WOMEN RIGHTS REGIME IN INDIA: JUDICIAL EXPOSITION

Synopsis of the Dissertation

Submitted to Guru Gobind Singh Indraprastha University, Delhi in partial

fulfilment of the requirement of Degree of Bachelor of Law

BY

ASHISH RAWAT
00510303814

AMITY LAW SCHOOL

BLOCK F-1, AMITY UNIVERSITY,
SECTOR 125, NOIDA-201303
 INTRODUCTION

The rig vedic period was the last time in our culturally rich country when women were allowed
some basic rights like attending sabhas and samitis, read and compose verses. With the passage of
times, even these miniscule rights were also abrogated and women started to be treated as chattels
of husbands and property received in marriage. Moreover, books shedding light on our past are also
suggestive of women engaged in slavery and bonded labour. The position of women in India hit
rock bottom in medieval times when they were subjected to a plethora of social evils like Sati
System, Female Foeticide, honour killing and others. Women, in the medieval times did not
potentially possess any social, financial and political rights and a large section of them were devoid
of any formal education. This period was also witness to a complete absence of women in the
political regimes in the country saving a few women like Rani Laxmibai. This inferior, excluded
and oppressed position of women continued to be the same in the medieval times and did not make
any significant improvement until the later period of the British Raj in India.

With the advent of nationalistic feelings in the masses of Indian people in the early 20th century did
women really start to raise a voice for their long forgotten and abdicated rights. Women played a
major role in various national movements where they marched against the oppressive rule of British
along with the men of the country. One such historic movement was the Dandi March led by
Mahatma Gandhi where women of the Malwa region actively participated in breaking the obsolete
salt law and manufacturing salt on the shores of Dandi. Activities like picketing of liquor shops and
providing moral support to the freedom fighters were taken up by the women to assert their stand in
the fight for the freedom of the country and at the same time, building a firm base for the
development of their rights in the future. Women participation was also seen in the organised armed
revolt aginst the country when a separate regiment called ‘The Rani Jhansi Regiment’ was
incorporated in the Indian National Army led by Netaji Subhash Chandra Bose. Early twentieth
century also saw the rise of women in educational field as a lot of women took upto to pursuing
literature and doctorate studies both in India and Abroad.

Fortunately, the improvement in their status has all been uphill since then. Numerous legal
developments have paved way for a secure and equal environment for women to rise in India in
both social and economical standards but the conservative and patriarchal mindset of the society has
greatly hindered its progress. Legal developments often frustrate their main objectives owing to the
political motives of the democratically elected governments and this is where the role of judiciary
sets in which has constantly been shattering old and obsolete societal norms and overcoming
various political and social hurdles in pro women laws.
This dissertation delves into the role of judiciary in acting as the facilitator of women rights in India
along with the challenges it had to face and overcome to achieve this present scenario where women
are not only aware of their rights but are actively participating in achieving them.
Recent times have witnessed certain judicial pronouncemnts in empowering of women like granting
Maintainance rights to Muslim women in the 1970s, criminalising sexual harassment of women at
workplace in the landmark case of Vishakha vs. State of Rajasthan. Recognising rights of women
in marriage by striking down the archaic law of Adultery in the IPC in Joseph Shine vs. Union of
India, abolishing forms of untouchability against women by granting them entry in the ancient
Sabarimala temple in Kerala in the famous case of Indian Young Lawyers Association vs. State of
Kerala, along with protecting muslim women from being given Talaq-e-Biddat by their husbands in
the most recent case of Shayara Bano. The Judiciary has also been active in filling up of lacunaes
in legal statutes in the country like granting adoption rights to single woman or providing equal
rights in inheritance, adoption and maintainance.

The main reason for the intervention of the judiciary in interpreting and promoting women rights in
the country seems to be the apparent impotency of the laws already in place to protect these rights
of the women. Furthermore, the judiciary has been able to exercise its duty to deliver impartial
justice more effectively in the present century due to reasons like reduced political interferences in
the adjudication mechanism, globalisation leading to increased awareness of people of the rights
regime in western countries, incorporation of certain international rights in filling up the lacunae in
the domestic law. One such example of such incorporation is of the Vishakha case in 1997 where
the Supreme Court took help of the UDHR(Universal Declaration of Human Rights), 1948 to
provide justice to the victim in the case on the basis of rights provided in the international charter.
The Supreme Court till now, has been sucessful in preserving and promoting women rights in the
country and and such fruitful endeavours are what will enable India to make a smooth yet timely
transition into a developed nation.
 STATEMENT OF PROBLEM

Achievement of women rights in India has been overdue for long, owing to lax implementation of
laws already in place, unwillingness of the society to reform its outlook towards granting equal
rights to women. Political and societal factors have, to some extent, slowed down the process of
developing these rights in our country. The role of judiciary has been of one who proactively
defends and guarantees these inalienable and fundamental rights accruing to women.
The main reasons for the intervention by the judiciary in interpreting women rights in India have
been the lax implementation of laws already in place, reduced political interfernce in judicial
framework, apparent reluctancy of the society to discard old and obsolete norms realting to women
rights in the country, impact of globalisation in the growth in awareness among the masses
reagarding their rights and judiciary’s recent stand on encorporating international laws in domestic
laws for compensating the loopholes and lacumaes in the latter.
 OBJECTIVES OF RESEARCH

To verify the hypothesis and for the purpose of this submission, the objectives for this study are:
1. To ascertain the reasons for discriminated and unequal position of women in India.
2. To trace the legal development made in favour of granting equal and protective rights to
women.
3. To study the approach and actions of the Indian judiciary in protecting the rights of women
in India.
 RESEARCH QUESTIONS
1. Have the Indian laws been successful in providing certain basic, fundamental, social,
cultural and economical rights to the women in our country? If not, then what have been the
hurdles in providing these rights to women?
2. What has been the role of various Indian courts in providing rights to the women in our
country?
3. What are the major reasons for the intervention of Indian courts and judicial activism in the
development of women rights regime in the country?
 SURVEY OF LITERATURE
1. Women Rights: Definition and Meaning
Which rights are included under "women's rights" has varied through time and across
cultures. Even today, there is some disagreement about what constitutes women's rights.
Does a woman have a right to control family size? To equality of treatment in the
workplace?
Flavia Agnes, in her book “Women and Law in India” has very lucidly defined the
concept of women rights and what these rights mean in the contemporary times. The same
has been elaborated in the following way -1Usually, "women's rights" refers to whether
women have equality with the rights of men where women and men's capacities are the
same. Sometimes, "women's rights" includes protection of women where women are subject
to special circumstances (such as maternity leave for child-bearing) or more susceptible to
mistreatment (trafficking, rape).2In more recent times, we can look at specific documents to
see what was considered "women's rights" at those points in history. Although the concept of
"rights" is itself a product of the Enlightenment era, we can look at various societies in the
ancient, classical and medieval worlds, to see how women's actual rights, even if not defined
by that term or concept, differed from time to time.

1 Women and Law in India by Flavia Agnes, Monmayee Basu and Sudhir Chandra
2 https://www.globalfundforwomen.org/womens-human-rights/#.XDsGHrFh1mA
2. Women Rights through the course of time:
Ram Sharan Sharma in his book, Ancient India, has shed light on the status of women
rights during the ancient period. He has explained their rights to be in a state of deterioration
in the later vedic phase and clearly subservient to men with the oncoming of the christian
era. Women, till the transition into the medieval period were usually not allowed certain
basic rights like right to be a part of the political process, speech and expression,right to
engage in trade, etc.
The condition of women in the medieval phase has been well elaborated by Satish Chandra
in his book Medieval India. Here, the author has portrayed women rights in critical
condition where the status of women was reduced to be a mere chattel of the husband.
However, Bhaktism, Sufism, Virshaivism and similar cults provided a much needed refuge
to women by providing them religious freedom as they were allowed to compose poems,
form regional religious sects and others.
The History of Modern India by Rajiv Ahir has given an articulate picture of the
condition of women rights in the later medieval period and the modern period. According to
Mr. Ahir, women in this phase saw an amelioration in the condition of their rights owing to
the social awreness of the society and endeavours of religious reformers like Raja Ram
Mohan Roy, Dayanand Saraswati and others.

3. Role of Indian laws in the development of women rights:

Dr. Salagare B., in his research paper titled, “Status of Women’s Rights In India” has dealt
with the reasons because of which the legal development in India often fail to achieve their
objective of granting and protecting women rights in the country.
Lots of legislation, enactments and laws have been prepared and passed to protect women
namely:
 The Prohibition of Child Marriage Act, 2006
 The Indian Penal Code, 1860
 The Criminal Procedure Code, 1973
 Special Marriage Act, 1954
 Dowry Prohibition Act, 1961
 Indian Divorce Act, 1969, etc.
Yet with all these laws, legislations and enactments the problem could not be addressed fully
and properly as desired. Though there are some stringent laws to contain crimes against
women, yet the menace and intensity of crime have not come down rather the graph of
crime against women is on upward trend. And the real reason behind this increment in the
 graph of crime does not only lie in the legislation but the implementation. 3Even so many
new amendments have been made in the criminal law which have come up with the stricter
laws, but the main thing is they do not reach out to the needy ones, rather they are being
misused via false filing of the cases and the reasons for this upward trend of commission of
crime against women though the state is armed with so many laws are not known. The state
is unable to prevent commission of crimes rather it is increasing.
3. Role of Judiciary in the development of the Women Rights Regime:
The last decade and the year 2018, in particular, has been witness to a slew of reforms
brought about by the Supreme Court of India in the field of women rights. Some of these
judgements are mentioned below:

 JOSEPH SHINE vs. UNION OF INDIA (Sec. 497 of IPC)

This judgement decriminalised the act of adultery on the grounds that, under this
archaic law, women were being treated as a mere chattel of the husband whereby
only his consent or connivance mattered in ascertaining the fact whether the crime
of adultery could be made out or not. The same also judgement also recognised the
rights of women in marriage.

 Indian Young Lawyers Association vs The State Of Kerala (Sabarimala case)

In 2018, The Supreme Court allowed entry of women in to the Sabarimala temple in
Kerala on the grounds that the practice of prohibiting the entry of women aged 10-
50 years of age is violative of Article 17 of the Constitution of India.

 4
Vishakha vs. State of Rajasthan
although this case was decided in the year 2017, its relevance is till important in
understanding the background of the 2013 act relating to protection of women from
sexual harassment at workplace.

 5Shayara Bano vs. Union of India (Triple Talaq)

The Supreme Court of India, in this case criminalised the act of ‘TALAQ-E-
BIDDAT’ or triple talaq whereby a muslim husband could give talaq to her wife
merely by pronouncing talaq thrice.

3 Salagare, Dr.Mallappa, Status of Women’s Rights in India (December 1, 2015). ISSN:2348-4349, Impact Factor
(2015) - 3.5930, KAAV International Journal of Arts, Humanities & Social Sciences Status
4 Vishakha and ors. vs. State of Rajasthan and ors. (1997) 6 SCC 241
5 Shayara Bano vs. Union of India (2017) 9 SCC 1
 HYPOTHESIS
For the purpose of this study, the following hypotheses have been framed:
 Women rights, from ancient to early modern times, did not witness any potential
development.
 Women rights regime in India has not been able to fully utilise the legal protection and
modernisation trends relating to development of women rights in the country.
  Indian judiciary, in contemporary times, has aided in the enhanced development of women
rights in the country.
 .Women have come a long way in achieving and realising their rights and there is still scope
for further development.

RESEARCH METHODOLOGY

The research methodology shall be Doctrinal and Analytical:

1. Doctrinal research: In the dissertation, reference shall be made to various judgements and
findings of the honourable Supreme Court of India and various High Courts in the country.
Also reference to various legal statutes and ordinances brought in the country pertaining to
women rights shall be made.
2. Analytical research; Efforts will be made to analyse judgements of various courts, legal
statutes and social tradition and practices to critically evaluate the impact of all the
aforementioned sources on the amelioration or deterioration in the conditions of women in
India.

TENTATIVE CHAPTERIZATION
1. INTRODUCTION: The introduction shall skim through the conditions of women rights in
the country from ancient times to the present. A brief reasoning shall also be made to
comprehend the social, political, economic and religious undertones that led to the
conditions of those rights mentioned earlier.

2. WOMEN RIGHTS IN INDIA: A HISTORICAL OVERVIEW- This chapter shall deal

with the tracing of the status of women rights from the ancient to the modern period.

3. LEGAL : Legal and Personal laws of different communities and their presence acting as
facilitating the rights at some times and posing certain hindrances in the development of
women rights shall be briefly discussed in this chapter.

4. JUDICIAL EXPOSITION: This chapter shall delve into the study of various judgements
and findings of various courts in the country. This portion will be studied in depth and
efforts shall be made to critically analyse the impact of these rulings and findings on the
condition of women in the country. Besides this, the chapter shall also skim through the
hurdles that the Indian Judiciary had to face so as to achieve the conditions prevailing today.

5. CONCLUSION: The conclusion shall sum up all the findings and give an articulate picture
of the existing achievements and hindrances in the desired development of women rights in
the country.
 PROPOSED RESEARCH SOURCES
BIBLIOGRAPHY
The following are the proposed resources for references:

PRIMARY SOURCES:

 The Prohibition of Child Marriage Act, 2006

 The Indian Penal Code, 1860
 The Criminal Procedure Code, 1973
 Special Marriage Act, 1954
 Dowry Prohibition Act, 1961
 Indian Divorce Act, 1969
 Maternity Benefit Act,1861
 Medical Termination of Pregnancy Act,1971
 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013
 Indecent Representation of Women(Prevention) Act,1986
 National Commission for Women Act, 1990
 Equal Remuneration Act, 1976

SECONDARY SOURCES:
BOOKS
 Ancient India-- Ram Sharan Sharma
 Medieval India-- Satish Chandra
 Modern India-- Bipan Chandra
 A brief history of Modern India-- Rajiv Ahir (IPS)
 Women and Law in India-- Flavia Agnes, Monmayee Basu, and Sudhir Chandra

ARTICLES AND ONLINE SOURCES:

 https://www.manupatrafast.com
 https://www.livelaw.in/women-laws-india/
 http://www.legalservicesindia.com/article/1862/Judicial-Activism-and-Women-
Empowerment-In-India.html
 http://shodhganga.inflibnet.ac.in/bitstream/10603/127676/18/10_chapter%204.pdf
  https://www.indiafoundation.in/gender-justice-and-women-empowerment-judicial-
and-legislative-interventions/
 Salagare, Dr.Mallappa, Status of Women’s Rights in India (December 1, 2015).
ISSN:2348-4349, Impact Factor (2015) - 3.5930, KAAV International Journal of Arts,
Humanities & Social Sciences Status

JUDGEMENTS:
 Vishakha and ors. vs. State of Rajasthan and ors. (1997) 6 SCC 241
 Shayara Bano vs. Union of India (2017) 9 SCC 1