WOMEN AND HUMAN RIGHTS: A CRITIQUE
India is a country where woman is held in high esteem. “Mathru Devobhava” is the socio-cultural tenet that is accepted uniformly at all times in this country. During Vedic period women enjoyed a considerable amount of freedom and are treated as equal with men. But in the Post-Vedic period the status of women deteriorated. In the Smritic era, Manu accorded inferior status to women. The period that followed reduced women to an insignificant position.
During the medieval period the position of women worsened. Muslim invasion brought the purdha system and seclusion of women. Girl child was taken as a liability leading to the practices of child marriage, prohibition of widow remarriage and sati. With the practice of polygamy, limited access to education, restricting women to household functions, child marriages, restriction of widows, sale of girls for marriages, etc. the status of women further deteriorated.1
British rule in India brought about many changes affecting the status of women. Female education, social movements against the evils of sati system, prohibition of widow remarriage, and child marriages by great social reformers increased the status of women. Many women’s organizations were formed and took up various issues relating to women’s rights.2
In independent India women’s movements were given due recognition leading to series of legislative and judicial steps to provide, protect and promote human rights of women.
Women are provided with series of civil, political, social, economic and educational rights under the Indian Constitution. Article 14 provides for equality. Article 15(1) prohibits discrimination inter alia only on the basis of sex. Under Article 16(2), discrimination in respect of employment only on the basis of sex is not allowed. These provisions lay foundation for the legal equality of men and women in India.3
In addition to providing equality, the Indian Constitution accords special status to women in certain areas. Thus, Article 15(3) enables the State to make special provisions for women. This is in recognition of the fact that women in India have been under subjugation for centuries and require special protection so as to empower them and make them effectively equal with men. Reservation for women in local self-governing bodies and other bodies, concessions in tax for women entrepreneurs, reservation in employments and educational institutions, etc. are based on this provision.4
The Directive Principles of State Policy laid down in Part-IV of the Constitution also provide some human rights to women. Article 39 provides three specific rights to women. Clause (a) says that the citizen, men and women equally, have the right to an adequate means of livelihood. Clause (d) mandates that there is equal pay for equal work for, both men and women. Clause (e) states that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocation unsuited to their age or strength. Further Article 41 says that the State shall make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 42 directs the State to secure just and humane conditions of work and for maternity relief. Article 43 asks the State to strive to provide living wages and a decent standard of life.5
Under the chapter on Fundamental Duties, Article 51-A (e) imposes the duty to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.6
RIGHTS PROTECTED UNDER CRIMINAL LAW:
Special protective provisions are made in the Indian Penal Code to protect and promote human rights of the women in India. Important ones are as follows:
Causing Miscarriage: “Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”7
Outraging the Modesty of woman: Section 354 of IPC imposes punishment of up to two years imprisonment and fine for assaulting or using criminal force against any woman with an intention to outrage her modesty.
Kidnapping from Lawful Guardianship: Under Section 361 of IPC kidnapping of minors is prohibited. The object of this section is to protect children of tender age from being abducted or seduced for improper purposes.8
Kidnapping to compel Marriage: If a woman is kidnapped or abducted to compel her to marry any person against her will or seduced to have illicit intercourse, person committing such person is punished with a maximum of ten years imprisonment and fine.9
Procuring Minor Girl: Under Section 366-A, procuring a minor girl for illicit intercourse or such other activities attracts the punishment of up to ten years imprisonment along with fine. This section protects girls under the age of eighteen years.
Importing Girls: Importing girls below the age of twenty-one years for illicit intercourse is also punishable with imprisonment, which may extend to ten years.10
Selling Minors for Prostitution: Selling and buying minor girls for the purpose of prostitution is punishable with a maximum of ten years imprisonment under Section 372 & 373 of IPC.
Rape: Section 375 defines rape as “a sexual intercourse with a woman against her will, or without her consent, or with her consent if it is taken under force, or with her consent by misrepresentation that the person is her husband, or consent is given due to unsoundness of mind or if she is below sixteen years. The punishment for rape under Section 376 is imprisonment for life or imprisonment for a term up to ten years. Section 376-A punishes even the husband for forced sex with his separated wife. The proposed reforms in the rape law appear to do away with the pro-male, male-oriented and gender-biased sexual morals reflected in the Indian law.11
Cohabitation by Deceit: Punishment of ten years imprisonment is prescribed for those who deceive women to have sexual intercourse with them by acting as their husbands.12
Enticing or taking a Married Woman: Under Section 498, a person taking or enticing a married woman for illicit intercourse is punishable with imprisonment of two years.
Cruelty: the Criminal Law Amendment Act inserted Section 493-A, 1983 imposing three years punishment on the husband or his relatives who subject a married woman to cruelty. Cruelty is described as (a) any wilful conduct which is such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand. Matrimonial relations between the husband and wife, their cultural and temperamental state of life, state of health and their interaction in daily life are considered as the relevant factors in deciding the question of cruelty.13 The demand for dowry is considered as an offense under this section.14
Insulting the Modesty: Insulting the modesty of a woman by word, sound, gesture, exhibition of any object, etc. is an offense punishable with one year’s imprisonment under Section 509 of IPC.
Criminal Procedure Code: There are various sections in the Cr. P.C. that provide special protection to women. Under Section 51(2), when an accused is a woman, another woman should make search with strict regard to decency. If the accused hides in the house of a female who according to the custom does not appear in the public, the police cannot enter the house or break it open unless notice is given to such female to withdraw and give her reasonable facility to withdraw herself.15 Section 160(2) protects women, saying that no woman shall be required to attend any place other than the place in which she resides. Hence a police officer cannot require attendance of a woman, but on the contrary he has to go to the place where she resides for making the investigation. Under Section 53(2), when a person to be examined medically is female, then examination shall be made only by or under the supervision of female registered medical practitioner. When a complaint is made on oath that woman or female child under eighteen years has been abducted or unlawfully detained for an unlawful purpose, a District Magistrate or Magistrate of First Class may make order for immediate restoration of such woman to her liberty.16Maintenance of up to five hundred rupees can be awarded under Section 125 to the woman separated from her husband for his negligence or refusal to maintain her when she is unable to maintain herself. Under Section 416, if a woman, sentenced to death is found to be pregnant, the High Court shall order the execution to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.
All these provisions of criminal law are aimed at providing special protection to women keeping in view their fragile nature and natural and biological conditions as also the social conditions.
RIGHTS UNDER OTHER LAWS
The ideals of equality and dignity enshrined in the Constitution were sought to be realized by making series of laws and bringing amendments to the existing ones. Introducing monogamy strengthens the institution of marriage. But this has not been extended to the Muslims. Daughter, widow and mother were given the right to inherit property along with son under Hindu Succession Act. Under the Hindu Adoption and Maintenance Act, 1956, consent of wife for adoption of a child by married man, right to adopt a child by woman and the right to claim maintenance after separation are some of the additional measures taken to support the women. A woman is entitled to appoint a guardian at will under the Hindu Minority and Guardianship Act, 1956.17 Under the labour laws, women were giver various rights such as right to minimum wages under the Minimum Wages Act, 1948; maternity leave and benefits under the Maternity Benefits Act, 1961; right not to be placed on night work and the work not suited to their health under the Factories Act, 1948; right to get equal pay under the Equal Remuneration Act, 1976. With the objective of protecting the women from sexual exploitation, separate laws such as Immoral Traffic Prevention Act, 1986 and Indecent Representation of Women Prevention Act, 1986 Dowry Prohibition Act, 1961 have been passed in addition to amending the criminal law making the punishment for sexual offences more severe.
Declaration on Elimination of Discrimination against Women, 1967: It consolidates fundamental principles found in other basic documents, including the United Nations Charter, the Universal Declaration of Human Rights, and the International Covenants on Human Rights. It reaffirms the need to advance the status of women in family life, social, political, economic and cultural affairs at the national and international level.18 It lays down the following principles:
That discrimination against women, denying or limiting as it does their equality of rights with men, is fundamentally unjust and constitutes an offense against human dignity.
That all appropriate measures shall be taken to educate public and to direct national aspirations towards the eradication of prejudice and abolition customary and all other practices which are based on the idea of the inferiority of women.
Women shall have the same rights as men as to nationality.
All provisions of Penal Codes, which constitute discrimination against women, shall be repealed.
All appropriate measures, including legislation shall be taken to combat all forms of traffic in women and prostitution.
All states shall implement the principle of equality of rights between men and women in accordance with the U. N. Charter and the Universal Declaration of Human Rights.
The Convention on the Elimination of all forms of Discrimination against Women (CEDAW): Its main object is to bring equality between men and women by eliminating all forms of discrimination against women. The rights recognized under this Convention are as follows:
1. Right to vote, elect, to be elected and hold offices at all levels of Government along with the right to participate in formulation of Government policy.
2. The opportunity to represent their country at international level and to participate in international organizations.
3. Equal right to acquire, change and retain nationality.
4. Equal access to educational opportunity and elimination of stereotyping in education and textbooks.
5. Equal right to employment, choice of profession, remuneration, and social security.
6. Guarantee of same legal capacity as men to contract, administer property, and appear in court or before tribunals.
7. Freedom of movement and right to choose residence and domicile should be granted to women.
8. Contractual and other private restriction on legal capacity of women shall be declared null and void.
9. Equal rights and responsibilities with men in marriage and family relationship.
10. Equality during marriage and its dissolution.
11. Equal rights to choose to family name, profession or occupation.
12. Equal rights to guardianship and adoption of children.
13. Equal rights and responsibilities regarding ownership, management and disposal of property.19
The Convention provides for the establishment of a committee to get reports on the implementation of the obligations undertaken by the States and send reports to the General Assembly of the UNO for further necessary action. It is empowered to invite specialized agencies to submit reports on the implementation of the Convention on areas falling within the scope of their activities.
Pregnant Woman’s Rights: Article 21 of the Constitution provides right to life and personal liberty. This also includes right to terminate pregnancy. Complexities arise when the fetus or unborn child is considered as a legal person and has life, for its expulsion involves violation of its right to life and liberty. The unborn child’s rights are inferior to the mother’s right to preserve her own health. The Supreme Court in Haryana v. Santra went into the details on the issue of tortuous liability for medical negligence leading to wrongful birth and awarded damages to the woman to be paid by the State on account of negligence by the doctor while conducting sterilisation operation.20 Issues arising out of such cases are complex and the ramification of an unwanted pregnancy or childbirth varies depending on the health of the child and financial position and burden on the parents. Gender of the child is also significant. Unsuccessful vasectomy operations can have disastrous effect on the marital relations as well by creating suspicion in the mind of the husband about the fidelity of wife.21 M.T.P. Act, 1971 provides right to the pregnant woman to terminate her pregnancy on various grounds including protection of her health. However the courts have restricted the operation of this right by saying that in case of married women consent of husband is necessary.22 Sex determination tests, just to know the sex of the child in the womb, are banned under legislation. This is done to prevent the inhuman feticide of the female fetus. Tests are permitted only for knowing the health of the mother and the child. A duty is imposed on the doctors not to reveal the sex of the baby.
Sexual Harassment: The Supreme Court has laid down a new law in Vishaka v. State of Rajasthan regarding sexual harassment of women in work places. The definition of ‘Sexual Harassment’ as formulated by the court includes such unwelcome sexually determined behaviour whether directly or by implications as:
· A physical contact and advances;
· A demand or request for sexual favours;
· Sexually coloured remarks;
· Showing pornography;
· Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.23
The Supreme Court has imposed a duty on the employer or other responsible person in workplaces and institutions to prevent the commission of acts of sexual harassment and to provide the procedure for resolution, settlement or prosecution of the acts of sexual harassment by taking all steps required. Sexual harassment is described as violation of fundamental right in Apparel Export Promotion Council v. A.K.Chopra.24Several landmark judgments are laid down by courts protecting women from sexual harassment at workplaces.25
Recently some contentious issues having adverse effect on women’s human rights have been taken up at legislative and judicial levels.
The Permanent Resident (Disqualification) Bill 2004: One such issue is taken up by the Legislature in Jammu and Kashmir on the residential status of women married to non-residents; The Permanent Resident(Disqualification) Bill 2004 which is passed in the Assembly is met with wide dissent from across the country and is deferred in the Council. It deprives the women of the right to own and inherit immovable property, get government job and other privileges if they marry non-State subject. The Bill also has no provision for women who may be deserted later on or were widowed. The law is described as violative of the Indian Constitution that grants equal rights to women.26
Arrest of women: Another issue is the recent non-reportable judgment of the Supreme Court in State of Maharashtra v. Christian Community Welfare Council of India & Another.27 Delivered in December 2003, it permits the police to arrest women accused without the assistance of lady police and at any time including the night hours. The Court says, “While it is necessary to protect the female sought to be arrested by the police from police misdeeds, it may not be always possible and practical to have a lady constable when the necessity for such arrest arises. We think the object will be served if a direction is issued to the arresting authority that while arresting a female person, all efforts should be made to keep a lady constable present but in circumstances where the arresting officer is reasonably satisfied that such presence of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable.”
Efforts are on across the globe to provide, protect and promote human rights for women. Several measures have been taken in India in this regard including the rights granted under the Constitution, criminal law, labour laws and other social welfare legislations. But the events like the Jammu & Kashmir Bill and the Supreme Court verdict in Christian Community case as well as the defects in the Domestic Violence Bill reflect the age-old male dominance.
The time to fight for their rights is not yet over for the women.
Notes and References
1.Naiker Lohit D., The Law Relating to Human Rights, 2004, 512-14.
3.For details see Bakshi P.M., The Constitution of India, 2003, 16- 32.
7.Section 312 of IPC.
8.Naiker Lohit D. Op. Cit. 520.
9.Section 366 of IPC.
10.Section 366-B of IPC.
11.For detailed discussion see, Vibhute K.I. “Rape and the Indian Penal Code at the Crossroads of the New
Millennium: Between Patriarchist and Gender Neutralist Approach,”43 JLIL (2001) 25-44.
12.Section 493 of IPC.
13.State of Karnataka v. Srinivasa, 1996 Cr.L.J. (Kant).
14.Shankar Prasad v. State, 1991 Cr.L.J. (Cal).
15.Section 47(2) of Cr.P.C.
16.Section 98 of Cr.P.C.
17.Naiker Lohit D. Op. Cit. 523.
20.2000(3) SCALE 417.
21.Kusum, The Unwanted Baby: Comment on Haryana v. Santra, 42 JILI (2000) 74-77.
22.Naiker Lohit D. Op.Cit. 531-33.
23.1977 (6) SCC 241.
24.AIR 1999, SC 625.
25.For detailed discussion on this issue see Naiker Lohit D Op.Cit. 539-548.
26.The Hindu 7-3-2004.
27.Criminal Appeal No.508 of 1996 ETC.