Legal Rights of Women in 21st Century-Piyush Katyal & Gunika Agrawal

ISSN : 2581-8465

Author : Piyush Katyal & Gunika Agrawal

Institution: National Law University Odisha

Abstract

Woman is the gender which faces many changes in life in the different phases of life be it as a girl child, as a wife, or as a mother and thus comes the challenges with each one. We observe in our day to day life how women become victimized by various social evils. And to reduce these evils, legal framework of India has changed drastically since the inception of time. Women today are trying to understand their position in the society. They are becoming more aware about sexual inequalities faced by them in different spheres of life. But are these changes enough to give women an equal position and status in society? And the bigger question is that what should be done to reduce the vulnerability of women by using law as a tool? There still exists a wide gulf between the goals enunciated in the Constitution, legislations, policies, plans, programmes, and related mechanisms on the one hand and the situational reality on the status of women in India, on the other.

This paper attempts to analyse the challenges faced by Indian women in different spheres of life and to study how the legal rights of women has changed and developed over a considerable period of time in India. We will be studying the continuous efforts made to empower women in social, economical, political and legal context. The condition of woman in 21^st century is very different from the situation before independence and even from the late 20^th century. But true empowerment of women is still a myth. Through the course of this paper we will be covering the changes brought in certain laws related to women especially the law regarding adultery, sexual harassment of women at workplace and the legal rights of women.

             KEYWORDS: women, legal rights, 21^st century, sexual offences, adultery, gender, equality     

Legal Rights of Women in 21^st Century

From the ‘Vedic age’ till now in the 21^st century women had struggled for their rights in the society. Right from the beginning women had been treated inferior to men and it lead to the development of a patriarchal and male dominating society in India. As in ancient India, a system based on caste developed which defined the role of different castes in the society. In defining the roles itself women were not given any role or power as compared to men. And the existence of joint family system also contributed in the development of patriarchal society. According to the system, as accepted in most of the ancient India, the male member had the rights related to the family governance and he was considered as the head of the family and women were given no part to play in the same. Only in some part of Calcutta, if the lady is the most elderly in age then she was allowed to act as the head of the family. Practices like ‘sati pratha’ and ‘purdah system’ also contributed their part in the current situation of women. But nineteenth and twentieth century was great success for women movements on issues like abolition of sati, widow re-marriage and women education. And in the independence of India, women were also a crucial part and played an important role in the freedom movement. But the seeds sowed against women in the society in ancient period are still acting as weeds in their growth and after all the developments till the 21^st century women apparently have equal rights in many spheres but reality can be seen with implementation of their rights.

Some small features of democracy always prevailed in different societies, but the ‘American Revolution’ and introduction of ‘Declaration of Independence’ by, then President, Thomas Jefferson in 1776 turned out as an important event in the history of democracy. But 20^th century is the period in which modern democracy emerged due to two world wars and development of United Nations. After the introduction of democracy a wave of equal rights occurred and which was responsible for the equal voting rights for women.[1] In 1893, New Zealand gave women the right to vote in parliamentary elections and became the first self-governing country in the world to do so. Saudi Arabia became the most recent country in 21^st century to grant women the same rights in 2011 and also lifted the ban on women’s driving in 2018.[2] After getting independence and after the implementation of Constitution of India in 1950, Indian women also got the equal voting rights for the first time under article 326 of Indian Constitution which states[3]……“every person who is a citizen of India and who is not less than twenty one years of age…. shall be entitled to be registered as a voter”[4]. But getting equal voting rights is not enough to say that women are treated equally in every sphere of life.

The social evils which restricted women from their rights in the early ages can still be seen in the 21^st century but by the help of Indian legal system these bars are being removed. It can be seen in the recent case of Sabarimala temple, Sabarimala is in Kerala, and it barred women of age between 10 to 50 from entering the temple. It is one of the largest Hindu pilgrimage centres visited by more than 50 million devotees every year.[5] But when the issue reached the Supreme Court, it struck down the rule which barred women from entering the temple by a 4:1 judgement in “Indian Young Lawyers Association vs The State Of Kerala(2018)”[6], in which it was clearly stated that “We have no hesitation in saying that such an exclusionary practice violates the right of women to visit and enter a temple to freely practice Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship”[7].Even though the judgement was clear and loud enough to display that any wrong against women or any infringement of their fundamental and legal right will not be tolerated, yet the judgement was not unanimous. The dissenting opinion was given by a female judge, Justice InduMalhotra and in her part of judgement she was of the view that customs and usages should also be given some value with respect to the laws and the constitution. Woman is the gender which faces many changes in life in the different phases of life be it as a girl child, as a wife, or as a mother and thus comes the challenges with each one. We observe in our day to day life how women become victimized by various social evils.

Despite the improvements in the life sphere of women, yet, many heinous crimes like rape, trafficking of women and girl child happens in India. Social evils like women foeticide still happens and in many areas women are still considered as a burden. This shows the advancement and developments till 21^st century is just apparent. A balanced gender ratio is still a dream. Iceland recently became the first country to have equal pay ratio for both women and men, it took a century to achieve a single milestone in this field since the inception of life. Equal pay is an issue which not purely falls under legal framework, this issue is somewhere a socio-economic problem. But issues like rape and trafficking needs to be dealt first. In recent years, amount of rape and sexual assault cases has increased drastically. In 2016, it was recorded by the National Crime Records Bureau (NCRB) that on an average there are more than hundred rape cases which are recorded on the daily basis and out of which forty per cent cases are of minor girls.[8] Further on an average more than 200 cases per day are filed regarding criminal assault to outrage the modesty of women which doesn’t even include cases under POCSO act but figures related to the cases under the same act are also very high, more than 100 cases per day. According to the data collected from States/UTs rape cases have increased from 24206 cases in 2011 to 38947 cases in 2016 and simultaneously cases of criminal assault to outrage the modesty of women have increased from 42968 cases in 2011 to 84746 cases in 2016 (excluding POCSO cases). A total of 36022 cases were registered in different sections of POCSO (Prevention of Children from Sexual Offences) Act, 2012[9] in 2016. These figures are heart-shaking and these are just the cases which are recorded and against which some actions are taken or at least a FIR got registered. There can be many such cases which not even recorded because of lack of awareness and due the fear of the society. After the “Nirbhaya Case”[10] there are many changes which can be seen with regards to the development in attempts to reduce rape cases. Some of these changes are introduction of the fast-track courts for prosecution of rapes,it was also decided by the cabinet to establish a National Database of Sexual Offenders and strengthening of investigation and prosecution and fast tracking of cases,punishment for the offence of rape was enhanced and additional sections are added for the sexual offences against minors,reducing the age of a person, from eighteen years to sixteen years, to be treated as an adult in case of ‘heinous crimes’.[11] After all these efforts why the rate of crime particularly against women is not decreasing and is continuously increasing? Rape cases still are more than ten per cent of all the crimes against women. Why those who commit crime do not fear the consequences? Maybe it’s because of the delay and complexity in the legal system. And maybe because of the low conviction rate in these cases which is around 25 per cent. Whatever is the answer the real problem is the crime rate against women is not decreasing. The laws are changing frequently to deal with the increasing crime, a bill is passed recently which amends the criminal law provisions particularly the rape clause changing the penalty for raping a girl less than 12 years of age from imprisonment to death sentence.[12] Be it the 21^st century or any other century, be it the modern era or ancient era these problems always existed in India but the condition today is requires urgent actions.

Human trafficking refers to the movement of any human from one place to another through criminal use of force or deception for the economical and sexual exploitation of that person.  The  UN  Protocol  to  Prevent,  Suppress  and  Punish  Trafficking  in  Persons, Especially Women and Children (Palermo Protocol adopted in November 2000) defines trafficking as: “ . . . the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose  of exploitation. Exploitation  shall include, at a  minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or service, slavery or practice similar to slavery, servitude or the removal of organ.”[13]Generally victims of trafficking are girl child and young women from rural and socially and educationally backward areas, these girls are taken away for sexual exploitation and to work as bonded labour for their agents. Human trafficking is 3^rd largest organised crime in the world and India is the biggest hub in Asia for such crimes.[14] If you belong to a poor family and if you are a girl as well then you are more vulnerable with respect to the trafficking crimes. 21^st century deals with the problem of trafficking in India through the Immoral Trafficking Prevention Act (ITPA)[15] and trafficking for commercial sexual exploitation is penalized under the act. The punishment ranges from seven years to life imprisonment. The Bonded Labour Abolition Act[16], the Child Labour Act[17], and the Juvenile Justice Act[18] prohibit the bonded and forced labour in India. But the question is, are they enough to prevent crimes against immoral works which the girls and women have to do against their will after they are transferred from their homes to another places? The answer to this question is no because there is still no decrease in the number or trafficking cases and many of the cases regarding the same problem are not even filed. Women in 21^st century are subject to human trafficking and are still vulnerable to these kind of crimes.

There are many cases and instances which are related to sexual abuse or sexual harassment against women. It was in 1992 when first case related to sexual harassment at workplace occurred in India, which introduced the concept of sexual harassment in the Indian legal sphere. Bhanwari Devi, a saathin in Rajasthan, tried to prevent child marriage because of this she was sexually harassed through gestures and words. The local authority did nothing when she reported the case of harassment. She was later gang raped by those men. Because of absence of any existing legal framework to ‘sexual harassment’, certain social activists and NGOs approached the Supreme Court and filed a PIL. The trigger to the development of the law related to harassment was when, in 1997, the late Justice J.S. Verma (then chief justice of India) in his judgement in same case Vishakavs State of Rajasthan[19] changed the way in which we could respond to other forms of violence against women. Which further lead to creation of “Vishaka Guidelines”, and after 16 years of this case a defective Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed without any debate. And the sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 “POSH ACT”[20] came into picture and still those defects are not amended from the act. On analysing the act we can find that the act lay down that every office in India must have an ‘Internal Complaints Committee’[21] to investigate allegations of sexual harassment. With thousands of workplaces across the nation, and barely any employee trained to handle sexual harassment is a big problem in implementation of the framework set by the act. The definition of “workplace”[22] is not wide enough to cover all the institutions and workplaces which the act should cover under it, it doesn’t include all the education institutions and non-organised workplaces are also away from the effect of the act. Further, allegations of sexual harassment must be filed within the period of three months of the incident or up to six month.[23] However, the sufferer needs to be given more period of time to recover from the trauma then she can file a complaint against the incident. In criminal cases when there is no time bar for the victim to file a complaint then why it is not same in the POSH act as under sec 9 of the act. The most disturbing part of this act is section 14, this section punishes the complainant if the filed complaint seemed as a malicious complain by the aggrieved women, “Where the Internal Committee…… arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman ………has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, …….….to take action against the woman or the person who has made the complaint”[24]. Due to this provision the power to punish a woman is with the investigating committee if they came to a conclusion that the complaint is malicious. Majority of the members of the committee are from the organisation itself and there can be a possibility that the decision can be influenced by biasness of the members and there are chances that this section can be used in a false manner. Further when you are not allowing women to file a complaint after a period of time and with this you are also punishing her maybe monetarily or by taking away her job merely because she was not able to prove her part or the committee is not satisfied with the proof, how can someone expect from all of these women to come up when the mechanism provided for their grievance is already against them. Women, nowadays, are working in every field from sports, education, offices to army, police, and every other field in which once male domination existed. But even now in 21^st century, women are not free from the unhealthy behaviour by others in their field of work.

In late 2017, a movement named MeToo was started to help the women who were sexually violated and were sexually abused. The hash tag #metoo was used to create awareness regarding the concerned issue and through this women came forward and raised their voices against the evil acts done against them. The movement also emphasize on the concept of “consent”, consent is like an agreement between the individuals who are indulging in any kind of sexual activity and it doesn’t restrict to these activities, the ambit of consent is very wide. Consent is an important concept, if you are doing something knowingly and willingly then it can be said consensual but anything sexual done without the willingness of the person with whom the activity is done is a crime. And the difference between concent and passive surrender must be understood “Mere passive or helpless surrender of the body and its resignatess to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.”[25] Even being in the 21^st century, there is still a need of more awareness about this concept as many women doesn’t know about their rights related even small acts done against their will.

Introduction of IPC in 1860 was a huge event in history of Indian law. The condition of women at that time was very vulnerable and laws related to women were made considering the same. One such law was ‘law of adultery’ under s 497 of IPC[26]. Lord Macaulay, instrumental in the drafting of the code, gave due consideration to criminalizing adultery in India. However, he was not very convinced with it. The other people involved in the drafting felt that it was necessary to criminalize it, as pecuniary punishment would not be enough.   Adultery was defined as voluntary sexual intercourse with a person who is not your spouse. However, the wife or a husband was not punished in case of adultery. The punishment was for the third party that was the person having sexual intercourse with the spouse. It was clearly mentioned in the clause that the women would have never been considered at fault. This clause was first of all added because of the lack of awareness among women and because of their vulnerability. There had been a lot of controversy surrounding this law. The law had often been declared ‘discriminatory’ on the grounds of sex. Some people argue that it discriminated against men, as women were not held liable for adultery. Others say that it was discriminatory against women, as they were not allowed to file a case for adultery. The law had also been questioned as bring infringing the fundamental rights. The purpose behind the law was to punish the third party in case of adultery, who is intruding in the relationship. It is to punish the outsider who disrupts the matrimonial home by forming an adulterous relationship with the spouse. The law, therefore, does not allow for prosecution against each other, but stated that the third party (the intruder) can be punished. Even after years of debates and criticism against the law and after some remarkable developments through cases like Yusuf Aziz vs The State of Bombay( 1951)[27], Sowmithri Vishnu v Union of India (1958)[28], V Revathy v Union of India (1988)[29] and after the 42nd Law Commission of India Report (1971) and the Malimath Committee on Criminal Law Reforms’ (2003) suggestion the law was still in its worst state. But in the landmark case of Joseph Shine V. Union of India[30] the Supreme Court has struck down 150 year old Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional. This decision is considered as a revolution in the society because one of the reasons that the law was not changed till now was that the society itself was not convinced by the thought of revoking such law. Majority of the society considered these immoral acts as illicit relations, which should not be present in the society but now a major part of India society became mature enough to accept that when the parties having such relations have no problem then they must not interfere between the same. Immoral part of the adultery still has some legal provisions, it is still considered as a valid reason to get compensation under tort lawand still consider as an abatement to suicide.[31]The constitution makers knew about the status of women in India, they knew about the atrocities committed against her in all the sections of life. Ever since the inception of time the women are being subjugated to atrocities in all the spheres of life. In a country like India, which runs on a patriarchal system such issues become prevalent. So, the idea of equality and no discrimination against any sex was thought of at the drafting of constitution. And the Constitution of India included provisions like Article 14, Article 15(1) and Article 16. It is not just the Part IV of the  constitution that talks about women, the DPSPs also talks about providing women with equal rights be it maternity leave, or the right of women to equal pay. Moreover, even the Fundamental Duties makes it a duty for every citizen of the country to renounce practises derogatory to women. The basic rights as that of human along with the political rights which necessitates political involvement which has been ensured by the 73^rd and 74^th Constitutional Amendment Act which provides a reservation of 33% to women in the number of seats for the elected seats. The provision of positive discrimination provided by the constitution makers was due to the fact of historical subjection of women in India.  This subjection can be proved by the reducing number of women with each census and the increase in number of crimes towards women.

It is not just the Constitution of India which provides for provisions for protecting the basic and legal rights of women but the judiciary too has always taken a strong approach for gender justice through taking strong positions by making provisions like providing equal working conditions, laws regarding sexual harassment at work place, laws regarding maternity leave, equal pay many more. All the wings and layers of government legislature, executive and judiciary at central, state and local levels have the responsibility towards empowerment of women. Law cannot alone remedy the inequalities and bring about justice, development and empowerment. It can act as a spring board of doubt of all sections of society required to achieve the ends. It is necessary to accelerate this process of change by deliberate and planned efforts so that the pernicious social evil of gender inequality is buried deep in its grave. Laws written in black and white are not enough to combat the evil. The role of Courts and judges assume greater importance and it is expected that the Courts would deal with cases relating to woman in a more realistic manner.

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[1]Zach VanderVeen, Introduction: Challenges to Democracy as a Way of Life, The Journal of Speculative Philosophy, Vol. 24, No. 4, 2010 (Apr 4, 2019), DOI: 10.5325/jspecphil.24.4.0309.

[2]Natalia Truszkowska, Irreligious Police: Women’s Rights in Saudi Arabia, Harvard International Review

Vol. 23, No. 2 (SUMMER 2018), (Apr 5, 2019), https://www.jstor.org/stable/42762697.

[3]Nicolette Sheridan and Jennifer Hand,Inequity, Indigeneity and Progressive Politics in Aotearoa / New Zealand, Race, Gender & Class Vol. 18, No. 3/4, Race, Gender & Class 2011 Conference 2011, ( Apr 4, 2019),https://www.jstor.org/stable/43496841?seq=1#metadata_info_tab_contents.

[4]INDIA CONST. art. 326.

[5]FilippoOsella and Caroline Osella, ‘AyyappanSaranam’: Masculinity and the Sabarimala Pilgrimage in Kerala, The Journal of the Royal Anthropological InstituteVol. 9, No. 4, Dec., 2003 (Apr 7, 2019), https://www.jstor.org/stable/3134708?Search=yes&resultItemClick=true&searchText=Sabarimala&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3D%2BSabarimala%2B&ab_segments=0%2Fl2b-basic-1%2Frelevance_config_with_tbsub&refreqid=search%3A43aa607143fc6edeeaee0839cfe29f4c&seq=1#metadata_info_tab_contents.

[6]Indian Young Lawyers Association v. The State Of Kerala, (2018) SC WP(Civ) NO. 373, 2006.

[7] Id.

[8]Dr.Ish Kumar, SurendraPanwar, S.K. Saxena, Rohit Raj, National Database of Sexual Offenders, NCRB JOURNAL Vol-I (No.1) October 2018 (Apr 10, 2019), http://ncrb.gov.in/NCRB_Journal/NCRB_Journal_October_2018.pdf.

[9]Id.

[10] State Through Reference vs Ram Singh &Ors, (2014) SC 114, 2013.

[11]The Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliament, 2018.

[12]The Criminal Law (Amendment) Act 2018, No. 22, Act of Parliament, 2018.

[13] United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crimes (New York: United Nations, 2000), 3.  

[14]Sarfaraz Ahmed Khan, Human Trafficking, Justice Verma Committee Report And Legal Reform: An Unaccomplished Agenda, Journal of the Indian Law Institute, Vol. 56, No. 4 (October-December 2014) (Apr 2, 2019), https://www.jstor.org/stable/43953729.

[15] The Immoral Traffic (Prevention) Act, 1956, Act No. 104, Act of Parliament,1956.

[16]The Bonded Labour System (Abolition) Act, 1976, Act No.19, Act of Parliament, 1976.

[17] The Child Labour (Prohibition And Regulation) Act, 1986, Act No. 61, Act of Parliament, 1986.

[18] The Juvenile Justice (Care And Protection Of Children) Act, 2015, Act No. 2, Act of Parliament, 2016.

[19]Vishaka and others V. State of Rajasthan and others, AIR 1997 SC 3011.

[20] The Sexual Harassment Of Women At Workplace(Prevention, Protection And Redressal) Act, 2013, Act No. 14, Act of Parliament, 2013.

[21]Id, sec. 4, cl. 1.

[22]Id, sec. 2, cl (o).

[23]Id, sec. 9.

[24]Id, sec. 14, cl, (i).

[25]Tuka Ram AndAnrvs State of Maharashtra, AIR 1979 SC 185.

[26] The Indian Penal Code, 1860, Act No. 45, Act of Parliament, 1860, sec. 497.

[27]Yusuf Abdul Aziz v State of Bombay, (1954) SCR 930 (SC).

[28]Sowmithri Vishnu v Union of India, (1985) SCC (Cri) 325 SC.

[29] V Revathivs Union of India,(1988) 2 SCC 72 (SC).

[30] Joseph Shine V. Union Of India, (2018) SC WP (Cri) 194, 2017.

[31] Id.