.K. Even in England, the position of women greatly changed when Mrs. Margret Thatcher was elected as the Prime Minister of that country.
In USA considered as a great democratic and freedom loving Country, the position is early period was no better than in India or U.K. For instance, in the case of Myra Brandwell, her right to practice law was finally rejected by the Supreme Court of USA”, based on the reasoning that a married woman is incapable of making contracts without her husband’s consent and thus incapable of performing duties as an attorney. It is not difficult to infer from this ruling that it is not only biased towards woman but equally stands on no reason whatsoever in support thereof, except to point out its irrationality. Equally so in a case where exclusive privilege of males (women denied the right to vote). The absurdity of the decision is brought home when the Court asserted that the right to vote is not a right of citizen. The Indian Supreme Court might have no hesitation to strike down such a provision as ‘undermining the basic structure of the Constitution if it’s were to be the result of a restriction brought by a Constitutional amendment. In USA, there are decisions upholding gender justice and fair treatment to women.
Legislative measures before Independence
In India even after Lord William Bentick abolished “Sati” it was found about 70,000 widows have been sacrificed and when Maharaja Ranjit Singh died, his four wives and five slave girls were burnt alive.
The following legislative enactments concerning women could be referred to:
i) Caste Disabilities Removal Act 1850. This Act abolished the disability arising out of caste or religion.
ii) The Hindu Widows Remarriage Act, 1856 legalising re-marriage of widows and legitimacy of children of such remarriage.
iii) The Arya marriage Validation Act 1937 validated marriages of Hindus converted to Arya Samaj;
iv) The Child Marriage restraint Act 1929 made punishable child marriages.
v) Hindu women’s right to Property Act, 1937 gave the same share as that of a son in the property of the deceased husband.
vi) Madras Hindu Woman’s Right to Property (Extension to Agriculture lands) Act 1947 gave succession rights to women in respect of agricultural lands; it was also held that a Hindu women can succeed to the hereditary office of a priest.
Constitutional Dimensions of Gender Justice
The founders of the Constitution of India wanted to give the Indian women better facilities through which a total halt could be brought to any kind of discrimination against women. Due care has been taken to avoid discrimination of any kind whether psychological, physical or rights wise on the basis of birth, sex opportunities, remuneration etc.
They also made sure that provisions were made for the benefit and progress of womankind in India so that the Freedom, for which India had fought for so dearly, results in freedom in every sense. This ensures freedom for women, too. They ensured that the women were freed from the shackles of drudgery so that they may be more educated, better aware and secure citizens of the world.
The founders of the constitution realized that majority of the women in India are generally ill-treated in the areas of employment. They realized that religion, caste and class played a main role in establishing the status of the. They therefore felt it essential to incorporate some provisions to improve the status of women in India and check on the discrimination between men and women. The Constitution of India gives women right to equality. Moreover, powers were given to the State Governments to make special provisions for women and children. Thus the framers of the Constitution of India put the best of their efforts in breaking away the walls of old customs and traditions which governed the women and emphasized on their upliftment. The Constitution of India not only guarantees equality of women but also empowers the state to adopt measures to positive discrimination in favour of women. The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties & Directive Principles, i.e. Preamble Article 14,15, 16, 19, 21, 23, 24, 39 ( c) & (d), Art. 42, 44, 51-A, 243-D, 243-T relates to women.
The objective of the Constitution as spelt out in the preamble is to ensure that justice, equality and liberty are achieved. How this is to be achieved has been spelt out in Part III dealing with Fundamental Rights and also in Part IV dealing with the Directive Principles of State Policy. While the Fundamental Rights are justiciable, i.e., enforceable through the judicial system the Directive Principles are non-justiciable. However, their importance lies in the fact that they are directory in nature and their sanction is political.
Thus, Gender equality is one of the basic concepts enshrined in our constitution. There are six groups of fundamental rights which are available to every citizen of India irrespective of caste, class, race, religion and gender. Articles 14-18 deal with the Right to Equality.
a) Article 14 — Equality before Law
Article 14 expressly states that there shall be equal protection of the law and equality before the law. That is to say that whenever a woman approaches a law enforcement officer or the judicial court then she should receive the same protection as any man. None of the laws make a distinction between who commits a crime and against whom. If a stranger beats up a woman or her husband beats her up neither the Constitution nor the law make a distinction. Under the Indian Penal Code it is still a crime when the husband of a woman beats her up, injures or harms her in any way. When the Constitution guarantees equal protection of the law it simply means that when she approaches a police station to register her complaint the officer on duty has to record it as he would if a wealthy man from the upper caste were to come of the police station to register a first information report (FIR) against a stranger who had caused him physical harm or injury. This is what is meant by equal protection of the law and equality before the law. There cannot be a different standard of justice or even denial of justice on the basis of the gender of the complainant. This right to equality is the touchstone against which all the laws and practices in India have to tested. Any law or practice which is not in consonance with this provision of the Constitution can be challenged in a court of law as it would be unconstitutional and violative of a Fundamental Right guaranteed by the Constitution of India.
In the case of AIR India v. Nergesh Meerza, the Apex Court, while dealing with the fixation of different ages of retirement for male and female employees and the provision preventing the female employees from having child, expressed the view to the effect that the retirement of air hostesses in the event of marriage taking place within four years of service does not suffer from any irregularity or arbitrariness but retirement of air hostesses on first pregnancy is unconstitutional being violative of Articles 14 and 16 of the Constitution. It was considered that such a provision was callous, cruel and an insult to Indian womanhood. Therefore, such disability violates the equal protection of law and opportunity which is the cornerstone of our Constitution and legal system.
In the case of Mackinnon Mackenzie and Co. Ltd. v. Andrey (D)’ Casta, the question involved was getting of equal pay for equal work. Their Lordships ruled that when lady stenographers and male stenographers were not getting equal remuneration, that was discriminatory and any settlement in that regard did not save the situation. Their Lordships also expressed the view that discrimination between male stenographers and lady stenographers was only on the ground of sex and that being not permissible, the employer was bound to pay the same remuneration to both of them when they were doing practically the same kind of work.
In Madhu Kishwar v. State of Bihar, the Chotanagpur Tenancy Act, 1908 was challenged on the ground that the Act denied the right to succession to scheduled tribe women to the tenancy lands and hence, it violates Articles 14, 15 and 21 of the Constitution. The Supreme Court, by admitting the petition, quashed the discriminative provisions of the Act and paved a way for tribal women to entitle their rights to tenancy lands along with men.
b) Article 15 — Prohibition of discrimination on grounds of sex
Reading the Right to Equality with this right will necessitate the striking down of any law or practice that is discriminatory in character. This is the context in which the Vishaka and Others v. the State of Rajasthan and Others case is noteworthy. The Supreme Court declared the offence of sexual harassment at the workplace as violative of the Right to Equality and Right Against Discrimination. However, notwithstanding the right to equality and the right against discrimination the members of the constituent assembly thought it necessary to provide for special protection for women in Article 15(3) of the Constitution. They realized that a mere formal equality and right against discrimination guaranteed in the Constitution would not safeguard the women from being exploited and treated unequally. The members were sagacious enough to realize that thousands of years of discrimination and subordination of women will not be ended by the mere guaranteeing of equality in the Constitution and therefore they inserted this article so that the State would be given the space to make laws, policies and programmes for the enhancement of the status of women and enable them to access their rights under the Constitution. It is in this context that the 74th amendment which provided for reservation for women in the panchayats was made possible. Such a special provision takes into consideration the practical reality of the inability of women to participate in the electoral process on an equal footing with the men. The prejudices and biases against women and their abilities hinders the election of women to the local bodies or the state and central legislatures. Which means that though women are guaranteed equality under the Constitution they are unable to access this right by virtue of their actual position in society. By such a protection it enables women who desire to stand for elections and participate in the decision making processes to do so. This was made possible by a Constitutional provision itself. The Right for equality of opportunity in matters of public employment is guaranteed in Article 16 of the Constitution.
In the case of Dattatraya v. State of Bombay, the Bombay High Court held that the State can establish educational institutions for women only. Again in Yusuf Abdul Aziz v. State of Bombay, the validity of Section 497 of the Indian Penal Code was challenged under Articles 14 and 15 (1) of the Constitution. Section 497 of the IPC deals with the provisions of relating to the offence of adultery, which only punishes man for adultery and exempts the woman from punishment though she may be equally guilty as an abettor. This section was held by the Supreme Court to be valid since the classification was not based on the ground of sex alone. The Court upheld the Section 497 of the IPC as valid by relying upon the mandate of Article 15 (3) of the Constitution. Even Section 354 of the IPC is not invalid because it protects the modesty only of women and Section 488 (now Section 125) of the Cr. PC. (Code of Criminal Procedure) is valid although it obliges the husband to maintain his wife but not vice versa. Similarly, Section 14 of the Hindu Succession Act, 1956 converting the women’s limited ownership of property into full ownership has been found in pursuance of Article 15 (3).
When the matter relating to mother as natural guardian was questioned, the Supreme Court held that relegation of mother to inferior position to act as a natural guradian is violation of Articles 14 and 15 and hence, the father cannot claim that he is the only natural guardian. The guardianship right of women has undergone a sea change by this interpretation given by the Apex Court.
The scope of Article 15 (3) is wide enough to cover any special provision for women including reservation in jobs. Article 16 does not come in the way of such reservation. The two articles must be harmoniously construed. Women are a weaker section of our society for whose upliftment Article 15 (3) is made which should be given widest possible interpretation and application subject to the condition that reservation should not exceed 50% limit as laid down in the case of Indra Sawhney v. Union of India. The Court has also upheld an Orissa Government Order reserving 30% quota for women in the allotment of 24 hours medical stores as part of self-employment scheme. Thus, the language of Article 15 (3) is in absolute terms and does not appear to restrict in any way the nature or ambit of special provisions which the State may make in favour of women or children.
c) Article 16 — Equality of opportunity in matters of public employment
Article 16 is an instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State.
In the case of Miss C. B. Muthamma, IFS v. Union of India and others, the constitutional validity of Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 and Rule 18 (4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961 was challenged before the Supreme Court. The impugned provision Rule 8 (2) requires a woman member of the service to obtain permission of the Government in writing before her marriage is solemnized and at any time after the marriage, a woman member of her service may be required to resign from the service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service. Further, Rule 18 (4) also runs in the same prejudicial strain, which provides that no married woman shall be entitled as a right to be appointed to the service. The petitioner complained that under the guise of these rules, she had been harassed and was shown hostile discrimination by the Chairman, UPSC from the joining stage to the stage of promotion. The Hon’ble Supreme Court held that these Rules are in defiance of Article 14, 16 and 21 and Krishna Iyer, J. pronounced :
“That, our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz; our women, is a sad reflection on the distance between the Constitution in the book and the law in action.”
In the case of T. Sudhakar Reddy v. Government of Andhra Pradesh, the petitioner challenged the validity of Section 31 (1)(a) of the Andhra Pradesh Co-operative Societies Act, 1964 and Rule 22 C,. 22 A (3)(a) of the Andhra Pradesh Co-operative Societies Rules 1964. These provisions provide for nomination of two women members by the Registrar to the Managing Committee of the Co-operative Societies, with a right to vote and to take part in the meetings of the committee. The Andhra Pradesh High Court quashed the petition and upheld these provisions in the interest of women’s participation in co-operative societies and opined that it will be in the interest of the economic development of the country. In Government of Andhra Pradesh v. P.B. Vijaya Kumar, the legislation made by the State of Andhra Pradesh providing 30% reservation of seats for women in local bodies and in educational institutions was held valid by the Supreme Court and the power conferred upon the State under Article 15 (3) is so wide which would cover the powers to make the special legal provisions for women in respect of employment or education.
This exclusive power is an integral part of Article 15(3) and thereby, does not override Article 16 of the Constitution.
At this juncture, it is also noteworthy to mention the case of Associate Banks Officers Association v. State Bank of India, wherein the Apex Court held that women workers are in no way inferior to their male counterparts, and hence there should be no discrimination on the ground of sex against women. In Air India Cabin Crew Association v. Yeshaswinee Merchant, the Supreme Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. The Constitution does not prohibit the employer to consider sex while making the employment decisions where this is done pursuant to a properly or legally chartered affirmative action plan. Further, in Vijay Lakshmi v. Punjab University, it has been observed that Rules 5 and 8 of the Punjab University Calendar, Vol. III providing for appointment of a lady principal in a women’s or a lady teacher therein cannot be held to be violative of either Article 14 or Article 16 of the Constitution, because the classification is reasonable and it has a nexus with the object sought to be achieved. In addition, the State Government is empowered to make such special provisions under Article 15(3) of the Constitution. This power is not restricted in any manner by Article 16. In this way, the Indian Judiciary has played a positive role in preserving the rights of women in the society.
The second category of Fundamental Rights deals with Right to Freedom i.e., from Articles 19-22. Article 19 guarantees the freedom of speech and expression, to assemble peaceably and without arms, to form associations and unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India and to practice any profession, or to carry on any occupation, trade or business. This civil right is essential for functioning as a human being in a democratic society. It has been considered as one of the most essential rights along with the Right to Equality. In the context of domestic violence and sexual harassment at the workplace this Fundamental Right of women is most often than not violated. Women are forced to change their jobs or seek transfers on account of Sexual Harassment. Married women subjected to domestic violence find that while the Constitution guarantees them the right to freely move throughout the territory of India their husbands and families dont recognize this right. Article 21 guarantees the Right to Life. The Supreme Court has in its interpretation widened the scope of this right by stating that the Right to Life means the right to live with dignity in the Bandhua Mukti Morcha v. Union of India (1984) case.
d) Article 19 (1)(g) — Freedom of Trade and Occupation
Article 19 (1)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business. The right under Article 19 (1)(g) must be exercised consistently with human dignity. Therefore, sexual harassment in the exercise of this right at the work place amounts to its violation. In the case of Delhi Domestic Working Women’s Forum v. Union of India relating to rape and violence of working women, the Court called for protection to the victims and provision of appropriate legal representation and assistance to the complainants of sexual assault cases at the police station and in Courts. To realize the concept of ‘gender equality’, the Supreme Court has laid down exhaustive guidelines in the case of Vishaka v. State of Rajasthan to prevent sexual harassment of working women at their workplace. The Court held that it is the duty of the employer or other responsible person to prevent sexual harassment of working women and to ensure that there is no hostile environment towards women at their working place. These guidelines were framed to protect the rights of working women to work with dignity under Articles 14, 19 and 21 of the Constitution. Their Lordship also observed :
“Each incident of sexual harassment of women at workplace results in violation of fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty.”
e) Article 21 — Protection of life and personal liberty.
Article 21 contains provisions for protection of life and personal liberty of persons. It states :
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In the case of State of Maharashtra v. Madhukar Narayan Mandikar, the Supreme Court has held that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.
In the case of Vishaka v. State of Rajasthan, has laid down detailed direction and guidelines on the subject which are to be strictly observed by all employers, public or private. Right to life is recognized as a basic human right. It has to be read in consonance with the Universal Declaration of Human Rights, 1948, the Declaration on the Elimination of Violence against Women and the Declaration and Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights to which India is a party having ratified them. The right to life enshrined in Article 21 of the Constitution also includes the right to live with human dignity and rape violates this right of women.
f) Article 23 — Right against exploitation and prohibition of traffic in human beings
The Right Against Exploitation is guaranteed in Article 23. This expressly prohibits the trafficking of human beings. The other categories of rights deal with more specific issues like religious freedom and cultural and educational rights. However, the most important of all the Fundamental Rights is the Right to Constitutional Remedies in Article 32. This right guarantees the enforcement of the Rights enumerated in Part III of the Constitution as Fundamental Rights by providing for the right to move the Supreme Court or the High Court through a Writ Petition for enforcement of any one of the Fundamental Rights. The Supreme Court has further strengthened this right through the Bandhu Mukti Morcha v. Union of India case by stating that the Court can allow any member of the public acting bona fide to espouse the cause of persons who on account of their poverty or disability are unable to do so.
Thus it is not only that the Constitution has guaranteed various rights to women as citizens of India so as to protect their interests as human beings and individuals but the Judiciary in the course of its functioning as another wing of our Government has interpreted the Constitutional provisions so as to enable the implementation of the rights and also to facilitate the access to these rights in various cases that have come before it in the form of writ petitions filed by individual s or groups.
In addition to the Fundamental Rights various other provisions of the Constitution in Part IV that deals with the Directive Principles provide directions to the State in formulating policies and programmes in the interest of women. Some of these would be useful to consider here. Article 38 requires the State to secure a social order in which justice- social, economic and political - for the promotion of welfare of the people. It requires the State to strive to eliminate inequalities in status, facilities and opportunities. Clearly the intention of the makers of the Constitution was to ensure that equality would not be only of opportunity but in reality. Article 39 puts down the principles of policy to be followed by the State which include that the State should direct its policy toward securing the right to an adequate means of livelihood, that there is equal pay for equal work, that the health and strength of workers men and women, are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 42 requires the State to make provision for securing just and humane conditions of work and for maternity relief. Article 46 requires the State to promote with special care the education and economic interests of the weaker sections of the citizens. Clearly then the objective is to strive towards a gender just society.
The various special programmes and policies that have been formulated by the State since independence have had this objective. The fact that we are still very far from achieving this objective is not due to the lack of vision for an equal society as much as due to the absence of political will due to the failure to change society and the values that are deeply entrenched and which cannot be altered without changes in the processes of socialization which includes education, family and the media.
g) Fundamental Duties towards woman enshrined in the Constitution
In addition to these responsibilities that have been put on the State to safeguard the interests of the citizens, through an amendment made in 1976 Part IVA was included in the Constitution which deals with Fundamental Duties and article 51A(e) very specifically requires that the citizens of India renounce practices derogatory to the dignity of women.
Thus even a cursory glance of Parts III, IV and IVA of the Indian Constitution will make it abundantly clear that the makers of our Constitution, the Legislature and the Judiciary have provided a fundamental law that takes into consideration the fact there can be no distinction made on the basis of the sex of a citizen which ensures that women will be treated equally under the law and are entitled to every single right as citizens of India. In addition taking into consideration the historical situation which reveals the discrimination that has been practiced on the basis of sex which has resulted in the subordinate status given to women in society special provision has been made to ensure that women will be able to access these rights. The Constitution makers took into consideration the special needs of women as well thus requiring the State to protect the maternity of women as well even while providing them the right to pursue any employment or profession on par with a man.
However, it must be remembered that guaranteeing a right in law does not ensure the ability to access the right in reality. The fact that the historical subjection of women has not been ended is constantly before us in the form of the reducing number of women in each census. It is falling at an alarming rate which is a matter of concern. Similarly crimes against women have been on the increase. Incidents of rape, sexual assault, sexual harassment, domestic violence, cheating etc have been growing not only in numbers but also in intensity and brutality. The statistics provided by the Crime Bureau of India brings this before us every year. These statistics only reveal the numbers of reported cases. One can easily imagine how much bigger the numbers would be if one were to take into account the numerous unreported cases. In addition, in the context of an expanding market economy, there has been the increasing objectification of women in the advertisements and the media. Parliament has from time to time either made amendments to the existing law or enacted new laws to address these various concerns.
Women have huge responsibilities in relation to their families as the careers and nurturers but have low negotiating power at the same time. This results in neglect of their health and nutrition and access to health care is also restricted as women are most often unable to go to the primary health centers and hospitals leaving their responsibilities at home. It is, however, very important to realize that gender justice cannot be secured merely through laws and the legal system. Enacting gender just laws will not mean an end to the exploitation of and discrimination against women. Using law and the legal system can only be one of the many remedies to be used to change the unequal status of women. Law is one of the means of empowerment of women but it is very essential that we realize the limitations of law and not just hope that since we have a Constitution that guarantees equality and various laws to address the different kinds of atrocities against women that women now are enjoying equality. Society has to be changed, attitudes of people in society have to be altered before equality can become real for women.
Instances of sexual abuse of children are ever increasing in the society. Today’s society owes higher responsibility to do something effective to save children from incestuous relationships. Several enactments protecting the rights of women have been amended and passed in the recent years. The dowry Prohibition Act 1961 was also amended in the year 1986. Under the Panchayat raj Act, women could successfully achieve the goal set under the Constitution to have and enjoy equality through 35% of reservation in their favour. This is an important step towards social justice.
In the post-independence period the question of raising the legal status of women was taken up in right earnest. Even so, discrimination as exercised by the general masses between boys and girls, is a big hurdle in the process of development of women. Girls, from the very childhood, are denied nourishing food, proper clothing, education and other facilities. Even mother discriminates against her girl child, in providing proper education etc., as a lot of additional expenditure has to be made for her at the time of marriage. It is the mother who, if so wishes, may provide her daughter a right of inheritance and the present legal system. As early as in 1956 the Hindu Succession Act was enacted under which a daughter has the same right to inherit his father’s property as a son has. (relevant Ss, are 14,15 and 16 of the aforesaid Act) Under Muslim law daughters have their respective share in the father’s property. Right of inheritance does exit there but how far it is enforced is a significant question to be tackled with. There is no dearth of laws to protect women’s right but the implementation part is quite weak. Right to equality and equal opportunities in life as provided to women under the Constitution is of little and exercise these freedoms. Is it not the failure of the right thinking people in the society that they are not capable of forming a strong opinion to stop such practices which result in the curtailment of basic fundamental rights of women who constitute the weaker section of the society Why women are considered as slaves of the ‘men dominated society’. Total outlook of the men is against women. Psychologically men require an immediate change in their behavioural pattern towards women. It’s the moral duty of the father in the family to treat his daughter at par with the son. In various matters, parents are required, to give equal opportunities to the girl child so that her overall development is not adversely affected.
Why, despite so much protective legislation, is there hike in crime rates and atrocities against women ? Why is there enormous increase in the number of rape cases in India? Why is there gradual decline in the sex ratio of women? Why is the primitive, barbarous institution of sati reviving? These are the problems which are raising heads so often. They are clear evidences of gender injustice in India. Public opinion has a significant and effective role to play in the present society. Sensitisation of people in general towards such situations gender discrimination is highly required. Unless they are made conscious of these the goal of equality will remain a dream for centuries to come. Aim and object of the Constitution framers can only be realized through tremendous efforts in the right direction of educating masses. Legislative efforts must get social support to realize the ultimate goal gender justice.
In several States, sex determination and sex pre-selection tests and practices have come in handy as a way of concretizing prejudices against girl child. In a single year of 1984, 40,000 female fetuses were aborted following amniocentesis tests in the city of Bombay alone. A survey conducted in Bombay showed that of the 8,000cases of aforesaid test and abortion 7,999 aborted fetuses were female.
India has highest number of still births
India has the dubious distinction of having the highest number of stillbirths in the world. This finding comes after the country recorded the worst female child sex ratio ever (Census 2011). India figures at the top of 10 countries that have the highest number of stillbirths, according to the Stillbirth series published in the British medical journal, The Lancet. As high as 66 per cent (1.8 million) stillbirths in the world occur in just 10 countries. India is followed by Pakistan, Nigeria, China, Bangladesh, Congo, Ethiopia, Indonesia, Afghanistan and Tanzania.
The top five — India, Pakistan, Nigeria, China and Bangladesh — alone represented half of all stillbirths worldwide. In India, the stillbirth rates varied from 20 to 66 per 1,000 total births in different States. China has made some progress over the years to reduce its figure.
Almost half of all stillbirths, 1.2 million, happen when the woman is in labour. These deaths are directly related to the lack of skilled care at this critical time for mothers and babies. Two-thirds occur in rural areas, where skilled birth attendants — midwives and physicians in particular — are not always available for essential care during childbirth and for obstetric emergencies, including Caesarean section. About 2.6 million stillbirths occurred worldwide in 2009. Every day, more than 7,200 babies are stillborn — 98 per cent of these occur in low and middle-income countries. These deaths occur mainly during the last trimester of pregnancy (after 28 weeks' gestation). Of these 2.6 million, approximately 1.2 million stillbirths occur during birth (intrapartum) and 1.4 million before birth (antepartum). Most intrapartum stillbirths are associated with obstetric emergencies (childbirth complications). In high-income countries, obesity, smoking, and advanced maternal age are among the big risk factors. Childbirth complications, maternal infections in pregnancy, maternal disorders, especially hypertension and diabetes, foetal growth restriction, and congenital abnormalities are the biggest reasons for stillbirths.
The disclosure of test figures and the implications of these practices galvanised women’s organizations into action. Pressure was brought to bear on the Government of Maharashtra, which finally accepted the demand of these organizations to ban sex-determination and sex pre-selection tests by enactment of a law against it. Later, the Government of Goa too, banned the practice of sex- linked abortions. The struggle to get a similar law passed at the national continues. Female infanticide, though banned long ago, is still found in the States of Rajasthan and some parts of Tamil Nadu. The practices are taking away very right of female child to survive. This causes decline in sex ratio in the society, which may create many more problems like increase in the rate of crime and violence towards women.
There is universal agreement that personal laws, regardless of the community, are skewed against women. A Uniform Civil Code - which will cover the entire gamut of laws governing rights relating to property, marriage, divorce, maintenance, adoption and inheritance - has been most argued on behalf of women. Nothing has been done so far in the direction of a Uniform Civil Code except the introduction of a few new offences under the Indian Penal Code relating to the demands for dowry (Sections 304-B, 498-A, 376-A, 376-C and 376-D).
Until 2005, a Hindu female was not treated as a coparcener entitled to a share in the joint family property along with her brothers, except in the States of Andhra Pradesh, Tamilnadu, and Maharashtra where there was a limited admission of a daughter into the coparcenery, subject to some conditions. The initiative for treating a daughter in the same manner as a son first came through the efforts of Shri. N.T. Rama Rao, the then Chief Minister of Andhra Pradesh through the Andhra Pradesh Amendment Act 1986. However, in the year 2005, Parliament itself amended the Hindu Succession Act by duly conferring the status of a coparcener on all daughters of Joint Hindu family governed by the Mitakshara Law, incorporating Section 29(a). Further, the draft Bills relating to protection of women against sexual harassment at workplace, compensation to rape victims, adding ‘irretrievable breakdown of marriage' as a ground for divorce and prevention of acid attacks are pending either before Parliamentary Standing Committees or before the Parliament.
Women and Political Representation
Women’s participation in mainstream political activity has important implications for the broader arena of governance in any country. Governance relates to a set of rules, institutions, and values that are involved in the management of state and society. Governance institutions and processes include political parties, parliaments, government and their interactions with society. Although governance is a generic term which could mean good government or management, the governance values, types of government, the nature of political processes, the political parties and organizations, which/whose interests are represented and protected, and the extent of power that the masses have to challenge the state or in suggesting alternatives in methods of governance etc. may vary in different political systems.
While the Indian democratic state is committed to the protection of individual rights within the context of citizenship, a closer look at how it operates for the women reveals that these rights are not accessible in the public and private spheres in their full potential to all the women in India. There are historical, social and cultural factors that have limited women’s capacity and chances to exercise their freedom to participate in the political processes. The evolution of Indian democracy through the 15 general elections so far has reflected a low representation of women in Parliament, State legislatures, in political parties and other decision-making bodies.
The under representation of women in the political sphere is inextricably linked with the low and inferior status of women in society in India especially in the context of the declining sex ratio, increasing violence and crimes against women and their marginalized status in employment, education and health sectors. The comparative
position of gender-related development index (GDI) reveals that among 177 countries, India ranks 113th, indicating its very low gender-equity status .
Although the gap between male and female literacy rates has been narrowing, there is still very large disparity in this regard. While male literacy rate in India is 75.3 per cent, female literacy rate is only 53.7 per cent. It is even worse among Scheduled Castes (SC) and Scheduled Tribes (ST). Among, the SC 50 per cent males are literate, while only 24 per cent females can read and write and among ST, 41 per cent males and only 18 per cent females are literate.
An average Indian woman has little control over her own fertility and reproductive health. More women are illiterates compared to men and more women drop out of school. There are fewer women in the paid workforce than men. Women’s work is undervalued and unrecognized. Women work longer hours than men and carry the major share of household and community work which is unpaid and invisible. Women and men earn unequal wages. Women are legally discriminated against in land and property rights. Women face violence inside and outside the family throughout their lives. Most women in India have very little say in decisions affecting their own lives. The cumulative effect of all this is that women tend to lack the self-confidence and skills needed to function effectively in the public sphere. The under representation of women and absence of women from positions of power and decision-making reinforces their exploitation and deprivation. It is in this context
that women’s greater political representation becomes all the more necessary.
Women in India raised the issue of representation in politics first in 1917. At that time it was basically a demand for universal adult franchise and political participation. By 1930 women had gained the Right to vote, which initially benefited women from elite families. Women’s involvement in struggles for political and civil rights in India were however sought to be linked to nationalist movements in alliance with males against the common foreign enemy. In any case women’s involvement in nationalist struggles changed their lives in that even though they were denied equal opportunities to shape the new state, they gained constitutional and legal rights. But even after the right to vote became a reality for all women, their representation in the parliament, political parties and other decision making bodies remained low even after independence, and after the Indian Constitution came into force in 1950. A few women no doubt attained positions as members of parliament and state legislatures and as leaders of opposition, etc. mostly through family dynasties or through male political patronage. However, the percentage of women in legislatures and decision making positions always remained low. Women do not share the power of decision- making and are not involved in policy making in Indian democracy in proportion to their numerical strength. Thus there is a gap between the formal idea of women’s participation and their meaningful use of power. The quest for greater political representation of women is, therefore, still relevant.
Women in India have lesser opportunities of public influence or for entering politics. Women also lack opportunities to move within the hierarchies without patronage of male leaders or mentors. The women’s wings of political parties may have given visibility to women in the form of a platform for participation rather than integrating them into central power structures. Women do not have necessary resources to enter and compete in contemporary political arena. Thus improved social indicators in development graphs may not automatically ease women’s access to political power or improve political participation and representation. They do not necessarily translate into collective gains nor sustained political power. Of course the scope for women’s public activism varies across class, caste and region in India. The effectiveness of women’s participation also depends on the local configuration of power and cultural environment apart from problems of poverty, illiteracy, lack of economic resources, negative social and legal environments, family and household pressures, male dominated bureaucracy and politicians that the women face.
The case for women’s wider participation and representation
Women in India constitute nearly half the population of the country, but they are poorly represented in the various governance and decision making bodies. The position depicted through the 15 general elections so far reflects a low representation of women in Parliament, State legislatures, in political parties and other decision-making bodies. Less than 8% of Parliamentary seats, less than 6% Cabinet positions, less than 4% of seats in High Courts and the Supreme Court, have been occupied by women. Less than 3% of the administrators and managers are women. The average percentage of women’s representation in the Parliament, Assemblies and Council of Ministers taken together has been around 10%.
The Indian Constitution guarantees to all women the fundamental right to equality (Article 14) and equal voting rights and political participation to both men and women. However, in spite of these constitutional and legal provisions, the ground reality is that women have not obtained adequate and proportionate representation in the legislative and other decision-making bodies.
There is certainly a need for women’s more effective role in decision-making processes for the democratic and constitutional assurances of equal citizenship and rights in the Indian Constitution to become a reality at the operational level. Citizenship is linked to political participation and representation. Lack of ability and opportunity to participate in the political system implies a lack of full membership in the system. For true equality to become a reality for women, the sharing of power on equal terms with men is essential. But the reality is that women continue to be marginally represented even in areas where the various policies have a direct impact on them. There is still a great gap between constitutional guarantees and the actual representation of women in the political system in India.
By the 1980s, issues raised by the women’s movements in India led to political parties realizing the importance of female voters and women’s wings became active. Mainstream political parties became conscious of women as a constituency and this was reflected in their election manifestoes and their considering women as candidates with potential votes. By the ninth Lok Sabha elections in 1989, one could find a conscious focus on women’s issues in the manifestoes of political parties. However, this did not translate into more seats for women in the political bodies and most parties resorted to tokenism and symbolism when it came to representation of women. Women issues were not taken up by parties in a serious manner nor translated into programmes, policies and legislation nor were they mandated specifically to address issues of women. Almost all political parties set up a women’s cell or wing but they worked as ancillary bodies. Very few women were able to capture seats of power. The number of women in the legislatures remained very small. Very few women reached the position of party president or leader of legislative party.
More recently major political parties have indeed made a conscious effort to induct more women into the various levels of the party organization. The CPM has made an effort to induct more women into its district committees and state level bodies. The membership of women in the party however remains below 10%. But the membership of women in mass organizations as the Kisan Sabha and the Centre of Indian Trade Unions (CITU) has shown an improvement. The Communist Party of India Marxist (CPM) changed its stance on gender-based reservation only after 1988.The The Bharatiya Janata Party (BJP) had the highest percentage of women in decision-making bodies from the Parliamentary Board and the Election Committee down to the ward level. Traditionally, the Congress Party has fielded the largest number of women candidates and has had the largest number of women members in Parliament though the Congress working Committee has a rather low level of representation of women.
In spite of the efforts of political parties to induct more women, the extent of representation of women has not changed much. The number of women candidates in the 1998 parliamentary elections was not even half the number of women in the 1996 elections. In 1998 there were only 274 women candidates as against 599 in the 1996 elections. In the general elections in 1999, the same proportion of women were put up for elections by both the parties favoring the 84th Amendment Bill on the reservation for women in Parliament and the parties which were opposed to it. The Congress Party led by a woman had only 10% of women among the candidates. The BJP and the CPM had 7% of women among the candidates. The idea of 33% reservation for women in parliament was actively endorsed by most of the major political parties and this had raised expectation that many more women would be nominated to contest the elections. The election manifestoes and the public pronouncements of parties as well as the print and electronic media highlighted the idea of women’s representation by reservation or by nomination of more women for elections signifying a more conscious political stand on women’s representation. However, these stances did not translate actually into more nomination of women candidates during elections. Many parties ended up allotting some seats to women candidates only as a token and to symbolize their pro women egalitarian policy.
In the inner party structures in the decision-making levels and the posts within the party, women are even less represented in most political parties. Women have a very low representation if at all in the actual decision-making bodies and rarely influence the more significant party policies. Most often they are relegated to the ‘women’s wing’ of the party where they are required to deal with what are considered to be “women’s issues’ such as dowry and rape cases and sometimes on more general concerns like price rise which are considered to affect ‘housewives’. Issues like child and family welfare are largely seen as women issues, and falling in a realm which is not political. By and large a masculine view of political priorities is in operation. Most of the women’s wings of political parties have very little power and have hardly any say in the decision making and important policy matters.
Political parties assert that it is difficult to get sufficiently qualified women candidates. Other arguments have also been advanced. It has been held that women are not independent voters; a majority of them are illiterate; a majority of them make their choice on the basis of suggestions from male members of their families-husbands or sons; women lack information and political awareness or that women are not politically conscious. On the other hand, in reality women have been active and vocal both in times of peace and crisis. They have been active in movements of peace, women and child welfare, trade unionism, food adulteration, price rise and deforestation and many other issues.
Power rather than Representation
The real reason for the low political representation of women in the formal political structures and decision making levels, seems to lie in the compulsions of competitive elections and the quest for power by the political parties in a multiparty democracy. Increasingly the compulsions of the political parties due to narrow majorities, precarious coalitions and hung parliaments have made the question of power rather than that of representation the determining factor. Women’s issues and women’s participation and representation are encouraged only within the parameters of power and are constrained by the basic objectives and interest of the parties either to capture power or survival, if in power. While women are mobilized to vote by all the parties, at the stage of distributing tickets for standing for elections, the number of women drops dramatically. At this stage, political parties are driven more by power considerations with an eye on the ‘winnability’ of the candidates from the angle of the prospect of government formation. Women lose out at this stage as the imperative of ‘winnability’ seems to compel political parties to deny tickets to women unless they are sure to win. Women are considered to have less chances of winning, which is not necessarily true.
Women of Power and Women in power in Indian Politics
In spite of the low political representation of women in Indian politics, it must be noted that some women leaders have an important place in Indian politics today. Jayalalithaa as leader of AIADMK, Mamata Bannerji as leader of Trinamul Congress and Mayawati as leader of Bahujan Samaj Party (BSP) are instances in point. Some of them head important and strong regional political parties which have been in alliance with major national political parties both outside and in national government. Even though the rise of some of these women leaders might be linked to their proximity to male leaders, they now hold a position of leadership within the party in their own right who can influence the decisions of their own party as well as the course of national politics. In addition, the example of Indira Gandhi who rose to be Prime Minister of India, and later of Sonia Gandhi, leader of the Congress Party, both of whom had the dynastic advantage underpinning their leadership and position of power and decision-making in the Congress Party and the government can hardly be ignored. But the positions of authority of these women leaders did not include any specific mandate to address only women issues. In this sense as leaders of political parties, they were as power driven as their male peers. Political leadership by women is not dramatically different from that of men. Women leaders are no better or worse than men. Nor have women leaders been typically anxious to give greater representation to other women within their own organizations or in the political process generally. Representation of women has not necessarily increased greatly under the leadership of women. In fact interestingly the 73rd Constitutional amendment and the policy and implementation of 33% reservation for women in Panchayats received strong support and impetus due to Rajiv Gandhi’s interest and advocacy in the matter.
Thus the Indian political system cannot be said to be non-receptive to the emergence and dominance of women leaders even though the political representation of women has not particularly registered a significant increase over the last 14 general elections. While on the one hand most women politicians have found it difficult to rise within male dominated party hierarchies, on the other hand some women have managed to become leaders when they have set up parties of their own. Once they have established themselves as leaders, there has been an unquestioning acceptance of their leadership and decisions by the party rank and file, even if it is largely male.
Women in parliament or legislatures do not necessarily confine themselves to women issues only. In the absence of a specific mandate for representing women issues, most of them feel that they represent both men and women of their constituencies. Like men they are drawn into the game of power with all its ruthlessness even though women’s approach to politics may not be identical to that of men. In fact even the women’s wings or organizations of parties are not necessarily marked by kind of feminist perspective or sensitivity. Also, the patriarchal articulations whether by male politicians and leaders or internalized by women candidates in presenting themselves as ‘bahus’ and ‘betis’ relying on traditional patriarchal notions of femininity are not absent in Indian politics. Many times women public figures do adapt to and adopt male priorities predominating in public life in order to be acceptable. Many women internalize the norms and roles of patriarchal political structures and merely replicate them instead of questioning them, resulting in reinforcing existing hierarchies of power.
Questions have been raised as to whether an increase in numerical strength of women in the political process and decision making bodies automatically leads to a qualitative shift in power and whether women on balance pay greater attention to the concerns of women more than male politicians. Problems of tokenism, visibility, marginality etc. are often discussed in referring to women as a ‘minority’ operating in a male domain.
Women’s rights and responsibilities to participate equally in political life should not however be treated as a ‘minority’ issue. The political space must belong to all citizens – women and men. There is no doubt that fewer the women in public life the lesser the likelihood of distinctively female values, priorities and characteristics finding expression. Hence women’s involvement in political process and decision-making in greater numbers can make a significant difference.
Does that mean that only people similar to a group can represent its interests? This may not necessarily be true. In this context it is important to examine what interests women in the public/political sphere are furthering. It could be argued that issues important to women could be reasonably represented as well by male Members of Parliament. But many strongly feel that without a sufficient female presence in the national and other decision making bodies, it seems unlikely that issues which women as a group are more prone to be faced with – concerning reproduction or challenging other inequalities within the social and economic sphere - would be adequately addressed.
While it is considered important to bring women to positions of power, it is equally necessary to sensitize those in power whether men or women about gender. Along with this the importance of women’s economic independence, education and awareness and their improvement in the socio economic sphere can hardly be stressed. The restructuring of gender relations within both the family and society is an equally important step towards freedom, equality and justice.
Representation through Reservation
Various strategies have been proposed to further the political representation of women in India. From a reservation of 33% seats at various levels including the Parliament, it has also been suggested that political parties reserve 33% of their seats for women in the elections. The Bharatiya Janata Party has already announced such a reservation in its organization. However, it has been questioned whether women constitute an undifferentiated category and whether collective identification and mobilization of women as a ‘disadvantaged’ group in general on the basis of gender is a viable proposition in the politically accepted sense of the term particularly in view of caste and class differences among them. Mere presence of women in Parliament even if greater in numbers will not mean much unless they are truly representative of women’s concerns covering all categories. In the ongoing debate about reservation of seats for women in the Parliament it has been pointed out that an undifferentiated reservation for women will reinforce the existing inequalities in women’s access to positions of power. It is the elite and politicized families from which there is a smooth entry for women in politics. Women playing supportive roles to males in the family and emerging from their shadows have also found easy entry. Another trend has been the entry of widows of prominent political figures into politics and positions of power. On the whole the important factors for women’s active presence in politics in India as trends show are in general: family background, political influence, family financial position, existing involvement in politics, literacy, local conditions, campaign strategy, influence within the party and personality traits etc. rather than only competence, capability and merit. The combined result of all these factors is that very few women manage to get or are given party tickets. If the factors of economic dependence, prohibitive election costs, threats of violence and character assassination are added, even fewer can get seats in the legislature.
In any case, it is argued by those in favour of reservation, there is no doubt that democracy and representation will be strengthened with compulsorily more presence of women through reservation. This is evident from the impact of the implementation of 33% reservation of seats for women in the local bodies (panchayats) in India by the 73rd Constitutional Amendment as a result of which the representation of women in the formal structures of governance at the local level has recorded a steady increase. Women’s presence at the decision making levels will not only enhance the status of women but will also strengthen democratic traditions and make democracy more meaningful in fighting injustice and oppression while at the same time help to bring a different, explicitly female perspective to the political arena. Unless women are brought into the decision-making levels directly, important women issues will never be tackled with the seriousness they require.
In addition, democracy demands the regard for not only the interests of those who support in elections but also the aspirations of those who expect to be represented. The recognition of the right of every citizen to participate in public decisions is a basic element of democracy, which, to be effective, requires that the needs and interests of all members of the society are respected and represented. Even if others might claim to represent them, there is no guarantee of justice and equity if one half of the population is consistently excluded from taking part fully in decision making as is the case with women in Indian politics and governance. There is therefore need for more inclusive processes of achieving representation. The value of inclusion of women in governance and decision-making institutions lies in the diversity of experiences women will bring to governance whether there are ‘female’ concerns or not. Comprehensive representation would be obtained if women constituting half the population find a proportionate number of seats in government.
Public opinion has a significant role to play in this matter of gender justice to a girl child. Once the public, is made aware of above discussed social evils through proper education, the goal to achieve success in eradicating such evils is not at all impossible. We have to create awareness among masses particularly amongst women that they should become literate and economically independent to serve due respect in the society. Setting up a National Commission on Women by an Act of parliament to prevent, among other things, discrimination against women and redress their grievances is a step in right direction.
The legislative framework provided in the Constitution provides for equality in society between men and women. In order to fulfill this constitutional mandate the Parliament and the Judiciary have from time to time made laws and interpreted the existing ones that would guarantee gender justice. However since law, the legal system and society are closely interlinked it is not possible to enforce the rights provided in law without changes in social institutions, values and attitudes. Social change cannot be brought about through law. It is only through the process of sensitizing various branches of the government and more importantly the members of society to the rights and concerns of women can gender justice become a reality. Law is only one method by which the various problems of women can be resolved. While law can empower women at one level it is not possible to completely the subordination of women or the discriminatory practices merely through the legal system. If it had been otherwise we should not have to worry about the falling numbers of women in the year 2004. After all we have the Constitution that guarantees various rights to women and enactments since then which have attempted to address various crimes against women. We have to recognize the limitation of law in bringing about change in society and in ending oppression of women.
The equal right to vote, participation and representation in legislative bodies may not in itself be enough for women’s political empowerment or to remedy the problems of discrimination faced by women in Indian society. Equality with equity is a goal which may not easily be achieved only by high representation of women in legislatures and other public bodies but has to be buttressed by other supportive measures. Even so, the demand for reservation of seats for women in political bodies to rectify the imbalance has gained strength in India in the light of persisting gender gaps in the various spheres of development. In the absence of any serious political self correction so far, the demand for reservation of seats in legislatures and party structures has been stressed in India aiming at such an equitable representation.
While the steady increase in the electoral participation and mobilization of women in India has increased the visibility of women in the legislative politics this has not happened in the exercise of executive and judicial power due to their lack of presence in the decision making structures. From this perspective, the important question is what are the benefits of democracy for women.? Electoral participation and quotas through affirmative action alone are not enough to result in gender equity.
The very idea of women reservation through ‘Women's Reservation Bill’ is to give opportunity to those who may not get that opportunity under normal circumstances. Reservation for women belonging Scheduled Caste and Scheduled tribes in local bodies have given a fruitful results (with some exceptions). It is the responsibility of the government to address these genuine concerns and those concerns are too big to be ignored. Today, there is a need for "positive discrimination" for attaining gender equality. Reservation may be a blunt instrument, but no one has suggested anything better.
Indian women had been ignored since the time unknown. "The issue of empowerment of women has been raised in different fora in the country from time to time. Political empowerment of women is rightly perceived as a powerful and indispensable tool for eliminating gender inequality and discrimination." Positive discrimination has been one of finest discovery of the democracy in order to create equality of opportunity for the hitherto deprived sections of society. Therefore, it is high time that our society gives enough attention to the cause of women's rights. After all, "Our full potential as a nation will only be realised when women, who constitute about half of our population, can fully realise their potential."
[ Paper presented at a National Seminar organised by Andhra Pradesh Law University]
[Published in 'Jurisonline' during MAY,2012]
[Published in 'Jurisonline' during MAY,2012]
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