Dr. Priti Saxena, Head, Deptt. of Human Rights, School for Legal Studies, Babasaheb Bhimrao Ambedkar Central University, Lucknow.
UNDOUBTEDLY, THE right to equality and all other human rights are all applicable to men and women equally, but due to some extra responsibilities of women in the society like, childbirth, child-care, domestic well being and spiritual growth, the ancient Bhartiya thinkers considered that womanhood require special protection. The best method to protect the right was to ingrain the ideal of ‘Respect for Womanhood’ in every individual and in particular in men through moral education right from the inception and at all levels of education. This was thought of as the best method by which human right to protection could be secured to women. This right became the most cherished value of life in Bharat from times immemorial. Woman as a mother came to be regarded as God incarnate, Supreme Being and Guru due to her natural role of mother, dearest person on earth to an individual, love and affection to her children and sacrifices for the sake of her children. Every woman and even small girls came to be addressed as Ma- Amma etc., which means Mother. This cultural value is firmly rooted in every individual and has proved to be the best guarantee to protect the rights of woman. This is perhaps the most valuable human right envisaged and cultivated in this land since hundreds of centuries.(1)
Human rights are those rights, which are possessed by every human being, being a human. These human rights belong to every human being irrespective of his or her nationality, race, religion, sex and colour. The human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international Covenants and enforceable by courts in India.(2) These rights are Universal and cut across all National boundaries.
The promotion and advancement of human rights and fundamental freedom, is one of the pillars on which the international organisation has been raised. UN Charter and Universal declaration of Human Rights are the two endeavours of international rights to ensure freedom from racial, sexual and religious discrimination in a variety of ways. To carry out research, training and international; activities worldwide to promote women as key agents of development, the General Assembly established “International Research and Training Institute for the Advancement of women, and secondly to change the unequal situation of women in social, political and economic relations the General Assembly created UN Development Fund for Women (UNIFEM) with two aims. First, to ensure the involvement of women in main stream development activities at national, regional and international levels, and secondly to support innovative and experimental activities which benefit women and are in line with national and regional priorities. UNIFEM collaborates with other United Nation Organisations, e.g. UNDP, ILO etc.
At the outset, UN Charter makes its commitment to equality. The prominence of human rights in its preamble and promotion of human rights is witnessed from various articles e.g. article 1(3), 55(c), 56, 62(2), 68 and 76(1). The preamble of the Universal Declaration of Human Rights sets as a basic goal ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, I the equal rights of men and women. Discrimination in the enjoyment of human rights is prohibited under the principal human rights instruments. Article 2 of the Universal Declaration of Human Rights states, ‘everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'(3) Article 2 of the International Covenant on Civil and Political Rights states, ‘each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Again Article 3 of the Covenant put a specific provision that “state parties must ensure the equal right of men and women to enjoy all civil and political rights set out in the covenant. Similarly, international Covenant on Economic, Social and Cultural Rights under article 2 prohibits any discrimination and Article 3 specifically ensures the equal right of men and women to the enjoyment of all economic, social and cultural rights set out in the covenant.
The specific international instruments dealing with women are the Convention on the Elimination of all Forms of Discrimination against Women, (CEDAW); Convention on Political rights of Women; Convention on the consent of Marriage, minimum age of Marriage and Registration of Marriages; Convention on the recovery abroad of Maintenance. Besides these conventions there are optional protocol to the Convention on Elimination of discrimination against Women 1999 and Beijing Declaration 1995.
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, or 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, and civil or any other field.”
Article 2, requires State parties to condemn discrimination against women in all its forms, and to agree to pursue a policy of elimination such as discrimination. This article requires the States to take a number of measures which include embodying the principle of the equality of men and women in national constitutions or legislations; adopting legislative measures prohibiting discrimination against women; establishing legal protection of the rights of women on an equal basis with men; and taking measures to eliminate discrimination against women by any person, organisation or enterprise.
It is also germane here to refer the recommendations made by Amenesty International in its campaign to promote women’s human rights: some of them are:-
1. Governments should recognise that women’s human rights are universal and indivisible.
2.Ratify and implement international instruments for the protection of human rights.
3.Eradicate discrimination, which denies women’s human rights.
4. Safeguard women’s human rights during armed conflict.
5. Stop rape, sexual abuse and other torture and ill-treatment by Government agents and paramilitary auxiliaries.
6. Stop persecution because of family connections.
7. Safeguard the health rights of women in custody.
8. Prevent human rights violations against women refugees and asylum seekers and displaced women.
9. Promote women’s rights as human rights through official programmes of education and training.
10. Armed political groups should safeguard women’s human rights.(4)
India is a signatory to various International Conventions, Covenant and Protocols on human rights including women’s rights, and has thus assumed the responsibility to provide various rights to the concerned, accordingly. Besides international recognition to the human rights jurisprudence the Suprema lex also conferred the basic human rights under part III and IV thereof. The preamble of the Constitution of India guarantees dignity of individual and equality of status, and opportunity to the Indian citizens. The Constitution of India empowers the state to adopt means of affirmative action in favour of women.(5) Part IV A inserted by 42nd constitutional amendment also put a fundamental duty on the citizens of India under Article 51A (e) “……………. To renounce practices derogatory to the dignity of women“. There are other Statutes specifically meant for the equality rights of women and for her protection. But it is a matter of common knowledge that offences, discrimination and injustice against women by men have been a reality throughout human history and not vice versa. Women, despite the printed rhetoric, suffer discrimination and indignity so damnable that dehumanisation is the gender reality of today’s world order. This is also the scenario of gender discrimination and human rights hypocrisy in the land of Sita, sentenced to life in forest, and Sati, sentenced to incinerated death. Woman has to face the Sita-Sati syndrome. Woman is practically denied the right to life, to dignity and all those freedoms which are natural for a human, in the presence of international instruments of gender care and concern. She is unjustly treated as unequal by society for the genetic sin of her discriminated sex. She suffers gender devaluation at home, at work, in literacy, in matrimony, in inheritance and related rights, in economic opportunity, public life and power process.(6)
Discrimination, based on gender is heinous and ruins the whole life of women, also known as second sex. Gender based discrimination reveals the ugly face of the society. This is not a new issue. This is globally accepted issue with varying degree. The great irony is that the women, who earlier constituted half of the world’s population (7), remain the victim of inequality and injustice. The development of women as a human being is neglected. This neglect is occupying prominent place globally. The challenge today is to overcome with gender inequality, gender imbalance, gender inequity, that is to say-discrimination. Gender discrimination is the most pervading forms of institutionalised deprivation.(8)
The basic human rights and freedoms which are to be enjoyed by men and women equally are not being enjoyed by women. The institution of women is deprived due to various established reasons in the name of customs and traditions, right from the birth till death. Now with scientific and technological advancement even before birth through Pre-Natal Diagnostic Techniques. The gender imbalance is writ large. Statutory provisions are there but this high-tech-sexism (9) is a reality. Second sex, fair sex as the women is called, is conferred with secondary status in the society. She is not allowed to take birth. If birth is taken place, she is not given proper care, as to her counterpart i.e. male baby in the family. Preferential treatment is given to the male baby in every walk of life. She has to observe various norms being a female baby. She is not allowed to go schools, if allowed, will be dropped at an early stage. Then starts another journey that is of child marriage / marriage. Parents have to give large dowry in marriages. If the demands of bridegroom or his family are not fulfilled then the torture starts in various ways resulting in cruelty, desertion, divorce with an ULTIMATE of dowry death.
Again, the female of any age can be a victim of rape, molestation, sexual harassment, obscenity, indecent representation, trafficking etc. These offences are against the very dignity of woman rendering her incapable of her proven capacities, capabilities and abilities. This violates her own self and deprives her to enjoy the human right of life and personal liberty. Men behave inhumanly against women. “While the legal and cultural embodiments of patriarchal thinking vary among different cultures, there is an astounding convergence of cultures in regard to the basic tenets of patriarchy and the legitimacy, if not necessity, of violence as a mechanism of enforcing that system.”(10) Whatever may be the cause, but the fact is that the rate of offences against women is increasing every year.
The Indian govt. ratified CEDAW in 1993. CEDAW is considered to be a dynamic attempt to achieve equality. The Declaration on the Elimination of All Forms of Violence Against Women, adopted by the UN General Assembly in Dec.1993, defines violence against women as meaning any act or gender based violence that results in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Violence is responsible in all contexts, because this has a negative impact on the development and empowerment of women in every sphere of life.(11) The development of a woman as a human being has a direct impact on the development of nation and consequently on global development. She has to live a life full of inequalities and disparities leading to lack of position and power in the society as a whole, starting from her own family. She is not allowed to take part in the important decision making process.(12) She is an unpaid doer of house hold chores. Her working capacity, ability and contribution are always undervalued even when we boast of modern civilization.
No doubt, we have women who are competent in various professions, avocations, business, political rulers, bureaucrats, technocrats, scientists, astronauts, advocates, judges, teachers, sports and WHAT NOT? Indira Gandhi, Sonia Gandhi, Kiran Bedi, Kalpana Chawla, Sunita Williams, Sania Mirza, Indira Nooyi, to name a few, require no introduction. They are engaged in all activities. Their economic and social status has improved a bit, not as expected. They are more educated. Their awareness is increased. Still they are facing many gender inequalities and discriminations. Some has been done; much more has to be done. There is a need to bring women in the mainstream for the nation’s development. Insistences on women empowerment must be the prime concern for the nation to develop fully. She may be empowered by giving participation in decision making. She should be the beneficiary as well as participant in the development process. At the global level as well as in India, this had been recognised but the fact is that across the world, women work more than men and across the world women work is underpaid, undervalued and unrecognised. Once Pandit Jawaharlal Nehru spoke on the upliftment of women in India that, ‘in order to awaken the people, it is the women who have to be awakened first’.
True, if nation has to develop globally, the special provisions for women’s human rights at national and international level are to be implemented properly.
Of course, Indian judiciary has taken a lead in implementing not only the special provisions related to women’s human rights and other provisions that brings gender equality but also in its adventurism by giving new orientation and interpretation to constitutional provisions, particularly Articles 14 and 21. The Supreme Court in Air India V. Nargesh Meerza (13) while striking down a rule which provided that the services of an Air hostess shall stand terminates on the first pregnancy observed that, “……… this is a most unreasonable and arbitrary provision which shocks the conscience of the Court…..” the Supreme court declaring the rule as unconstitutional held that ………….. termination of services ………. is not only a callous and cruel act but an open insult of Indian Womanhood- the most sacrosanct and cherished institution” (14) Unequal treatment, ‘but-for-sex’ amounts to gender based discrimination leading to a quest for justice (15) Mother can be treated as a natural guardian in the absence of father under section 6 (a) of the Hindu Minority and Guardianship Act, 1956, was held in Gita Hariharan V. Reserve Bank of India & Ors. (16) In the absence of a domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at workplaces, the contents of international conventions and norms are significant for the guarantee of gender equality, the right to work with human dignity in Articles 14, 15, 19(g) and 21 of the Constitution of India, held in Vishaka V. State of Rajasthan(17) The apex court, with a view to assist rape victims issued guidelines in the famous case of Delhi Domestic Working Women’s Forum V. Union Of India(18) regarding legal assistance anonymity, compensation and rehabilitation to rape victims, with directions to NCW to evolve a scheme for providing adequate safeguards to these victims.(19)
In Seema V. Ashwani Kumar(20) the apex court accepting opinion(21) of National Women Commission held that “Marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective state; where the marriage is solemnised”. In Manjula V. K.R. Mahesh (22) the apex court through Justice Arijit Pasayat, in a writ petition for divorce allowed sufficient arrangements for the daughter considering the welfare of the ultimate victims of marital disputes. In Lata Singh V. State of UP (23) the right to marry person of one’s choice was held in National interest. The Supreme Court held that there is no bar to inter-caste marriage under the Hindu Marriage Act or any other law. This is a free and democratic country and once a person becomes major he or she can marry whosoever he/she likes. This decision will have a direct impact on reducing dowry cases and other marriage related dispute where woman is considered as a second class citizen.
In Centre for enquiry in to health and allied themes (CEHAT) V. Union of India(24) the Supreme Court gave a set of directions to the Central and State Govts. including Union Territories for proper implementation of the Pre-Natal Diagnostic Techniques Act, 1994. (25)
The judiciary has done a commendable job to uplift women status, to confer equality, to avoid injustice, to save them from violence but whether judiciary has achieved gender neutrality in its judicial system? What, in ultimate, is the cause of gender inequality globally? We have laws at national and international level to curb inequality and discrimination. We have judiciary to pronounce with a soft touch to women equality. We have our old values to ‘Respect for Womanhood’; still we are witnessing gender discrimination. Where lies the fault? Is it lack of communication or adjustment? Is it the victory of greed and materialistic needs over love, affection and human values? Whether laws are really dynamic instruments to curb the institutionalised deprivation of women’s human rights? Whether the dynamic instruments fashioned by the society to achieve equality in human relations by eliminating social conflicts of superiority of men over women have achieved the desired objectives? The answer is ‘No’. The largest democracy of the present day world, i.e. India is lacking to guarantee the basic human rights to her citizens, the constitutional obligation of our democracy. Universality of human rights demands eradication of gender inequalities globally. Human rights are inter-related with human development including, of course, women development. But the massive inequalities and social evils flowing from GENDER alone render the enjoyment of women’s human rights wholly illusory. Therefore, on the basis of above discussions I want to conclude with the following words of Martin Luther King “Morality can not be legislated but behaviour can be regulated”. So we ourselves have to do something creative against the institutionalised deprivation.
1. Human Rights and Indian Values, Justice M. Rama Jois, 1998 at 49.
2.Section 2(d) of Protection of Human Rights Act, 1993.
3. See also Articles 4, 7, 16, 18, 23 and 26.
4. Gender Justice: Human Rights Perspectives-Triumph or Turmoil: Victor or Vanquished? Dr. Justice Jitendra N. Bhatt (2006) 4 SCC J.S. at 3.
5. See also Articles 14, 15(1), 15(2), 15(3), 15(4), 16, 16(3), 17, 18, 23, 23(1), 39(a), (d), (e), 42, 43 and 51A (e) of the Indian Constitution.
6. Justice V.R.Krishna Iyer, ‘Human Rights and Human Wrongs’, edn. 2001, pp. 83-111.
7. Now due to increased Female Foeticide we can not say that women constitute half of the world’s population.
8. See note 4 supra.
9. See Priti Saxena, “Infanticide to Foeticide- the High-Tech-Sexism”, Journal of Human Rights and Justice, Dec. 2006 at 173-178.
10. Rebeca cook.J, “State Accountability under the convention on discrimination against women in Rebecca Cook J, edn. Human rights of Women– National and International Perspective, University of Pennsylvania Press,Philadephia, 1994,at 532-72.
11. Several countries all over the world have already acknowledged domestic violence as a separate class of abuse including India. The London Coordinating Committee on family violence based in London, Ontario is an established community-wide Coordinating Committee; the famous ‘Duluth model’, (Domestic Abuse International Project) in Duluth, Minnesota in the U.S. is operated by a Domestic Violence Project Coordinator; ‘The Australian Domestic Violence Act’ 1986 is working with the office of Domestic Violence Prevention Council.
12. Decision making in various areas, e.g. as IAS, IPS, MP, MLA, Ministers or in other services.
13. AIR 1981 SC 1829
14. See also Priti Saxena, ‘Written Laws Unwritten Differentiation and Fair Sex’ AIR, 1997 J.S. at 101
15. Air India Cabin Crew Assn. V. Yeshawinee Merchant (2003) 6 SCC 277
16. (1999) 2 SCC 228
17. (1997) 6 SCC 241; see also, Apprel Export Council V. A K Chopra (1999) 1 SCC 759 and Priti Saxena, “Judicial Legislation to curb Sexual Harassment at workplaces,” Mahila Vidhi Bharti, July-Sep. 1997 at 278)
18. (1995) 1 SCC 14.
19. See also Priti Saxena, “Spoilers of Purity Leaving Victims to Suffer -Whither Justice?” (2001). Cr. L. J. at 97;Bodhisattwa Gautam V Shubhra Chakrabarty (1996) 1 SCC 490; State of H.P. V. Shreekant Shikari (2004) 8 SCC State of M.P. V. Munna Choubey (2005) 2 SCC 710.
20. (2006) 2 SCC 578,
21. The affidavit filed on behalf of the NCW indicated’ that the Commission is of the opinion that non-registration of marriages affects the most and hence has since its inception supported the proposal for legislation on compulsory registration of marriages. Such a law would be of critical importance to various women – related issues such as:-
(a) Prevention of child marriages to ensure minimum age of marriage
(b) Prevention of marriages without consent of parties
(c) Check a legal bigamy/ polygamy
(d) Enabling married women to claim their right to live in the matrimonial house, maintenance etc.
(e) Enabling Widows to claim their inheritance rights and other benefits and privileges which they are entitled to after the death of their husband
(f) Deterring men from deserting women after marriage
(g) Deterring parents/guardians from selling daughters, young girls to any person including a foreigner, under the grab of marriage.
22. (2006) 5 SCC 461
23. (2006) 5 SCC 475
24. (2001) 5 SCC 577
25. See also Priti Saxena, Infanticide to Foeticide – the High-Tech Sexism. Indian Journal of Human Rights and Justice Vol. 2 Nos. 1-2, (2006): 173-178.