Professional Documents
Culture Documents
legislations
alone
cannot
make
justice
on
community,
the
part
government
of
the
and
individuals,
the
judiciary
the
on
justice
is
concept
understood
standards
against
inequality
and
today
susceptible
to
judicial
evaluation
and
of
pro-women
international
human
rights
within
and
outside
the
country.
The
Chapter 8 304
The Role of Law in Empowering Women in India
not
change
enough
to
absorb
the
emerging
requires
disprove
the
lot
above
of
research
proposition.
to
As
prove
such,
or
any
of
women
today
on
different
wings
of
law,
what
performance
of
needs
to
judiciary
be
addressed
in
this
is
regard
how
can
the
be
few
landmark
decisions
of
superior
courts
Chapter 8 305
The Role of Law in Empowering Women in India
of
participation
of
women
get
from
the
and
number
of
legislations
has
provided
may
not
be
up
to
the
mark
but
still
with
Litigations).
the
help
These
of
Public
PILs
(Public
Interest
Interest
Litigations
Chapter 8 306
The Role of Law in Empowering Women in India
not
welcomed
by
all,
the
action
role
played
by
the
Judiciary
in
rule
of
locus
standi
and
at
the
time
of
of
aware
today.
of
far
reaching
Since
the
consequences,
precedents
we
are
have
the
no
need
Sabyasachi
to
get
Mukharji,
into
C.J.
the
debate
here
as
also
quoted
that,
C.
Ravichandran
Iyer
v.
Justice
A.M.
Chapter 8 307
The Role of Law in Empowering Women in India
the
ideals
meaningful
active
and
judicial
enshrined
in
reality.
The
roles
the
Constitution
society
which
demands
formerly
were
The
interpretation
of
every
statutory
permits
or
rather
does
not
prohibit,
not
operate
in
vacuum.
It
is
therefore
and
political
setting
in
which
it
is
inject
flesh
and
blood
in
the
dry
skeleton
Chapter 8 308
The Role of Law in Empowering Women in India
and
values
and
make
it
an
effective
constitutional
interpretation,
but
also
societal
demand
the
conditions
Judges
to
and
factual
speak,
situations
they,
without
and
remain
fast
static
changing
society
and
the
that
law
the
has
law
to
Chapter 8 309
The Role of Law in Empowering Women in India
principles;
interpret
the
statutes
and
the
not
shy
constitutional
human
rights
away
from
obligation
of
the
discharging
to
protect
citizens
and
their
and
enforce
while
acting
as
guardians
of
the
constitution,
accepted
judges.
He
the
says,
utility
of
cannot
legislation
understand
how
by
any
in
fact
negligence
or
exercised,
the
to
make
incapacity
of
up
the
for
the
avowed
legislator.4
Despite
of
plethora
of
legislations
due
to
http://www.legalserviceindia.com/articles/juju.htm
Chapter 8 310
The Role of Law in Empowering Women in India
Due
to
failure
of
legislations
to
women.
In
protecting
women
the
Indian
has
completely
constitutional
encouraged
revolutionized
litigations.
widest
The
possible
the
judiciary
coverage
of
has
the
has
was
shifted
conducive
from
to
pragmatic
all
approach,
interests
in
the
up
the
gap
created
by
the
legislative
import
through
the
process
of
judicial
laws
providing
for
protective
Chapter 8 311
The Role of Law in Empowering Women in India
discrimination
several
in
aspects
political
Through
favour
of
life
their
have
various
of
women
social,
come
up
devices
relating
economic
before
like
to
and
the
courts.
judicial
review,
of
enforcement
superior
Courts
in
of
fundamental
India
have
rights
evolved
the
gender
constitutional
discrimination
detailed
in
overview
scheme
favour
of
of
of
the
protective
women.
judicial
Below
is
approach
in
be
judiciary
convinced
has
been
so
with
the
fact
sensitive,
that
innovative
the
and
been
the
decisions
where
the
courts
have
liberty,
directive
right
principles
against
of
exploitation,
state
policy
the
and
Chapter 8 312
The Role of Law in Empowering Women in India
Judicial
Approach
in
the
matters
relating
to
Education:
Education is a part of the development of the
personality
of
all
in
general
and
woman
in
in
matters
of
admission
to
University
of
Madras
v.
Shanta
Bai,5
the
the
University
not
to
admit
women
into
the
were
opposed
to
Section
5(1)
of
the
Three
contentions
were
raised
by
the
discrimination
University
of
Madras
directions
were,
is
only
not
therefore,
by
a
the
State,
State
unaffected
the
and
its
by
the
Chapter 8 313
The Role of Law in Empowering Women in India
to
get
admission
into
an
educational
the
restrictions
are
reasonable
and
not
discriminatory.
The Court accepted all the three contentions in
favour of the University. The Court observed that:
Firstly, University is not a State, because it is
not maintained by State.6 Secondly, the combined
effect of Article 15(3) and 29(2) is that while men
students
have
colleges,
the
no
right
right
of
of
admission
womens
to
to
womens
admission
in
special
educational
Article
dealing
institutions
and
with
is
admission
the
in
controlling
Chapter 8 314
The Role of Law in Empowering Women in India
the
Commission,
appointed
in
1945
by
the
State
evil
and
University
not
good.
requires
The
that
Syndicate
colleges
of
the
which
seek
following
erroneous
considerations:
Firstly,
and
technical
technically
observed
aided
institution
State
and
the
that
and
is
educational
sense.
When
University
not
is
maintained
institutions
it
a
is
State
by
the
will
be
overriding
effect
to
Article
29(2)
on
the
Chapter 8 315
The Role of Law in Empowering Women in India
to
colleges.
constitution
provisions
given
being
are
equal
It
the
special
credence.
is
submitted
grundnorm,
provisions
Thirdly,
that
all
and
the
the
should
High
be
Court
was
for
based.
This
allowing
cannot
be
discrimination.
legal
The
court
position
reveals
the
fact
of
rule,
however
unconstitutional.
facilities,
the
sound
Fourthly,
Fundamental
it
may
be,
for
want
of
Rights
it
is
adequate
conferred
on
for
students
this
and
by
in
creating
failing
facilities
to
create
for
equal
Court
would
have
directed
the
State
and
female
colleges.
If
the
State
fails
to
for
long
time
and
shift
in
judicial
Chapter 8 316
The Role of Law in Empowering Women in India
by
Health
Housing
and
Municipal
30
per
admission
cent
to
seats
Medical
to
women
Colleges
candidates
in
Andhra
for
and
women
candidates
into
the
reservation
quota
that
the
contention
raised
by
the
said
15(3)
Article.
reservation
Thus,
for
in
women
view
of
the
Article
cannot
be
denied.
Chapter 8 317
The Role of Law in Empowering Women in India
In
Padmaraj
allotment
of
Samarendra
some
seats
v.
State
for
girl
of
Bihar8,
students
in
is
solely
based
on
sex.
The
Court
while
aptitude
patients
and
for
psychological
treatment
of
background
of
gynaecological
to
be
discrimination
on
the
ground
of
sex
alone.
2.
18(4)
of
the
Indian
Foreign
Service
Chapter 8 318
The Role of Law in Empowering Women in India
149
the
Court
upholding
the
principle
of
in
who
service
that
married
while
nurse,
in
male
service
or
was
ignoring
the
claim
of
woman
officer,
Articles
Constitution.11
Court
has
violative
which
and
Similarly,
held
of
14
the
Article
disqualified
the
Orissa
14
16
of
married
of
the
Orissa
High
Service
the
Rules
Constitution
women
from
being
Chapter 8 319
The Role of Law in Empowering Women in India
solely
by
accident
of
birth,
the
imposition
of
seem
system
to
violate
that
legal
relationship
the
basic
burdens
to
concept
should
individual
of
bear
our
some
responsibility.
women
violative
of
Article
14
of
the
Constitution of India.
What is said about the fair sex equally applies
to a pregnant women also as pregnancy also is not a
disability but one of the natural consequences of
marriage
and
is
an
immutable
characteristic
of
of
Regulations
and
Service
Air
of
India
Employees
Indian-Airlines
Regulations
were
declared
Service
(Flying
Crew)
against
the
India.
Employees
Regulation
Service
46(1)(c)
Regulations,
of
the
provided
Air
India
that
An
Chapter 8 320
The Role of Law in Empowering Women in India
first
pregnancy,
whichever
occurs
earliest.
the
services
of
an
Air
Hostess
under
such
utter
selfishness
at
the
cost
of
all
human
unreasonable
and
arbitrary
but
despotisms
this,
therefore
was
clearly
47
Director
further
can
extend
provided
the
that
retirement
the
age
Chapter 8 321
The Role of Law in Empowering Women in India
not
provide
any
guidelines,
rules
or
principles
on
the
mercy
Managing
Director.
and
Such
sweet
wide
and
will
of
the
uncontrolled
suffered
from
the
vice
of
excessive
Court
has
declared
unconstitutional
the
that
unmarried
women
were
to
give
up
service on marriage.
In C.B. Muthamma v. Union of India,16 the writ
filed by Miss Muthamma, a senior member of Indian
Foreign Service, speaks a story which makes one
wonder whether Articles 14 and 16 belong to myth or
reality.
It
was
unique
example
of
sex
Chapter 8 322
The Role of Law in Empowering Women in India
observed
that
Discrimination
against
the
for
appointment
of
lady
Principal
in
Constitution,
because
classification
is
Chapter 8 323
The Role of Law in Empowering Women in India
achieved.
In
addition,
the
empowered
to
make
special
such
State
Government
provisions
is
under
or
unjustified,
rules
providing
preventive
and
protective
measure
officials,
where
they
demanded
equal
Chapter 8 324
The Role of Law in Empowering Women in India
In Mrs.
Neera
Mathur
v.
Life
Insurance
and
when
terminated.
The
she
returned
reason
given
thereafter she
was
was
had
that
she
had
filled
their
questionnaire.
The
Supreme
about the
dates
of
their
menstrual
It, therefore,
directed
the
LIC
to
Chapter 8 325
The Role of Law in Empowering Women in India
requirement
of
husbands
consent
for
wifes
Bahadur
Thakur
(P)
Ltd.
v.
Chief
Pambanar
Tea
Estate
was
denied
maternity
Court,
however,
drew
attention to
Supreme
of
computing
maternity benefit
all
the
holidays
have
to
be taken
into
29
Chapter 8 326
The Role of Law in Empowering Women in India
30%
of
posts,
the
Supreme
Court
stated
in
say
that
under
Article
15(3)
job
cut
at
the
inspiration
very
behind
root
this
of
the
Article.
underlying
Making
special
under
the
state
is
an
integral
part
of
Ltd
v.
Article 15(3).
Also,
In
Mackinnon
Mackenzie
&
Co.
in
and
payment
such
of
wages
discrimination
to
lady
was
being
only
made
it
mandatory
to
pay
equal
ground
to
seek
exemption
from
the
Equal
Chapter 8 327
The Role of Law in Empowering Women in India
court,
the
Supreme
that, Performance
childbearing
a
women
and
necessarily
cannot
In
subsist
the
work
order
during
to
pointed
biological
of
involves withdrawal
of
for
some
for
her
enable
the
woman
and
to
this
out
role
she
also.
of
Court
period
period
medical expenses
worker
preserve
to
her
so
that
the
women
can
play
both
her
another
consequence,
the
judgment
of
far
reaching
Supreme
Court
in
Municipal
and
daily
nothing
in
the
entitles
only
wage
workers
Maternity
regular
also.
Benefit
women
There
Act,
employees
is
which
to
the
Chapter 8 328
The Role of Law in Empowering Women in India
Judiciary
has
played
an
active
role
in
Rajasthan30, Mackinnon
Andrey
Mackenzie
and
Co. Ltd. v.
in
39(a)
and
is implicit
the Constitution
in
say
the
court
that
and
of
the
remuneration
in
Article
hence
14
become
law. In other
court
within
the
Article
16
of
enforceable
words we
can
has brought
the
contours
fundamental
of
equal
right of equality.
3.
is
provisions
giving
matter
of
rights
Article
to
of
hot
15(3)
women
for
controversy
can
be
whether
invoked
securing
for
political
Chapter 8 329
The Role of Law in Empowering Women in India
that
the
general
prohibition
against
to
political
rights
and
therefore,
the
clear
that
discrimination
sex
in
is
favour
of
valid
women
ground
for
for
securing
Article
15(1)
keeping
in
view
provisions
of
Article 15(3).
In
Dattatrays
Motiram
v.
State
of
Bombay32,
of
the
petitioner
that
discrimination
in
based
on
other
considerations.
It
was
also
those
special
provisions
for
women
are
Chapter 8 330
The Role of Law in Empowering Women in India
not
have
been
enacted
at
all
as
proviso
to
not
women.
discriminate
Thus,
the
in
favour
legislation
of
men
does
against
not
offend
was
no
Government
reservation
may
participation
authorities
of
in
well
take
women
are
before
they
their
favour
the
view
necessary
decide
and
in
any
that
local
question
relating to them.
The
Assam
High
Court,
in
Beney
Bhusan
1923
providing
discrimination
in
voting
not
as
Constitution.
rightly
violative
It
decided
is
the
of
Article
submitted
case.
15(3)
that
Because
of
the
of
the
court
exemption
Chapter 8 331
The Role of Law in Empowering Women in India
of
Parishads
Act,
Bihar
Panchayat
1961,
Samitis
providing
for
and
Zila
co-option
of
challenged.
The
Patna
High
Court
while
prevailing
in
this
country
can
be
as
clause
(3)
operates
in
the
nature
of
society.35
provided
for
The
thirty
Rajasthan
per
cent
Government
of
wards
has
in
Chapter 8 332
The Role of Law in Empowering Women in India
Municipalities,
Municipal
Corporations,
Gram
in
discernible
view
in
of
Article
another
way.
15
The
(3)
is
also
judiciary
has
in
disadvantageous
discrimination.
Thus
in
position
by
Cracknell
v.
way
of
State
of
while
declaring
the
provisions
proprietors
in
an
arbitrary
manner
and
of
the
Act
discriminates
against
women
spirit
of
unconstitutional.
Article
The
15(1)
Parliament
and
has
therefore,
provided
Chapter 8 333
The Role of Law in Empowering Women in India
women
in
the
year
1992
by
Seventy-third
and
assumed
importance?
Answer
is
straight
and
the
four
political
walls
parties
of
have
their
failed
houses.
to
Third,
promote
all
their
Chapter 8 334
The Role of Law in Empowering Women in India
has
harassment
increased
not
only
in
number.
includes
The
rape
or
sexual
physical
or
indirectly
physical
pornography;
as
contact
demand
or
sexually
and
advances;
request
for
coloured
showing
sexual
favours; any other unwelcome physical, verbal/nonverbal conduct being sexual in nature.
Many instances showed the practice of sexual
harassment of the women. Sexual Harassment not only
hurts the physical body but also rips off the soul
of women. It has rightly been observed by Justice
Arjit
Pasayat,
While
murderer
destroys
the
Chapter 8 335
The Role of Law in Empowering Women in India
Keeping
her
apart
from
all
the
social
activities
Looking with suspicious eyes
Defamation in the society.
Fear of the society, fear of defamation of
the family in the society.
Due
to
the
harassment
above
cases
reasons
goes
many
unreported
sexual
as
they
human
fear
the
of
rights
society
violator.
plays
Here
the
the
greatest
Court
decisions
was
relied
very
upon
primitive
literal
and
most
of
interpretations
the
of
Chapter 8 336
The Role of Law in Empowering Women in India
penetration,
unchaste
character
of
women
and
cases
and
like
Laiq
Pratap
Singh
Mishra
v.
State
v.
of
State
U.P.39
of
the
indicates
the
consent
of
the
prosecutrix.
But in 1978 when the Supreme Court acquitted
the accused in TukaRam v. State of Maharashtra40,
popularly known as the Mathura Trial, the judgement
was not accepted silently. The facts of the case
are as:
The
Sessions
insufficient
to
Judge
convict
found
the
the
accused.
evidence
The
Bombay
the
compound
of
Desai
Ganj
police
chowky
in
Chapter 8 337
The Role of Law in Empowering Women in India
had
come
to
register
complaint,
were
chowky
down,
the
two
guilty
policemen,
At
the
Sessions
Court,
Mathura
was
not
be
construed
as
willing
sexual
on
distinguish
submission.
her
body.
between
This
The
judgment
consent
judgement
and
did
not
forcible
highlighted
the
marked
judgement
piloted
the
voice
of
Chapter 8 338
The Role of Law in Empowering Women in India
them
more
effective
in
providing
justice
to
victims.
Again in Prem Chand v. State of Haryana41 the
Supreme Court reduced the minimum sentence of 10
years for rape to 5 years on account that the raped
girl was a woman of easy virtue. This again caused
an agitation and criticism by women organisations
which resulted in filing of a review petition. The
petition failed to sustain as the Apex Court just
clarified position.
In another shameful decision42 the Delhi High
Court
allowed
rapist
to
go
scot-free
merely
above
are
the
few
examples,
enough
to
Chapter 8 339
The Role of Law in Empowering Women in India
from
the
purview
of
above
mentioned
only
very
thoughtfully
but
also
very
petition
under
Article
226
of
the
Chapter 8 340
The Role of Law in Empowering Women in India
of
the
eastern
railway
claiming
by
the
railway
security
men.
The
High
railway
was
not
liable
to
pay
the
the
Civil
Court
for
have
seeking
the
above
said
contentions,
the
Chapter 8 341
The Role of Law in Empowering Women in India
was
involved
as
the
petitioner
was
Sakshi
v.
Union
of
India45,
the
judges
of
rape]
would
result
in
chaos
and
Law
Commission,
under
the
chairmanship
of
Chapter 8 342
The Role of Law in Empowering Women in India
The
Supreme
Court,
however,
agreed
with
Sakshi that the 156th Report did not deal with the
precise
issues
raised
in
the
writ
petition.
In
detailed
consultations
with
the
part
of
the
body
and
objects,
taking
into
intercourse
as
contained
in
penetration
penile/oral,
such
as
penile/vaginal,
finger/vaginal,
and object/vaginal.
finger/anal
Chapter 8 343
The Role of Law in Empowering Women in India
rape
of
young
boys
has
been
neglected by law.
5. A new offence, namely section 376E with the
title unlawful sexual conduct should be
created.
6. Section 509 of the IPC was also sought to
be
amended,
where
the
providing
offence
set
higher
out
in
punishment
the
said
rape:
explanation
(2)
of
section
be
by
treated
husband
with
equally
as
his
an
wife
offence
that
victim
consented
to
the
Chapter 8 344
The Role of Law in Empowering Women in India
sexual
act
and
it
is
denied,
the
court
the
difference
between
will
and
pretext
made
by
the
man
then
the
consent
remarkable
decision
in
the
Delhi
highlights
the
judicial
sensitiveness
recent
violence
times,
there
has
been
against
women
causing
an
increase
serious
in
concern.
justice
system.
harshest
penalties,
but
There
often
are
times
cries
such
for
crimes
Chapter 8 345
The Role of Law in Empowering Women in India
experience
which
shakes
the
foundations
of
the
one,
impairing
relationships,
their
altering
capacity
their
for
behaviour
defects
in
the
present
system
are:
experience.
The
evidence
in
has
court
experience
been
of
giving
negative
and
the
court
proceedings
added
to
and
complainants
should
be
representation.
of
sexual
provided
It
is
assault
cases
with
legal
important
to
have
Chapter 8 346
The Role of Law in Empowering Women in India
someone
who
is
well-acquainted
with
the
advocate
to
the
would
victim
not
the
only
be
nature
of
to
the
to
how
she
might
obtain
help
of
mind
assistance.
counselling
It
is
or
important
medical
to
secure
same
person
complainants
who
looked
interests
in
after
the
the
police
assault
might
very
well
be
in
the
guidance
lawyer
at
this
stage
being
questioned
assistance to her.
and
and
would
support
whilst
be
of
of
she
was
great
Chapter 8 347
The Role of Law in Empowering Women in India
in
mind
or
whose
own
lawyer
was
unavailable.
5.
The
advocate
shall
be
appointed
by
the
earliest
order
to
questioned
convenient
ensure
without
movement,
that
undue
but
victims
delay,
in
were
advocates
before
leave
of
the
court
was
sought or obtained.
6. In all rape trials anonymity of the victims
must be maintained, as far as necessary.
7. It
is
necessary,
Directive
having
Principles
regard
contained
to
the
under
set
up
Criminal
Injuries
Compensation
Chapter 8 348
The Role of Law in Empowering Women in India
Board.
Rape
substantial
victims
financial
frequently
loss.
incur
Some,
for
The
Board
will
take
into
account
earnings
due
to
pregnancy
and
the
examine
the
same
and
shall
take
necessary
decision
recognises
the
right
of
the
awarded
by
the
Court
on
conviction
of
the
Chapter 8 349
The Role of Law in Empowering Women in India
Central
offence
of
Government.
rape
has
If
the
Court
jurisdiction
trying
to
award
an
the
decision
Forum48,
in
the
Delhi
Domestic
jurisdiction
to
Working
pay
interim
jurisdiction
of
the
Courts
trying
the
against
basic
human
rights
as
also
the
from
the
above,
this
Court
has
the
present
allegation
case
that
in
which
Bodhisattwa
there
Gautam
is
serious
had
married
Chapter 8 350
The Role of Law in Empowering Women in India
interim
compensation
during
the
pendency
of
Class,
Kohima,
Nagaland.
He
shall
Narayan
Mardikar,49
upheld
the
right
to
sexual
subordination
acts
against
vision
in
her
this
will.
approach
Antiinfused
has
been
credited
with
establishing
sexual
her
employment.
49 (1991) 1 SCC 57
50 AIR 1997 SC 3011
The
petitioners
bringing
the
Chapter 8 351
The Role of Law in Empowering Women in India
action
were
governmental
various
social
organisations.
activists
The
and
primary
non-
basis
of
was
to
realisation
find
of
suitable
the
true
methods
concept
of
for
the
gender
was
filed
in
order
to
establish
the
11
and
24
of
the
Convention
on
the
disposing
of
the
writ
petition
with
fundamental
occupation,
trade
or
right
to
profession
carry
depends
on
on
any
the
Chapter 8 352
The Role of Law in Empowering Women in India
for
legislature
its
and
instances
of
enforcement,
the
belongs
executive.
sexual
to
When,
harassment
the
however,
resulting
in
32,
effective
guidelines
for
should
laid
be
redress
the
requires
protection
down
to
of
fill
that
these
the
some
rights
legislative
vacuum.
In
light
of
these
deliberations,
the
Court
prevent
discrimination
for
women
in
the
workplace.
These
upon
guidelines
the
included
employer
commission
of
apply
appropriate
and
the
a
acts
to
definition
includes
unwelcome
of
of
the
responsibility
prevent
sexual
or
harassment
settlement
sexual
sexually
deter
and
the
and
resolutions
harassment
determined
which
behaviour
to
Chapter 8 353
The Role of Law in Empowering Women in India
sexually-coloured remarks;
showing pornography;
any
other
unwelcome
physical,
verbal
or
would
be
responsible
for
taking
the
For
private
should
be
employees,
included
in
the
the
guidelines
relevant
employment guidelines;
in
order
to
establish
reasonable
potential
petitioners
against
Chapter 8 354
The Role of Law in Empowering Women in India
victimisation
or
discrimination
during
potential proceedings;
take
all
steps
necessary
and
to
be
accordance
treated
with
as
Article
declaration
141
of
the
of
law
in
Constitution
The
for
court
its
gathered
feminist
reasoning
from
vision
as
Convention
an
on
Directive
Principles
of
State
Policy,
Chapter 8 355
The Role of Law in Empowering Women in India
of
Vishaka
reasoning
in
Apparel
found
guilty
of
sexual
harassment
of
aggravated
of
higher
rape
(including
punishment.
It
gang
rape)
is
also
Chapter 8 356
The Role of Law in Empowering Women in India
for
corroboration
prosecutrix
before
conviction.
Evidence
of
the
recording
has
to
be
evidence
an
of
the
order
of
weighed
and
not
of
the
prosecutrix,
confidence
and
there
if
is
her
evidence
absence
of
to
be
reliable
and
trustworthy.
No
Chapter 8 357
The Role of Law in Empowering Women in India
upon
the
circumstances
of
the
case)
the
accused
is
proved
and
the
question
is
and
her
that
will.
improved.
lower
than
the
The
offence
situation,
was
however,
Conviction
rates
for
any
major
crime
other
committed
has
rape
are
and
the
Chapter 8 358
The Role of Law in Empowering Women in India
the
victimized
women,
rather
than
the
as
victims
circumstances
rather
of
than
adverse
as
socio-economic
offenders
in
our
prostitution
and
gender-oriented
Chapter 8 359
The Role of Law in Empowering Women in India
activists
fight
for
the
plight
of
these
was
written
by
Dr.
Upendra
Baxi
and
Dr.
phases
and
ultimately
the
Supreme
Court
Chapter 8 360
The Role of Law in Empowering Women in India
Section
15(4)
or
rescued
under
Section
heard
either
(assigned
District
by
the
Court
proceedings
in
person
Legal
Aid
concerned)
including
or
through
Committee
at
every
admission
to
lawyer
of
stage
the
of
Protective
sides.
If
under
Section
15(4)
and
Section
guidelines
also
required
Magistrates
to
Magistrates
returned
to
notice
that
prostitution,
the
such
person
giver
of
has
the
Chapter 8 361
The Role of Law in Empowering Women in India
It
was
further
suggested
that
the
post
of
by
woman
police
officer
and
that
there
Bholanath
Tripathi
v.
State
of
U.P.56,
earning
money
by
prostitution.
The
Supreme
and
if
satisfied
allegations,
to
remove
prima
her
to
facie
about
the
safe
place
and
confined
prostitution
prostitution.
and
itself
to
Article
Interpreting
the
23
in
Article
held that:
56 1990 Supp SCC 151: 1990 SCC (Cri) 543
57 (1990) 3 SCC 318
issues
the
23,
of
child
context
the
of
court
Chapter 8 362
The Role of Law in Empowering Women in India
prohibition
very
of
wide
traffic
expression
in
women
including
for
the
immoral
or
other purposes.
Expressing its disappointment the Court said:
Prostitution always remains as a running sore
in the body of civilisation and destroys all moral
values. The causes and evil effects of prostitution
maligning
the
society
are
so
notorious
and
Therefore,
track
the
marked
necessity
with
for
broken
hopes.
appropriate
and
is
highly
deplorable
to
note
that
many
Chapter 8 363
The Role of Law in Empowering Women in India
The
Supreme
Court
Division
Bench
speaking
and
speedy
laws
prostitution
in
complaint
without
of
action
under
eradicating
child
giving
remissness
room
for
any
or
culpable
indifference.
2.The
State
Governments
and
Governments
of
Welfare
Secretary
of
Sociologists,
Womens
Department
the
or
Law
Criminologists,
Organisations,
Board,
the
Department,
Members
Members
of
of
the
of
organisations
various
and
voluntary
associations,
social
the
main
Chapter 8 364
The Role of Law in Empowering Women in India
social
implemented
welfare
programme
for
care,
treatment,
the
to
be
protection,
development
rehabilitation
of
the
and
young
fallen
by
well-qualified
trained
social-
Committee
should
be
set
up
to
evolve
level
for
the
care,
protection,
children
and
girls
and
to
make
Chapter 8 365
The Role of Law in Empowering Women in India
if
so
warranted
for
the
prevention
of
implementation
that
would
be
made
of
the
by
the
suggestions
respective
committees.
6. The Advisory Committee should also go deep
into
the
tradition
and
Devadasi
and
give
suggestions
system
their
as
to
and
Jogin
valuable
advice
what
best
the
Supreme
Court
delved
into
the
problem
of
In
the
initial
PIL
which
dealt
with
prostitute
women
in
particular
Ramaswamy,
J.
on
the
constitutionality
of
several
Chapter 8 366
The Role of Law in Empowering Women in India
entire
judgment
was
thereafter
reviewed
and
on
the
causes
of
prostitution
the
Court said:
The Mahajan Committee Report, indicates that
in two villages in Bihar and some villages in West
Bengal, parents send their girl children to earn in
prostitution
earnings
and
for
the
girls
maintenance
in
of
turn
their
send
their
families.
It
children
for
prostitution
in
expectation
of
years
the
fallen
women
are
accustomed
to
children.
In
case
of
birth
against
their
Chapter 8 367
The Role of Law in Empowering Women in India
forms.
In
the
process
of
maintaining
the
bondage.
Thereby
this
process
lends
of
alternative
source
of
income,
their
remain
in
the
red-light
area
but
lack
of
to
the
plight
of
prostitutes
the
Court observed:
The prostitute has always been an object and
was
never
seen
as
complete
human
being
with
of
collectively.
Their
her
own
problems
individually
are
compounded
or
by
Chapter 8 368
The Role of Law in Empowering Women in India
many
settle
for
prostitution.
rear
children.
Their
children
are
equally
fallen
shocking
women
sexual
as
criminals
abuse.
They
or
as
are
objects
victims
of
of
against
female
foeticide
Techniques
Act,
1994.
ultrasound
under
(Regulation
Therefore,
centres
the
and
it
Pre-Natal
Prevention
is
for
the
encouraging
Diagnostic
of
Misuse)
first
time
Chapter 8 369
The Role of Law in Empowering Women in India
part
of
population
stability.
Expressing
confiscate
ultrasound
equipment
from
clinics
Maharashtra,
Gujarat,
Andhra
Pradesh,
Chapter 8 370
The Role of Law in Empowering Women in India
Governments
are
directed
to
take
that
the
State
Governments
were
casually
registration
if
the
application
form
is
not
complete.
The
court
ultrasound
also
asked
the
machinesPhilips.
manufacturers
Symonds,
of
Toshiba,
This,
government
the
find
court
out
said,
whether
would
these
help
clinics
the
or
Chapter 8 371
The Role of Law in Empowering Women in India
six
weeks
status
reports
regarding
prosecute
clinics,
centres
and
laboratories
Chapter 8 372
The Role of Law in Empowering Women in India
By
the
prosecutions
intervention
have
been
of
the
launched
Apex
Court,
against
the
CEHAT
v.
Union
of
India63,
further
of
appropriate
authorities
for
the
Chapter 8 373
The Role of Law in Empowering Women in India
courts
are
in
cases
sensitive
of
to
violation
the
of
human
international
of
Seventh
Schedule
authorises
the
cogens,
automatically
making
the
incorporated
in
international
the
municipal
law
laws
Chapter 8 374
The Role of Law in Empowering Women in India
also
brought
increasing.
as
class
activists
and
attention
towards
assisting
in
realisation
equality
working
The
NGOs
action
with
this
finding
of
and
women
the
petition
certain
aim
of
was
social
focussing
societal
aberration
and
suitable
method
the
true
all
by
the
preventing
in
present
concept
for
of
gender
sexual
harassment
workplaces
through
of
the
of
the
writ
petition
was
an
incident
of
because
criminal
it
case.
was
But
the
the
subject-matter
incident
revealed
of
a
the
depravity
to
which
sexual
harassment
can
nature
results
in
violation
of
fundamental
Chapter 8 375
The Role of Law in Empowering Women in India
under
Article
19(1)(g)
to
practise
any
under
Article
fundamental
32
for
rights
of
the
enforcement
women.
This
of
class
reason
and
writ
of
mandamus
in
such
by
directions
for
prevention
as
the
fundamental
occupation,
trade
or
right
to
profession
carry
depends
on
on
any
the
life
means
responsibility,
dignity
through
life
with
for
ensuring
suitable
dignity.
such
The
primary
safety
legislation
and
and
the
Chapter 8 376
The Role of Law in Empowering Women in India
instances
of
sexual
harassment
resulting
in
redress
under
Article
32,
an
effective
Seventh
Schedule
of
the
Constitution
which
workplaces,
the
contents
of
international
the
guarantees
of
gender
equality,
Chapter 8 377
The Role of Law in Empowering Women in India
The
court
was
of
the
opinion
that
any
Article
Parliament
51(c)
to
and
enact
the
laws
enabling
for
power
implementing
of
the
available
till
Parliament
enacts
32
for
the
enforcement
of
fundamental
meaningful.
Governance
of
society
by
the
Chapter 8 378
The Role of Law in Empowering Women in India
these
declared
should
by
the
be
the
Supreme
guidelines
Court
to
and
govern
norms
the
equality
includes
protection
from
is
universally
recognised
basic
human
and
norms
are,
therefore,
of
great
Chapter 8 379
The Role of Law in Empowering Women in India
alia,
to
formulate
and
operationalise
act
as
rights,
to
mechanism
public
defender
institutionalise
monitor
the
of
womens
national-level
implementation
human
of
the
sexual
harassment
to
be
violation
of
meaning
and
content
of
the
fundamental
equality
harassment
forms
or
part
including
abuse.
of
the
prevention
Independence
constitutional
of
of
sexual
judiciary
scheme.
The
them.
It
is
now
an
accepted
rule
of
Chapter 8 380
The Role of Law in Empowering Women in India
Nilabati
Behera
v.
State
of
Orissa67
taken
compensation
that
is
an
not
enforceable
alien
to
the
right
to
concept
of
conventions
and
norms
cannot,
sexual
particularly
workplaces,
specified
harassment
against
we
Lay
hereinafter
sexual
down
for
and
abuse,
harassment
Guidelines
due
more
and
observance
at
Norms
at
all
Chapter 8 381
The Role of Law in Empowering Women in India
workplaces
or
other
institutions,
until
in
exercise
of
the
power
available
under
workplaces.
Indeed
historic
judgment,
Sakshi69,
Commission
to
examine
the
issue
and
the
Chapter 8 382
The Role of Law in Empowering Women in India
individuals
working
against
female
foeticide
v.
Union
of
India70.
This
case
sought
Act.
An
interim
order
was
issued
by
the
to
consider
amending
the
Act.
(PNDT)
and
the
ultra-sound
and
the
pre-
one
procedures
ambit
are
&
control.
clarified
in
The
ultra
detail.
It
sound
also
system,
has
not
relying
been
much
able
on
to
the
nab
necessary
the
truant
Chapter 8 383
The Role of Law in Empowering Women in India
doctors
and
clients
engaged
in
this
nefarious
X-Y
separation
as
per
Delhi
Artificial
declared
that
even
the
sex-workers
is
case
of
brutal
murder
of
sex
of
poverty.
Society
must
have
sympathy
towards the sex workers and must not look down upon
them. They are also entitled to a life of dignity
in view of Article 21 of the Constitution.
71 Criminal Appeal No. 135 of 2010, the order dated February 14, 2011
Chapter 8 384
The Role of Law in Empowering Women in India
technical/vocational
training
and
in
what
them
employment.
For
instance,
if
Gujarat
of
Women
government
(Prohibition)
has
recently
Act,
1986,
authorised
implementation
notification.
of
the
Act
through
Chapter 8 385
The Role of Law in Empowering Women in India
seeking
authorities
courts
to
take
directive
effective
to
steps
the
to
state
prohibit
writing,
representing
photograph
women
in
an
and
the
indecent
like
manner
by
but
came
before
hearing
after
eight
long
of
this
earlier
notification
Act.
this
appointing
After
month,
police
this,
issued
the
the
inspectors
to
Judicial
Approach
of
protective
discrimination
for
Authorities
preferred
applicants
grant
without
any
of
women
license,
the
applicants
provision.
The
Excise
to
men
Allahabad
Chapter 8 386
The Role of Law in Empowering Women in India
is
submitted
that
the
Court
rejected
that
over
male
applicants
without
any
Baghu
the
High
Ban
Saudagar
Division
Court
Singh
bench
upheld
of
the
v.
the
State
Punjab
order
of
of
and
the
and
sex.
So
the
women
performing
jail
treatment
interest
of
irrespective
maintaining
of
sex
and
administrative
Chapter 8 387
The Role of Law in Empowering Women in India
Aparna
Basu
Mallic
v.
Bar
Council
of
student
from
Calcutta
University.
student.
In
Smt.
Choki
v.
State
of
of
Criminal
Procedure
Code,
1898
which
State
can
make
special
provision
for
the
Chapter 8 388
The Role of Law in Empowering Women in India
Article
15(1)
by
observing
that
the
be
confined
to
provisions
which
are
we
able
to
agree
that
provision
which
Chapter 8 389
The Role of Law in Empowering Women in India
two
Articles
14
and
15
read
together
punishable,
classification
is
under
based
Article
on
14,
and
does
valid
not
public
morals,
decency
decorum
and
the
Article
15
of
the
Constitution
Chapter 8 390
The Role of Law in Empowering Women in India
Further,
this
Constitution
and
clause
protects
both
post-Constitution
the
pre-
laws
the
Judicial
Approach
in
the
matters
relating
to
assets
develop
to
accord
personality,
opportunity,
to
be
source
independent,
to
thus
the
Honble
made
to
Supreme
Section
Court
14(1)
repelled
of
the
the
Hindu
Chapter 8 391
The Role of Law in Empowering Women in India
possessed
by
female
Hindu,
whether
acquired
was
on
the
ground
that
the
said
section
Supreme
enacted
Hindu
to
Court
remedy
women
held
to
and
that
some
that
Section
extent
there
14(1)
the
was
plight
hardly
was
of
any
women
was
taken
due
note
Jagannathan
Pillai
v.
Kunjithapadam
Thotasesha
Rathamma
v.
Thota
of
in
Pillai82,
Manikyamma83,
C.
Chapter 8 392
The Role of Law in Empowering Women in India
Masilamani
Muddaliar
v.
Idol
of
Sri
emphasis
of
Gender
equality
as
the
as
female
Hindu
who
possessed
the
her
advantage.
If
not
for
such
liberal
Chapter 8 393
The Role of Law in Empowering Women in India
held
apply
to
that
the
the
Indian
Christians
Succession
Act
will
Kerala
after
the
of
maintain
his
wife,
minor
sons,
unmarried
of
to
earning.
He
maintain
his
cannot
wife
plead
due
that
to
he
is
financial
constraints.
While interpreting the Guardianship law in the
light of Article 15 by the Supreme Court in Githa
Hariharan89 equated the position of mother to that
of father in the matter of guardianship. This is
another
feat
women.
87 1986 (2) SCC 209
88 (1996) 4 SCC 479
89 (1999) 2 SCC 228
in
strengthening
the
position
of
Chapter 8 394
The Role of Law in Empowering Women in India
The
sense
of
insecurity,
humiliation
and
is
such
that
for
any
unsuccessful
women
may
be
officially
discredited
but
succession,
adoption,
guardianship
and
have
fewer
rights
than
that
of
man
in
Chapter 8 395
The Role of Law in Empowering Women in India
fundamental
rights
in
their
light.
make
any
legislation
for
political
reasons.
Personal laws are also subject to part III
of the Constitution.
Many
provisions
of
personal
laws
violate
Chapter 8 396
The Role of Law in Empowering Women in India
dismissed
the
writ
petition
in
Ahmedabad
employing
the
traditional
rules
of
challenges
to
bigamous
marriages.
In
Chapter 8 397
The Role of Law in Empowering Women in India
By
making
the
burden
heavy
on
the
go
the
court
scot-free
and
helped
let
accused
women
in
put
to
bigamy
gross
refused
to
accept
the
plea
of
the
second
Cr.P.C.
void.
No
on
the
amount
ground
of
that
social
the
context
marriage
and
was
social
however
persuaded
to
consider
sanction
of
Chapter 8 398
The Role of Law in Empowering Women in India
interim
maintenance
pending
decision
of
the
rape
cases
the
court
initially
insisted
on
and
reduced
sentences
of
rapists
including
the
years,
the
legislature
and
the
of
female
victims
are
no
longer
respect
of
construing
property
rights
of
the
rights
of
women
to
claim
Chapter 8 399
The Role of Law in Empowering Women in India
constructive
Succession
possession
Act97
even
under
in
absence
the
Hindu
of
actual
property
rights
of
Hindu
women.
inequality
in
section
6(a)
of
the
for
whatever
reason99.
Thus
the
mothers
of
minor
children
equal
rights
Chapter 8 400
The Role of Law in Empowering Women in India
court
felt
that
the
absence
of
legislation
series
of
guidelines
to
be
observed
in
all
for
the
purpose.
The
court
literally
fairly
through
mechanism
which
the
court
landmark
in
gender
justice
late
taken
progressively
liberal
approach
judgment102.
This
was
done
even
when
the
Chapter 8 401
The Role of Law in Empowering Women in India
on
the
importance
Uniform
Civil
of
the
Directive
Code
for
promoting
the
legislature
to
initiate
necessary
the
incrementally
judicial
laws
itself
some
uniformity
to
the
Court
that
and
matrimonial
However,
later
removal
evolve,
rights
in
communities103.
Code,
stating
tried
constitutional
different
Civil
itself
using
review,
of
Uniform
Courts
on
restrained
of
gender
policies
with
which
the
court
will
not
justice
is
mixed
of
traditionalism
and
3614
Chapter 8 402
The Role of Law in Empowering Women in India
the
court
double
has
compelled
standards
governments
in
of
their
change
and
political
approach
to
exposed
the
parties
the
and
plight
of
domestic
through
application
judicial
themselves
of
international
interventions
potential
and
weapon
for
law
gave
to
continuing
is
the
cardinal
principle
of
the
of
aspiration
been
women.
of
enacted
In
gender
tune
with
equality
relating
to
infanticide,
dowry,
exposure
advertisements
and
films,
atrocities
and
maternity
benefits,
pregnancy,
various
prohibition
of
female
molestation,
prohibition
constitutional
abduction
medical
of
child
laws
of
have
female
women
in
marriage,
and
termination
prostitution
rape,
of
and
Chapter 8 403
The Role of Law in Empowering Women in India
to
afford
better
protection
to
women
is
of
women
ordinarily
seek
justice
are
not
to
be
knowledge
the
that
applicable
approaches
law,
and
it
is
attitudes
common
towards
of
despite
difference
the
law
in
the
being
outcome
common
to
of
all.
the
In
case
other
picture
regard.
judicial
of
judicial
second
yardstick
performance
in
performance
for
gender
in
this
assessment
justice
is
of
the
appear
victims,
before
lawyers
or
them
as
litigants,
subordinate
staff.
witness,
This
is
of
justice/injustice
in
the
system
Chapter 8 404
The Role of Law in Empowering Women in India
which
build
or
erode
their
confidence
in
the
of
the
system
in
respect
of
gender