Soumik Saha's Profile and details
I am a student interested in writing articles on various legal matters.
“Women are supposed to be very calm generally: but women feel just as men feel; they need exercise for their faculties, and a field for their efforts, as much as their brothers do; they suffer from too rigid a restraint, to absolute a stagnation, precisely as men would suffer; and it is narrow-minded in their more privileged fellow-creatures to say that they ought to confine themselves to making puddings and knitting stockings, to playing on the piano and embroidering bags. It is thoughtless to condemn them, or laugh at them, if they seek to do more or learn more than custom has pronounced necessary for their sex.” - ‘Jane Eyre’ by Charlotte Bronte
The women empowerment policies are of topmost priority in terms of development. Women issues have been subjugated across the whole universe, in varying degrees, to cater to the patriarchal structure of the society that has traditionally come down upon us. From female foeticide to limited accessibilities of women to different employment facilities, this ‘second sex’ has been suppressed, denied the basic rights and privileges. This article traces this subjugation of women in the empowerment sector, thereby discussing the government and non-governmental initiatives in India, to provide better and comfortable human conditions for women to come out of the spaces of their homes, and access the public sphere. The main aim of this article is to historically trace the legal discourses of India and its subsequent amendments, which have lent a helping hand to better the conditions in society. It also draws on some historic judicial pronouncements of the Supreme Court and various other courts in India, which have upheld some landmark judgments in favour of women’s increased visibility and accessibility. This in turn also lays stress on the various amendments in some of the laws of the Constitution of Inda. Yet as I try to show, these interventions are not enough to bring the desired change to the conditions of women in India, varying across a vast range of castes, class, ethnicities, religions and regions. It is here that this article outlines some key suggestions to look ahead for women’s empowerment in the Indian social and political milieu. In a world of dividing inequalities, most distinctly along gender differences, Liberal Feminism as the most widely accepted social and political feminist philosophy comes to the rescue. This strand of feminism emphasizes the urgent need to provide equal rights and liberties to women across the globe, structured along social, familial, political and sexual roles. In other words, liberal feminism’s popularity lies in its appeal to bring about equality of women through legal and social reforms. Rejecting all forms of an ideal utopian society, liberal feminists universally acknowledge the need to question the socially-conditioned hierarchical status of men and women by eliminating coercion. Emphasizing on the need to promote autonomous choices for women, either in the public or private spheres, Ruth Sample in his article on Liberal Feminism asserts, “Liberal feminists avoid the promotion of particular conceptions of the good life for either men or women, instead defending a broad sphere of neutrality and privacy within which individuals may pursue forms of life most congenial to them.”
In order to draw attention to gender-related dimensions of human rights issues, a number of international and regional interventions have been made across the globe. Some of the earliest steps taken in this regard were Article 2 of the United Nations Declaration on Human Rights in 1948 which stated rights and freedoms irrespective of distinctions in “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” This was followed by the Convention on the Nationality of Married Women, adopted in 1957 by the General Assembly, as need was felt to ensure women that they did not become Stateless upon marriage, thus respecting the rights to their nationality.
The most important step in this regard was taken by the UN General Assembly as early as 1979, when it adopted what is termed as the international bill for the rights of women—the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The preamble of the CEDAW, essentially lays claims to women’s rights as being human rights. The Convention, ratified by 180 countries so far, enumerates that one half of humanity, the women, who have historically been denied the basic rights, which is a grave violation of the fundamental rights of humans. Article 1 of the CEDAW defines discrimination against women as “...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Subsequent conventions like Declaration on the Elimination of the Violence Against Women in 1993, Optional Protocol to the Convention on the Elimination of Discrimination Against Women in 1999 and others have been modelled on the recommendations and implications of the CEDAW.
The feminist movement in India has been built upon multiple and varied historical experiences, by drawing on socio-political conditions such as caste, family and traditional marriage structures including the dowry, which are specific to India. The development of the feminist movements in India has been dissimilar to the Western feminist movement, in that there are multiple patriarchies in the Indian context, which have given rise to multiple feminisms in the country. This situation of multiple oppressions on women is best illustrated by Kamala Bhasin who says, “An awareness of women's oppression and exploitation in society, at work and within the family, and conscious action by women and men to change this situation.”
This article uses the above theoretical frame to discuss the issues of women empowerment in India, especially in the light of the legal and non-governmental interventions. In other words, the aim of this article is to problematize the simplistic assumptions of ‘women empowerment’ as we understand it today, in the social and political milieu of India. Through this, I want to emphasize the massive role that legal discourses play, in contributing to making more women invade the public spaces for enhanced job opportunities and accessibilities in this country.
Intervention of Law: Legal Discourses In India
In keeping to the historical social and political realities of the patriarchies in India, Part III of the Constitution of the country enumerates certain general as well as specific provisions to uplift the status of women in the country, enforceable as constitutional or fundamental rights.
Articles 14, 15, 16 and 21 of the Constitution attempt to give equal treatment of life and livelihood to both men and women. Embodying the guiding principle of Equality before Law, Article 14 states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Prohibiting discrimination on the ground of sex, Article 15 states that (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—(a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
Providing equal opportunities irrespective of sex, and prohibiting discrimination against women, Article 16 clearly states, Equality of opportunity in matters of public employment—(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be eligible for, or discriminated against in respect of, any employment or office under the State.
Enumerating the right to protection of life and personal liberty, Article 21 provides that No person shall be deprived of his life or personal liberty except according to the procedure established by law. This Article keeps very closely to one of the most celebrated clauses of the Magna Carta, which states “No man shall be taken or imprisoned, disseized or outlawed, or exiled, or in any way destroyed save…by the law of the land.”
In view of the constitutional provision of Article 39 which specifically directs the states to secure equal pay for equal work for both men and women, the Parliament has enacted The Equal Remuneration Act 1976, which provides for payment of equal remuneration to men and women workers for the same work or a work of a similar nature and for the prevention of determination on grounds of sex. The notion of “equal work” depends on a number of various factors such as responsibility, skill, effort and condition of work. In pursuance of the objectives of the state in order to secure just and human conditions of work and for maternity benefits as enshrined in the Constitution of India, the Parliament has enacted The Maternity Benefits Act of 1961. This Act regulated the employment of women in certain establishments for certain periods before and after child birth as well as provides for maternity and other benefits.
Women’s Empowerment through NGO Interventions
When discussing women’s empowerment, the foremost concern is to define the term ‘empowerment.’ The word ‘Empowerment’, as defined in the Random House Dictionary, comes from the term empower which means ‘to give power or authority’ and ‘to enable and permit’. They fortify each other through enabling and providing power through the right job opportunities. In today’s world, such terms mean challenging the existing notions of inequality and power relations and questioning the various subjugation and subordination of the women folk.
Most studies on feminism relate to an economic explanation as an intervention. Famous social scientist Mayoux asserts that microfinance for women has played a major role in feminism and it plays an important function in poverty alleviation and improvement in the status of women. The inter-linkages with policies and complexity of empowerment itself make conventional research methodologies extremely cumbersome. Mayoux has successfully incorporated the values of proposed frameworks with participatory values for integrating empowerment concerns into ongoing programme learning.
While these economic frameworks dominated the discourse of women empowerment for many decades, there has been a considerable paradigmatic shift in recent times, from insistence on micro-finance and income generation to a more integrated and holistic approach, in order to discuss the overall conditions of women, such that the question of empowering woman can be raised.
Women have started coming out from the confines of the private realm to the public sphere. In this regard, a major reform happened in the 73rd Constitutional Amendment when women were given an important status to represent themselves in the decision making bodies of Indian politics.
A number of scholars have provided path-breaking definitions on the subject of women empowerment. Conger and Kanungo , as early as 1988, defined empowerment as a “Process of enhancing feelings of self-efficacy among organizational members through the identifications of conditions that foster powerlessness and through their removal by both formal organizational practices and informal techniques of providing efficacy information”. Korten defined empowerment as “Control over and the ability to manage productive resources”, and thereby emphasizing that the “control over an action should rest with the people who will bear its consequence”. Peggy on the other hand, looks at empowerment from another angle, i.e. personal powers, as different from “role powers”. According to Peggy, empowerment is “A spectrum of political activity ranging from acts of individual resistance to mass political mobilizations that challenge the basic power relations in our society”. According to a handful of other social scientists, women’s empowerment is equivalent to their participation in the public sphere. This in turn represents “sharing control, and the entitlement and ability to participate to influence decision as on the allocation of resources”.
On a final note, it seems important to recognize the crucial role that women’s struggles in the public and private sectors can play, in building overall development and empowerment of women. Like E. Bhatt says in “Towards Empowerment”, the principal elements of strategy towards struggle and development of women are in recognizing the perpetrators and waging wars against them. This includes activities like awareness-raising about rights at local level working as pressure group on administration for protection of human rights; providing medical and legal aid services to the women victims for their reintegration and rehabilitation of the victims in the community extending cooperation to government agencies to establish good governance and civil society and empowering the destitute women in family, society and the state.
1) In the very renowned case of Ms. Githa Hariharan versus Reserve Bank of India, the petitioner and Dr Mohan Ram were married in Bangalore in 1982 and had a son in July 1984. In December 1984, the petitioner applied to the Reserve Bank of India (RBI) for 9% Relief Bond to be held in the name of the son indicating that she, the mother, would act as the natural guardian for the purposes of investments. RBI returned the application advising the petitioner either to produce an application signed by the father or a certificate of guardianship from a competent authority in her favour to enable the bank to issue bonds as requested. This petition was related to a petition for custody of the child stemming from a divorce proceeding which was pending in the District Court of Delhi. The husband petitioned for custody in the proceedings. The petitioner filed an application for maintenance for herself and the minor son, arguing that the father had shown total apathy towards the child and was not interested in the welfare of the child. He was only claiming the right to be the natural guardian without discharging any corresponding obligation. On these facts, the petitioner asks for a declaration that the provisions of Section 6(a) of the Hindu Minority and Guardianship Act of 1956 along with Section 19(b) of the Guardian Constitution and Wards Act violated Articles 14 and 15 of the Constitution if India.
The Apex Court has interpreted Section 6 of the Hindu Minority and Guardianship Act, liberally holding that the natural guardian of a Hindu minor in respect of the minor’s person as well as the minor’s property, can be the mother in the absence of the father. The word ‘absence’ has to be interpreted broadly as meaning the father’s absence for any reason whatsoever in the context of taking care of the minor’s person or property. If the father is wholly indifferent to the minor even if he/she lives with the mother, or by virtue of a mutual understanding between the father and the mother, the mother is put in exclusive charge of the minor, or if the father is physically staying away from the place where the mother and the minor are living, or in any situation where the father is physically unable to take care of the minor, he can be considered as absent and the mother can be recognised as the natural guardian. She can act validly on behalf of the minor as a guardian. Justice Anand has thus very rightly ensured that the minor’s welfare is not neglected when the father is not taking or is not able to take any interest in the affairs of the minor for any reason.
2) In the case of Vishaka and Others Versus State of Rajasthan and Other the Apex Court has stated that gender equality includes protection from sexual harassment and the right to work with dignity as per our Constitution of India. Extra hazard for a working woman compared to her male colleague is clear violation of the fundamental rights of Gender Equality & Right to Life and Liberty. Safe working environment is the most necessary fundamental right of a working woman. In no way should working women be discriminated at the workplace against male employees (If a woman is, then it must be documented in company policies, for example, the stated limitation of women in police and armed forces.) Working with full dignity is the fundamental right of working women. The right to work as an inalienable right of all working women was clearly explained in this landmark judgment. The Vishakha judgment had recommended a Complaints Committee at all workplaces, headed by a woman employee, with not less than half of its members being women. All complaints of sexual harassment by any woman employee would be directed to this committee. This is significant because an immediate supervisor may also be the perpetrator. The committee advises the victim on further course of action and recommends to the management the course of action against the man accused of harassment.
Amendments Required on Certain Existing Acts Related to The Empowerment of Women
DOWRY PROHIBITION ACT OF 1961
The National Commission of Women has proposed recommendation to amend the Dowry Prohibition Act of 1961 in the following manner:
1) Amendment to the definition of ‘dowry’.
2) Provision for registration of lists of gifts received during the time of marriage.
3) Provision for separate penalties for giving and taking of ‘dowry’.
4) Penalties for non-maintenance of lists of gifts received at the time of the marriage.
5) Incorporating a new clause providing an opportunity to the woman to file a case at the place where the offence was committed or where she permanently/temporarily resides.
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT OF 2005
Some of the major amendments proposed for the amendment of the Protection of Women from Domestic Violence Act of 2005 come from the State Social Welfare Board of Kerala. These amendments include setting up of special courts to try cases on domestic violence and in the process bringing women under the ambit of the term ‘respondent’ and enhancing the punishment term in case of violation of court orders. These amendments are part of a report prepared by the Board, which is the Implementing Agency of the Domestic Violence Act in the state. Since the Act was implemented in Kerala in 2008, one of the first such reports is the comprehensive assessment report accessed by ‘Express’. Parts of the report state that “In the wake of rise in cases of domestic violence, it was felt that constitution of special courts will help tackle such cases more effectively. Also the Act now defines the respondent, who is the perpetrator of the violence, as an ‘adult male person’. We have suggested replacing this with ‘any adult’ as the present provision does not cover violence from women members of the family”, as narrated to the Express by the Kerala State Social Welfare Board (KSSWB) Chairperson Qamarunnisa Anwar. The report also recommends enhancing the punishment prescribed under Section 31 of the Act, stating, “A breach of any order or an interim order by the respondent shall be a crime under this Act and shall be punishable with imprisonment of either description for a term which may extend to 3 years (as against two years in the Act) or with a fine which may extend to Rs 25,000 (as against Rs 20,000 in the Act).”
At present, there are 84 Service Providing Centres across Kerala which have been set up by the KSSWB for implementation of the Act. SPCs are recognized NGOs working in the field of women’s welfare. As Anwar is quoted to have said, “Due to procedural delay in obtaining order of protection for victims, we have recommended that SPCs and also Commissions constituted to protect women’s interests should be given the power to issue protection orders restraining the perpetrators from further harassing the victims.”
Issues and Challenges to Women’s Empowerment in India
Although women’s empowerment is one of the most serious concerns in the world today, especially in the socio-political milieu of India, the number games depict a rather gloomy picture. Globally, women make up only approximately 9% of corporate board memberships. Women’s share of wages of paid employment worldwide is 41%. Although 117 countries have equal pay law, in many cases women are still paid up to 30% less than men for similar work. Women do most of the informal or un-monetized work in all regions, and they represent 50.5% of the 1.52 billion workers in vulnerable employment, often lacking legal and economic protection.
In the traditional Indian context, since old family structures persist so strongly, women’s economic roles are added to her traditional domestic household work. About 70% of people in poverty are women, most of them in rural areas. While representing a large share of the agricultural workforce, women farmers benefit from only 5% of agricultural extension services. Microcredit institutions report that in 1999–2010, the number of poor women reached has increased from 10.3 million to 113.1 million, representing 82% of microloans. Analysis shows a direct interdependence between the country’s Gender Gap Index and their Competitiveness Index scores. Despite important gains, the UNESCO reports that in 2010 the basic literacy rate for young females was 87%, compared with 92% for young males. The health gender gap is generally closing, but women-specific challenges persist. Although maternal mortality decreased 47% over the past two decades, in 2010 about 287,000 women died of pregnancy-related complications.
In other words thus, women’s empowerment faces a number of massive challenges across the globe generally and in India more specifcally. These challenges must be combated, if improvement of women’s conditions is considered imperative in the society. This alone will lead to enhanced empowerment of women in the various sectors of the economy and society.
Empowering Women: Suggestions for the Way Forward
Both rural and urban societies, as we have seen, cling on to the 18th century dogmas and beliefs of subjugation of women. They are not prepared to give women the basic safety, security and respect that is needed to normal sustenance, as we discuss in this article. After a brief outline of the prevailing political, social and economic conditions which are the primary hindrances to empowerment of women in society, and after discussing in detail the legal discourses and nuances which have intervened to better the conditions of empowered women in society, I enumerate here, my set of suggestions which I think, are critical aspects to bring the way forward for women empowerment in India. The suggestions are as follows:
· Women must be respected in the family, their choices and decisions must be given equal importance, like the male counterparts at home. In the everyday living, there must be no difference made in the importance of the man and the woman in the family.
· The girl child must be respected and loved, in both the public and the private spheres. She must not be made to feel inferior to the boys either at home, in school or in other public places. This sense of equality and pride, when inculcated in a female infant, goes a long way to build her confidence and self-image of herself and her sex in the society.
· Recognizing women’s reproductive rights and providing effective family planning are crucial to curb maternal deaths and to reduce maternal mortality to 120 deaths per 100,000 live births by 2015, as the UNESCO has proposed.
· Mothers should use their educational role in the family to assertively nurture gender equality, among both the sexes. This educative role of the mother (as well as the father) is critical for the child to think freely and not be oppressed by patriarchal structures.
· Basic services such as preschools and child care should be integral part of strategies to improve the status of women.
· The Judiciary System in India is one of the most crucial pillars of change in the society. Though there are very effective laws that protect women's rights and empower them, but most of us are not well-aware of the impact of these laws. These laws must be implemented more rigorously and uniformly, such that all sections of the society, the rich and the poor, become well-aware of the need to empower women in society.
· Mass awareness through the role of the media is also an imperative step to bring about women’s empowerment. Campaigns, advertisements, social awareness programmes, workshops, interactive shows, debates on television are some of the weapons of change in this misogynist framework in which the society operates. This must be made use of increasingly, and rapidly, for women’s conditions to better in India.
· Last but not the very least, the proper kind of education system is required in this country, for any sort of freedom of women, for women empowerment and employment, for women to frequent the public spaces.
This article has aimed to emphasize how women empowerment has historically been one of the strongest drivers of social evolution over the past century. It also attempts to show why and how women empowerment is acknowledged as essential for addressing challenges facing humanity as a whole. Women are increasingly taking control of public spaces, being engaged in decision making, promoting their own views and requests, and demanding accountability over various kinds of work. Patriarchal structures are increasingly challenged around the world—the process towards an equal political and economic society for both the sexes, men and women seems irreversible. Yet the process is never complete, always already in a state of chaos, facing the most severe challenges and hurdles from more than one institutional structures.
It is in the face of this, that I attempt to look at some legal nuances and some historic judicial pronouncements in this country, to problematize the issue of women empowerment, and as an answer, provide some basic guidelines which must be followed for women to realize their true potentialities in the Indian context. In this, the article humbly locates the need for more rigorous and stringent legal interventions in the Indian judicial structure.
Books and Articles
· Mamta Rao, ‘Law Relating to Women and Children’, Eastern Book Company, Lucknow, 2012
· Kamala Bhasin and Nighat Khan, ‘Kali for Women’, Delhi, 1986
· D.D. Basu, “Introduction to the Constitution of India”, 19th Edition, Reprint 2007, Wadhwa Publishers, Nagpur
· Linda Mayoux, “Participatory Programme Learning for Women’s Empowerment in Micro-Finance Programmes: Negotiating Complexity, Conflict and Change”, 1996
· Conger and Kanungo (ed)., “The Empowerment Process, Intergrating Theory and Practice”, Academy of Management Review, 13(3), 1988
· D.C. Korten, “Community Management: Asian Experience and Perspectives”, Kumarian Press, Hartford, 1986
· Peggy, “The Empowerment of Women”, Westview Press, Boulder
· E. Bhatt, ‘World Development’
· Smita Mishra Panda’s working paper, “Women’s Empowerment: A Framework Assessment”
· Global Future Studies and Research by The Millennium Project