Ashok Bhan
Academically the human rights are classified in terms of generations. The first generation rights are the civil and Political rights, such as freedom of expression, freedom of religion, right to property etc. These are called negative rights, these entail protection against the State. The second generation of rights are socio-economic rights, such as right to education, right to health, right to basic housing/shelter etc. They are termed as positive rights, requiring resources, allocation, redistribution and positive action by the State – The third generation of rights are those that belong to community and future generations – environmental rights right to humanitarian assistance etc. A resolution adopted by the world conference on human rights, in 1993 stated – “All human rights are universal, indivisible, interdependent and interrelated.”
The Constitution of India encompasses and encapsulates all the three generations of the rights explicitly and by innovative interpretation – In Part – III of the Constitution The fundamental rights, mostly are civil and political rights, in the Part – IV, non-enforceable directive principles of State Policy, contain Socio – economic rights – the judiciary in India (Supreme Court of India) has made Article – 21 (right to life and liberty) as the fountainhead of all generations of rights and declared that the provisions of Part – III and Part – IV of the Constitution must be construed harmoniously (Minerva Mills case).
In this write up, I am putting across, some study as a constitutional Lawyer based on available data on the “WOMEN’s RIGHTS’ as Human Rights – to highlight the jurisprudence on the rights of women.
United Nations convention on Elimination of Discrimination against women, 1979 (UNCEDAW), condemns discrimination against women in all its forms and calls upon the States to take all appropriate measures to eliminate discrimination and improve the condition of women, some of the problems faced by women globally are gender – based violence, trafficking of women, sexual offences, and denial of equal access to land and property etc. In India, articles 14, 15 and 16 of the Constitution of India guarantees equal rights to all its citizens. These provisions Prohibit discrimination against women and permits special provisions for the benefit of women. Article 21 assures rights to live with dignity, article 39 (d) mandates equal pay for equal work for both men and women and article 42 requires provision for just and human conditions of work and maternity relief.
The institution of marriage in India is plagued with gender – based violence prominently. The India custom of giving dowry by the bride’s family has lead to cases of torture and dowry deaths of young married women. To deal effectively with this evil against women, Dower Prohibition Act, 1961 was passed to make, “giving and taking of dowry”, as an offence. The torture and cruelty to women by husband and his relatives is an offence punishable with imprisonment. Under section 498-A of Indian Penal Code, 1860, dowry death is an offence under section 304B section of the same code. The Domestic violence Act, 2005 protects women from physical, sexual, verbal and economic abuse – section 3 (4) of the Act.
Hindu women always enjoys the right to “Stridhan”– section 14 of Hindu Succession Act, 1956 – has conferred additional rights to the women – namely –
1. “Property of a female Hindu to be her absolute.
2. Any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as limited owner.”
A Hindu woman has a right to maintenance. Property given to her in lien of maintenance becomes her absolute property after Hindu Succession Act, 1956 came into force, as held by Supreme Court in V. Tulasamma Versus V. Shesha Reddi – (1977) 3 SCC 99.
It is unfortunate when the right to equality and right to practice religious faith are the basic features of the Constitution, the women are banned to visit and worship “SHANI” in a temple. It is preposterous to prohibit women which is the gross abuse of their Human Rights.
In famous case of Shah Bano (L Mohd. Ahmed Khan Versus Shan Bano Begum – (1985) 2 SCC 556. The Supreme Court ruled – “That Muslim women in India have right to maintenance.”
The decision of the Supreme Court was attempted to be made a nullity, by enacting the Muslim women (Protection of Right on divorce) Act, 1986 – However the Supreme Court interpreted the same law in favour of divorced women, by declaring. That she is entitled to a reasonable maintenance from her former husband for life or till she remarries.
(Danial Latifi Versus Union of India) – (2002) 7 SCC 740.
In 2005, Hindu Succession (Amendment) Act, 2005 was passed to make women coparceners in a HUF, (Hindu Joint Family) at par with males – section 6 of the Act States that “daughter of a coparcener shall, by birth become coparcener in her own right in the same manner as the son.”
The most brutal attack on the right life and freedom of a brave heart girl in Delhi, in 2013 known as the Nirbhaya Rape Case, the conscience of the whole nation got awakened and demand for radical change in the law came across the board. A committee headed by former chief justice of India was formed, its recommendation were accepted. The punishment for sexual offences was enhanced and new definition was incorporated, for sexual offence in the Indian Penal Code in addition to rape, voyeurism, acid attack and stalking has been added as sexual offences against women.
Termination of employment of a wamen upon Pregnancy was ruled as unconstitutional in Air India case. After ‘Visakha’ case of 1997, protection of women from sexual harassment at work place has been provided under an act. 73rd and 74th Constitution amendments have reserved seats for women, in Local bodies and Panchayats etc.
Even though Laws are in place for the protection of women and safe ground of their rights, yet the ground reality is disconcerting. 2014 report of Crime Records Bureau has disclosed around 8455 newly wedded brides have been killed for dowry – The UN study shows in almost all the countries legal security of tenure for women is entirely dependent on the the men they are associated with. Very few women own land. Sexual offences take place in India at alarming rate, victims of rape continue to suffer social stigma and in most rape cases accused go unpunished – In 2014 alone as per National Crime Bureau report, 37000 rape cases were reported – Women in large percentage are not aware about their rights at work Places etc.
Human rights and women rights on paper and in Practice are not the same. Courts and framing of laws alone cannot bring about social – change. Civil society has a greater role to build up a political movement. The constitution mandates concerted/planned action of all the three pillars of the State, to create conditions for enjoyment and enforcement of basic human rights, of Justice, liberty, equality and right to life etc.
(The author is a constitutional and international law expert, practicing as Senior Advocate in Supreme Court of India.)
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