This Artcile ” Critical Analysis of Women’s Human Rights In India ” is written by Tshewang Dema, She is a BA.LLB (Hons) Student at Lovely Professional University.
“It is not gender which is destroying our culture…. it is our interpretations of culture which has destroyed gender equality.”
~A Cambodian civil society group
Human beings are granted rights by society not only as citizens of a state but because they are human, however, women’s rights are often violated not only in the political field but also in day-to-day life, in the family, in households and in the public domain. Women have always been a part of literature throughout the ages. Unfortunately, they have often depicted as a weaker, inferior, could not survive on their own and could not do their work by themselves.
United Nation in its Millennium Summit in 2000 declared ‘Gender Equality and Women Empowerment’ as one among the eight ‘Millennium Development Goal’ to be achieved by the year 2015. However, these goals are far from being realized in a country like India. Infact often women in India are deprived of their fundamental right to dignity also, leave alone the question of gender parity. India has a patriarchal society where male dominates and always are treated as superior in compared to their female counterparts, that is why the condition of Indian women is not as good as men’s.
They have been facing discrimination, injustice and dishonour based on gender in every walk of life. However, Indian Constitution provides some special provisions to women only for their empowerment and overall development, even then the condition of women in India is quite miserable, because majority of Indian women remain unaware about their rights because of this; they have to face discrimination, harassment and exploitation in various forms.
The legislature and policy framers of India have made multiple laws, rules and regulations ensuring rights of women but proving ineffective because all are limited in form of ‘Act’ instead of ‘Action’, that is the reason why Indian women are mistreated, being harassed physically and mentally. Anyhow this research attempt to analyze the importance of women rights with various Human Rights regarding women in India.
Key word: Women, Human Rights, Constitution, UDHR, Women Rights
“There is no chance for the welfare of the world unless the condition of women is improved. It is not possible for a bird to fly on only one wing.”
India is one of the world’s oldest civilizations. In ancient India during rig vedic period, women were given a high status in society. It was the time when they were married at a matured age, given the opportunity to participate in religious ceremonies and provided freedom in choice of husbands. with the passage of time, the status of women fallen gradually and they had to face discrimination in later vedic period. on analysing smritis, diminished condition of women can be traced. However, smritis also create a lot of confusion in terms of various theories and ideas in contrast to the vedic literature, for instance, manu smiriti regards women the most respectable while quoting, ‘naryastu yatra pujyante, ramante tatra devta’ (where women are honoured, there very gods are pleased).
In the contemporary world voice of women is increasingly being heard in the streets, in the courts and in Parliament. Yet issues concerning women are not given priority in society. While women in the west fought for a century to get back basic rights as that of right to vote, women in India were at an advantage where the constitution of India has granted equal rights to the men and women. The State shall not deny to any person equality before law or the equal protection of laws within the territory of India, and State shall not discriminate against any citizen on grounds only of religion, race, caste, sex and place of birth or any of them. But today, it seems that there is a wide gulf between theory and practice.
The women in India have always been considered subordinate to men. Though the provision contained in the Indian Constitution mandates equality and non-discrimination on the grounds of sex, women is always discriminated and dishonoured. Although various efforts have been taken to improve the status of women in India, the notion of gender equality as under the constitution is miles away from becoming a reality.
Still due to the revolutionary changes brought by our constitution and efforts made by Indian women, they have earned themselves a respectable position in the society. Now they are treated equally with men. Today women are everywhere and to be precise women are in space, women are incorporate, women are in politics, women are in entertainment field, women are in defense field and the list goes on.
There is a need to discuss the rights of the women separately as women represent almost half of the population of India, yet they are discriminated, and their rights are violated in every walk of life. There are some crimes which are committed only against women such as rape, sexual assault, demand of dowry, bride burning, prostitution, selling and importation, sexual exploitation, etc., No man can be victim of any of these crimes. Now, an important question arises as to how this Human Rights shield provided to women under constitutional provisions and various legislations, is beneficial to them? No doubt, the government is continuously working for women empowerment in India, but it needs a lot of things yet to be done.
STATEMENT OF THE PROBLEM
Indian women have been crucial victims of various social, economic and political disabilities, economic dependence, patriarchal form of family, ideal of daughter noble marriages, child marriages, joint family system, illiteracy, etc. and have been victims of various types of violence within the family and outside on the streets and offices. But they need to be protected by laws of the state as they exist as human being which poses with basic human rights. Hence to define one own freedom they should also know how to exercise the law with having knowledge of women human rights under various legal provision in India where Indian Constitution play major in all.
RESEARCH HYPOTHESIS AND OBJECTIVES
The research hypothesis of this research paper is based on the question of whether India has sufficient legal provisions to protect women’s basic human rights which are given to them in the form of legal rights under various laws and fundamental rights by the Indian constitution. An attempt has been made to find an answer by analysing relevant laws and collected data. Although under the framework of Indian constitution various special rights have been given to woman as compared to men yet in reality those are insufficient and least beneficial to women. This paper studies critical analysis of the various human rights given to women in India.
For writing this research paper, the descriptive method of research has been employed and the data collected and interpreted for this research paper is secondary. The women’s human rights in India are the core of this paper and it further discuss how all such human rights given to the women in the form of constitutional fundamental rights are being violated. By focussing on the various crimes are committed against them, an attempt has been made to draw attention towards this problem.
WOMEN RIGHS AS HUMAN RIGHT
Human rights can be defined as the minimum equal and inalienable rights compulsorily obtainable by every human for being a member of global human community regardless of gender, ethnicity, language, race, religion, nationality or any other ground. These rights are universal which include right to life, right to equality, right to live with human dignity, right to freedom of speech and expression, right against discrimination, and right to safe environment. These all-human rights are recognised by the world community in 1948 under the universal declaration of human rights to which India is a signatory.
The slogan ‘women’s rights are human rights’ was first used at the un world conference on human rights in Vienna in 1993 though the slogan “human rights are women’s rights and women’s rights are human rights” may at first appear to be trite, or at best truism, a closer and more scrutiny will show the serious undertones underlying this slogan. It signifies, firstly, that women as a class have been denied fundamental human rights for centuries and have been subject to worst forms of bigotry, discrimination and exploitation.
On the other hand, it means that a real support of human rights is not possible unless the exponent also vows to support and uphold rights which are available only to women like, equality with men, maternal health and sexual and reproductive rights, freedom from gender-based violence, opportunities to access to a safe, high-quality education. Put simply, republic around the world cannot ignore women rights and at the same time espouse human rights. Women rights are human rights available to women as a part and parcel of humanity coupled with gender specific rights, they should have because of being women.
India is also a signatory to the international covenant on economic, social and cultural rights, 1966 and U. N. Convention on the elimination of all forms of discrimination against women, 1979. These all U. N. Conventions promote philosophy of human rights and support the idea of equality among all human without any discrimination.
WOMEN’S HUMAN RIGHTS IN INDIA
The constitution of India, which was adopted in 1949, contains several articles incorporating the concept of equality and non-discrimination on the ground of sex. The constitution recognises human rights in form of various fundamental rights and guarantees equal rights to both men and women without any discrimination. In 1993 the parliament of India also enacted protection of human rights act. Under the provisions of the act, the national human rights commission was established. In case of any violation of human rights, aggrieved women can send their complaints to national human rights commission.
At present time, the status of Indian women has undergone considerable changes with the expansion of level of literacy which has made them far more independent and aware of their rights such as right to equal treatment, right to property right to work, and maintenance, a majority of women still remain unaware about their rights and as a result of this, they have to face harassment, exploitation and injustice. After the Nirbhaya case in 2012, certain amendments have been made in Indian penal code, the code of criminal procedure, and the Indian evidence act for ensuring protection to women and to safeguard their interests.
Moreover, a number of women oriented specific legislations have also been enacted to protect women’s basic human rights. Such laws prescribe punishments for those who violate the acceptable norms of human behaviour and cross the legal boundaries to attack the women or their dignity. The provisions of these laws give the following human rights in the form of legal rights to women.
SOURCES OF WOMEN’S HUMAN RIGHTS IN INDIA
WOMEN’S HUMAN RIGHTS UNDER CONSTITUTIONAL
The Indian constitution is the supreme law and backbone of India; all other laws get authority from the provisions of the constitution. ‘Indian constitution secures for all its citizens “justice” – social, economic and political, “liberty” – of thoughts, expression, belief, faith and worship, “equality” – of status and of opportunity………and dignity of the individual and the integrity of the nation.’ with such wordings, the preamble of the Indian constitution ensures the basic human rights of all men as well as women. The constitution of India is known for its idea of equality among men and women. However, a special protection has also been provided to women under the provisions of the constitution from the perspective of human rights of women.
- Right to equality under article 14: Article 1 of UDHR declares that all human beings are born free and equal in dignity and rights and article 7 of UDHR provides for equality before law. Under the constitutional framework of India, the status of women is equal to men in the eyes of law because the state cannot deny to any person equality before the law or the equal protection of laws within the territory of India.
- Right against discrimination: Article 2 of UDHR assures all the rights and freedoms without any discrimination. Article 7 also talks about equal protection against discrimination. Under article 15 of constitution of India, Indian citizens can also not be discriminated on the basis of their sex by any government authority because the state cannot discriminate against any citizen on ground only of religion, race, caste, sex, and place of birth or any of them.
Furthermore, no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to: (a) assess to shops, public restriction, hotels and places public entertainment or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintain wholly or partly out of state funds or dedicated to the use of the general public however, state can make special provisions for women under clause (3) of the article as exceptions to the principles of non-discrimination.
- Right to equal opportunity in public employment: Women are able to get equal opportunity pertaining to public employment because there is equality of opportunity for all citizens, whether males or females, in matters relating to employment or appointment to any office under state and no citizen can, on grounds 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. However, government has authority to make rules for reservation.
- Right to freedom of speech and expression: Everyone has right to freedom of opinion and expression under article 19 of UDHR. Women can raise their voice for any matter affecting them by using their right under article 19 (1) (a) of Indian constitution which guarantees freedom of speech and expression to all citizens.
- Right to work: UDHR in its article 23(1) confirms right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment to everyone. Recognising such right in its structure Indian constitution through article 19 (1) (g) provides the right to work to Indian women by ensuring freedom to all citizens for occupation, profession and business. Even the sexual harassment of women at workplace (prevention, prohibition and redressal) act, 2013 was passed after the case of Vishaka and ors. V state of Rajasthan to make women work freely and comfortable.
- Right to life and personal liberty: Right to life, liberty and security of person has been recognised under article 3 of UDHR. Article 21 of Indian constitution also provides right to live to all women and men as per their own choice by constitutional guarantee that no person shall be deprived of his/her life or personal liberty except according to procedure established by law.
- Right against exploitation: Article 5 of UDHR protects against torture or cruel, inhuman or degrading treatment. Indian constitution under article 23 protects against human trafficking and bonded labour, which works as a shield for women’s safety and ensures their right to work. For implementing the idea of this article, Indian parliament enacted the suppression of immoral trafficking in women and girls act, 1956 which was renamed as the immoral trafficking (prevention) act, 1956. Constitutional scheme of directive principles of state policy directs the state to secure the idea of women’s right in the society. These are the relevant articles in this regard.
- Right to livelihood: Article 39 (a) provides that the citizen, whether men or women, equally have the right to an adequate means to livelihood. Same right has been recognised under article 23(3) of UDHR which says that everyone who works has the right to just and favourable remuneration.
- Equal pay for equal work: Under article 39 (d), Indian constitution ensures that the state shall, particular; direct its policy towards securing that there is equal pay for equal work for not only men but also women. UDHR under article 23(2) also provides such right.
- Right to health: Through article 39 (e), constitution of India guarantees that the state shall direct its policy towards securing that the health and strength of workers, men as well as women and the tender age of children are not abused and none of them are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 25(1) of UDHR also provides right to a standard of living adequate for health and well-being.
- Equal justice and free legal aid: Under article 39(a) of the constitution aids those who are unable to afford legal expenses of lawyers. So, the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
- Just and human conditions of work and maternity relief: Article 42 of the constitution directs that the state shall make provision for securing just and human conditions of work and for maternity relief.
- Right of constitutional remedies: In case of the violation of any of these fundamental rights, the aggrieved woman can move supreme court and high court and file writ petition under article 32 and article 226 for seeking remedy but there is no such mechanism available in case of directive principles of state policy, which are not enforceable by any court under writ jurisdiction. The state is under duty to implement such principles through its policy. Hence, directive principles of state policy impose a moral obligation on the state for their implementation.
WOMEN’S HUMAN RIGHTS PROTECTED UNDER VARIOUS LEGISLATIONS
To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as ‘Murder’, ‘Robbery’, ‘Cheating’ etc, the crimes, which are directed specifically against women, are characterized as ‘Crime against Women’ These are broadly classified under two categories.
(1) The Crimes Identified Under the Indian Penal Code (IPC)
- Rape (Sec. 376 IPC)
- Kidnapping & Abduction for different purposes ( Sec. 363-373)
- Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
- Torture, both mental and physical (Sec. 498-A IPC)
- Molestation (Sec. 354 IPC)
- Sexual Harassment (Sec. 509 IPC)
- Importation of girls (up to 21 years of age)
(2) The Crimes identified under the Special Laws (SLL)
Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. Some acts which have special provisions to safeguard women and their interests are:
- The Employees State Insurance Act, 1948
- The Plantation Labour Act, 1951
- The Family Courts Act, 1954
- The Special Marriage Act, 1954
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956 with amendment in 2005
- Immoral Traffic (Prevention) Act, 1956
- The Maternity Benefit Act, 1961 (Amended in 1995)
- Dowry Prohibition Act, 1961
- The Medical Termination of Pregnancy Act, 1971
- The Contract Labour (Regulation and Abolition) Act, 1976
- The Equal Remuneration Act, 1976
- The Prohibition of Child Marriage Act, 2006
- The Criminal Law (Amendment) Act, 1983
- The Factories (Amendment) Act, 1986
- Indecent Representation of Women (Prohibition) Act, 1986
- Commission of Sati (Prevention) Act, 1987
- The Protection of Women from Domestic Violence Act, 2000
WOMEN’S HUMAN RIGHTS PROTECTED UNDER CONSTUTION AND VARIOUS LEGISLATIONS TOGETHER
Various legislations led together with constitution in India which recognised women’s human rights in form of their legal rights and provide protection to them. These laws are very important in order to ensure the overall empowerment of women.
1. Right to live with Dignity: Under article 51 (A) (e), it is a fundamental duty of every citizen of India to renounce the practices derogatory to the dignity of women. Article 21 also confirms that every person has a right to live dignity full life. So, the women also have such right under which they can oppose the practices which are against their self-respect. As per legal provisions,
No woman can be presented indecently in any publications, paintings, writings, and advertisement or in any other way, if it is done so, it will be an offence under the provisions of Indecent Representation of Women (Prohibition) Act, 1986. If any person pulls Dupatta, Sari or any piece of their dress, they can lodge a complaint under Section 354 of Indian Penal Code, 1860. In case of occurrence of such incident at workplace, she can move her complaint under Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act.
In rape cases, First Information Report can be lodged under Section 376 in which the name and the identity of the victim woman will be kept under secrecy and not to be disclosed because the disclosure of the identity of such aggrieved women is itself an offence under section 228-A of Indian Penal Code, 1860 punishable with imprisonment up to 2 years and fine.
2. Right to Use Earnings: Women have the right to use the money as per their wish which they earn. In past centuries, women had the right only on the property called “Stridhan” but the enactment of Married Women’s Right on Property Act, 1834, extended the definition of women’s personal property which includes:
- Earning or salary from business, profession or service,
- Earning from scientific, literature or artistic skills,
- Saving from salary or capital gain, and
- Insurance policy of women.
These all properties are included in their earnings which can be utilized by women as they wish.
3. Right to own Property: The Hindu Succession Act, 1956 conferred absolute ownership to Hindu women on the properties possessed by her under section 14(1). The Apex Court upheld section 14(1) of the Hindu Succession Act, 1956 in Harak Singh v. Kailash Singh and Anr. This Act enlarged limited estate of Hindu women and also abolished the reversionary rights to a great extent. So, Hindu women have got full rights on properties earned or acquired by her in gift or will.
4. Right to Private Defence: Many times, a woman finds herself in very difficult situations that apprehend immediate assault on her. If there is no one to save her or rescue her from such assault, the law empowers her to defend herself in form of ‘Right to Private Defence’. Right of self-preservation existed during ancient India and self-help was the first rule of criminal law. At present, such right has been given to women under sections 96, 98,100,102 and 103 of Indian penal code, 1860, which can be practised by women in adverse situations.
5. Right against Discrimination in Employment: Article 23 (1) of UDHR provides everyone the right to work with free choice of getting an employment in just and favourable conditions. In India, discrimination on the grounds of sex or marital status in any employment, whether public or private, has now been outlawed by Sex Discrimination Act, 1975. The act applies to all employees of public as well as private sector. Though Sex Discrimination Act, 1975 was enacted to protect woman from sexual discrimination, provisions of the act are also applicable on men except provisions relating to pregnancy which have been inserted in the act especially for women only.
Any woman or man can register complaint in case of discrimination based on sex or marital status. The act protects existing employees, ex-employees and job applicants as well. Apart from this, protection of articles 14, 15 and 16 of the Constitution is also available to women against any discriminatory action by the state.
6. Right to get Equal Pay: Article 39(d) of the Constitution confirms the right to get equal pay for equal work, recognised under Article 23(2) of UDHR, and directs the state to make policy for equal work for both men and women. The Apex Court in ‘State of Madhya Pradesh v. Pramod Bharatiya’ held that Directive principles of state policy are not enforceable by court but Part IV and III of the Constitution are not supposed to be exclusionary of each other.
In fact, they are complementary to each other. The rule (equal pay for equal work) is as much a part of Article 14 as it of clause (1) of Article 16. The Supreme Court in D.S. Nakara v. Union of India held that if articles 14 & 15 interpreted with the Preamble of the Constitution and Article 39 (d), equal pay for equal work for everyone is expressly declared by these provisions. The Parliament recognized right to get equal pay of women by enacting Equal Remuneration Act, 1976 which declares discrimination between woman and man employees unlawful by an employer pertaining to the terms of the employment contracts.
Thus, the purview of the act extends beyond terms and conditions relating to pay. As per the provisions of this act, employment contracts of all employees must have an “equality clause”, so that no one can be treated less favourable on gender basis. Any woman employee may bring claims under the equal remuneration act if she is treated less favourable in compare to man regarding any terms or conditions of her employment contract.
7. Right to get Minimum Pay: Under Article 23(3) of UDHR, everyone including women has the right to get just and favourable remuneration for work which should be sufficient to maintain herself and her family with human dignity. At domestic level, such right has been identified under Minimum Wages Act, 1948 which was enacted to fix minimum rates of wages in certain categories of employments. Under the Minimum Wages Act women, doing small jobs, have right to get minimum payment for work done by them.
8. Right against Sexual Harassment at Work Place: For all women, whether working in public sector, private sector, organised industry or unorganised industry, sexual harassment at work place is a big problem. Most of women employees experience such problem one or more times in their career. Some of the male counterparts think that the woman colleagues do not have self respect and dignity; they try to exploit them. Inappropriately touching woman colleagues against their will; showing them any pornographic content or literature; compelling them for any indecent favour or for making sexual contact etc. are considered as sexual harassment.
The Supreme Court in its historic decision in ‘Vishakha and other v. State of Rajasthan and Others’issued 12 guidelines and declared them as law under Article 142 because at that time there was no enacted law on the subject. After 16 years, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to empower all women against sexual harassment at work place.
The act mandates all employers to set up internal complaint committee for Redressal of women employees’ sexual harassment complaints, failure to which the employer may be fined up to Rs. 50,000/-. Apart from this, the Criminal Law (amendment) Act, 2013 has enlarged the scope of Section 354 of IPC which, now, also includes the sexual harassment at workplace punishable with an imprisonment 1 to 3 years and /or fine. Any aggrieved women can file complaint under section 354 of IPC even for any unwanted touch or behaviour.
9. Right of Maternity Benefit: To perform the biological role of childbearing every woman need to leave work for some period in which she requires financial support not only for her living but also to meet medical expenses. So, the law provides maternity benefit to the working women for their survival and to protect their health. The Maternity Benefit Act, 1961 regulates the employment of women employees in certain establishments immediately before and after childbirth and provides them maternity benefit and certain other benefits. The act applies to all factories, mines, plantations whether public or private. State government may extend its ambit to industrial, commercial, agriculture or any other establishments. The act prohibits woman work for 6 weeks immediately after the day of her delivery, miscarriage or medical termination of pregnancy.
10. Right to claim Maintenance: The Code of Criminal Procedure, 1973 under section 125 recognises woman’s right to get maintenance from her husband. Section 18 of the Hindu Adoption and maintenance act, 1956 also provides such right to women from her estranged husband. By using these provisions, women can claim maintenance even during separation. The Supreme Court in Bhagwan Dutt v. Kamla Devi and Anr ruled that women can claim maintenance if monthly income earned by her is not sufficient to sustain her. The court also clarified that the phrase “Unable to maintain herself” does not require a woman to be absolute destitute, to entitle for maintenance.
Right to maintenance is restricted, in case of her remarriage or conversion to another religion. In 2019, the Apex Court in Ajay kumar v. Lata@Sharuti held that a widow woman can claim maintenance from her brother in law under Protection of Women from Domestic Violence Act, 2005.
SPECIAL INITIATIVES FOR WOMEN
National Commission for Women: In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc.
Reservation for Women in Local Self -Government: The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.
The National Plan of Action for the Girl Child (1991-2000): The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child.
National Policy for the Empowerment of Women, 2001: The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a “National Policy for the Empowerment of Women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.
SUGGESTION AND CONCLUSION
Women play very important roles in our life, they make our life complete as mother, sister, wife and daughter. They deserve equality and respect in all the walk of life, but due to unsupportive attitude of the society, ignorance of family and outdated legislations are the main reasons for the violations of women’s human right in India. In past centuries, women had equal rights and status as males, such as right to participation in religious ceremonies (according to Valmiki’s Ramayana, even lord Rama needed effigy of Sita in her absence in order to complete rituals of Ashwamegh Yagya). They also had freedom in choice of husbands, but presently, the condition of women is quite critical, they are the most vulnerable section of the Indian society.
They are no ‘safer’ while roaming on roads, travelling in metro, bus or train, watching movies in cinema halls, walking in parks, on beaches, in her neighborhood and even inside their own home; they can be victim of harassment. The legislature and policy framers of India have made multiple laws, rules and regulations ensuring rights of women but proving ineffective because all are limited in form of ‘Act’ instead of ‘Action’, that is the reason why Indian women are mistreated, being harassed physically and mentally. Incidents of violations of women’s human rights raise some thought-provoking questions before us. Hence it is to be note for different make over the law should be made for better society for women.
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