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Published : January 22, 2011 | Author : abhigyanb
Category : Woman Issues | Total Views : 5347 | Unrated

Currently pursuing my second year in ILS PUNE

The blind mother

Tempted away from grey complexity to the drama of stark contrast one could title our land as the historical volumes of sexual discrimination of Indian feminism from violence to desire. When I am putting the word feminism let me enlighten you as to what feminism is. Feminism is a movement that campaigns for women’s rights and interests doctrine advocates and council the social and political rights of women equal to those as men. Feminism in short is the voice of every woman, every girl and every mother.

These voices are echoed from the dusky narrow lanes of a small town of Tripura to a highly modernized society of Maharashtra. Today feminists continue to write theories and agitate about sexuality in terms of reproductive health, rape and domestic violence, caste as well as communal conflicts worked on the bodies of women. The state of violence which takes the form of sexual assaults made by our own army and police and about more quotidian forms of gender violence as manifested in sexual harassment, especially in the work place. Which puts up a big question on our country’s federal structure or the governing law and order of our country? While researching I noticed that whenever a girl goes out of the house regarding some work the parents tend to be very worrisome , a girl in an urban area has loads of restrictions and when we talk about rural areas I puff about how someone can live with that amount of restrictions.

When these kind of questions are constantly raping my mind I came out with a conclusion that sexuality is a question of silence prevailing the historical base of foundation laid by our ancestors which didn’t allow any room for feminism in our country. Esteemed authors such as Mary johns and Janaki Nair refuted such kind of ideas by giving a simple explanation that political and social structure which blinds us to the multiple site where “female sexuality” has long been embedded in the sphere of law that enjoys massive and indisputable presence that is far from prohibited. They gave birth to term “awareness”; seventy five percent of women in our country don’t know about their legal rights.

They are not just unaware because of illiteracy, teen age marriage, etc and etc. In this whole paper we have tried to bring out the relationship between # feminism and the federal structure of our country tried to look from the view of an normal girl ,woman, mother in short a female who plays a vital role in everyone’s lives how she feels living in the mist of male dominating society, what she has gone through and how we can change that future which doesn’t have to carry the pain of injustice and discrimination when she takes the last breath of her life .

Whether in a developing country like India or a country with a higher level of Human Development Index Varying views have been put forward when it comes to the role as well as the impact that federalism has on the ideology of feminism. Or simply its upshot. On the one hand, Federal structures have made it possible to have a separate dissemination at the state level for women. Moreover it has been seen that innovation and learning in the sphere of women laws is exceedingly more in this form of government. Individual states generally can provide rights to women that the constitution does not contemplate. Yet on the other hand issues like red tapism and bureaucracy can hinder decisions essential for women.

But the most important issue when it comes to federalism and laws relating to women would be the channel of treatment. Thus follows the most important question… should the federal structure encourage the legal system to accord women equal treatment hence the underlying premise being that women are equal Or special treatment and here the premise being that women are different from men. However the highlight still remains on the common woman as mentioned earlier. Laws formulated eventually impacts her life and the success or failure of a government ultimately depends on whether a common woman can lead a safe, secure and fruitful life.

The word sexuality is indeed very seductive but in India sexuality is all over taking into a different sphere. Before talking about our constitutions, feminism and laws let us see the mindset of a common citizen, in short what do the people of India think about sexuality? Sexuality is a natural desire of human kind but it has not been accepted with an open mind. Some episodes that received a wide publicity in the media illustrate the anxieties circulating in different sites produced by proliferation of discourse on sex that does not confirm in to the old rules.

The first Tamil film star khushboo1 sparked a fire by an interview in September 2005 to the Tamil edition of India today in which she said that society should free itself from outdated thinking that a woman has to be virgin at the time of her marriage. Women should know to protect themselves from pregnancy and AIDS if they chose to have premarital sex, she said adding educated men these days do not expect them to be virgins. According to a Foucault , that while the old rules are being challenged new equally inflexible rules are replacing them; the term “safe sex” is one of the sacrosanct ones. Khusboo’s statement was received with a hysterical outrage from the various political parties as an insult towards tamilian culture and its people. Another media icon tennis star Sania mirza came under attack from muslim section for her short skirts on court. In the contrast when media icon formula champion Narayan karthikeyan openly supported khusboo’s statement regarding # safe sex and even though he is a tamilian he hasn’t come under any attacks at all ( Sharma 2005)2.

One of the most important political leaders of south India ,S.Anandhi concluded with a statement that control over women and their sexuality has been a central to the construction of tamil identity and tamil nationalism (anandhi 2005b)3. Thus khusboo episode characteristically can be seen to be located at the interference of the complex ways in which sexuality and women bodies intersect with class, caste and national identity. The Indian society is crippled through some barriers and the most important barrier is casteism. Casteism not only provoked disintegration among individuals but also played a vital role of enhancing a particular segment of human beings that is masculinity.

Though we will be talking about feminism and feminity throughout the paper let us understand what masculinity is? Masculinity4 is not about developing muscles like John abraham or salman khan its also not about exerting physical power to someone. Masculinity is an ideology which has been developed for decades its a supremacy which controls every sphere of the cosmos. According to Ashish Nandy a well known writer , masculinity is a self esteemed ego which was , is , will be the part of every man in a country like India.

Now the first basic question comes as to when this idealogy of masculinity came into exisitence . According to Rosalind O halon the centrality of martial masculinity came into existence when British colonial rule was there( O halan 1997) Mrinali sinha holds that british manliness and Indian effeminacy were conjointly constructed within the imperial social formation( sinha 1995) .

The sexuality in India has a greater depth and importance than any other country, hence forth the constitution of this federal form of government gives a great importance like any other countries. Sexuality henceforth plays a vital role not only in the formation of charismatic society but also in forming the laws and acts of our countries which we are going to discuss later.

Women and law:-
“By passing the bill securing 33 per cent of seats in the Lok Sabha and State Assemblies, 14 years after it was first introduced, India's Rajya Sabha (upper house) made history today, 9 March 2010,” said renown theologian Fr Augustin Kanjamala. The vote “opens a new chapter in women's struggle for gender equality and power sharing,”

Right from the universal declaration of human rights of the UN to the international covenant on civil and political rights , the emphasis has always been on one fundamental issue. “ all human beings are born fee and equal in dignity and in rights “ , “everyone is entitled to all freedoms and rights without distinction of sex”. They emphasize on ensuring that men and women have an equal right to the enjoyment of political ,economic, social and cultural rights.

The law in a country serves the purpose of ensuring justice. Justice here should surpass expediency meaning that discrimination against women violates the principles of equality of rights and respect for human dignity , is an obstacle to the participation of women on equal terms with men and hampers the growth and prosperity of society as a whole. Full development of the potentialities of women in the service of their countries and humanity will serve as a nexus and fill some gaps. The gaps between traditional Indian view on women and the modern ideas about their status and rights.

The last few years have been of tremendous significance for india has witnessed both extensive and intensive developments in the sphere of women and law. Living as an Indian citizen we come across a number of changes on a daily basis and hence do not realize fully the implications of the developments and the extent to which they have changed the pattern of law. The intensity of change can be rewarded to the fact that

1. Injustice to women is now intolerant and stood up to
2. The rights and position of women and other facets have been scrutinized by the law commission
3. The judicial approach to women related issues have had a facelift towards progressiveness.

Starting with an issue of tremendous legal importance and weight is the right to equality of women. The supreme court in one of the most important cases in this arena gave the decision in favour of the air hostesses who had protested against a policy where the contract was terminated if she contracted marriage within first four years of recruitment or her first pregnancy.

The supreme court regarded this as arbitrary as it interfered in the natural course of human nature. Article 15(3) of the constitution deals with legislation providing for discrimination against women. On its strength provisions like exempting women from adultery, special rights in case of bail, reservations in case of local bodies and educational institutions has shone a ray of light amidst all the discrimination and barriers to equal participation in society.

There has always been a voiced opinion that there was a need for stringent laws to “protect women” in the instances of domestic violence and sexual exploitation.

Accordingly to shoma chatterji5 , the very reason the very fact that this is the principal focus for the women within marriage or out-of-marriage relationships only reinforces the view that women, by and large, are vulnerable to all kinds of violence in their relationships with men.

The laws that govern sexual exploitation, firstly, do not provide enough attention either to the situations both before as well as after the act of sexual exploitation. In case of rape a victim who has already gone through enough traumas has to re live it along with the humiliation of elaborating the facts of the incident. However today a lot of thought has been given to the situation and there has been an effort to minimize the trauma as well as the inconvenience to an already ill eased victim and family. In this regard the criminal law (amendment) act 1983 has been modified, the essential element of the criminal act of rape is “willful consent” given by a female who is mature enough to give it. Consent however can be vitiated at the stake of fear or blackmail. Now the law has made clear of situations wherein though the consent make exist apparently it actually does not exist lawfully.

Some modifications have also been made in the field of evidence in case of rape, since the question of genuine consent is of crucial importance. Adhoc signs cannot be used as evidence. The law however now makes it clear , through aspecial rule of evidence, that in case of “ aggravated rape” where the sexual act is proved and the question is whether it was without the consent of the woman and she states in her evidence before the court that she did not consent the court “shall presume” that the woman did not consent . Also certain reforms have been made considering the sophisticated forms this crime may assume in today's world. Trial also will now be conducted behind closed doors to ensure that no information be concealed due to embarrassment or to avoid further humiliation for the victim.

Domestic violence is another crime where the law just spoke about the physical act of beating or torture. Nothing was elucidated about how violence can equally be psychological, verbal or even economic and act as future signs of physical violence. With this in mind the Protection Of Women from Domestic Violence act 2005, there are laid down stringent rules to prosecute men who harass, beat or insult women at home. The law lays down four categories of violence and covers anything that is even close to abuse with wife or live in partner. Sexual violence covers offences such as forced sex, forced exposure to pornographic material, any sexual act with minors; emotional violence spans insults, jibes for not having a male child, preventing a woman from taking a job and the likes of it. The Act empowers the court to pass protection orders preventing an abuser from entering places a woman frequents, communicating with her or isolating any assets they share. However this act fails in one respect . all forms of domestic violence is not perpetrated by the man in a marriage and under this act no woman can file a suit against a woman or women.

Coming to dowry laws under the dowry prohibition act , 1961 the supreme court has held that initial demand of dowry itself is enough even if it is not accepted by the other party.

The law of matrimonial readies has also been subject to various changes. The grounds of divorce in Hindu law is vested in the Hindu Marriage Act , 1955 which has undergone some extensive changes. Under this act for the benefit of women two more grounds for seeking divorce have been included beneficially for women..

1. On the grounds that the husband has been guilty of rape or certain unnatural practices.

2. On the grounds that certain decree or order has been passed against the husband and that cohabitation has not been resumed for one year or upwards since the award of such maintenance.

Under the Muslim law section 2(ii) of the dissolution of Muslim marriages act 1939 enables a Muslim wife to sue for divorce if the husband has failed to provide her maintenance for at least two years. This is whether or not there is a cause for such withholding. The reason being that the husband has an absolute power to terminate the marriage by pronouncing “talak” and in order to retain the relationship he must provide for maintenance.

A major problem area in the Indian Divorce Act , is that cruelty is not ground for divorce but only judicial separation. In case between Gregory Joseph Salvador pais v mrs melba Dolores pais6, husband a heavy alcoholic beat up his wife and did not pay her maintenance yet the only relief available to her was separation.

Their has been a recommendation for a uniform civil code for the inadequacies in the laws specially the Christian laws of divorce. Because of this defect, the Christian wife cannot get a divorce even if the husband is involved in shameful acts of gratification as the act falls short of physical intercourse as in the case of Mrs. C Howell v R S Howeii A.I.R 1982 Del 328. Divorce by mutual consent is not permissible for Christians and a decree for dissolution of marriage under the Indian Divorce Act 1869 cannot be passed on mere consent of parties. This is clear case of unequal treatment to the fairer sex.

A law providing favor of male succession to property was challenged on the premise that the provision was discriminatory and unfair against women and therefore ultra vires the equality clause in the constitution. Under the amendment of 2005 to the Hindu succession act 1956 all female heirs have been

Women’s Emblem:-
Women as a class neither belong to minority nor are they regard as forming a backward class. India has traditionally been a male dominated society and therefore presently women suffer from many social and economic disabilities and handicaps. Hence forth it turned necessary that such conditions be created and necessary ameliorative steps be taken so that women as class also progress and are able to shed their disabilities as soon as possible.

The constitution of our country does have certain articles which favors women such articles are

1) Article 15 and 14 which outlaw any kind of gender discrimination against women.

2) Article 21 also came into existence to spell out safeguards for women. Which showers the fundamental rights of a women in our country. In a case like Bodhisattwa Vs shubhra chakraborty 7 claimed that any crime against women will amount to breach the fundamental right of a women guaranteed to a woman under article 21.

In the case of chairman railway board Vs Chandrima das the court recognized the right of the rape victim and claim compensation from the offender for violation of constitutional right to live with human dignity which is guaranteed to her by Art 21.

In the case of Visakha the supreme court condemned sexual harassments in work places and declared that it will be the violation of women’s right under the article 21.

To ameliorate general condition of women in our country Parliament has enacted the national commission of women in the country , the commission consist of
a) A chairperson committed to the cause of women.

b) Five members nominated from amongst person having experience in law , trade , unionism ,management of an industry , administration , economic development ,health , education ,social welfare , women’s voluntary organization.

c) A member secretary who is either a member of a civil service under the centre or an expert in the field of management, sociological movements that will be considered on section 3.

These people hold the office for three years and are appointed by the central government that is section 4. The commission from time to time section 8 that the commission has power to regulate its own procedure that is section 9 and has power of a civil court in matters like summoning witness section (10.4). The commission presents an annual report of its activities section 13 , which is presented to both houses of parliament along with a government memorandum of action taken there.

Section 10 of the constitution plays a vital and significant role to investigate and examine all the matters relating to the safe guards provided for women under the constitution and other laws. Present to the central government annually and at such other times as the commission may deem fit reports upon the working of those safeguards. Make in such recommendations for the effective implementation of those safeguards. Make in such reports recommendation or the effective implementation of those safe guards for improving the condition of women by the union or any state. It also reviews the existing provision of the constitution and other laws affecting women and recommended amendments thereto so as to suggest remedial legislative measure to meet up any lacunae, inadequacies and etc. It also amended to look into the sua motu complaints relating to the deprivation of women’s right , non implementation of laws enacted to provide protection for women and also to achieve the objectivity of equality and development , non compliance of policy decision and guidelines aimed at mitigating hardship and ensuring welfare as well as relief to the women.

The Central Government has to submit the reports received by it from the Commission under (b) above also accompanied by the action taken or devised to be taken on the recommendations before both the Houses of Parliament. If it is not to be accepted, then the appropriate reason with reference to the respective recommendation must be given.

In case of a recommendation being concerned with a State Government, it is sent to the same by the Commission, which in turn is laid down before the State Legislature by that Government along with a justifying memorandum.

For achievement and accomplishment of the purposes of the Act, grants are made to the Commission by the Central Government.

These are to be used to pay the salary and allowances to the Chairperson and members of the Commission and to meet the administrative expenses.

If any matter referred to in (a), or sub-cl. (f) is to be investigated, all the powers of a civil court trying a suit such as summoning of witnesses, receiving affidavits on evidences etc. can be exercised by the Commission.

As per Section 16, it is mandatory that all the major policy matters affecting women be taken by the Central Government only after due consultations and deliberations with the Commission.

The Commission has undertaken the review of all the laws for the empowerment and protection of women. In its annual report (1997-98), 10 out of 39 such laws have been reviewed. These acts are The Commission Of Sati (Prevention) Act, 1987; The Medical Termination of Pregnancy Act,1971; The Child Marriage Restraint Act (Sarda Act),1929; The Family Courts Act,1984; The Foreign Marriage Act, 1969; the Guardian and Wards Act 1869; The Indian Succession Act 1925; The Hindu Marriage Act, 1955; The Indian Penal Code.

Suitable amendments for making the act more effective have been proposed.

- The cases of violence against women have also been reviewed in Chapter III of the report. Following observation has been made by the Commission in this regard:

“Gender-based violence is recognized today as a major issue on national human rights agenda.”

- The problem of prostitution has been looked into in Ch IV. To contain this practice, strict adherence of S.13 of The Immoral Traffic Prevention Act, which consists of the provision for appointment of special officers to fight traffickers, has been recommended.

- The Ch.V has concentrated the problems being faced by a few groups of women requiring special attention as “the problems of such women were peculiar to the socio-economic, cultural and situational factors affecting them.” To state categorically, these groups are; Women belonging to Scheduled Castes and Scheduled Tribes, mentally ill and handicapped women, widows and minorities.

- To give a quick reference,
o Ch. VI speaks of political participation by women,
o Ch. VII speaks of socio-economic development of women,
o and Ch. VIII speaks of women in custody.

Its function has been defined by the commission in the following words:
“ The ultimate objective of the affairs of the Commission is to help enable the women to live a dignified life without distress and with indiscriminated socio-economic status in the society.”

Compulsory registration of marriages has been stressed by the Commission with reference to a recent case of Seema v. Ashwani Kumar. It has been suggested keeping in mind the following issues:
(a) Prevention of child marriages and to ensure minimum age of marriage.
(b) Prevention of marriages without the consent of the parties
(c) Check illegal bigamy/polygamy.
(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.
(e) Enabling widows to claim their inheritance rights and other benefits and privileges which they are entitled to after the death of their husband.
(f) Deterring men from deserting women after marriage.
(h) Deterring parents/guardians from selling daughters/ young girls to any person including a foreigner, under the garb of a marriage.

The Supreme Court 15 accepted the views expressed by the Commission and directed the States and the Central Government to take the necessary steps to effect such a law.

After having traversed all issues relating to feminism and gender bias during the course of this research paper , realization dawns on how sexuality and discrimination are imbibed in us and are a part of our very being . However, different as we are , discrimination is not a solution ,but a choice that is left to the society as a whole. Society may either work towards empowerment and nurturing a woman as an asset to the nation in all spheres or promote discrimination. However a federal government is responsible for making laws and regulations for emancipation of women . Hence, what is necessary is implementation of women ‘s emblem. If a woman has been sexually harassed why should she even have a doubt as to whether she should contact the authorities or not ?? The federal government should ensure that every woman should have confidence on the system and that she will get justice without harm to her reputation.

What is important is an awakening .. an awakening amongst women that feminism is not just a theory meant for academics but an attitude a way of life which be a part of her life. It’s a non tolerant attitude towards any form of discrimination even at the most basic level. The focus should not be on victimizing women but a shift towards the kind of feminism that empowers; “power feminism” as opposed to “victim feminism”.

As we know a federal form of government has many layers to it and hence even the process of coming to a decision or administering justice takes time and is often highlighted by red tapism. Emphasis here should then be on the importance of implementation of the rights. Women's rights , though guaranteed by law are virtually impossible to see in our daily lives of most women and situation being as it is because women are their own worst enemies sometimes. Despite the fact that women have been fighting for their rights, its not become a thing of the masses.

Even if there are quotas for women in politics once elected there are various barriers for women to make use of their positions. The election by quotas definitely does not guarantee emancipation. If women are elected with no power base in their party , in civic organizations or in their constituency then they will just end up being mere puppets just tokens. Here again the point being that there is a need to review the “effectiviness” of not just gender quotas but also all laws that are made for women empowerment. In a federal form of government this is a pattern feminism must work on.

We must understand, that Feminist issues and women issues are no different . Their aim being the eradication of trivial or substantial discrimination towards women. Feminism needs to be brought to the forefront and into the mainstream and the mindset and concept of feminism, being complicated to comprehend should also be put off the map.

Feminism in a federal form of government can make a substantial amount of relevant changes since the government does provide us with a social structure and legal framework for the protection of women ‘ s rights. The stigma is that the concerned laws are often un-enforced or unenforceable. Also, in India, within women exists two parallel worlds. In the city of Pune , a fourteen year old girl, Puja Shetty set herself on fire on October 28, 2006 because her parents saw her talking to a boy in the locality she lived in and was afraid of being chided. This being the same country where the rest of the millions probably are extremely well off and progressive and hence this picture is a bit smoky for the rest to grasp and protest against.

Very often in our society women have come out defied all norms and fought their way against discrimination or abuse. The fact of the matter is that these women are few in number and even if women do speak out against abuse or discrimination there is rarely anyone to listen to their cries of despair. And there is almost no one who can or will try and make a visible difference. This situation is apathetic and must change.

Federalism and feminism are connected and synchronized in the most basic and primitive way ….it being that federalism has the power to imbibe, nurture and direct feminism and break women from the web of intimacy, sexual desire, marriage , money, stresses ,strain ,abuses, exploitation, childcare and identity crisis that has spun and expanded around her and truly give her a life devoid of any, I mean any form of discrimination.

In end , as the words of Martin Luther King Jr. go

“freedom is never vouluntarily given by the oppressor , it must be demanded by the oppressed.”

1. Times of India tamil edition 2008 Pg 6 ; India today.
2. Anadhi S. 2003 ‘ The women’s question in the Dravidian movement c. 1925-1948 in gender and caste ed. Anupama Rao , New delhi,
3. 2005b Sex and sensibility of tamil polititcs by Economic and Political weekly 19th November.
4. Work, caste and Competing Masculinities Notes from a tamil village Economical and political weekly on 26th of October.
5. Advocate Shoma chatterji relates issues on HR.
6. In Gregory joseph Salvador pais v mrs melba Dolores pais, A.I.R Kant 251
7. Bodhisattwa Vs shubhra chakraborty AIR 1996 SCC 922
8. Caste and gender during colonial era by Economic and political weekly.
9. Sexuality rights institute organized by the NGO TARSHI and CREA at Pune 2005.
10. Law of reforms and proposals relating to rights of sex workers and sexual offences in India , centre for feminist Legal search Delhi 2004 Pg6.
11. Reconstructing Indian Masculinties by Mangesh Kulkarni May 2001.
12. Forging identitites gender, Communities and state in India by Westview press
13. The nationalist resolution of the women’s question by partha chatterjee during 1989.
14. Enslaved daughters Colonialism law and women’s rights oxford university press.
15. Anita ghai “An excluded agenda of Indian feminism” 2002
16. Sexuality Gender and rights by Mishra and Radhika Chandiramani New delhi.
17. Indian association of Women studies, 2001 Newsletter. April
18. The question of identity in India today, Gyanendra pandey
19. Association for women’s right in development .. www.awid.org/go.php.stid=1638
20. Behavior in researching Indian women ed. Vijaya ramaswamy.

Authors contact info - articles The  author can be reached at: abhigyanb@legalserviceindia.com

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