LIVE Online Course on Indian Constitution by Dr. Ravishankar Mor. Register Now!!
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


Key Takeaways

  • Women’s status in the ancient and medieval periods and how such status changed over time.
  • Various landmark judgments have been given by the Hon’ble Supreme Court for the upliftment of women by recognizing their Fundamental Rights provided by the Constitution of India.
  • Need of having gender-neutral laws and how can they help in facilitating the overall growth of the society.

Introduction

In our patriarchal society, women have been fighting for their rights for centuries. However, the status of women was not ever since as vulnerable as it became after India faced repeated attacks and invasions by the Afghans, Mughals, etc. Earlier in ancient times, women were highly educated for example- Lopmudra, Gargi, Maitreyi, etc., and were given equal opportunities like those of men to participate in public gatherings and present their opinions freely. Women were highly respected and not only did they have the liberty to receive textual knowledge, but also they were free to learn the shastra kala or the arms art. The right to marry a man of their own choice was also a part of women’s rights which was popularly known as swayamwar. Married women were considered as ardhangini of their respective husbands, which means they were considered the better half of their husbands in all respect. So we can infer that initially, men and women were all treated equally and nothing that could discriminate between them existed. But over the centuries, their condition deteriorated, and coupled with several invasions, the laws so framed were more on a patriarchal note, ignoring the rights of women and the ancient Hindu laws. They were deprived of various rights like the right to education, the right to participate in public assemblies, the right to marry a man of their own choice, and their right to life was also taken away. Women witnessed many social practices like sati pratha (forcing a woman to sit alive on her deceased husband’s funeral pyre), parda pratha (veil culture), female foeticide, and infanticide (killing the female child before and after birth respectively), etc.

Later on, as the time elapsed, many social reformers like Raja Ram Mohan Roy, Dayanand Saraswati, Ishwar Chandra Vidyasagar, Pandita Ramabai, Savitri Bai Phule, etc. came forward to raise voices against such evil practices and fought for women’s right and gender equality. The Constitution of India that came into force on January 26, 1950, then became the ultimate guarantor of fundamental rights to the citizens of India after we got independence. These fundamental rights are inclusive of equal protection of the law, equality of opportunity, right to life and personal liberty, right against discrimination, and so on. These rights cannot be taken away from the people except under certain circumstances and in case they are infringed, the aggrieved can file a writ before the High Courts or the Supreme Court for the same. Here are a few landmark judgments of the Apex Court in the furtherance of women’s rights.

THE SECRETARY, MINISTRY OF DEFENCE V. BABITA PUNIYA & ORS. [CIVIL APPEAL NOS. 9367-9369 OF 2011]

Earlier in India, women recruited in the Indian Army had roles that were limited to medical, dental, and military nursing services. Section 12 of theArmy Act, 1950, provided that no female was eligible for enrollment in the army unless notified by the Union Government in the Official Gazette. Then it was in the year 1992 when the Central Government issued a notification that allowed females to join certain other cadres of the army like the Short Service Commission (SSC), Intelligence Corps, Corps of Signals, Regiment of Artillery, Judgement Advocate General’s department, etc. Women however sought equality and in 2003, a practicing advocate, BabitaPuniya, filed a Public Interest Litigation (PIL) in Delhi High Court seeking permanent commission for the females who get recruited through SSC in the army. This was attached with the separate petitions filed by many other female officers. Then in 2005, theDefence Ministry extended the validity of the appointment scheme of the Indian Army for the women officers, and in 2006, another notification was issued that allowed the SSC women officers to serve up toa maximum period of 14 years.Several other petitions were filed by the women officers in the years 2006 and 2008 seeking permanent commission for women in Army, Navy, and Air Force.

In 2010, the Delhi High Court finally clubbed all the petitions and directed the Centre and Ministry of Defence to provide permanent commission to the SSC women officers of the Air Force and Army who had opted for it and have not been granted yet. This order was however challenged by the Army in Supreme Court. In the year 2019, Supreme Court upheld the decision of the Delhi High Court and issued guidelines for the permanent commission of women.

The rationale behind the decision given by Justice D.Y. Chandrachud led bench of the Hon’ble Supreme Court was, that not granting the permanent commission to the women officers was a sheer violation of the Fundamental Rights guaranteed by Article 14 (Equality before Law), 15 (Prohibition of Discrimination on grounds of religion, caste, race, sex, etc.) and 16 (Equality of Opportunity)of the Constitution of India. The Hon’ble Court held that the Union Government had established a stereotypic assumptionthat the biological and other factors related to women like pregnancy, safety, hygiene, domestic obligations, physical capabilities, etc., hinder the service. The Court went on further to say that, although Article 33 of the Constitution provided for restrictions on Fundamental Rights in armed forces, it additionally mentions for such restrictions to be imposed when necessary to ensure the proper discharge of duty and maintenance of discipline. Justice Chandrachud stated that the “Constitution is itself feminist, as the main function of feminism is to distort social Hierarchies and so is of the Constitution.”

AIR INDIA v. NARGESH MIRZA [AIR 1981 SC 1829]

A case was brought before the Hon’ble Supreme Court in which the Regulations framed by Air India were challenged as violative of Fundamental Rights guaranteed by the Constitution. The Regulations provided for earlier retirement of female employees upon attaining the age of 35 years, if the marriage takes place within four years of service and after the first pregnancy. All these regulations were said to be ultra vires and violative of the Fundamental Rights provided under 14 (Equality before Law), 15 (Prohibition of Discrimination on grounds of religion, caste, race, sex, etc.), and 16 (Equality of Opportunity) of the Indian Constitution. The Hon’ble Apex Court as a result ordered Air India to strike down such regulations as they were unconstitutional.

SHAYRA BANO v. UNION OF INDIA [AIR 2017 9 SCC 1]

Shayra Bano who got instant triple talaq (talaq-e-biddat) from her husband, to whom she was married for the last 15 years, filed a Writ Petition before the Hon’ble Supreme Court that the practices such as talaq-e-biddat, polygamy, and nikah-halala be held unconstitutional as they violated the Fundamental Rights of women. Articles 14 (Equality before Law), 15 (Prohibition of Discrimination on grounds of religion, caste, race, sex, etc.), 21 (Right to Life and Personal Liberty), and 25 (Freedom to practice, profess and propagate religion one’s own choice) were taken into consideration in the said case. The All-India Muslim Personal Law Board (AIMPLB) argued that the uncodified Muslim law was not subjected to the Constitutional provisions. However, the Hon’ble Court held that the practice of triple talaq was unconstitutional.

VISHAKA AND Ors. v. STATE OF RAJASTHAN [AIR 1997 SC 3011]

In this case that was brought before the Apex Court, Bhanwari Devi, a social worker from Rajasthan was brutally raped by five men as she opposed child marriage. When she approached the trial court, the Court could not provide her justice and acquitted all five accused men. Then Vishaka, which was a group for women’s education, filed a petition before the Hon’ble Supreme Court, taking up Bhanwari Devi’s case. The Supreme Court as a result decided that the incident was a sheer violation of Articles 14, 15, and 19 (1) (g) (Freedom to practice any profession) of the Constitution of India. The Hon’ble Court also brought several other provisions of the Constitution that were relevant in the case like Article 42,which provides for just and humane conditions of work and maternity relief, and Article 51 A, i.e.Fundamental Duties of the citizen. Further, since there were no domestic laws available for the protection of women in the workplace, the Hon’ble Supreme Court thus formulated Vishaka Guidelines under Article 141 (the law declared by the Supreme Court shall be binding on all courts within the territory of India) of the Constitution and observed that these guidelines are to be observed at all workplaces until there is an enactment of legislation.

There are many other landmark judgments given by the Apex Court favoring gender equality.

Why Do We Need Gender Neutral Laws?

Gender-neutral laws are the laws that are equal for men, women, and transgender. In a society where humans live together and work together, equal laws become mandatory for them to grow together. If the laws are gender-biased, then they will keep hampering the growth of the society at large by dismantling the social structure. As said by Nelson Mandela “to deny people their human rights is to challenge their very humanity”. If one’s human rights are challenged or taken away, that will some or the other day, incite them to fight for their rights. This as a result will cause a huge disturbance in society and will impede societal development. Everyone possesses some capabilities and given a chance, they can bring remarkable changes and contribute to the growth process. However, if the basic laws are different for different people, that will keep them fighting for equality, which will be an injustice to them as they will have to work way harder than the other privileged sections of the society to establish their existence and gain recognition.If human rights are not protected, there is no meaning to their existence. Hon’ble Supreme Court thus has always been gender-neutral while deciding over the basic human rights of the people and has protected the Fundamental Rights that are provided by the Constitution.

Conclusion

Women for the centuries have been the victim of gender biasedness in the patriarchal society. Living along with men who share similar interests and needs, but are far more privileged to have all the basic rights of which the women are deprived, could have been challenging. However, as time passed by, people started realizing the basic human rights that they are born with. It further became easier to claim such rights when our country got a codified law of the land, i.e., the Indian Constitution. This could not have been enough though as their implementation was equally important and for that purpose, the Apex Court has always stepped into the picture as an ultimate guarantor of the rights of women in India. Year after year, the rationale behind the Hon’ble Supreme Court’s judgments favoring gender equality is commendable.


"Loved reading this piece by Shatakshi Singh?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - Shatakshi Singh 



Comments


update
Post a Suggestion for LCI Team
Post a Legal Query