Ours Is A Traditional Society Where Women Have Been Socially.docx

Ours is a traditional society where women have been socially, economically, physically, physiologically and sexually exploited from time immemorial, sometimes in the name of religion, sometimes on the pretext of writings and the scriptures and sometimes all the social sanctions. From the cradle to the grave, females are the victims of numerous vicious acts such as discrimination, oppression and violence within the family, at the workplace and in the society. The term “discrimination” is defined as the effect of a law or established practice that confers privileges on a certain class or that denies privilege to a certain other class because of grace age, sex, nationality, region or handicap or differential treatment, especially failure to treat all persons equally when no reasonable distinction can be found between those favoured and does not favoured. Discrimination against women shall mean “any distinction, exclusion or restriction based on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. In ancient India, women were respected and there was general dignity. Manu says: “Where women are honoured, gods are happy. Where women are not respected, all efforts come to naught”. [Ramante Tatra Devataah; Yatrai tatstu no poojayante: Sarvastatra phala kriya; Yatra nariastu poojyante. (Manusmriti III, 56). Women continue to suffer discrimination, whichever community or country they belong to. [Noor Mohammad Bilal: Gender Justice: International and Constitutional Perspectives, XKULR (2003), p. 116] Koran says “Men have authority over women because Allah has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. They guard their unseen parts because Allah has guarded them. As for those whom you fear disobedience, punish them and send them to beds apart and beat them if they don't obey you. Take no further action against them if they obey you, Allah is high and supreme”. [Giri Raj

Shah: The Encyclopedia of Women's Studies (Gyan Publishing House, New Delhi), Vol. 1, 1995, p. 5] Holy Bible lays down- “Wives, submit yourself into your own husbands as unto the Lord”. [Percival Spear: A History of India (Penguin Books, England), Vol. 2, Reprint 1983, p. 6] Judiciary has played splendid role in shaping the contours of ‘gender justice’ through several innovative judgements. Mary Roy v. State of Kerala [(1986) 2 SCC 209] is one such instance. It was an epoch making judgement which was far reaching effect in shaping the rights of Christian women for the inheritance of their parents’ properties. By this judgement, the Supreme Court brought Christian women on a par with men under Indian Succession Act 1925 [Act No. 39 of 1925], which does not distinguish between sons and daughters. In this case, Mary Roy challenged the constitutional validity of the provisions of Travancore Christian Succession Act 1916, which discriminated sons and daughters while succeeding to the father's property. “Right to Equality does not become meaningful where the social reality is one of inequality” [S.P. Sathe: Gender, Constitution and the Courts, Engendering Law, Essays in honour of Lotika Sarkar, Amita Dhanda and Archana Parashar ( Eastern Book Company, Lucknow, 1999), p. 129.]. This means that the concept of gender equality will remain hollow and illusory so long as the ground realities do not reflect it. Justice Yatindra Singh writes: If we think about gender equality, there is no reason why we will not achieve it. And by God's grace-despite male chauvinism-we will. [Justice Yatindra Singh: Gender Justice: Women’s Rights-A Legal Panorama AIR 2002 (Jour.) pp. 163-176.] Convention mandates State Parties to condemn discrimination against women in all its forms and to follow a policy of eliminating discrimination against women. For satisfying this objective the convention prescribe some measures: a) The convention requires the state parties to establish legal protection of rights of women on the equal basis with men and it should ensure through competent National Tribunal and public institutions.

b) The convention mandates the state parties to take all necessary steps including legislation, to modify or abolish existing laws, regulations, customs and practices which discriminate against women. c) The convention also requires a state parties to repeal all national penal provisions, which constitutes discrimination against women. [Article 2, Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 1979.] A written Constitution, an independent judiciary with powers of judicial review, rule of law and separation of powers, free elections to legislature, accountable and transparent democratic Government, fundamental rights are some of the principles and norms which promote constitutionalism in the country. [M.P. Jain: Indian Constitutional Law (LexisNexis Butterworth, Wadhwa, Nagpur), 6th Ed. 2010, p. 7.] The preambular pledge The Preamble of the Constitution is framed with great care and deliberation so that it reflects the high purpose and normal objectives of the Constitution makers. [Pradeep Jain v. Union of India. AIR 1984 SC 1420] It is the key to open the mind of the makers. [in Re Berubari Union case 1960 SC 845]

While discussing the provisions relating to Fundamental Rights in the constituant assembly, Pandit Jawaharlal Nehru, emphasized: “A fundamental right should be looked upon not from the point of view of any particular difficulty of the movement, but as something that you want to make permanent in the Constitution. [Constituent Assembly Debates, Vol. 12 at p. 729]. In Maneka Gandhi v. Union of India [AIR 1978 SC 597], Bhagwati J observed: Fundamental Rights weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual Liberty in its various dimensions.

In a nutshell, the Supreme Court has displayed judicial creativity of a high order in interpreting the fundamental rights especially during the last two decades. While delivering judgement in Ajay Hasia [Ajay HAsia v. Khalid Mujib AIR 1981 SC 487 (493)], Bhagwati, J. has observed: It must be remember that fundamental rights are constitutional guarantees given to the people of India and not only really paper hopes or fleeting promises as long as they find a place in the constitution, they should not be allowed to be emasculated in their application by narrow and constructed judicial interpretation. Equality is one of the magnificent cornerstones of Indian democracy. [Thommen, J. in Indira Sawhney vs Union of India 1993 SC 477 1992 Supp (3) SCC 217] The doctrine of equality before law is necessary quality of rule of law which pervades the Indian Constitution. [Ashutosh Gupta vs state of Rajasthan AIR 2002 SC 1533] This principle has been reiterated by the Supreme Court thus: Equality is a basic feature of the Constitution of India State of Karnataka air 2001 SC to 6264 In M. Nagaraj vs Union of India, [2007 SC 71] the constitution bench of the Supreme Court has declared in unequivocal terms that the content of Article 14 got expanded conceptually; and comprises the doctrine of promissory estoppels, non arbitrariness, compliance with natural justice, eschewing irrationality, etc. Elaborating the concept of life and personal liberty the Supreme Court in Francis Coralie Mullin v. Union Territory of Delhi, [AIR 1981 SC 746] said that the right to life is not restricted to mere animal existence. The right to life includes the right to live with human dignity. In Burdwan Mukti Morcha v. Union of India [AIR 1984 SC 802], Bhagwati, J. held: It is a fundamental right of everyone in this country to live with human dignity. According to Prof. Allan Westin, the term “privacy” means ‘the state of Solitude a small group of intimacy’. The concept of privacy has multiple dimensions.