Administration of Justice to Women in India: Action and Reflection
The present paper discusses the realities of Indian society and the administration of justice to women in India. The Indian constitution has provided various rights to the weaker sections of society, but the question is− are these rights practised in real life. Have they empowered the target group and given them their due place in society. This article attempts to reflect the actual way in which the justice is administered to women in India.
Constitution of India meets the demand for justice of its people by building its democratic ideals on: Justice ( Social, Economic and Political), Liberty (Thought, Expression, Belief ), Equality (Status and Opportunity), Fraternity (Dignity of Individual and unity of India)
CONSTITUTIONAL AND LEGAL PROVISIONS
The constitution of India not only grants equality to women but also empowers the state to adopt positive discrimination in favour of women for neutralising the socio−economic, educational and political disadvantages that they could be facing. The state provides for an elaborate system of laws to protect the rights of women which have been enacted from time to time to remove gender discrimination. The law and constitution has provided opportunity to women to choose any form of education and training freely and aspire for position in national life. Part III of our constitution confers certain fundamental rights on the citizens and these provide equality before law and equal protection of law to all citizens. It says "The state shall not discriminate against any citizen on grounds of religion, race, caste, sex, and place of birth or any of them". Not only this, the makers of constitution, aware of the then prevailing weak status of women and mindful of the need for special efforts to improve that status, have added, "Nothing in this article shall prevent the state from making any special provision for women and children". The constitution of India guarantees to all the Indian women: Equality before the Law− Article 14 No discrimination by the state on grounds of religion, race, caste, place of birth or any of these − Article 15(1) Equality of opportunity for all the citizens in matters related to employment or appointment to any office under the state − Article 16 Equal pay for equal work for both men and women − Article 39(d) Provisions to be made by the state for just and humane conditions of work and for maternity relief − Article 42 To promote harmony and to renounce practices derogatory to the dignity of women − Article 51 (A) (e) In addition, articles 2430(3), 2430(4), 243T(3) and 243T(4) of the constitution make provision for reserving not less than one third of the total seats for women in the direct elections to local bodies, viz Panchayats and Municipalities. Other than
these provisions, many important social legislations related to women were passed after independence. Such as: Hindu married women’s right to separate residence and maintenance act, 1946 Hindu marriage Act, 1955 The special marriage act, 1954 The Hindu succession act, 1956 Hindu adoption and maintenance act, 1956 The Child Marriage Restraint (amendment) act, 1976 The Dowry Prohibition Act, 1961 The Immoral Traffic (prevention) act, 1986 Indecent Representation of Women (prohibition) Act, 1986 These and many more rights have been given to women by the constitution, but in reality there is a ’visible gap’ between the law as it stands and the law as it operates, which is regularly marred by the incidents of overwhelming injustice. With regard to legislations, there is no lack of legal recognition of women’s needs in the constitution of India and legislations enacted after independence, but little is enforced. A wide variety of legislations have been able to check only a small part of social disabilities women suffer in the country. The implementation of the laws for women’s welfare and protection is questionable and varies from gross inadequacy to ineffectiveness. The law has certainly given Hindu women the right to separate residence and maintenance but theory is drastically different from practice.
SOCIAL PERCEPTION VIOLENCE: WEAR AND TEAR OF MARRIED LIFE
Many instances can be sighted where Hindu society overlooks personal violence to the wife by the husband as a part of normal ’wear and tear’ of married life. In a case, Kondal Rayall vs. Ranganayaki Ammal (48) the husband who used to beat his wife contended that in villages personal violence towards wife by the husband is excusable and that we should not apply to the parties the principles which would govern a case where the parties are educated and enlightened. This view shows acceptability of violence in relations as a part of public mind− set. Not only uneducated people but those who are highly educated and hold high positions in India also are of the same opinion. Justice K. Bhakthavatsala, a High Court judge in Karnataka state in the southern part of the country, reportedly made the remarks during a court case in which a woman was seeking to divorce her violent husband. The judge apparently told the wife to "adjust" to the harsh realities of her spouse for the sake of their children.
"Women suffer in all marriages. You are married, with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business; he will take care of you. Why are you still talking about his beatings?" Bhaktavatsala told the plaintiff, according to The Bangalore Mirror newspaper.
Even if the judge is sympathetic and gives judgement in favour of the woman there is no guarantee that the order of maintenance will be followed. In cities many cases can be sighted where in spite of court’s order of maintenance to the wife, the husband does not follow it. When this is brought to the honourable judges’ notice, they order enquiry but in most cases the husband goes missing or he reluctantly starts living again with wife,( to avoid payment of maintenance) only to continue the misbehaviour.
CHILD MARRIAGES: NOT A WORD OF PAST
The Hindu marriage act 1955 has determined the marriageable age of girl as 18 and boy as 21 years. It is a well known fact that thousands of young children even below the age of 10 get married every year on Akha Teej or Akshya Tritiya a festive day in Rajasthan state of India. Almost 45 percent of Indian girls are married before they turn 18, says the International Center for Research on Women.
Experts say child marriage remains among the biggest hurdles to women’s development in India and has a domino effect. A child bride will drop out of school and is more likely to have complications during child birth. One in five Indian women, many child mothers, dies during pregnancy or child birth, the United Nations says. Their babies, if they survive, are more likely to be underweight and suffer stunting due to poor
nourishment. Many will be lucky to survive beyond the age of five.
Children married at young age are not able to adjust well with each other after growing up. They grow with different personalities which develop frictions between them as adults. An example seen by the researcher in the field can be cited here "A girl who belonged to S.T was married off by the parents at a very young age. She was educated by her parents while the boy remained unlettered. They grew up to be incompatible and hence had to remain separated for rest of their life. Even filing a divorce did not serve the purpose and the case was then referred for family counselling. Chances are that such couples will marry again without getting a formal divorce, or they will look for a companion out of the marital relation, which will further aggravate the seriousness of the situation.
Monogamy has been declared as the only form of Hindu marriage but in practice many man are seen as having relation other than marriage. This makes life unbearable for the wife. Even if the husband has illicit relations with other women the wife stays back in the family and continues to bear the neglect and torture. She does not dare to take the drastic step of leaving the husband due to fear of bad name, love of children, and most importantly financial insecurity. Most Indian women do not approve of divorce even if the condition becomes unbearable due to social pressure and traditional upbringing. A woman in India is generally socialized to worship husband like God. The word ’pati parmeshwar’ is a testimony to this truth posed by Indian society. A woman is given various names and treated badly by the general public if she tries to take the step of divorce. Most of the women who have filed a divorce have accepted the fact that they are looked down by their neighbours, relatives and society and are treated as immoral women having affairs. They have to face financial insecurity and are also not given any share in husband/ father’s property.
REALITY: FAR FROM REALITY
The Hindu Law of Inheritance Amendment Act of 1929 and the Hindu women’s right to property act of 1937 are repealed by the Hindu Succession Act of 1956. This act entitles the female children to share the property of their father along with their brothers. The women have the right to sell, use and mortgage or dispose the inherited property the way they like. This act may have given the right to female children to share the property of their father along with their brothers. But in practice how many women inherit the father’s property? Our society does not allow the freedom to women alone to sell or buy property at their own will. "The inheritance law was reformed in 2005, bringing women’s legal equality in agricultural land. In reality, however, less than 10 percent women own some kind of land," said Govind Kelkar from land rights group, Landesa India.
"This is more stark, as 84 percent of rural women are engaged in agricultural production. There is policy silence on the implementation of laws for women’s rights."
In a patriarchal society like India the daughters are given dowry and it is considered that equivalent share of the property has been given to them.
DOWRY: A PRICE FOR MARRIAGE
In spite of the Dowry Prohibition Act, 1961 pronouncing dowry as a punishable offence, the practice of dowry which is a deep rooted social malady, continues. The word dowry has become synonymous with Indian women’s oppression under patriarchal system. Dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to another. Unfulfilled dowry demand results in the bride becoming a victim of torture, both mental and physical. She’s harassed, beaten up, tortured or even burnt to death. The murder of women by the members of their marital family is associated with both the escalation of dowry demands and with the harassment and severe beating of women. They are murdered if their dowries are too small, if she is disliked by her husband or his kin, if her household skills are perceived as lacking, or even if her skin is too dark. Often such murders are arranged to look like accidents, or suicides with bodies suspended to resemble hanging, or burning being passed of as cooking related injuries.
The suffering continues even after more than sixty years of Independence of India. The statement of Women and Child minister is enough to prove this situation.
According to a written reply in country’s upper house of parliament, Krishna Tirath, Women and Child Minister, said conviction rates for dowry−related murders over the past five years were relatively unchanged with 23.3 percent in 2010 compared to 27.3 percent in 2006.
"The primary responsibility of prevention, detection, registration, investigation and prosecution of crimes, including crimes against women, lies with the state governments." a statement from Tirath’s ministry quoted the minister as saying in her reply to legislators.
According to latest figures from India’s National Crime Records Bureau, there were 8,391 cases of dowry−related deaths in the country in 2010 compared to 8,383 in the previous year. That works out to a shocking one death every hour approximately. Bride−burning is on the increase −just a decade ago, in 2000, there were 6995 cases. The NCRB also said there were almost 90,000 cases of torture and cruelty towards women by their husbands or family in 2010, an increase of five percent from 2009.
Although the government prohibited dowry through legislation in 1961, it was never implemented properly. Prohibition officers were supposed to have been appointed in each district, taking the battle to the grassroots but nothing happened. And, the tide of greed driven murder of young brides continued unabated.
In 1986, under huge pressure from the women’s movement, the Indian Penal Code was amended to include Section 304B, specifically against murder following harassment for dowry. Section 498A was added to define harassment and cruelty by husbands and his relatives. Strangely this too has not had much effect. Laxity of the government machinery can be one reason for the failure of legal measures. After all, conviction rates in bride burning cases have dipped from an already weak 37% in 2000 to 34% in 2010. In section 498A cases, the conviction rates are even lower: just 19%, although reported cases were 94,000 in 2010.
The dowry continues to be a social disease which has also lowered the place of girl child in the society and a girl child is considered as a heavy burden on the
family. The situation is so bleak that people have resorted to killing newborn girl child to get rid of it and the burden of
dowry in future.
DEATH OF LAKSHMI
The birth of a girl, so goes a popular Hindu saying, is akin to the arrival of Lakshmi − the four−armed goddess of wealth, often depicted holding lotus flowers and an overflowing pot of gold. This belief is in stark contrast to the census data 2011 that reveals the gender ratio in the age group 0−6 years to be 914 girls to 1000 boys. Which means, for every 1000 boys, there are at least about 60−70 girls under the age of 6 years who died before or within 6 years after birth. This is the lowest gender ratio recorded since India’s Independence in 1947. A 2007 UNICEF report affirmed that girls’ under−5 years in India had a 40% higher mortality rate than boys the same age. This essentially is negligent homicide. A 2011 report on a study conducted jointly by the Indian Council of Medical Research and the Harvard School of Public Health confirmed that girls under 5 years in India were dying at an abnormally high rate because they were being subject to inhumane violence at home by their families. The study observed that girls were 21% more likely than boys to die before their 5th birthday because of violence. Infant girls, who were one year younger were 50% more likely to die because of violence than boys of that age. The head researcher commented, "Shockingly this violence does not pose a threat to your life if you are lucky enough to be born a boy."
Life for a girl in India is full of threats that range from female foeticide, child marriage, dowry and honour killing and crimes such as rape, domestic violence and human trafficking to discrimination in health and education.
Indeed, a girl’s fight for survival begins in the womb due to an overwhelming desire for sons and fear of dowry, rising cost of health and living which has resulted in 12 million girls being
aborted over the last three decades, according to a 2011 study by The Lancet. This has led to a decline in the number of women in proportion to men in many areas, resulting in a rise in rapes, human trafficking and, in certain cases, practices such as " wife−sharing" amongst brothers.
India is the fourth most dangerous country for women to live in the world according to a survey by Thomson Reuters Foundation. The survey has been compiled by the Thomson Reuters Foundation to mark the launch of a website, TrustLaw Woman.
RAPE: THE BIGGEST ABUSE
Reports of women being picked from the streets and gang−raped in moving cars are frequent in Delhi and its neighbourhood. Newspaper reports are full of stories of trafficking and sexual exploitation. MP has reported highest number of rape cases (3,406), accounting for 14.1% of total such cases in the country last year. The report finds that in 94% of the rape cases, the offenders were known to the victims and 10.6% rape victims were under 14 years, while 19% were teenagers. All the data that shows crime against women are considered underreported by various social activists. Rape of a woman is one of the most abhorrent of all the crimes. It is the invasion, violation and abuse of a woman’s body and mind. It is not merely about men impulsively expressing their sexuality. As more Indian women enter the public space violence against them is on the rise.
NOT SO HONOURABLE
The recent spurt in the cases of honour killings in India mostly in Haryana, Rajasthan, and Uttar Pradesh testify the fact that there is a drastic need to change the mind set of Patriarchal Indian Society. An honour killing is the homicide of a member of a family or social group by other members, due to the belief of the perpetrators that the victim has brought dishonor upon the family or community. The perceived dishonor is normally the result of one of the following behaviors, or the suspicion of such behaviours: dressing in a manner unacceptable to the family or community, wanting to terminate or prevent an arranged marriage or desiring to marry by own choice, especially if to a member of a social group deemed inappropriate, engaging in heterosexual acts outside marriage and engaging in homosexual acts. These honour killings are supported/ encouraged by the Khap Panchayats which are the union of a few villages (of a particular caste), mainly in north India. Lately they have emerged as quasi−judicial bodies that pronounce harsh punishments based on age− old customs and traditions, often bordering on violence. Even Supreme Court has reflected on the seriousness of the situation. The Supreme Court has declared illegal ’Khap panchayats’ which often decree or encourage honour killings or other institutionalised atrocities against boys and girls of different castes and religions who wish to get married or have married.
" This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal−minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal," said a Bench of Justices Markandey Katju and Gyan Sudha Misra. In his report to the Supreme Court Raju Ramachandaran, Senior Advocate appointed by the Court to assist it in PILs against Khap Panchayats has called for arrest of "self styled" decision makers and proactive action by the police to protect the fundamental rights of the people. It also asked for the recommendations being converted as directions to all States and the Union, till a law is enacted by the Parliament.
The most significant barrier to women’s rights in India therefore, is a hostile state that is actually not interested in giving them any rights. The most hideous face of denial of equality to women is the use of violence against them. Violence needs to be understood as one of the most common mechanisms by which women
are forced into a subordinate position. From birth or even prior to birth women become subject of discrimination and resultantly face violence. Other factors that have adversely affected women’s status in India include the lack of implementation of laws by the state, law and order machinery and gender bias pervasive in the system at all the levels. Most Indian women do not have access to the courts or knowledge of law; they cannot afford to fight for their rights in a hostile social environment. Even when a woman is harassed and battered she lacks courage and awareness of the laws to reach the police or some other help. In absence of proper knowledge of the mechanisms and laws to help her, she keeps on suffering and as a result, perishes.
The government must build various strategies to ensure proper justice to women. These strategies should be built on principles of deterrence, defence and answerability. A multidimensional strategy that addresses the gender dynamics of power, culture, social structure and societal causes of injustice to women should be made. It should provide immediate services to victims as the main strategy and should eliminate atrocities and the violence against women in the first place, if it at all takes place then must ensure timely justice to the victims because "justice delayed is justice denied".
1. Kelly, L., (1997). "A central Issue : Sexual Violence and Feminist Theory" in Kemp, Sandra and Squires, Judith (ed.) Feminism, Oxford University Press, Oxford. 2. Griffin, Susan, (1979). Rape : The power of Consciousness, San Francisco, Harper and Row. 3. Gita Aravamudan (2007). Disappearing Daughters−The tragedy of Female Foeticide, Penguin Books, India. 4. Mooney, Jayne, (2000). Gender Violence and Social Order, MacMillan Press, London. 5. Palai, A.K., (1998). National Human Versus commission of India: Formation, Functioning and Future Prospects, Khanna Publishers, New Delhi. 6. Panwar, Kanika.(2010) Violence against women, Ritu Publications, Jaipur
1. Crime in India 2011, National Crime Records Bureau, www.ncrb.nic.in 2. We Are A Nation of Daughter−Killers, Affirms India’s 2011 Census, APRIL 1, 2011,trust.org/trustlaw 3. Judge’s Incendiary Remarks On Women Highlights India’s Domestic Violence Crisis, a. Palash R. Ghosh | September 07 2012 10:59 AM 4. Owen Bowcott, Afghanistan worst place in the world for women, but India in top five, The Guardian, Wednesday 15 June 2011 5. No place for atrocities: SC declares Khap Panchayats illegal, Dailybhaskar.com | Jul 16, 2012, 14:36PM IST 6. FEATURE−India advances, but many women still trapped in dark ages, Neeta Bhalla, TrustLaw, Wed Jun 13, 2012 5:31am IST 7. Dowry death: One bride burnt every hour, Subodh Varma, TNN, Jan 27, 2012, 03.32AM IST