INTRODUCTION
India has always been the melting pot of various cultures and religion; with a continuous influx of people from across the globe the society has remained in a constant change and progress. The advent of British in India in the 15thcentury marked a fundamental change in life and behaviour of people. This change also brought in major changes in the legal system of India.
Indian society, which had undergone a drastic change since the vedic ages,[1] had curtailed several rights of women and had limited the participation of women in public life. The East India Company, though a blot on the glorious past of India, introduced several changes in the society, the major one being in the legal system of India and in unifying India as one nation with one law. This process of introducing progressive laws in British India dates back to 1829 when the then Governor General of India William Bentick abolished the evil practise of Sati.[2] Since then India has gradually marched towards the goal of achieving inclusivity of women in all sectors and in pursuance to the same, has introduced several laws to achieve this goal. The Constitution of India acknowledges this intention of progressive India, therefore the forefathers, realising the fundamental need of this, ensured to incorporate the same as a fundamental right in the Constitution under Article 15.[3]
Despite the enactment of stringent laws in India the status of women has not changed much in the rural region. The concept of equality is still at nascent stage in these areas, with women being considered as the possession of family and their honour. This mind set has led to killing of several women in the name of family honour and has razed several families at length. Gender based crime and discrimination is prevalent not just in the hamlets of India but across the length and breadth of India.[4]
HISTORICAL ASPECT
The patriarchal mind set of the medieval Indian society can be understood from the couplet of the famous hindi poet Tulsidas whodescribed the status of women, in his writings, in following manner “dhor, ganwar, shudra aur nari, ye sab taadan ke adhikari” which in its literal translation means that animals, illiterate, untouchables and female deserve to be punished.[5]The situation, since then has changed to a great extent and the Indian law makers and the Indian courts have played a very significant role in this change.
During the Vedic era, male child was given preference over female child because people had a notion that sons would contribute more to the family. Sons were preferred because of their physical strength, their ability to fight and because they remained with the family even after they are married. This preference for boys is reflected in sacred literature, including the Atharva-veda, which contains rituals to guarantee the birth of a son.[6] However, though daughters were preferred less than sons, they were still valued by their families. One of the Upanishads contains rituals which is for the birth of an intelligent daughter. Additionally, the Rig-Veda contains hymns that were divinely revealed to female;[7]widows were viewed as unclean, but the Rig-Veda reaffirmed their value.
The medieval period in India began with the advent of Muslim rule, this period which lasted for nearly 500 years’ saw a grave change and curtailment of women rights in India. Although, there were a few leading ladies of this era such as Razia Sultan, Nur Jahan and Jahan Ara who took active part in the affairs of the state, the status of women didn’t change much. The situation improved after the Britishers arrived in India and made several changes to the social structure of India.
ROLE OF JUDICIARY IN RECOGNIZING WOMEN RIGHTS
Gender equalityhas always been an elusive concept in history, trodden with impediments of narrow mindedness of societywhich tookfiendish delightin supressing women’s right.Even the judiciary remained oblivious to the rights of women. In Bradwell v. State of Illinois[8]Justice Bradley of the US Supreme Court said, “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The permanent destiny of and mission of a women are to fulfil the noble and benign office of wife and mother. This is the law of the creator.”
As early as in the year 1908, the U.S. Supreme Court had,in Muller v. Oregon,[9]realised the importance of role of women in social life and it stated “That women’s physical structure and the performance of maternal functions places her at a disadvantage for subsistence is obvious. History discloses the fact that woman has always dependent upon man. He established her control in various forms, with diminishing intensity, has continued to the present.”But the situation of women didn’t have any substantive change until the latter half of the 20th Century.
Equality for women was recognised in India as early as in 1925, The Commonwealth of India Bill, 1925, in clause 7[10] demanded for equality before the law and provided that there be “no disqualification or disability on the ground of only sex”, along with the provision that all persons were to have equal right to the use of “roads, courts of justice, and all other places of business or resort dedicated to the public”.
The earliest case in India pertaining to women right was Air India v. Nargesh Meerza[11] where the Supreme Court held that the regulation of Air India pertaining to termination of an air hostess if she were to get pregnant within 4 years of service was held to be arbitrary and unconstitutional. This judgment is etched in history of women rights as an apostle for organisations to regulate the working condition of women on par with their male counterparts.
Article 15(3) of the Constitution empowers state to make special laws for protection of women and children rights. The reason for such law is that “women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical well-being becomes an object of public interest and care in order to preserve the strength and vigour of the race.”[12]
In Dattatraya v. State,[13] it was held that educational institutions established by the State exclusively for women, or the reservation of seats for women in a college- does not offend Article 15(1).
In Rajesh Gupta v. State of U.P,[14]the Court held that reservation of 50% of posts in favour of female candidates is not arbitrary.
The above judgments are a clear example of how judiciary has recognised and has safeguarded the rights of women in India in public life and at work place. The case of Vishaka and Ors. v. Sate of Rajesthan and Ors.[15]where the court laid down guidelines to regulate the conditions of working women and directed that guidelines and norms would be strictly observed in all work places for preservation and enforcement of right to gender equality of working women.
Equal rights and dignity of women in religious aspects has, recently, garnered great importance in social life and in legal sphere. Two of the most prominent judgments of Supreme court Sabarimala case[16]and Triple Talaq case[17]has brought an end to century old practise of curtailing of women rights, the court recognized customs within the definition of ‘law’ as per Article 13(3)(a) of the Constitution but declared the practices void as per Article 13(1), which were found in derogation of Fundamental Rights.Justice Nariman and Justice U.U. Lalit in Triple Talaq case applied the test for laws in force to recognize the custom of Triple Talaq as falling within Article 13(3)(a), they held it unconstitutional on the narrower ground of it being “manifestly arbitrary” as against Article 14.
CONCLUSION
The depleting condition of women rights in India, regardless of their religion, has a great linkage to the medieval age and the British rule, who in their attempt to make a secular society with secular laws, made a direct attack on the diversity and heterogeneity and religious beliefs of Indian society. Modern India is a direct result of this contradiction in the colonial mission in which Hindu,[18] Muslim,[19] Christian[20] women of other religion experienced profound differences in legal rights and political agency.
History has always posed the importance of gender neutral laws which has led to several changes in the social structure of the society. The relation between laws and religion, in this country, are interlinked for they are dependent upon each other with former deriving its legislative backing from the latter. This article recognizes gender as one form of reference and difference which intersects with different forms of experiences, such as religion, caste, status etc., and delved into the role of various interlopers, from historical to contemporary period, who have played a vital role in shaping the current legal system of this nation.
The Author is practicing Advocate Supreme Court of India and is Executive Member of Supreme Court Bar Association.
[1]https://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000829IC/P001497/M015107/ET/14600120574ET.pdf
[2]Priya Soman, Raja Ram Mohan Roy and The Abolition of Sati System in India, International Journal of Humanities, Art and Social Studies (IJHAS), Vol. 1, No.2.
[3]Narender Nagarwal, Gender Justice Ideology and the Indian Constitution: Analysing Equality Rights, 4 Indian J.L. & Just. 111 (2013).
[4]J P Attray, Crime against Women, Vikas Pub. House, New Delhi, 1988.
[5]Sukhdeo Thorat, “Hindu Social System and Human Rights of Dalits” Critical QuestPub.2004
[6]Tripta Desai, Women in India: A Brief Historical Survey, 4 (1992).
[7]Radha Kumud Mookerji, Women in Ancient India in Women of India, 2 (1958).
[8]83 US 130 (1973)
[9]208 U.S. 412
[10]https://www.constitutionofindia.net/historical_constitutions/the_commonwealth_of_india_bill__national_convention__india__1925__1st%20January%201925
[11](1981) 4 SCC 335
[12]Muller v. Oregon, 52 L.Ed.551
[13]AIR 1953 Bom 311
[14]AIR 2005 SC 2540
[15](1997)6SCC241
[16](2019) 11 SCC 1
[17]Shayaro Bano v. Union of India & Ors., (2017) 9 SCC 1
[18]Supra
[19]Supra
[20] 1986 AIR 1011