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Published : May 01, 2013 | Author : mrmohitmishra
Category : Human Rights laws | Total Views : 4433 | Rating :

Mohit Mishra, Bsc LlB , Activist, Judicial Magistrate

"All human beings are born free and equal in dignity and rights"
(Universal Declaration on Human Rights: Article 1)

Women Rights as Human Rights
What do We Mean by the phrase 'Women Rights as Human Rights' :
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 careful 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.

Moreover we cannot ignore that human rights are not merely a set of inalienable rights which are available to an individual because he is human. Human Rights are necessary and inalienable part and parcle of Humanism which is the underlying philosophy of Democracy. This concept is so important that it needs elaboration. Every political structure is ultimately based on some pholosophy, a philosophy which is essential for survival and growth of that Political structure. If monotheistic religion was the dominant philosophy of Monarchy, If polytheistic nature worship of early stages of feudalism and slavery, if marxism of socialism, then humanism is of democracy. A democracy can not exist unless it considers the welfare of man as the ultimate goal of the state and a human being as an end in itself. Basic respect of human being and a firm belief in his equality is so important to Democracy that it usually makes the most fundamental of its basic structure. Only if we believe all human beings as equals can we conclude that no one can rule them except without their own consent. Strength of democracy in a society ultimately depends on how deeply entrenched are the democratic values in its citizens. By democratic values we usually mean belief in equality of human beings and equality of their rights. Countries which have historically failed to inculcate in them this respect of human rights have offered the life and liberties of its citizens to the dark forces of authoritarianism and anarchy. This process is ongoing. Social processes never stay unchanged, stagnation means decay. Curtly, a country has only two choices. Either to grow more democratic or more despotic. The government which refuses to offer Human Rights to all the sections and parts of society is sure to degenerate out of democracy itself. So a failure to refuse human rights, and a failure to extend democratic values to those who need it most is sure to thwart and impede the onward march of democracy and progress itself. Democracy has historically proved itself to be a form fo government which is highly conducive to the progress of economy, science and culture. Compromising women rights is compromising democracy and compromising democracy is compromising progress.

Various international Conventions, Declarations and statutes have highlighted and accepted this underlying unity between Women Rights and Human Rights. It shall be worthwhile to mention a few. World Conference on Human Rights in Vienna in 1993 was successful in integrating women’s rights by recognizing rape, sexual slavery, and all forms of sexual harassment and exploitation as human rights issues. The Rome Statute Explanatory Memorandum, which defines the jurisdiction of the International Criminal Court, recognizes rape, sexual slavery,enforced prostitution, forced pregnancy and enforced sterlisation or any other form of sexual violence of comparable gravity as crime against humanity. The Vienna Declaration and Programme of Action also condemn systematic rape as well as murder, sexual slavery , and forced pregnancy, as the "violations of the fundamental principles of international human rights and humanitarian law."

Dimensions of Women Rights:
We find that despite Universal Declaration of Human Rights which prohibits any discrimination based on gender there continues to exist considerable discrimination against women. This discrimination against women is incompatible with human dignity and with the welfare of family and society, it prevents development of their potential for the service of their country and society. Denying women equality of rights with men is not only detrimental to women but is veritably crime against humanity considering it's pernicious effects on the development of country and society, cause of peace and welfare of world. Essence of Women Right is their right of being treated equally with men. It signifies absence of customs and prejudices which consider women inferior to men. It includes equal rights to hold administer and enjoy property. It also encompasses right to be employed and elected irrespective of their marital status. This right to equality extends to social economic and cultural life. To elucidate this right contains the right to marry only with informed and free consent and the equal rights to men of dissolving marriage, right to equal pay for equal work and equality in matters of appointment to public services. Since there cannot be an equality among unequals, this equality is not merely a mathematical or inert equality rather it connotes creation of circumstances and existence of special laws by which equality of opportunity could actually be ensured.

Equality in treatment is not possible in itself to allow women to work freely without fear, unless adequate security is provided to them and unless gender based violence is addressed. Violence against women in the family and society is all pervasive and cuts across lines of income, class and culture. United Nations Declaration on Elimination of Violence against Women defines the term "violence against women" as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Violence against women encompasses, but is not be limited to, the following physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

This endemic violence limits opportunities for women to achieve legal, social, political and economic equality in society. Violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms. It is a manifestation of historically unequal power relations between men and women which have led to not only dominion over and discrimination against women but also to the prevention of full development and advancement of women; this violence against women is also one of the chief social mechanism by which women are forced in a subordinate position compared with men. Some groups of women, such as women belonging to minority groups and indigenous women, refugee women, women living in rural communities, destitute women and female children and elderly etc are more vulnerable to this violence.

Part 2: Women Rights are Human Rights: Is it a rhetoric?
“The world has never yet seen a truly great and virtuous nation because in the degradation of woman the very fountains of life are poisoned at their source.” ~Lucretia Mott

The Past:
As a gender and an integral part of Humanity, women have suffered much and without any fault of their own. They have toiled and contributed ceaselessly, they have laboured and produced continuously and they have been discriminated, invariably.

The history of this discrimination is as old as the history of civilization itself. The women have suffered so much, for merely being women, from all recognized social institutions that have existed so far that if we dare write a book on the tortures and cruelty and biases they have faced, it may run in thousand volumes. If we try to trace the origin of this sorry state of affairs we will find that the discrimination has already started when the society was in its nascent stage. Patriarchal societies have a long history of treating women as inferior being though matriarchal societies have generally been found to treat women with a little bit more respect.

Primary reasons and instrument of implementing this bias has been the deprivation from the property and violence. At the dusk of tribal societies when the man first started to understand the nuances of private property, Man because of his stronger physique and because he had not to recluse himself from the production due to maternity became the prime bread earner of the family. From this point of time started the formation and consolidation of the male dominated society as we see it. This consolidation continued till the dark ages and first rays of light in the dungeon of solitude and bereavement of the women begin to fall with renaissance. The industrialization with its craving for cheaper and abundant labour helped in making women more economically and socially powerful. It can not, however, be denied that all this progress would still have left women as the inferior sex had they not tenuously and vehemently fought for their own rights.

The Present:
Gender inequality, which remains pervasive worldwide, tends to lower the productivity of labour and the efficiency of labour allocation in households and the economy, intensifying the unequal distribution of resources. It also contributes to the non-monetary aspects of poverty – lack of security, opportunity and empowerment – that lower the quality of life for both men and women. While women and girls bear the largest and most direct costs of these inequalities, the costs cut broadly across society, ultimately hindering development and poverty reduction,” ~ Gender and Development Group -World Bank, from the report "Gender Equality and the Millennium Development Goals" (2003).

Rising crimes against women, ever widening gender gap, and our weak performance in gender inequality index, also point out towards dismal state of being of women in general in India. We all know that the Constitution of India has taken a long leap in the direction of eradicating the discrimination women face in civil society. It recognises women as a class by itself and permits enactment of laws and reservations favouring them. Several articles in our Constitution make express provision for affirmative action in favour of women. It prohibits all types of discrimination against women and lays a carpet for securing equal opportunity to women in all walks of life, including education, employment and participation. However at the same time can we ignore the fact that India is ranked 129 in terms of the gender inequality index(GII) which captures the loss in achievement due to gender disparities in the areas of reproductive health, empowerment, and labour force participation, with values ranging from 0 (perfect equality) to 1 (total inequality). A lot more needs to be done as our GII is higher than the global average of 0.492. Even neighbours like Pakistan (115), Bangladesh (112), and Sri Lanka (74), have performed better in terms of this indicator. This inequality is not only systematic but is so deeply ingrained in our mentalities that we rarely notice it. Let me show some graphs.

These graphs speak for themselves. So far as the crime against women goes let us glance through a few facts; according to National Crime Record Bureau , a total of 2,28,650 incidents of crime against women, both under Indian Penal Code (IPC) and Special & Local Laws (SLL), were reported in the country in 2011 as compared to 2,13,585 incidences in 2010, thus recording an increase of 7.1% during the year 2011. In the year 2011, the country recorded 8,618 dowry deaths, 99,135 torture cases, 42,968 molestation cases, 8,570 molestation cases, 8,570 sexual harassment cases, 80 cases for importation of girls, 2,435 immoral traffic cases, 453 cases under Indecent Representation of Women (Prohibition) Act and 6,619 cases under Dowry Prohibition Act. Of the total rape victims, 10.6% (2,582) were girls under 14 years of age, 19.0% (4,646 victims) were teenaged girls (14-18 years), 54.7% (13,264 victims) were women in the age-group 18-30 years, 15.0% (3,637 victims) victims were in the age-group of 30-50 years and 0.6% (141 victims) was over 50 years of age. These statistics are arguably only the tip of the iceberg. Most domestic violence and sexual exploitation cases go unreported. We may be shocked to find that India has been dubbed as the fourth most dangerous place for women in the world after Afghanistan, Democratic Republic of Congo and Pakistan according to a survey conducted by Thomson Reuters Trustlaw Women in 2011. A major drawback of existing crime data is that it only takes in to account police recorder crimes. In order to develpo an accurate sociological understanding of incidences and distribution of crime in India it is critical to go beyond this data.

Howsoever shadowy it may be, however incomplete this grim picture still leaves no doubt that most of the promises of equality are nothing but rhetoric when juxtaposed with ground realities.
The discrimination against women centers round this long cultivated culture wherein in a society women do not wield economic power, where they are considered as inferior citizens and where a systematic violence is directed against them to subjugate them. The fight for human rights of women therefore revolves round around the twin fold objective, on one hand of making women more economically and socially powerful by using and implementing gender sensitive laws and on the other, to provide them a safe environment where they can contribute fearlessly.

Part 3: The Role of Judiciary: How Judiciary can help in changing this rhetoric in reality:
If one were to ask to name a significant single factor which could make the delivery of justice, just and meaningful, the answer would be ;a sensitised judiciary;a judiciary which views the circumstances and situation in a holistic manner” ~Justice R.C. Lahoti

Judges do not make laws, nor should they ever endeavour to usurp this prerogative of the legislature. Justice is only a concept, an expectation, when it is confined to statute books, it becomes a reality in the hands of a truly sensitised and role conscious judge. A judge at the outset must understand that not all law is justice. Justice is rather a complex phenomenon which involves existence of progressive and equitable laws, their effective enforcement and progressive interpretation. Innate sense of justice and injustice which every individual possesses, is best served by remedying specific incidences of injustices one finds, rather than getting involve in the quest of a perfectly just societies, if that was ever possible. Judiciary becomes the last resort of a litigant who seeks justice. A judge is widely perceived to be impartial, and Indian Judiciary is one of the judiciaries in the world which enjoys the reputation of being highly justice sensitive. Leaders of Indian Judiciary have stood time and again for the rights of Women, however this approach has been individual, what is required is to make the whole institution gender-justice-sensitive. We cannot but agree with the opinion that a judge while administering the laws, if deprived of requisite sensitivity may frustrate the objectives sought to be achieved by the best of the laws.

Role in elimination of violence:
Reasons for the rise in crimes:

As has already been discussed, violence against Women is one of the chief social mechanism by which the women are subjugated and denied their right to equality with men. Statistics cited above show how rampant this disease is. We find that the women have been subjected to not only economic biases but also a shockingly greater number and variety or gender based crimes. Recent amendment in criminal law precipitated by loathsome incidences which happened in Delhi shows not only the numbers but also variety of crimes has changed. The reasons are multifarious. First is the increasing participation of women in public life far from the safety of traditional household coupled with the dominant objectification of women which still treats them as property. Growing market and forces of globalisation and liberalisation have used biological attractions of men, who still control vast majority of economic resources and who are therefore the potential buyers, to increase its own reach and sales. Sex has become a market of its own. We encounter lascivious portrayal of women in print, ads, movies and media. We find this vile objectification of women as something to be used and possessed as a property, reinforces the feudal Patriarchal values that treated women as second class citizens. This complex phenomenon is so rampant that often considered as a way of life even for women, it is a phenomenon reflected in dress courtesy and even in daily talks. We do have laws against indecent representation, but rarely are they effectively enforced. Result is epidemic increase in sexual assaults and gender based violence. Something that can be possessed cannot be considered equal. Corollary to this popular psychology is that if women try to achieve equality they should be brutally subjugate, terrorised or brutalized.

Correlation between Level of Urbanisation and Rate of Rape:

An article in The Indian Express News Paper titled as “Locating Rape” by Sudhir Krishnaswamy and Shishir Bail powerfully argues that there is none. Plotting the graph of the data published by NCRB these two gentleman show that that not only is there no correlation between the level of urbanisation and the rate of reported crimes against women, but also many states appear to show an inverse relationship between these two variables, such that in many states, district with higher urbanisation report lower rate of rape incidences. In several states districts with higher urbanisation report higher higher rates of rape untill they reach levels of forty percent urbanisation after which districts at still higher rates of urbanisation report lower rates of rape. Hence, the claim that higher rates of urbanisation result in an increase in rape crimes is not sustainable by available evidence on such crimes. Instead they observed a regional pattern where districts with the highest reported incidences of rape were found to be clustered in central india and north eastern states.

Possible reforms:
One of the reasons is the misuse and non use of laws made to tackle crime against women. Whereas the laws and proceedings against rape have been made severe and the procedure more expedient we do not find any perceptible change in the number of rapes committed. The certainty of punishment is more often than not a more sever deterrent than severity of it. We also find that hardly do the courts or the state take any action against the person who has misused such laws for his own selfish interest to denigrate someone else's character. To make the law more effective it is not only essential to implement it more effectively, it is equally more effective to ruthlessly prevent its misuse.

Another possible suggestion can be to make law more accessible. The humiliation and shame faced by the victim who not only suffers the trauma of the crime committed against her but also bears the brunt of social stigma attached with it leaves no doubt as to the care and sensitivity with which such cases must be handled. There has been marked improvement in the general approach of the law officers towards sex crimes but it cannot be denied that there is great scope of improvement. Amendment in law is simply not enough. A more zealous approach towards sensitization of law officers and making the investigation more victim friendly can not be denied.

It shall be worthwhile to reiterate a few suggestions given by Hon'ble Supreme Court. In Delhi Domestic Working Womens Forum Vs. UOI (1995) 1 SCC 14 Supreme Court criticizing the failure of law enforcement machinery in addressing increasing violence against women suggested that:-
1. The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance.
2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.
6. In all rape trials, anonymity of the victim must be maintained
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article 38(1) of the Constitution of India as some victims also incur Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.

Justice R.C.Lahoti (Retd.) suggested the following principles to be kept in mind by the judges to achieve the goal of gender justice:
(1) A judge must be informed of the historical and cultural background in which the women have lived over the ages and understand their feelings and have regard to their needs as a class;

(2) Because the women are weaker sections of the society, a judge must strike a balance in his approach in dealing with any issue related to gender, or where a woman is victim, in such a way, that the weaker are not only treated as equals but also feel confident that they are equals;

(3) A judge must treat women with dignity and honour and inculcate confidence in them by his conduct, behaviour and ideology whenever they come to him as victims or seekers of justice;

(4) Judge should not allow them to be harassed and certainly do not do anything himself which may amount to harassment of a woman; and

(5) Lastly he should make efforts to render a woman victim quick, speedy, cheaper and effective justice ;true to its meaning.
He also mentioned few courtroom tips which he himself followed as a trial court judge and also as a member of the higher judiciary. These are:
1. Women to be treated with courtesy and dignity while appearing in the court. Any comment, gesture or other action on the part of anyone in or around the courtroom which would be detrimental to the confidence of the women is to be curbed with a heavy hand.
2. Any gender bias is carefully guarded against in the courtroom and this protection should be extended to any female present or appearing in the court either as a member of the staff or as party or witness or member of legal profession. A message should clearly go that any behaviour unbecoming of the dignity of woman shall not be tolerated by the court.
3. Court proceedings involving women must begin on time and proceeded with in an orderly manner and with dispatch so that they are concluded as expeditiously as possible avoiding the need for repeated appearance of women in the court.
4. The examination and cross-examination of women witnesses, in particular in cases relating to violence against women shall be conducted under the supervision of the presiding judge with such care and caution as to avoid prolixity and any harassment to the witness.
5. The female members of the Bar need to be encouraged in the profession, maybe by giving assignments as Court Commissioners for inspections and recording statements of witnesses.
6. Preference may be given to female lawyers in the matter of assigning legal aid work or amicus curiae briefs so that they have more effective appearances in courts.
7. Crime against women ought to be dealt with on priority basis so as to be decided finally at an early date lest the delay should defeat the justice.
I think that these suggestions can go a long way in addressing issues of violence against women.

Role in elimination of inequalities:
What Civil Liberties need greatest focus:

Women are not a uniform class. Women of various ranks opinion and status simultaneously exist in the society. However well placed they may may be, however great may be the examples of their individual successes, we can see the anomaly that as a class they hold significantly less economic power when compared to their numbers. Economic power means power to purchase to sell and to invest, in the present social system it means power to be respected and power to secure justice. Economic power does not merely signify money it also signifies a culture where women are widely perceived as capable of wielding and exercising economic power. Power without respect, without security makes it difficult and in some cases almost impossible to use such power. Freedom of movement and Job, freedom to retain administer and enjoy property, equal pay for equal work are some of the necessary incidences of this right.

What can be done:
In India a uniform civil code is a far cry. Women belonging to Hindu, Sikh , Parsi communities have been given some what equal marital and inheritance rights. However Women belonging to Muslim Community do not enjoy the same rights to that of his counter part so far as matrimonial matters go. Courts have progressive interpreted even regressive laws to impart justice to women. Their interpretation has mostly favoured women. But the same can not be said with confidence about lower judiciary. Most of the members from the lower judiciary bring with themselves the prejudices and whims of the society they belong to. A judge from Kerala is more expected to be gender justice sensitive then, let us say a lower court judge from Haryana. Entrance examinations are not structured to select only those who are broad minded and gender sensitive. Even more astonishing is the absence of a uniform sensitisation training. Whereas a police officer is now expected to be gender sensitive, it appears that mere knowledge of law is sufficient in itself to make one a judicial magistrate. The first step is obviously sensitisation. Not only the judges must be systematically sensitised, those who refuse to reform themselves must, if the need be, weeded out. Secondly, procedural delays in deciding maintenance and matrimonial dispute cases should be eradicated. Such cases should be handled preferably by a women judge and most importantly by a gender sensitive judge. A judge should not only be prompt in deciding but he must with equal zeal ensure that his decision, especially the ones which involve women are effectively executed. I would also suggest imparting more powers to lower judiciary to punish for its own contempt, so that it may be able to check procedural lapses and failures in executing it's orders. A judge should be averse to accept the dispositions where women voluntarily give up their property to their kith and kin, any such settlement in which women voluntarily relinquish their property should be looked at askance.

Wielding of economic power is impossible unless the state can promise safety and security. Safety and security can not be achieved if the society is not sentised. Without economic resources women can not be safe nor can they be respected in a society where money is one of the chief though not the only source of clout and respect. So goes the circle. This spiral signifies that the struggle for emancipation of women can not be on a single front. No organization howsoever strong is capable enough, and no part of this struggle wholesome enough to bring the struggle to a just conclusion. It is an all out all encompassing movement which will have to be waged simultaneously on political legal social and economic front. The goddess of justice should not only employ her balance, she may as well flaunt her sword.
At last let us conclude with these words of Justice R.C.Lahoti
Let the issue of gender injustice not be perceived as a war between the two sexes. Long before, when consciousness in society towards gender injustice was not present then resentment on the part of women was justified; but now the approach should be of complementing each other rather than competing on perceptions, which may not be real or may be non-existent. Societal bonds are based upon integration, mutual dependence and respect. They are not just contractual but based on deep organic unity

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

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Article Comments

Posted by mrmohitmishra on May 09, 2013

Posted by aruna on May 05, 2013
excellent article

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