Feminism : Legal Aspects

In the last article, we critically evaluated the misuse of rights of women in contemporary Indian legal system. Here, we will try to find out why some positive rights have been provided to women in India whether be it Constitutional, legal or through various judgments of honorable Courts as well as we will focus on the legality behind the term Feminism & its usage.

Today when we see the outside world, there has been a lot of talks about women rights, feminism, female upliftment, women empowerment, gender equality and many more ambiguous terms. Though all ended up to the same point they differ in their meaning. There has been exploitation of women all over the globe since time immemorial, they have been derived from their basic necessities, they have been treated inhumanely as hell and their condition has been poor as slaves. That’s why in the so-called modern era, some philosophers, social activists and the society itself is trying to give women from what they have been deprived of.

The simple meaning of the term ‘feminism’ here is the advocacy of women’s rights on the ground of equality of sexes. 

Rights for Women in India:

In India, we can divide the concept into three different eras.

1. Ancient society,
2. Pre- British era
3. Post- British era.

We had ample rights for women in ancient India, there was no significant discrimination on the basis of sex. However, during the foreign invasions, women lost their importance. That was the era responsible for the degradation of the dignity of females (which we are still trying to secure). But since the start of the 18^th century during British rule, we saw a mass movement for the upliftment of the other half of the society. Since then India has seen, on every level, a notable growth in women rights and we are still moving forward. Here is a list of some important rights provided to women in Indian legal system:

Constitutional Rights

The rights and safeguards enshrined in the Constitution for women in India are listed below:

1. The state shall not discriminate against any citizen of India on the ground of sex [Article 15(1)].
2. The state is empowered to make any special provision for women. In other words, this provision enables the state to make affirmative discrimination in favor of women [Article 15(3)].
3. No citizen shall be discriminated against or be ineligible for any employment or office under the state on the ground of sex [Article 16(2)].
4. Traffic in human beings and forced labor are prohibited [Article 23(1)].
5. The state to secure for men and women equally the right to an adequate means of livelihood [Article 39(a)].
6. The state to secure equal pay for equal work for both Indian men and women [Article 39(d)].
7. The state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength [Article 39(e)].
8. The state shall make provision for securing just and humane conditions of work and maternity relief [Article 42].
9. It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women [Article 51-A(e)].
10. One-third of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women [Article 243-D(3)].
11. One-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women [Article 243-D(4)].
12. One-third of the total number of seats to be filled by direct election in every Municipality shall be reserved for women [Article 243-T(3)].
13. The offices of Chairpersons in the Municipalities shall be reserved for women in such manner as the State Legislature may provide [Article 243-T(4)].

Legal Rights to Women

The following various legislations contain several rights and safeguards for women:

1. Protection of Women from Domestic Violence Act (2005)is a comprehensive legislation to protect women in India from all forms of domestic violence. It also covers women who have been/are in a relationship with the abuser and are subjected to violence of any kind—physical, sexual, mental, verbal or emotional.
2. Immoral Traffic (Prevention) Act (1956)is the premier legislation for prevention of trafficking for commercial sexual exploitation. In other words, it prevents trafficking in women and girls for the purpose of prostitution as an organized means of living.
3. Indecent Representation of Women (Prohibition) Act (1986)prohibits indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner.
4. Commission of Sati (Prevention) Act (1987)provides for the more effective prevention of the commission of Sati and its glorification on women.
5. Dowry Prohibition Act (1961)prohibits the giving or taking of dowry at or before or any time after the marriage from women.
6. Maternity Benefit Act (1961) regulates the employment of women in certain establishments for certain period before and after childbirth and provides for maternity benefit and certain other benefits.
7. Medical Termination of Pregnancy Act (1971)provides for the termination of certain pregnancies by registered medical practitioners on humanitarian and medical grounds.
8. Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994)prohibits sex selection before or after conception and prevents the misuse of pre-natal diagnostic techniques for sex determination leading to female foeticide.
9. Equal Remuneration Act (1976) provides for payment of equal remuneration to both men and women workers for same work or work of a similar nature. It also prevents discrimination on the ground of sex, against women in recruitment and service conditions.
10. National Commission for Women Act (1990)provided for the establishment of a National Commission for Women to study and monitor all matters relating to the constitutional and legal rights and safeguards of women.
11. Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal)Act (2013) provides protection to women from sexual harassment at all workplaces both in public and private sector, whether organized or unorganized.

 Judicial Response

Apart from the efforts made by NGOs, Legislative, and the society as whole the Indian judiciary has on different occasions affirmed various rights for women as to uplift their status and provide a better life. In the case of Vishaka v. State of Rajasthan[i], the Apex Court has stated that gender equality includes from sexual harassment and the right to work with dignity as per our Constitution of India. Extra hazard for a woman compared to her male colleague is the clear violation of the fundamental rights of a Gender Equality & Right to Life and Liberty. The safe working environment is the most necessary fundamental right of working women. In no way should working women be discriminated at the workplace against male employees? Working with full dignity is the fundamental right of working women. This judgment had recommended a Complaints Committee at all workplaces, headed by a woman employee, with not less than half of its member being women.

Apart from this judgment, a number of decisions have been pronounced in favor of women empowerment promoting feminism. They are as follows:

1. What if she is a prostitute, she is a woman and human being too: Budhadev Karmaskar v. State Of West Bengal[ii]
2. Two finger test, it’s like getting raped once again: Lillu @ Rajesh & Anr vs State Of Haryana[iii]
3. Stop Acid attacks, regulate and restrict the sale of acid: Laxmi v. Union of India[iv]
4. Unwed mothers need not name the child’s father: ABC v. The State (NCT of Delhi)[v]
5. Living under the same roof, you are married under law: Dhannulal and ors. V. Ganeshram and ors. [vi]

~Concluding Observation~

The society has discriminated women and there should not be any type hesitation in accepting that fact, the society has been dominated by males, it has been and still it is patriarchal. Now the time has come when there is an opportunity to correct our mistakes & provide the other section of the society what they are entitled naturally. It’s never too late to mend.  It would be against the principles of natural justice as well to deprive them of their rights but here arises an issue. Like the famous proverb says “If the mountain won’t come to Mohammed, then Mohammed must go to the mountain” women has to raise their own voice if they have to uplift & the one who tries, never fails. If you want a thing done well, do it yourself. We have enough examples in the society where an individual or a group has stood up against wrong and they have got their rights back. Now is the time, They must step up, demand and snatch their rights, if not given. Nothing comes easy and good things take time. The government has already many schemes(we will discuss it later) for that and it is just a matter of time when we will see women sharing the same rights and liabilities as men.

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References:

[i] AIR 1997 SC 3011

[ii] LC-2011-SC-CRL-Feb 14

[iii] on 11 April, 2013; Bench: B.S. Chauhan, J and Fakkir Mohamed Kalifulla, J

[iv] (2014) 4 SCC 427

[v] SLP (Civil) No. 28367 of 2011, DB:Vikramajit Sen,J; Abhay Manohar Sapre,J on 6 July, 2015

[vi] 8 April, 2015; Bench: M.Y. Eqbal,J and Amitava Roy,J