DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW.

LANGUAGE OF LAW

FINAL DRAFT ON

LAW & JUDICIAL ATTITUDE IN INDIA ON WOMEN’S RIGHTS-A CRITIQUE

Under The Guidance of: Submitted by:-

Kirti Singh Gulafsha

Asst. Professor (Law) Rollno.62

Dr. RMLNLU II Semester

Signature of Professor Signature of student

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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide

Assistant Professor Ms. Kirti Singh for her exemplary guidance, monitoring and constant

encouragement to give shape to this project. The blessing, help and guidance given by her

time to time shall carry me a long way in the journey of life on which I am about to embark.

 I also take this opportunity to express a deep sense of gratitude to my respected seniors who

share their cordial support, valuable information and guidance, which helped me in

completing this task through various stages.

Lastly, I thank the almighty, my parents, brother, sisters and friends for their constant

encouragement without which this assignment would not have been possible.

Gulafsha

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TABLE OF CONTENTS

1. List of cases

2. List of Acts

3. Abstract

4. Tentative Chapterisation(Main Content)

1. The Indian Scenario 2. The Constitution of India and Women 3. Protection of Women under various Acts 4. Other Provisions 5. Personal Laws and Women 6. Indian Judiciary on Women 7. Conclusions and suggestions

6. Bibliography

ABSTRACT

The concept of human rights views all individuals as equal and hence, women deserve full

enjoyment of their rights as human beings. The ensuring of human rights is a heavy

responsibility which societies of different nations are sure to find difficult to put into practice,

especially in the field of women’s welfare. Yet this fundamental right will have to be granted

at all costs so that women all over the world in future prevented from enjoying their status as

human beings. In order to allow to women enjoy their rights, a better cooperation and

coordination between the Commission on the Status of Women and the Commission on

Human Rights is needed. Such cooperation can strengthen, rationalize and streamline the UN

Human Rights system.

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LIST OF CASES

Vishakha vs. State of Rajasthan case. Municipal Corporation of Delhi vs. Female Workers. Smt. Anjali Roy vs. State of West Bengal. Mrs Uma Singh (Dr) vs. The State of Bihar and Others. Lt. (Mrs) Indira Kumari vs. The Maha Nideshak and Others. Janabai Govind Surve vs. State of Maharashtra and Others. Amalendu Kumar vs. State of Bihar. Charan Singh and Others vs. Union of India and Others. K.R. Gopinath Nair vs. Co-operative Societies and others. EMC STEEL Ltd., Calcutta vs. Union of India. Thota Sesharathamma and Another vs. Thota Marikyamma (dead) by LRs and Others. Shri Dnyandeo Dattatraya Kale and Others vs. State of Maharashtra.

LIST OF ACTS

The Protection of Human Rights Act, 1993

National Commission for Women’s Act, 1990

The Immoral Traffic (Prevention) Act, 1956

Dowry Prohibition Act, 1961

Medical Termination Pregnancy Act, 1971

The Indecent Representations of Women (Prohibition) Act, 1986 and Related

Provisions under the IPC, 1860

The Commission of Sati (Prevention) Act, 1987

Adoption and The Juvenile Justice Act, 2000(JJA)

Equal Remuneration Act, 1976

Maternity Benefit Act, 1961

The Protection of Women from Domestic Violence Act, 2005

Sexual Harassment at the Workplace

Employees State Insurance Act, 1948.

Pre- Natal Diagnosis Techniques (Regulation & Prevention of Misuse) Act, 1949.

Hindu Succession Act, 1956.

Indian Succession Act 1925.

Hindu Adoption and Maintenance Act, 1956.

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THE INDIAN SCENARIO:

The Indian Constitution is the true champion of human rights. It guarantees the right of

equality to women, which, in turn, is the foundation stone for all other rights of women.

THE CONSTITUTION OF INDIA AND WOMEN:

If we look at the constitution,1 by and large women have equal rights as men. But what does

one really mean by rights of women? Women’s rights have to be considered from three

different aspects:

The right to be treated equally with men.

The right to be treated unequally from men- that they are favoured or protected by

law(as a response against the historical and social subjugation of women )

Rights which women have because of their specific biological difference from men.

There are three fundamental rights wherein women are to be treated equally with men:

Article 14: “The State shall not deny to any person equality or the equal protection of

the laws within the territory of India.”

Article 15: “The State shall not discriminate against any citizen on the ground of

religion, race, caste, sex, and place of birth or any of them.”

Article 16: “No citizen shall on the ground only of religion, race, caste, sex, descent,

place of birth, residence or any of them, be ineligible for or discriminated against in

respect of any employment or office under the state.”

A combined reading of these fundamental rights provides the foundation for the legal

equality of women. But this does not imply that a reasonable classification for the application

of laws is not required. The equality provision prohibited unequal treatment of equals, but

allows unequal treatment of unequal. Many constitutional disputes relating to women’s rights

have centred round certain laws which discriminate against women and are sought to be

justified by arguing that for the purpose of the given law, treating women as a separate class

amounts to a valid classification.

PROTECTION OF WOMEN UNDER VARIOUS ACTS

1 Jain, M.P.,”Indian Constitutional Law” 5th Edition 2004.

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The Protection of Human Rights Act, 1993

The Act defines human rights as the rights relating to, life, liberty, equality and dignity of the

individual guaranteed by the Constitution of India.

National Commission for Women’s Act, 1990

The Act provided for the constitution of the National Commission for Women. Several

women activists and voluntary actions groups had been making persistent demands for setting

up a commission for women.

The Immoral Traffic (Prevention) Act, 1956

The purpose of this Act is to abolish traffic women for the purpose of prostitution by making

it punishable under the Act. If there is sexual exploitation for commercial purposes, the Act

will apply. The Act also contains certain provisions to rehabilitate prostitutes.

Dowry Prohibition Act, 1961

The objective of the Act is to prohibit the evil of giving and taking of dowry. The evil of

dowry system has been a matter of serious concern to everyone in view of its ever increasing

and disturbing perpetration. The Act, however, is not applicable to certain gifts. Sec. 3 lays

down the penalty for taking dowry as imprisonment and Rs. 15,000/- as fine.

Medical Termination Pregnancy Act, 1971

This Act was passed for the termination of certain pregnancies by registered medical

practitioners. If it involves a risk to the life of the pregnant woman, or if the borne child

would have to suffer from physical or mental abnormalities, then pregnancy can be

terminated.2

Grounds for termination of pregnancy:3

2 www.lexisnexis.com

3 Legal Services India.com

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Sec.3: When pregnancies may be terminated by registered medical practitioner.

(i) ‘Notwithstanding anything contained in the Indian Penal Code (45 of 1860) a registered

medical practitioner shall not be guilty of any offence under that Code, or under any other

law for the time being in force, if any pregnancy is terminated by him in accordance with the

provisions of this Act". This makes it clear that the provisions of the MTP Act, so far as

abortion is concerned suppresses the provisions of the Indian Penal Code. Sub-sec. (2) of

Sec.3: "Subject to the provisions of sub-sec (4), a pregnancy, may be terminated by a

registered medical practitioner.

Where the length of the pregnancy does not exceed 12 weeks or

Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks,

if not less than 2 registered medical practitioners are of opinion, formed in good faith

that:

1. The continuance of the pregnancy would involve a risk to the life of the pregnant

women.

2. A risk of grave injury to her physical or mental health.

3. If the pregnancy is caused by rape.

4. There exists a substantial risk that, if the child were born it would suffer from

some physical or mental abnormalities so as to be seriously handicapped.

5. Failure of any device or method used by the married couple for the purpose of

limiting the number of children.

6. Risk to the health of the pregnant woman by the reason of her actual or reasonably

foreseeable environment. The Act does not permit termination of pregnancy after 20

weeks. The medical opinion must of course be given in "good faith". The term good

faith has not been defined in the Act but sec. 52 if the IPC defines good faith to mean

as act done with 'due care and caution'.

It is important to note that certain loopholes exist in the provisions. Firstly, nowhere

has the Act defined what would involve a risk or a grave injury to her mental health.

The term grave injury or substantial risk remains undefined. The gravity of the injury

or the extent of risk left to the interpretation of the clause by the medical practitioner.

The Indecent Representations of Women (Prohibition) Act, 1986 and Related Provisions

under the IPC, 1860

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The aim of the Act and Sections 292-294 of the IPC is to check the indecent representation of

women. These laws should be interpreted in a way which strikes a balance between the

liberty of women and decency in public life.

The Commission of Sati (Prevention) Act, 1987

In this Act, the commission of sati and glorification of sati are banned and declared illegal

and punishable. The provisions of the Act should be enforced strictly.

Adoption and The Juvenile Justice Act, 2000(JJA)

Including its August 2006 amendment, the Juvenile Justice Act is a secular, essentially

dealing with juveniles and children with conflict with law, while incidentally providing for

adoption as a means of social reintegration. It allows adoption of two children of the same

sex and the relationship is that of adoptive parents and adopted child. The JJA is, however,

unclear about the adopted child’s right to inheritance and suffers from several ambiguities.

Equal Remuneration Act, 1976

This Act provides for payment of equal remuneration to men and women for the same work

and for the prevention of discrimination on grounds of sex. It is the duty of the employer to

pat equal remuneration. Under Section 5, women are prohibited or restricted by law to take

up certain employment. If the restrictions are not removed or significantly curtailed, then they

are likely to be challenged on the grounds of discrimination and violation of Article 14 of the

Constitution.

Maternity Benefit Act, 1961

This Act provides for maternity and other benefits to women who are working in a factory or

establishment. In the Municipal Corporation of Delhi vs. Female Workers4 case, the

judgement directs the Delhi Municipal Corporation to extend benefits under the Maternity

Benefit Act to its women employees on the muster-roll; the principle laid down would be

applicable to other establishments as well.

The Protection of Women from Domestic Violence Act, 2005

4 (2000)3 SCC 224

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This Act provides for protection of the rights of women which have been guaranteed under

the Constitution. Victims of violence of any kind occurring within the family and for matters

connected therewith or incidental thereto are protected under this Act.

OTHER PROVISIONS

Sexual Harassment at the Workplace: In the Vishakha vs. State of Rajasthan case,5

the SC laid down exhaustive guidelines to prevent sexual harassment of working

women at their workplaces.

Gender equality includes protection from sexual harassment and the right to

work with human dignity which is a universally recognized basic human right.

Employees State Insurance Act, 1948.

Pre- Natal Diagnosis Techniques (Regulation & Prevention of Misuse) Act, 1949.

PERSONAL LAWS AND WOMEN

Different religions confer different rights in women as regards personal matters in the

absence of a uniform civil code.

WOMEN AND MARRIAGE

In India, different sets of laws and rules are applied in respect of marriage, depending upon

the religion followed and practised by the individual.

The Hindus are governed by the Hindu Marriage Act, 1955.

Muslims are governed by tenets of Islam.

The Christian Marriage Act, 1872, governs the Christians.

Special Marriage Act: Registration of all marriages is compulsory under this Act.

Women and Succession

5 A.I.R 1997 SC 3011

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The right of women to succeed to any property vary in different religions, or depends on the

personal laws followed by them.

The Hindu woman has full right over streedhan, she being its absolute owner; she

can sell, gift, mortgage, and lease or exchange the same in any manner she likes.

Parliament enacted the Hindu Succession Act, 1956.6

The Islamic Law of Succession is based on the tenets of the Holy Quran. No woman

is excluded from inheritance only on the basis of sex. As in the case of husband, the

wife can be treated as an heir, though as a general rule, a female gets one half of the

share of a male.

The entire Christian Law of Succession is codified and governed by the Indian

Succession Act 1925. The widow is made to share the property along with other

relations of the husband in certain cases.

Maintenance

Hindu women and Maintenance is governed by the Hindu Adoption and

Maintenance Act, 1956 which conferred statutory right on a Hindu wife to claim

maintenance while living with her husband. A Hindu wife is entitled to be maintained

by her husband during her lifetime.

Under the Muslim matrimonial Law maintenance is the right of the wife. If her

husband refuses to maintain her, then she may sue him for maintenance. After a

divorce, a wife is entitled to maintenance during the period of iddat.7

INDIAN JUDICIARY ON WOMEN:

The last 25 years have seen a transformation in the law. Progressive statutes have been

enacted.

6 www.manupatra.com

7 PALANDE, DR.JAYASHREE, “REFLECTIONS ON THE REFLECTED”, Vikas Publishing House, 2009,

pno. 33.

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In the Smt. Anjali Roy vs. State of West Bengal 8 case, a girl applied for admission to

a co-educational institution. Her admission was refused. However, at the same time,

she was asked to seek admission to a recently established women’s college and told if

she did so, she would be given facilities to take classes in the mixed institution. She

challenged the refusal for admission to the co-educational institution, arguing that this

amounted to discrimination only on grounds of sex. The Court, while dealing with

Article 5(1), held that what the Article prohibited was discrimination only on grounds

of sex but if discrimination was based on any of these grounds along with other

grounds, it was not prohibited. Thus the denial was stated to be due to a scheme of the

government for better organization and upheld. The other aspect, which allows the

State to make special provisions for women, permitted provisions even against them.

The Court held that the State could not make provisions against women under this

Article.

In the Mrs Uma Singh (Dr) vs. The State of Bihar and Others9 case, two branches

were created (men and women’s) in the Bihar Educational services for Class 1 posts

and promotions to women.

As a man was being promoted, the rule was challenged and the court

struck down the rule for violation of fundamental rights.

In the Lt. (Mrs) Indira Kumari vs. The Maha Nideshak and Others10 case, the

President’s order to retain military nursing officers in service, even after marriage,

was subject to a review of their performance two years after their marriage.

Termination of the services of the officer in question after her marriage meant that the

opportunity to prove her efficiency within two years as provided by the order was not

given to her.

The termination was set aside and the court directed that she should be

reinstated in service and given such an opportunity.

In the Janabai Govind Surve vs. State of Maharashtra and Others11 case, the

restriction on women’s right to receive and deal with compensation under the Motor

and Vehicles Act was held to be discriminatory.

8 AIR 1952 CAL 8259 1975 LAB IC 63710 AIR 1991 SC 41611 AIR 1991 BOM 333

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In the Amalendu Kumar vs. State of Bihar and Others12 case, allotment of 20% seats

for girl candidates in admission to medical colleges was held to be valid.

In the Charan Singh and Others vs. Union of India and Others13 case, the posts of

enquiry and reservation clerks in the Railways in the four metropolitan cities was

reserved only for women.

This was upheld not only in Art. 15(3) but also in Art. 16(4) of the

Indian Constitution.

In the K.R. Gopinath Nair vs. Co-operative Societies and others14 case, a mandatory

seat for woman in the committee of every co-operative society as provided by the

Kerala Cooperative Societies Act was held permissible.

In the EMC STEEL Ltd., Calcutta vs. Union of India and Another15 case, a special

benefit for a widowed landlady under Sec. 14-d of the Delhi Rent Control Act was

held to be permissible under Art. 15(3) of the Indian Constitution.

In the Thota Sesharathamma and Another vs. Thota Marikyamma (dead) by LRs

and Others16 case, Art. 15(3) as a forerunner of the common code does attempt to

make law to accord socio-economic equality to every female citizen of India,

irrespective of religion, race, caste or religion.

In the Shri Dnyandeo Dattatraya Kale and Others vs. State of Maharashtra17 case,

the contention that the principles enshrined in Art. 15(3) were not respected in the

appointment and selection to various posts in a Ltd. Cooperative Bank was rejected.

The Cooperative Bank was not a ‘State’, and therefore, did not perform a public duty

while recruiting candidates; hence it was not liable to follow Article 15(3).

CONCLUSIONS AND SUGGESTIONS

12AIR PAT 113 1985 LAB IC 9714 AIR 1987 KER 16715 (1991) 2 SCC 10116 (1991) 4 SCC 31217 1995 (3) BCR 86

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In conclusion, the concept of human rights views all individuals as equal and hence, women

deserve full enjoyment of their rights as human beings. The ensuring of human rights is a

heavy responsibility which societies are sure to find difficult to put into practice, especially in

the field of women’s welfare. Yet this fundamental right will have to be granted at all costs so

that women all over the world are never in future prevented from enjoying their status as

human beings.

There are some suggestions which are made here for the improvement of the status of

women. They are:

The word ‘person’ used in the Act for the purpose of punishment, should be

substituted with the words ‘man and woman’ because only women in prostitution are

punished and the men who play an important role in this process go without

punishment.

The names of the women in red-light areas should be included in the voters’ list.

There should be a provision in the Act to distinguish between the girls who are

thrown forcibly into prostitution from those who enter voluntarily and punishment in

the former cases should be made stricter for the persons responsible.

It is also necessary to introduce a suitable amendment in the Act to punish the

customer who visits the red-light areas for having sex at a commercial price.

The government should start working at the local or domestic level to eliminate

causes of unemployment of women and should provide equal opportunity to women

in all fields of employment.

International institutions including those relating to the protection of women and girl

children should be notified and the steps effectively implemented.

Literary campaigns ought to be held.

Co-operation with religious institutions and their leaders and with traditional

authorities is required to eliminate traditional practices.

The family being the basic institution from where gender biases emanate, wide-

ranging motivational campaigns should be launched to educate parents to value the

worth of a girl child so as to eliminate such biases.

A survey and review of the school curriculum and text books should be undertaken

with a view to eliminating prejudices against women.

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Legislation prohibiting practices harmful to the health of women and children should

be drafted.

The government should effectively secure participation of women in the decision-

making process at the local level and at the state level.

All persons able to contribute directly to the elimination of traditional practices should

be mobilized.

Gender aspects in national reports ought to be highlighted.

Awareness among women about their own rights should be encouraged.

The committee must be provided with the necessary help to discharge its mandate

fully.

Helping the cause of human rights through international cooperation has to be

fostered.

Integration and total participation of women in projects working in this field need

promotion.

A review of national policies, practices and national laws should be undertaken

periodically.

Lastly, different bodies working for this purpose should enjoy healthy cooperation

and coordination.

BIBLIOGRAPHY

BOOKS REFERRED:

1. “REFLECTIONS ON THE REFLECTED”, DR.JAYASHREE PALANDE.

2. “Indian Constitutional Law”, M.P. JAIN.

SITES REFERRED:

1. www.manupatrafast.com

2. www.lexisnexis.com

3. www.legalserviceindia.com

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