Evolution of Women Empowerment –A Chronological Study

As history has witnessed, women have ever been put to the unfortunate fate of tolerating discrimination at every stage. Women has denied indiscriminately down the ages for the conferment of rights and their enjoyment to take part in any kind of activities in the society  equal to that of men.

Inception of Indian Constitution in the mid of the twentieth century is an evidence of adoption and recognition of human rights. It is worth noting that in the same period at the global level a unity and consensus took place for the prevention and protection of human rights.  Freedom and equality became the core for study and exercise of human rights activists. The problem is that how to make freedom and equality compatible to each other.                                                            

Constitution guarantees the discriminatory justice and rule out any kind of discrimination. Further in the journey of human rights there are special provisions for women to uplift their status for achieving the objectives of women empowerment by providing the equal rights and their enjoyments in the social structure. Constitution of India is coupled with two indispensable components as Welfare State and Rule of Law. 

Each man, when born, is endowed with reason, freedom and equality are the two indispensable natural rights ordained by divine law. These natural rights are enshrined as an integral part in the Constitutional fabric of the Indian polity. Preamble¹ of the Constitution of India consists of the concept of socialism and equality. To ensure Liberty and equality to all without discriminatory treatment part III and part IV are provided by constitution. 

Under Article14 of the Constitution the State ensure equality to any person within the territory of India which means State shall provide equal opportunity and also protect against all forms of discrimination. 

Equality is an indispensable balancing instrument in the fundamental values of the Constitution. It is not possible to visualize the Constitution not including equality which is a main shaft in the Constitutional mechanism. The concept of equality is also constituted as the essential part of Preamble to Indian Constitution. 

The Apex Court² speaking about Article 14 of the Constitution guaranteed on Aristotle version, ‘equality among equals.’ The Apex Court while interpreting this Article said that it means to rule out the discriminatory behavior by providing the discriminatory justice. However it can only be operated with the principle of rational classification. The purpose of justice is to protect and to place persons similarly placed against the discrimination prevailing in the social structure. Further the Court held that an aggrieved person who claims that there is no equal treatment by law must set up that both persons are in similar circumstances and situation.

Articles 14 to 16 guarantees the dispensation of justice founded on the doctrine of equality. Now it is a settled principle that Article 14 does not bar rational classification. However at this juncture it has become an established legal principle and view that there cannot be comparison between right to equality and discrimination preventive actions. The concept of equality denotes comparative equality which means equal should be treated equally and unequal should be treated unequally. Inequality is only permitted where it is referred to disadvantageous group to prevent the discriminatory treatment or required to put them on the equal status.

The Court has referred in catena of cases recognized assumptions of law on rational classification while discussing and interpreting Articles 14 to 16, as mentioned below³:

1. In case of Gender discrimination the reasonable discrimination for achieving an object is permissible;
2. In case of different sets of circumstances, the argument of unequal treatment is not tenable;
3. Inequality would be aggravated if there is equality of opportunity for unequals;
4. Equality of opportunity admits discrimination is permitted to provide equal opportunity but it requires reasons whereas no reason is required to prohibit discrimination. Discrimination with reasons means rational classification for differential treatment having nexus with constitutionally permissible objects⁴.
5. Sex is a sustainable ground and it is a reasonable classification.
6. Article 15 (3) permits the State for special legislation to protect women ;
7. Articles 14, 15 and 16 are to be interpreted inclusively.

In the first half of nineteen thirties feminists came forward and demanded reforms in Hindu personal laws and strongly raised their voices first time for codification of Hindu law. Women organizations have demanded that there should be a clear law on marriage, women rights to divorce, maintenance and inheritance, and dowry should be treated as ‘Stridhan’. However after a long struggle of feminists, Parliament has enacted four different Hindu laws in 1955-56 relating to Marriage, Succession, Minority and Guardianship, and Adoption and Maintenance. Temporary silencing was in feminist actions when the Constitution of India has guaranteed equality against all form of discrimination including sex discrimination.

Feminist activist could remain silent as they understood that the promised equality to women is deception or eye wash and it has assembled all the women’s organizations on a single platform in between nineteen-seventies and nineteen-eighties. It was the period in which the Indian feminist began to march under the umbrella of radical feminism evolved by the legal scholars in Harvard University of USA. Their argument was that present laws are made with male vision and there is no space for women future and empowerment therefore they demand a different law addressing the problems of women facing in all walks of life and such address should be based on their vision and experience derived from their family and social structure.

Feminist wave has provided in legal realm a bed to the women empowerment and has also laid down a basis for socialization and democratization of law. The major contributed was that women has strongly raised the voices for their rights and demanded to be heard and represent both in law and society. Feminist proposition was that law is not a natural creation, it is formulated by human being therefore it can completely be changed. Social and moral values are integral fabric of law that justifies it. In fact, it is the germ out of which the modern international human rights have developed. Feminist legal thought has played a vital role in elaborating the newly discovered moral foundations of law.

Some jurists have expressed the view that feminism is not more than an outcome of the Critical Legal Studies movement because in the beginning a class of feminist legal thinkers contributed a session in which there was a reaction against the positivism based on an inherent logic of the law, to the principles of the Critical Legal Study movement in the year of nineteen hundred and seventy. At the beginning, the first step was taken by feminism as rejection of the barriers drawn by positivism which have derecognized the equal opportunity to women with men and ruled out the social values in defining the law.

The proposition of the theory that women are oppressed or disadvantaged in comparison with men is neither warranted nor justified. The center of gravity of feminism lies neither in formal legal structure nor in male addressing history but lies in legal values of democracy. To secure female future, the core principle is the realization of substantive equality corresponding with affirmative liberty for women in all walks of life

The object of Feminist philosophy is to achieve equality in all forms and activities of human being by instrumentality of State.  Seeds of feminist jurisprudence were academically sown on the campus of Harvard University in the 1960s. It has played an important role not only in legal thought but also compelled the cotemporary legal philosophers to think and coin the law in view of female vision and their experiences. It resulted that gender-based discrimination was addressed in every sphere of women life and a march has taken place to prevent and protect the women against inequality of sexes.

Legal feminism which generated as a distinct level of thought in the second half of the twentieth century has now acquired an elevated position not only in the feminist movement worldwide but also at the level of international and national laws Feminist represents uniformity in diversity. The diversity is only in terms of means and modes to achieve its desirable objectives. This philosophy and theory propound an anti-thesis of patriarchy and make concrete efforts to tilt the balancing wheel with the tool of equality for dispensing the gender justice as synthesis.

The theory studies law from the vision and experiences of women and to make an attempt to secure their rights in the spaces of existing law (Liberal Feminism). But some jurists are disagreeing and hold the opinion that there is no scope to secure their rights in existing law and they have demanded different law in the areas of domestic violence, employment, sexual harassment, civil rights, taxation, human rights, and reproductive rights (Radical Feminism). This approach has widened the scope of legal philosophy by encircling all the discipline of human behavior.

Here, it is worthwhile to mention that the valuable contribution of MacKinnon’s work, The Sexual Harassment of Working Women, was presented before Supreme Court of India in writ petition and it was seriously taken up by the Court and also recorded in judgment. Supreme Court has issued an order against the State to identify workplace sexual harassment as a crime against women⁵.

The aforesaid study reveals that in spite of well equipped legislation for conferment of rights to women, negligible rights are there in the lap of the women. It may be stated that the problem lies in the enjoyment of rights and male chartered prescriptions to regulate and control the day to day behavior of women everywhere. The crux is that women should develop their self decision capacity by acquiring the political, social and economic strength. Human rights became a center of gravity at global level in first half of the twentieth century and a good number of conventions are made by United Nations with the assent of member States for women welfare.

Conclusively three suggestions may be advanced:

1. for the empowerment of women the following three wings must be strengthen –

1. Women and International Conventions
2. Women and political policies with its implementation in India
3. Women and the adjudication by Supreme Court of India.

2. The Supreme Court while protecting the women rights addressing itself to real equality and dignified of life for women has declared the law under Article 141 of the Constitution in catena of cases like Vishl Jeet⁶, Vishaka⁷ (declared in 1997became Law in 2013) and Gaurav Jain⁸ Cases, but there is no impact of these decisions on the Parliamentary constituency as such and still awaiting a formal legislation by the Parliament.Supreme Court could issue the directions in the judgment by employing a new device ‘prospective-prospective overruling’⁹ which binds the Parliament to enact a formal and effective legislation within a given time for compliance of the decision otherwise after the stipulated period the judgment of the Court would be a law.     
3. The much awaited uniform civil code as envisaged under Art.44 should be enacted to effectuate real equality between men and women in the personal laws of various religious sections of the Indian society. The above suggestions if implemented in their true spirit would go along with the creating a Happy Tomorrow for the women folk in India with the hope that ‘if winter comes can spring be far behind?’

Footnotes

1. Preamble of The Constitution of India ↩︎
2. Western U.P. Electric Power & Supply Co. Ltd. v. State of U.P. (1969) 1 SCC 817 ↩︎
3. Vijay Lakshmi V. Punjab University and Ors.,2003 (8) SCC 440 ↩︎
4. St. Stephen’s College V University of Delhi (1992)1 SCC 559 ↩︎
5. Vishaka Case AIR 1996 SC 1864 (Catharine A. MacKinnon and Reva B. Siegel, eds., Yale University Press 2004); ↩︎
6. 1990 SCR (2) 861 or 1990 SCC (3) 318 ↩︎
7. AIR 1996 SC 1864 ↩︎
8. [1997] 8 SCC 114 ↩︎
9. Dennis Lloyd, “Lloyd’s Introduction to Jurisprudence” 1994 6th ed. Sweet and Maxwell London ↩︎