The Role of Law in Empowering Women in India / 1
Historical Perspective of Women in India
The woman in our country has always been accorded the status not only equal but above men. Since ancient time anything nurturing human life was worshipped as a female identity, i.e., the nature as Prakriti Devi, the earth as Prithvi Devi, the forests as Van Devi and so on. The tides of time have affected the status of women from worshipped to the exploited.
During the Vedic period the Woman in India have always been issues of concern. Rig Veda is the only scripture among those of all religions in which the Divine Truths are revealed to women sages also. There are more than thirty women sages in Rig Veda with specific hymns associated with them. There are numerous hymns in the Rig Veda indicating the high status accorded to women in the Vedic society. One of the hymn (Rig Veda 10.27.12), explicitly states that the practice of a lady choosing her husband was in vogue. The Rig Veda’s marriage hymn (10.85), explicitly states that the daughter-in-law should be treated as a queen, samrajni and bride was exhorted to address the religious assembly.[1]
This is noteworthy that various names and epithets are used to denote women in Vedic literature. Apart from Jaya, Jani and Patni woman is designated as Devi, as she is divine; Ida, as she is worshippable; Simhi, as she is courageous; Suyama, as she is self-disciplined; Vishruta, as she is learned.[2]
The Vedic period was glorified by the tradition. Many rishis were women and several of them authored slokas in the Vedas. Some of these rishis are Ghoshala, Godha, Vishwara, Apala, Upanishad, Brahmjaya, Aditi, Indrani, Sarma, Romsha, Lopamudra, Shaswati and many others. Even married women were known to be acknowledged authorities on the Vedas.[3]
Though we admire and preach them in the name of Durga, Saraswati, Parvatiand Kali, we also abuse her in the form of Child-marriage, Female infanticide as well as foeticide, Sati, Sexual harassment, Dowry and so on. The status of women in India has been subject to many great alterations over the past few millenniums. From a largely unknown status in ancient times through the low points of the medieval period, to the promotion of equal rights by many reformers, the history of women in India has been lively. The status of women has varied in different time periods.
It is believed as well as recorded by the historians, that women benefited equal status with men in all spheres of life in ancient India. In the early Vedic period women were educated and they used to participate in all the important rituals. It is truly in this period that women were treated as Durga and Parvati. There was a special thread ceremony in which girls were tied threads of honour based on merit. During Post-Vedic period this ceremony was replaced by ‘child-marriage’, which afterwards transformed into an evil act which is bothering the society even today. Child-Marriage by this time was started on a large scale because of many holy books. Girls were married when they were infants. They were sent to their husband’s house when they attained puberty. Girls were not permitted to gain education.
Some idea of the position of women under Hinduism could be gleaned from the classic Hindu Dharmashastra ‘Manu-smriti”, is the best known, this describes the duties of women as follows:
“by a girl, by a young woman, or even by an aged one, nothing must be done independently, even in her own house. In childhood a female must be subject to her father, in youth to her husband, when her lord is dead to her sons; a woman must never be independent[4]. In fact the women were prevented from performing religious rites, and even the knowledge of the Vedas was to be kept away from them.[5]
The condition of Women in Indian society was worsening during the medieval period. At this point of time child-marriage, sati, female infanticide was practiced largely. India got secluded by arrival of Muslims in India and they introduced the ‘purdah’ system i.e. to cover their heads fully with a ‘veil’ on Muslim women. The Rajput women of Rajasthan practiced an evil commonly known as ‘jauhar’. Jauhar was the practice of the voluntary immolation of all the wives and daughters of defeated warriors, in order to avoid capture and consequent molestation by the enemy. Even polygamy was also practiced by most Hindu Kshatriyas. Polygamy is a practice where a husband married more than once. At the same time many women excelled in arts, literature, and music. Women were also rulers in the medieval period. Some of the great women rulers were Razia Sultan, the only women ruler to reign over the throne of Delhi. The Gond Queen Durgavati ruled for fifteen years, before she lost the battle to mughal emperor Akbar`s general Asaf Ali. Sati was also practised where women were forced to jump in the burning funeral of their dead husband. ‘Devdasi’ was prevalent in south India where girls were married to deity or trees. This practise had destroyed the lives of many girls as they were physically molested and sexually exploited by many pundits/pujaris. So we can say that the status of women in the Medieval India was hectic and the main discrimination was started from that period.
Hindu religion considered, sons as essential to the family, since sons alone could offer oblations to their departed ancestors and save them from suffering a spell in hell. The daughter could not perform these rites and was therefore considered as inferior to the son. The ancient Roman, Greek, and Egyptian civilizations were no exception wherein the status of woman was inferior to that of the man. England, which boasts of an ancient democratic tradition, gave its women a right to vote only in the year 1928. Like the Hindu religion, other religions such as Islam and Christianity also placed women on a much lower pedestal than that of men.
The Traditional status of a man and woman was that of the husband as the provider and protector of the wife, family and its members. The wife’s first duty, therefore, was to submit herself to the authority of her husband and to remain under his roof and protection. This mindset or philosophy was prevalent worldwide. The earlier judicial pronouncements explain it very clearly as in 1909 the House of Lords expressly held that the women did not fall within the meaning of the term ‘person’[6]. The similar view was taken for married women in 1872 by Justice Joseph Bradley of the U.S. Supreme Court in Bradwell vs. Illinios[7]. Just after two years of Bradwell vs. Illinois the U.S. Supreme Court admitted that women are persons and citizens but they have no right to vote[8]. The Nineteenth Constitutional Amendment to Federal Constitution in August, 1920 provided female citizens of the United States the right to vote. The Supreme Court of Canada unanimously decided negatively for the appointment of women to the Senate of Canada as women were not included in the term ‘persons’ as per their verdict[9]. In appeal, the Privy Council brought the argument to an end declaring that the word ‘person’ included both sexes[10].
In India the Calcutta, in Re Regina Guha[11] and the Patna, in Re SudhansuBalaHazra[12] High Courts rejected the applications of women for enrolment under the Legal Practitioners Act. The full benches of these courts held that the women were not included in the term ‘person’.
To some extent it is observed that our country witnessed improvements in the status of Women after the arrival of British. There were many women reformers who worked for the betterment and upliftment of their other female counterparts. The begum of Bhopal discarded the purdah and fought in the revolt of 1857. Many reformers like IshwarchandraVidyasagar, JyotibaPhule with his wife SavitribaiPhule undertook several measures to eradicate social evils from the society. Sir Sayyed Ahmad Khan established the Aligarh Muslim University for the spread of education among the Muslims. He also eliminated the purdah system among muslim women. Many Acts were passed for the upliftment of women among which Widow Remarriage Act of 1856 was important.
The Universal Declaration of Fundamental Human Rights asserts that all sexes should enjoy equal rights. This is reinforced by the Indian Constitution and the various pro-women legislation passed in this country. However, both from the ground reality and the type and number of cases that reach the courts, one finds that women are not treated as equal partners in all areas of planning and developmental activities in the country.
Indian women have not to struggle for Constitutional and legal rights which stands given to them. Since the days of independence struggle, the achievements in the area of women’s rights are many. Education has become a Fundamental right of every child. Health infrastructure and gender budgeting and allocations for better family health have improved. There is no discrimination in competitive examinations, recruitment and employment. There is no taboo for women to contest and occupy the highest echelons of power. The Judicial decisions have improved women’s lot here and there. Changes in the laws to prosecute and punish with stringent punishments are available. Many amongst the 100,000 odd women elected to Panchayats spread all over India are getting ready to participate duly in the Parliamentary and the Assembly elections. There is now a wide base developing where women are getting a hold in the Indian political arena.
Indian women now chip in all activities such as education, politics, media, art and culture, service sectors, science and technology, and so on. Indian women were also given liberties and rights such as freedom of expression and equality, as well as right to get education. But still at this moment in time, we are fighting for crisis such as dowry, female infanticide, sex selective abortions, health, domestic violence, etc. Another harmful practise is the Dowry system where gift of money or valuables are given by the bride’s family to the groom’s at the time of their marriage. This is the new harassment in the name of wedding gift. Women are killed if they bring fewer dowries after marriage. The term Bride Burning is criticized within India itself. Women today are educated but they still, are illiterate in terms of knowing their rights properly.
The trend of Women empowerment is backed by the Constitution of India. Over the decades, various laws and the National Policy, the Plans, Programmes and allied strategies for implementation of national and international periodic reviews and assessments too have further strengthened this trend in that women’s welfare and development is an on-going active concern of this nation. But can we say that this mega-trend has benefitted all women? Do not, women at large, still remain unreached by the aforesaid bounty?[13]
There is no doubt in this fact that our socio-economic development has been uneven and has not touched millions of women. These women somehow survive in spite of not having awareness of their own rights. The question is that whether the existing legislations or enforcement or efforts are not adequate? The child mortality rate, foeticide, infanticide, child marriages, rampant in some of the Indian States. There are the gaps in between our laws and their implementation. These are stark realities that still persist. Why ensured legal rights fail us again and again is a perennial question.
Be it health or education, system after system, the story remains unchanged. Health is of course a big casualty, maybe because of short sighted plans or absence of required infrastructures. The women and children still continue to suffer even after 60 years of our political independence. The UN and other Donor agencies funding, also, often do not reach the people for whom it is meant. The basic infrastructure though minimum in number has not been effectively functioning. People of the villages are still not active partners in developmental programmes.
A woman in India, as in many other countries is born to fight for her rights at every step. She is silenced by emotional ties, family norms, values, proprieties etc. Mostly her inability as a non-economic entity stems as the main cause of several of her problems in life. Ninety-nine percent of Indian women have neither a social, an economic nor a legal Persona.
In the male-dominant society, women are denied property rights. The daughters are not equal to their brothers. The Medical Termination of Pregnancy Act has been made to give woman a choice to decide about abortion or exercise choice to limit the size of her family. But they still, are not able to make the choice on their own.
The Archaic concept of women being inferior to men continued even after independence. There is a vast gap in empowerment and freedom enjoyed even by a microscopic number of women and the large majority who are illiterate, ignorant and poor.
Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupation of civil life. The Constitution of the family organization, which is founded in divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and function of woman-hood.
The founding fathers of our Constitution understood the need for protective discrimination in favour of women and as such, while providing for equality of all persons under Article 14, for prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth, under Article 15 and equality of opportunity in matters of public employment under Article 16 of the Constitution, specifically provided for protection in favour of women under Article 15(3) of the Constitution, which enables the State to make any special provision for women and children.
Article 21 of the Constitution of India reinforces right to life. Life in its expanded horizon includes all that which gives meaning to a person’s life including culture, heritage, tradition and dignity of person. For its meaningfulness and purpose, every woman is entitled to elimination of obstacles and discrimination based on gender. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Article 23 of the Constitution specifically prohibits Traffic in human beings. The Directive Principles of State Policy contained in Part IV of the Constitution incorporate many directives to the State to improve the status of women and for their protection. Article 39(a) requires the State to direct its policy towards securing for its citizens, men and women equally, the right to an adequate means of livelihood. Article 39(d) requires the State to secure equal pay for equal work for men and women. Article 39(e) directs the State not to abuse the health and strength of workers, men and women. Article 42 directs the State to make provisions for securing just and humane conditions of work and for maternity relief. Article 44 directs the State to secure for its citizens a Uniform Civil Code throughout the territory of India. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Article 51 A(h) and (j) of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender based discrimination should be eliminated. The State should create conditions and facilities conducive for women to realize the right to economic development including social and cultural rights. The 73rd and 74th Amendments to the Indian Constitution provide for reservation of seats for women in elections to panchayats and Municipalities. Under Clause (3) of Article 243-D, not less than one-third of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women. Similar reservation in Municipalities is prescribed by Clause (3) of Article 243-T of the Constitution.
The General Assembly of the United Nations adopted a Declaration on December 4, 1986 on The Development or the Right to Development, in which India played a crusading role for its adoption and ratified the same. Human rights for woman, including the girl child are an integral and indivisible part of the universal human rights. The full development of personality, fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth, culturally, socially and economically. All forms of discrimination on ground of gender areviolative of fundamental freedoms and human rights.