Prefix National Schemes and Plans for Women, Rights of Women, Role of Judiciary and its Landmark Judgements, Women Empowerment and the Law

The author of this article is Sreedutt V S, Treasurer – LJRF Trivandrum Chapter, Convenor – LJRF Munisff-Magistrate and APP Examinations Training Programme. This article is a critical analysis on women empowerment, explaining its real sense, that shall be achieved as a democratic and progressive nation.

“I raise my voice not so that I can shout, but so that those without a voice can be heard. We cannot all succeed when half of us are held back”

~Malala Yousafzai

INTRODUCTION

According to Romilla Thapper, “Within the Indian subcontinent there have been infinite variations on the status of women diverging according to cultural malice, family structure, class, caste, property rights and morals”. The Indian philosophy poses the women with dual character. On the one hand, she is considered fertile, patient and benevolent but on the other hand, she is considered aggressor and represents ‘shakti’. The sacramental nature of marriage also strengthened the position of wife in a polygamous society. She was the nucleus of family. On women was dependent the prosperity and future progeny of the family. She was considered the creator, protector and educator of children. The rights of the women have gone across many changes from the Vedic period till date.ⁱ

In the view of the Supreme Court as observed in Madhu Krishnan v. State of Biharⁱⁱ, women form half of the Indian population. Women have always been discriminated against men and have suffered denial and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all kinds of inequities, indignities and discrimination. The Constitution of India, 1950 has certain special provisions for the betterment, treatment and development of women.

RIGHTS OF THE WOMEN

The Right of the women under the Constitution of India is mentioned to provide to them equality, protection and freedom from discrimination and dignity. The Constitution of India not only allows equality to women but also empowers the State to use measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education and political disadvantages faced by them. Articles 14, 15(1), 15(3), 16(2), 23(1), 39(a), 39(b), 39(d), 39(e), 42, 51A-e and also the 73rd and 74th Constitution Amendments provides these rights. Also, every citizen of India has the right to Constitutional remedies, which is approaching courts for enforcing fundamental rights.

There are other rights which are made for the protecting the rights of women. Like, Women have right not to be arrested at night, unless there is an exceptional case on the orders of a first class magistrate, a woman cannot be arrested after sunset and before sunrise. Women have the right to register, for filing virtual complaints via e-mail, or writing her complaint and sending it to a police station from a registered postal address. Further, the SHO sends a police constable to her place to record her complaint. This is in case a woman is not in a position to physically go to a police station and file a complaint. Women have the right against indecent representation like Depiction of a woman’s figure (her form or any body part) in any manner that is indecent, derogatory, or is likely to deprave, corrupt or injure the public morality or morals, is a punishable offence. Women have the right to get free legal aid, under the Legal Services Authorities Act, female rape victims have the right to get free legal aid. Also, Maternity Benefit Act (1961) regulates the employment of women in certain establishments for certain period before and after child-birth and provides for maternity benefit and certain other benefits. Medical Termination of Pregnancy Act (1971) provides for the termination of certain pregnancies by registered medical practitioners on humanitarian and medical grounds.

NATIONAL SCHEMES AND PLANS FOR WOMEN

National Commission for Women

In 1992, the government 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. The Government structured this statutory body with a precise command to study and screen all substances concerning to the constitutional and legal protection provided for women, review the existing legislation to recommend amendments wherever obligatory.

The National Plan of Action for the Girl Child (1991-2000)

The idea of Action is to guarantee survival, protection, and progress of the girl child with the decisive objective of structuring enhanced future for the girl child.

National Policy for the Empowerment of Women (2001)

This was mainly constituted against all forms women, physical and mental violences.

National Mission of Empowerment of Women (NMEW)

The Government of India addressed the issue of empowerment by consolidating all programmes for women under tis mission, to enhance economic empowerment of girls and women through skill development. Etc. Started operationalized during 2011-12.

Other schemes includes One Stop Centre Scheme, the Pradhan Mantri Ujjwala Yojana, the Mahila Shakti Kendra Scheme and Beti Bachao, Beti Padhao.

ROLE OF JUDICIARY AND ITS LANDMARK JUDGMENTS

The Indian judiciary has played a crucial role in framing and interpreting the law to uphold women`s rights and dignity in India. There are countless judgments that have positively influenced the women rights movement in India and upheld the constitutional rights affecting different spheres of a woman’s life.

In Mary Roy v. State of Keralaⁱⁱⁱ, the Supreme Court delivered a landmark judgment that granted Syrian Christian women the right to seek an equal share in their father’s property.

In Vineeta Sharma v. Rakesh Sharma^iv, where the court held that daughters would have equal coparcenary rights in Hindu Undivided Family property (HUF) by virtue of their birth and could not be excluded from inheritance, irrespective of whether they were born before the 2005 amendment to the Hindu Succession Act, 1956.

In Dattatreya v. State of Bombay (1953), has held that reservation of some seats in women’s college is not unconstitutional. The court observed the establishment of education institution exclusively for women is not hit by Article 15 of the Constitution.

In Lata Singh v. State of Uttar Pradesh(2006)& Shanti Vahini v. Union of India(2018), the Supreme Court allowed an adult woman the right to marry or live with anyone of her choice.

In Kajal Mukesh v. State of Maharashtra(2020), the court held that prostitution is not an offence under PITA, 1956, as per the Act the offence is sexual exploitation for commercial purpose.

In Muthamma v. Union of India (1979) and Air India v. Nargesh Mirza (1981), which impose discriminatory conditions of service that allow workers to request leave and denial before the marriage. The right of pregnant women to work.

In State of Rajasthan v. S (2019), the Division Bench of the Rajasthan High Court upheld that the reproductive choice of a woman is a fundamental right encompassed under the Article 21 of the Constitution.

In Indian Young Lawyers’ Association v. State of Kerala (2018), the court also departed from its traditional concepts issuing judgments in matters of faith while passing its verdict in the case. The court held that devotion cannot be subjected to gender discrimination and permitted the entry of women of all ages into the Sabarimala Temple despite a centuries old custom banning the entry of menstruating women.

The court also affirmed the right of a woman in exercising her sexual freedom in personal sphere with the Joseph Shine v Union of India (2018), judgment wherein the court placed its reliance on the right to privacy flowing from Article 21 and declared Sec.497 of IPC, 1860 as unconstitutional.

HOW WOMEN EMPOWERMENT HAS TO BE????

Women empowerment is not just empowering the women to take their own decisions for their development, or encouraging them to be self-reliant, independent. According to Webster dictionary, empowerment means the state of being empowered to do something; the power to do, the right to do, or the authority to do something.

So, a bunch of laws or provisions providing for the rights of women, protection, or a number of schemes, plans, or landmark judgments from the part of judiciary will not provide for the empowerment in its real sense. Only the Women’s equality in sharing and active participation in decision making, including decision making in political process at all levels will ensure it. But, the current representation shows it too far to be achieved, even though it’s necessary.

In Legislative branch

India ranks 148th in a list of 193 countries based on the percentage of elected women representatives in their national parliaments. Even once women are on the same table as men in politics, they may continue to face the challenges mentioned. There is a need to bring about institutional, social and behavioral change among India’s populace. Gender equality is a part of Sustainable Development Goals as well.

More than 48 per cent of India’s population is made up of women, yet they only account for less than 15 per cent of the legislators in the Parliament and State Assemblies. Currently, the number of women in MP is just 110 (17th Parliament, 29 MPs Rajya Sabha, 81 MPs Lok Sabha), which should be at least 260 to reach the 33%. At 14%, 17th Lok Sabha has highest number of women MPs. When it comes to Kerala legislature, currently it’s 11 MLA’s. The time has come for the Women’s Reservation Bill to be passed and that too in a necessary 50% instead of mere 33%. Some Indian States such as Jharkand, Maharastra, Uttarakhand, Kerala, Tripura and Chattisgarh have gone on to reserve 50% of their Panchayat seats for women so as to ensure their greater participation in public matters. Some recognition has been given to women to some extent as far as their representation at the grassroots level is concerned, but deficiencies persist in women’s representation in the upper tiers of the State in India. Here comes the need for an urgent reform in the matter. The Women’s Reservation Bill was placed before the Indian Parliament in 1996 onward for reserving 33% of the seats in the Lok Sabha, and State Legislative Assemblies for women. In between, in 1998 and 1999, too, Bills were introduced with the same aim of securing the reservation of one-third of the seats in the Lok Sabha for women by way of a constitutional amendment. But there has never been any consensus among political parties on the contents of such a Bill. In fact, when the then Union law minister was introducing the 2008 Bill in Rajya Sabha, the Upper House was witness to unruly scenes with some members reportedly trying to snatch the Bill from the law minister’s hands. And even now, it remains pending after 25 yrs of its first introduction.^v

Only 35 out of 195 countries around the world have at least 33 % female representatives in national parliaments. According to the Democracy Index of 2020, 4 out of the top 5 most democratic countries in the world have more than 33 per cent female leaders in parliament; these countries are Norway, Iceland, Sweden, and New Zealand. 61.3 % of the members in the Parliament of Rwanda are women. It has the highest number of female leaders in any national parliament. Women constitute 41.5 % of the membership of the Parliament of Finland. At present, Finland has a coalition government made up of five parties and coincidentally, the leaders of all the coalition parties are women.^vi

According to Global Gender Gap Report 2021, India has declined on the political empowerment index by 13.5 percentage points, and a decline in the number of women ministers, from 23.1% in 2019 to 9.1% in 2021^vii. Out of the 78 ministers in the current Union Ministry in India, 11 are women. This is the highest number of women in the Union Council of ministers in the last 17 years. But when it comes to the area of Cabinet Ministers it again falls to 3 or 4 only. The women turnout during India’s Parliamentary General Elections was 65.63% compared to 67.09% turnout for men.

In Judicial Branch

Out of the sanctioned strength of 34, the Supreme Court currently has four women judges — justices Indira Banerjee, Hima Kohli, BV Nagarathna and Bela M Trivedi — which is the highest ever in the top court’s history. In Kerala HC, six High Court Judges – which is the highest ever in the history of Kerala High Court. The Chief Justice of India (CJI) NV Ramana pressed for 50% representation for women in the judiciary, adding that it is their right and not a matter of charity.

“Enough of suppression of thousands of years. It is high time we have 50% representation of women in the judiciary. It is your right. It is not a matter of charity. Women constitute only about 30% of the lower judiciary. In high courts, women judges constitute 11.5%. Here in the Supreme Court, we currently have four women justices out of the sitting 33. That makes it just 12%”. “Gender stereotypes are forcing them to bear the brunt of family burdens. Clients’ preference for male advocates, the uncomfortable environment within courtrooms, lack of infrastructure, crowded courtrooms, lack of washrooms for women etc. – all these deter women from entering the profession”. – Justice N V Ramana.^viii

CJI Ramana also pointed out that of the 1.7 million advocates in India, only 15% were women. Additionally, only 2% of the elected representatives in the State Bar Councils were women, and there is no woman member in the Bar Council of India.^ix

In Executive Branch

At the higher tier, 4 women have contested in the Presidential Elections so far and one succeeding. But in other top executive posts like to the post of Vice President, no women have ever contested. To the post of Governor, the women has been chosen and that too is minimal. The Government of India exercises its executive authority through a number of Government ministries or Departments. There are 51 Union Ministries in India, and its top executive post referred only minimally to women officers, and even the highest post of Cabinet Secretary.

Womens Representation in various services like All India Services and Defence Services

Like men they are achieving top posts like IAS, IPS at the younger ages but none are reaching the higher positions. They are topper in civil services but the overall representation is very low. Out of the total 1,228 candidates finally recommended by the UPSC for the Civil Services in 2013, only 261 were women. In 2014, it was 313 out of 1,363 and in 2015, 229 out of 1,363. In the recruitment year 2016, it was 282 out of 1,209. In 2020, it was 216 out of 751. The Number Of Women Joining Civil Services Is Less Than 25%. Of 11,569 IAS officers who entered the civil services between 1951 and 2020, only 1,527 were women, shows an India Spend analysis of the Indian Administrative Service Officers Dataset compiled by the Trivedi Centre for Political Data (TCPD) at Ashoka University.^x

The Indian Army has 6,807 women and constitute 0.56 per cent of the Army. A total of 9,118 women are on active duty. In May 2021, 83 Women were inducted as Jawans for the first time in the Indian Army, the Jawans were taken in the Corps of Military Police. As of 2020, three officers have been granted the rank of three star general of above, all of whom are from the Medical Services. In 2008, women were first inducted as permanent commissioned officers in Legal and Education corps, in 2020 they were first inducted in 8 more corps as permanent commissioned officers.^xi

In 1992, the Indian Army began inducting women officers in non-medical roles. Recently, in 17 February 2020, the Supreme Court of India said that women officers in Indian Army can get command positions at par with male officers. “Physiological features of women have no link to their rights. The mindset must change,” mentioned the Justices DY Chandrachud and Ajay Rastogi in their landmark ruling.^xii

As of September 2020, there were 1,875 female officers serving in the IAF, including 10 pilots and 18 navigators. So, Indian Air Force had 13.09% and 8.5%, Indian Navy 6% and 2.8% women, and Indian Army 3.80% and 3% in December 2018 and December 2014^xiii. The opportunity for serving the nation, state for bringing proud and courage is restricted, but to get violated and to live the life in fear are at its zenith.

Conclusion

“I measure the progress of a community by the degree of progress which women have achieved”.

~DR. B R AMBEDKAR

The position of women has developed in the past decades, however still they are struggling to maintain their freedom and dignity. Presently, Indian women are suffering from the toughest time physically and mentally, mainly due to unawareness and lack of information on legal and constitutional woman rights in India. The Constitution provides many protection women rights such as Protective discrimination in favour of women, right of women against exploitation, right to freedom of women and political representations of women. Laws alone cannot ensure safety and empowerment; the society and the people should also work for the achievement of the same.^xiv

Women empowerment, economic, social, political, is vital to growth of any nation and to protect and nurture human rights. All measures to be made to guarantee women equal access to and full participation in decision making bodies at every level, including legislative, executive, judiciary, statutory bodies, as also the advisory commissions, committees, Boards, etc. Affirmative action’s such as reservation, including in higher legislative bodies are required. In order to promote and protect empowerment of women it is very necessary that we should concentrate on all such areas which are most crucial to her well-being, which means the well-being and prosperity of the whole nation.