About the Author
Sajana J is a final year LLM student doing Criminal Law at Bharata Mata school of Legal Studies.
Introduction
“No struggle can ever succeed without women participating side by side with men. There are two powers in the world; one is the sword and the other is the pen. There is a third power stronger than both, that of women.”- Malala Yousafzai
Women’s empowerment means upliftment of women. Women empowerment refers to the advancement of women in social, economic, political, and cultural aspects, addressing the lack of development, special rights, and equality before the constitution. Women’s significant contributions are undervalued and face numerous challenges in various societal spheres, requiring increased empowerment. The intensification of women’s is sues and rights movement all over the world is reflected in the form of various conventions passed by the United Nation(1). Ambedkar always worked for the upliftment of women in Indian society. On july 18, 1927, addressing the oppressed women community. He said “Don’t think of yourself as inferior. Live a pure life. Wear clothes like touchy women wear. keep your clothes clean even if they are torn .No one can question your freedom to choose clothes” (2). Prime Minister Narendra Modi emphasizes the need for women-led development in India, aiming to make women the primary force in the country’s development journey. Gender discrimination is a significant issue in society, affecting women’s rights and vulnerability, as highlighted by the Supreme Court and constitutional provisions protecting women’s rights.
What is Women Empowerment?
Empowerment is a multi-dimensional social process that helps people gain control over their own lives.it is a process that fosters power in people, for use in their own lives, their communities, and in their society, by acting on issue that they consider as important. Empowerment ,by definition, is a social process, since it occurs in relationship to others (3) .The Convention on the Elimination of All Forms of Discrimination against women,1979 stated that” the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields.”
Women’s empowerment mainly has five components.(4)
i. Generating women’s sense of self-worth;
ii. Women’s right to have and to determine their choices.
iii. Women’s right to have access to equal opportunities and all kinds of resources;
iv. Women’s right to have the power to regulate and control their lives, within and outside the home.
v. Women’s ability to contribute in creating a more just social and economic order.
Need for Women Empowerment: Ancient India’s women faced societal disadvantages like lack of decision-making power, freedom of movement, education, employment, media exposure, and domestic violence due to developed society’s ill practices. Discriminatory practices such as female infanticide, dowry, sexual harassment at work, and atrocities involve both physical and mental elements(5).
Constitutional Provisions for the Empowerment of Women
Before the constitution, Indian women did not enjoy a very favorable position in the eyes of law, though the constitution of the Republic of India guaranteed equality to everyone. The Indian constitution ensures equal rights and opportunities for both men and women, enshrined in the Preamble, Fundamental Rights, Fundamental Duties, and Directive principles.
• Article 14 : Equality before law for women. As per article 14, The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.
• Article 15: Indian constitution forbids discrimination on the ground of caste, religion, sex, race and place of birth. Article 15(3) State to make special provisions in favour of women and children.
• Article 16: Ensure equal opportunities of employment same of the provisions of Indian constitution safeguarding the women right.
• Article 39(a): State to direct its policy toward securing for men and women equally, the right to an adequate means of livelihood.
• Article 39(d): Equal pay for equal work for both men and women.
• Article 39(e): Specially directs the state not to abuse the health and strength of workers, men and women.
• Article 42: State to make provisions for securing just and human conditions of work and for maternity relief.
• Article 46: State to promote with special care the education and economic interest of the weaker sections of the people and to protect them from social injustice and all form of exploitation.
• Article 47: State to raise the level of nutrition and the standard of living of its people and the improvement of public health.
• Article 51-A (e): It shall be duty of every citizen of India to renounce practices derogatory to the dignity of women.6
• Article 243(D) (3): 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) (4): Not less than 0ne-third of the total number of offices of chairpersons in the panchayat at each level shall be reserved for women.
• Article 243(T) (3) : One-third of total number of seats to be filled by direct elections in every municipality shall be reserved for women.
• Article 243(T) (4): The offices of chairpersons in the municipalities shall be reserved for the scheduled, the scheduled tribes and women in such manner as the legislature of a state may, by law, provide.(7)
These are constitutional provisions to safeguard the rights of women.
Legislative Provisions in India
The government of India has enacted various women–specific legislation to protect the rights of women and to uphold the constitutional mandate and to prohibit crimes against women.
Criminal Law Provisions towards Women Empowerment
• Section 46(4) protection from arresting a woman in night in absence of lady police.no women shall be arrested after sunset and before sunrise except under exceptional circumstances.
• Proviso of section 47 The police may seek entry into any premises for search. If the women are one who, by custom, does not appear in public, the police have to give notice to her.
• Section 51(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.
• Section 53(2) Female is to be examined under section 53, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Section 98 Power to compel restoration of abducted female.
• Proviso of section 160 No male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman reside.
• Section 327(2) Inquiry or trial of rape or an offence under section 376, section 376A, section376B, section376C, section376D of the Indian Penal Code shall be conducted in camera.
• Section 360 of the Code of Criminal Procedure and section3 and 4 of the Probation of Offenders Act,1958, women are entitled to be released after admonition or on probation, for any offences other than offences punishable with death sentence or life imprisonment.
• Section 416 In the event of a female upon trial being sentenced to death for commission of heinous offences such as murder etc. her sentence of execution is required to be postpone and can even be commuted to imprisonment for life.
• Proviso of section 437(1) (ii) A person who is under age of 16 years, a women, a sick and infirm person may be released on bail even if the offence charged is punishable with death on imprisonment for life or the accused is previously convicted.(8)
Empowerment of Women under Indian Evidence Act
• Section 114A-Presumpation as to absence of consent in certain prosecutions for rape.
The Crimes Identified under the Indian Penal Code (IPC) (9)
• Section 228A – Disclosure of identity of the victim of certain offences etc.
• Section 326A – Voluntarily causing grievous hurt by use of acid, etc.
• Section 306 – Abatement of suicide of woman.
• Section 302 – Intentional Death of Women.
• Section354 – Intent to outrage modesty of women.
• Section 304 B – Dowry death.
• Section 363-373 – Kidnapping and Abduction for different purpose.
• Section 376 – Rape (376A, 376B,376C, 376D,376AB,376DA, 376DB).
• Section 498A – Cruelty of women by her husband or relatives of the husband.
• Section 509 – Words, gesture or act intended to insult the modesty of a woman.(10)
Women Empowerment under Legislations
Some specific laws were enacted by the parliament in order to fulfill constitutional mandate of women empowerment.
• Constitution of India, 1950.
• Indian Penal Code, 1860.
• Code of Criminal Procedure, 1973.
• Indian Evidence Act, 1872.
• The Employee Insurance Act, 1948.
• The Equal Remuneration Act, 1976.
• The Maternity Benefit Act, 1961.
• The Factories Act, 1948.
• The Family courts Act, 1984.
• The Special Marriage Act, 1954.
• The Hindu Marriage Act, 1955.
• The Hindu Succession Act, 1956
• The Dowry Prohibition Act, 1961.
• The Protection of Women from Domestic Violence Act, 2005.
• The Medical Termination of Pregnancy Act, 1971.
• The Prohibition of Child Marriage Act, 2006.
• The Immoral Trafficking (prevention) Act, 1986.
• The prenatal Diagnostic Technique (Regulation and prevention of measure) Act1984.
• The Indecent Representation of women (prohibition) Act, 1986.
• The National Commission for Women Act, 1992.
• The Sexual Harassment of women at work place (prevention, protection and) Act, 2013.
International Conventions and Instruments toward Empowerment of Women
India has also ratified various international conventions and human right instrument to secure and safeguard equal right on women. (11)
• Convention on Elimination of All forms of Discrimination against Women, 1993.
• United Nations Charter, 1945.
• Universal Declaration of Human Rights, 1948.
• International Convention on Economic, Social, and Cultural Rights, 1966.
• Declaration of Mexico on Equality of Women, 1975.
• The Mexico Plan of Action, 1975.
• Beijing Declaration as well as Platform for Action, 1995.
Judicial Initiatives towards Empowerment of Women
We have so many legislations .but legislations not implement effectively. Women are exploited by the male dominated society. Due to the failure of the legislation to protect women, judiciary has taken various efforts for women empowerment. Through various cases Indian judiciary plays active role on women empowerment.
In Shayara Bano v. Union of India (12)
Shayara Bano filed a write petition in the Supreme Court, to declare talaq-e-biddat, polygamy, and nikah-halala practices unconstitutional and violative of Article 14,15,21,and 25 of the constitution. In this case Supreme Court declared the practice of triple talaq as unconstitutional by 3:2 majority.
In Gita Hariharan & Anr v. Reserve Bank of India& Anr (13)
In this case the petitioner Ms. Gita Hariharan decided to challenge the section 6(a) of Hindu Minority and Guardianship Act, 1956 and section 19(b) of the Guardian and Wards Act,1890.It was held that the mother or the father whoever is capable of taking care of the child and is deeply interested in the welfare of the child can be the natural guardian and that need not necessarily be the father.
In Air India v. Nargesh Meerza (14)
Nargesh Meerza filed a writ petition against discriminatory service conditions in the Regulations of Air-India. The impugned Regulation 46 provided that an air hostess would retire from the service of the corporation upon attaining the age of 35 years or on marriage. if it takes place within four years of service or on pregnancy, which ever occurs earlier. Under Regulation 7,service of employee can be extended by one year at the option of the managing Director but should not exceed two years. Both these regulations were struck down as violative of article 14.
In Mohmmed Ahmed Khan v. Shah Bano (15)
In this case, The supreme court granted equal right of maintenance under section 125 of Cr. P.C 1973 to a divorced married woman notwithstanding the personal law.
In Roxann Sharma v. Arun Sharma (16)
In this case, it was held that Hindu Marriage and Guardianship Act,1956 protects the father’s right as a guardian over the property but not over the child who is below five years of age. It was also stated that no provision of any law or act disqualifies the mother with custody of the child after five years of age. This case was considered to be a landmark because it exclusively specified the right of the mother to have custody of a child below five years of age provided that the mother is not unfit for the same.
In Danamma @ suman surpur v. Amar (17)
The Supreme court held that the right of a daughter to be entitled to an equal share as a son in ancestral property. Including daughters who were born before the Hindu Succession Act 1956 are entitled to equal share as son in ancestral property.
In Vishakha v.State of Rajastan (18)
In this case Supreme court took a serious note of the increasing menace of sexual harassment at workplace. And the court formulated the guidelines to be observed at all the work place until the enactment of new legislation.
In Gaurav Jain v. Union of India (19)
The Supreme Court laid down directions regarding the rescue and rehabilitation of prostitutes and their children in society. Including the necessity of counseling and coercing the women to retrieve from prostitution .
In Delhi Domestic Working Women’s Forum v. Union of India (20)
In this case, a group of women were raped by army men. The Supreme Court gave specific guidelines and suggested that the Criminal Injuries Compensation Board or Court should award compensation to the victims by taking into account, the pain suffering, shock as well as loss of earning due to pregnancy and the expenses of child birth if this occurs as a result of rape.
Conclusion
In today’s scenario the empowerment of women is one of the most important concerns of 21st century. On one side women is worshipped as goddess and on the other side she is suppressed by the male dominated society. Nowadays, crimes against women are increased day by day. Government has implemented various policy, schemes ( Beti bachao beti padhao , UJJWALA scheme, One stop centre scheme.) but initiatives alone would not be sufficient to achieve this task. The government should conduct oriented classes to empower women, focusing on mobility, social interaction, labor patterns, resource access, decision-making control, and education, with judicial verdicts crucial for enforcing rights.
References
1 United Nations Report 1980.
https://www.doolnews.com/dr-b-r-ambedkar-and-international-womens-day-242.htmi/amp-Accessed
3 Mohd. Wasim Ali and Saba Alam” Women Empowerment: Legislative Actions and Judicial Verdicts” 20 ALJ 246(2004).
4 According to the United Nations.
5 Dr.Sheetal Kanwal ,Law and Social Transformation in India 253(Amar Khetrapal ,Amar law publication ,5th edition 2020)
6 Dr. J. N. Pandey, Constitutional Law of India,(Central Law Agency,58th Edition, 2021).
7 Badar Ahmad and Mohammad Nasir, “Women Empowerment Under Panchayat Raj System” 22 ALJ 115 ,125 (2014-15).
8 Dr. S R Myneni, Criminal Procedure Code -Law of Juvenile Justice and Probation of Offenders, (Allahabad Law Agency , 4th Edition, 2016).
10 Dr S R Myneni, Law of crimes(Asia Law House, Hyderabad, 3rd edition,2019)
11 Dipak Misra,” Women Empowerment and Gender Justice” 6 SCC J-6 , 8 (2014)
12 (2017) 9 SCC 1.
13 AIR 1999 SC 1149.
14 AIR 1981 SC 1829.
15 AIR 1985 SC 945.The Supreme court also held that ”large segments of society which have been traditionally subjected to unjust treatment, women are one such segment”.
16 AIR 2015 SC 2232,The court held that” The custody of the child below five years should be with the mother who was well-educated and self-sufficient whereas the father was jobless”
17 (2018) 3 SCC 343.
18 AIR 1997 SC 301.
