Women Rights are Human Rights: Role of Judiciary to protect the Rights of Women and Girl Child

Women Rights are Human Rights: Role of Judiciary to protect the Rights of Women and Girl Child

By

Sri Y.SRINIVASA RAO

“At least one out of every three women is likely to be beaten, coerced into sex or otherwise abused in her lifetime.”
-UN Secretary-General Ban Ki-moon

‘In China, 118 boys were born in 2010 for every 100 girls. The results of India’s 2011 census show that, amongst children up to age six, there are only 914 girls for every 1,000 boys’.

Poor and innocent parents are being trapped with catch lines
‘ Spend Rs.500/- now (to know sex of child) and Save Rs.1,00,000/-(dowry) later.’
My appeal is to beware of such catch lines and save girl child.

Introduction

The women are said as the mothers to the whole world. By the time the World Conference convened, the idea that “women’s rights are human rights” had become the rallying call of thousands of people all over the world and one of the most discussed “new” human rights debates. Circumstances of extreme poverty or conflict unquestionably fan the flames of violence against women. The Vienna Declaration and Program of Action, which is the product of the conference and is meant to signal the agreement of the international community on the status of human rights, states unequivocally that: The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights.
In 17th century, Hobbes, Jean-Jacques Rousseau and John Locke who are natural law philosopers,developed the theory of natural rights in reference to ancient philosophers such as Aquinas and Aristotle. Starting in the late This trend, as to importance of natural rights, increased in 18th century in Europe. Declaration of the Rights of Woman and the Female Citizen, which was published in 1791, modelled on the Declaration of the Rights of Man and of the Citizen  of 1789. Beginning from 1840, the British and the United States passed   statutes to protect women’s property from their husbands and their husbands’ creditors. Then, “control over our own bodies” is a sound criticism for male domination. In 2011, one of the experts of United Nations opines that in India, she found human rights workers and their families who “have been killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged and under surveillance because of their legitimate work in upholding human rights and fundamental freedoms. No doubt, ‘Rape’ is the fastest growing crime in the country today. Delhi takes the top slot for crimes ranging from murders and rapes to dowry deaths and abductions. The 2012 Delhi Gang Rape Case involves a rape and murder that occurred on 16 December 2012 in  New Delhi, when a 23-year-old female by name ‘Nirbhaya’   was gang raped.

“As a father of three daughters
I feel as strongly about the incident
as each one of you”
– Father of Nirbhaya expressed empathy.

The Award ’ Feraless’ the International Women of Courage’ was announced to Nirbhaya by the in 2013. After her death, many of the mourners carried candles, wore black dress and some pasted black cloth across their mouths. Our Prime Minister commented, for calm, as “violence will serve no purpose”. As a tribute to the girl victim, The Criminal Law (Amendment) Bill, 2013 was passed by the Lok Sabha  on 19 March 2013, and by the Rajya Sabha on 21 March 2013, which provided for amendment of Indian Penal Code,1860, Code of Criminal Procedure,1973 and Indian Evidence Act on laws related to sexual offences.

Women Rights are Human Rights.
The concept of women’s human rights owes its success and the proliferation of its use to the fact that it is simultaneously prosaic and revolutionary. Indian Judiciary over a period of six decades has acquired a well-entrenched system adopted came forward from other two organs of the Govt. to protect and assert the Human Rights of women with suitable corrections whenever and wherever required.
The orthodox Hindu funeral custom of self-immolation of widow after the death of her husband is now no more. In 1829, the practice of ‘Sati’  was formally abolished by William Bentick after years of campaigning by  the ‘Branmo Samaj’ established by Raja Ram Mohan Roy.
In 1929,  Child Marriage Restraint Act was passed prohibiting marriage of minors under 14 years of age. In 1950, Part 3 of the Constitution contains a Bill of Fundamental Rights enforceable by the Supreme Court and the High courts. It also provides for reservations for previously disadvantaged sections in education, employment and political representation. In 1955, owing to reform of family law, Hindus give more rights to Hindu women. In 1973,   in Kesavananda Bharati’ case, it is held that   the basic structure of the Constitution (including many fundamental rights) is unalterable by a constitutional amendment. As was pointed out in  Menaka Gandhi v. Union of India (1978)  that the right to life under Article 21 of the Constitution cannot be suspended even in an emergency.
In 1985-1986, in the case of Shah Bano,   the Hon’ble Supreme Court recognised the Muslim woman’s right to maintenance upon divorce, sparks protests from Muslim clergy. To nullify this ruling, The Government enacted The Muslim Women (Protection of Rights on Divorce) Act,1986.
In 1992, an important constitutional amendment establishes Local Self-Government (Panchayati Raj) as a third tier of governance at the village level, with one-third of the seats reserved for women. In 1993,  National Human Rights Commission is established under the Protection of Human Rights Act. 2001. Our Indian courts passed extensive orders to implement the right to food.
In 2005 , a weapon was given to Indian citizen which is titled ‘ Right to Information Act’ . In 2005,  National Rural Employment Guarantee Act (NREGA) guarantees universal right to employment. In 2009, The Hon’ble High Court of Delhi  declared that Section 377 of the Indian Penal Code,1860 which outlaws that “unnatural” sex acts, is unconstitutional when applied to homosexual acts between private consenting individuals, effectively decriminalising homosexual relationships in India.

Role of Judiciary to protect the Rights of Women
and Girl Child .

Judiciary in India has reiterated the Human Rights of women by filling the vacuum in municipal law by applying, wherever necessary, International instruments governing human rights.

‘ Wife should undergo a medical examination to prove her virginity was found to violate her right to privacy and personal liberty enshrined under Article 21 of the Constitution’.
The Hon’ble Supreme court observed in Surjeet Singh v. Kamaljit Kaur1

The apex judiciary in India has interpreted a number of basic human rights of women in the light of fundamental rights guaranteed in Part III of the Constitution. These fundamental rights gone much beyond the American Bill of Rights. In a series of cases the Apex Judiciary has set some remarkable standard of asserting the gender equality and Human Rights of women. The dignity of women was uphold by the Hon’ble Suprem court of India in the case of Rupan Deal Bajaj v. K.P.S. Gill2,
As is pointed by the Hon’ble the A.P. High Court in T. Saritha v. Thnkata3 Subbaiath, the principle of reasonableness to matrimonial matters and invalidated Section 9 of the Hindu Marriage Act, 1955 found violating the right to privacy and human dignity guaranteed under Article 21 of our Constitution.
In the case of Ranghubans Saudagor Singh v. State4, the Hon’ble Punjab and Haryana Court held what is forbidden under the Constitution is discrimination on’ the ground of sex alone, but when the peculiarities of sex added to a variety of other factors and consideration from a reasonable nexus with the object of classification than the Constitutional bar under Articles 15 and 16(2) cannot be attracted.

As is observed in Air India v. Nargesh Mirza5,the validity of the Indian Airline’s and Air India’s service rules providing that an Air Hostess had to retire from service at the age of 35 or on marriage-whichever was earlier, or if she got married within four years of confirmation or on first regnancy was struck down and held to be arbitrary.
In case of State of Maharashtra v. Madhukar Narain6, the Hon’ble Supreme Court pointed out that even a woman of easy virtue is entitled to privacy and that no one can invade her privacy as and when he likes.
It was pointed out in Neera v. L.I.C.7 that the right to privacy of women would preclude such questions to be put to female candidates as modesty and self-respect may preclude an answer.

In case of Gautam Kundu v. State8, the woman refused the husband’s application for a blood test to disprove paternity as it would be slanderous. Embarrassing and humiliating for the woman.
In the case of State of Punjab v. Gurmit Singh9, the Hon’ble Supreme Court directed that the trial of the case must be held in camera and that three rapists of a minor girl were convicted in this case
In Bodhi Satwa Gautam v. Subra Chahraborty,10 the Hon’ble Supreme Court pointed out that rape is a crime against basic human right and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21.
In the case of The Government of A.P. v. P.B. Vijay Kumar, AIR 1995 SC 1649, it was observed that the special provision under Article 15(3) which the state may make to improve woman’s participation in all activities under the supervision and control of the state can be in the form of either affirmative action or reservation.
In a land mark ruling, Sarla Mudgal v. Union of India, it was pointed out that the second marriage of Hindu after his conversion to Islam was void in terms of Section 494 of I.P.C. and the husband was liable to be prosecuted for bigamy.

In the case of Air India Statutory Corporation v. United Labour Union11, it was observed that it is the duty of the state to take responsibility for further development of these human rights and fundamental freedoms.

In the case of Pragati Varghese v. Cyril George Varghese12 ,the Hon’ble full Bench of the Bombay High Court pointed out that section 10 of the Indian Divorce Act,1926 under which a Christian wife had to prove adultery along with cruelty or desertion while seeking a divorce on the ground that it violates the fundamental right of a Christian woman to live with human dignity under Article 21 of the Constitution.

In case of Noor Saba Khatoon v. Mohd.Quasim13, the Hon’ble Court held that we have opted for a secular republic, secularism under the law means that the state does not owe loyalty to any particular religion and there is no state religion. That too, The Hon’ble Calcutta High Court extended the iddat period till such time the woman re-marries, to allow Muslim women a maintenance allowance beyond the customary iddat period of about three and a half months under the Muslim Women (Protection on Divorce) Act, 198614.

In case of Lalitha Sundari v. R. Kethar Nathan15, it was observed that two vacancies in the Education Committee of a family trust were to be filled from the female descendants of the trustees. The scheme court which was the appointing authority, appointing two male members and observed that female descendants include male descendants and females who appeared in the interview lack practical experience.

The Hon’ble Supreme Court never hesitated to adopt the international standard of gender-justice if the provisions of international law do not come in conflict with the national law. Human Right Act16, National Human Rights Commission17 and National Commission for Women were formed after considering instruments of international law. And as a matter fact all these commissions are working within the Constitutional limits. And these recommendations are also taken- into amount while making and implementing the law concerning women. In India, a due regard is given to the international human rights organisations. These organisations have freedom to visit any place in India. Under such a large umbrella of international and national law a complete legal protection is given to Indian women.
His Lordship Justice J S Verma Committee’s report indicated that failures on the part of the Government and Police were the root cause behind crimes against women. The report included the need to review AFSPA  in conflict areas, maximum punishment for rape as life imprisonment and not death penalty, clear ambiguity over control of Delhi Police etc. Accordingly, The Criminal Law (Amendment) Act, 2013 came into force from 3 April 2013. The changes made in the Act incomparison with the Ordinance in respect of the offences such as Acid attacks, Sexual harassment, Voyeurism,Stalking, Traffiking of person, and Rape.

Rape is generally considered a serious sex crime as well as a civil assault. The Legal rights of women refer to the social and human rights of women. One of the first women’s rights women’s rights declarations was the Declaration of Sentiments. Issues commonly associated with notions of women’s rights include, though are not limited to, the right: to bodily integrity and autonomy; to vote(suffrage); to hold public office; to work; to fair wages or equal pay; to own property; to education; to serve in the military or be conscripted; to enter into legal contracts; and to have marital, parental and religious rights.

Indian Constitution envisages an independent judiciary. There is a separation of powers between the executive and judiciary. The judiciary, which interprets the constitutional meaning of law and legality of executive actions, should have a separate existence. Lord Bryce said that there is no better test of the excellence of a government than the efficiency and independence of its judicial system. Indian constitution incorporated many provisions to ensure the independence of judiciary.
In India, over 32000 murders, 19,000 rapes, 7500 dowry deaths and 36500 molestation cases are the violent crimes reported in India in 2006 against women and girl children.
Everyone knows the statistics, the murder rates, rapes , the violence that burdens economic development, and threats to society. Instead of countinig crimes, attitude to reduce crime is needed.
No  person can claim to be protecting the place and population  as there is no control on gun and tongue . “Culprits are our guys,” this word doesn’t give right to any side , whether in uniform or  civvies to commit crime against innocent women and girl children. What emboldened these elements , is that their  horrendous acts of crime against women ,  are being ignored.
About two lakh cases of violence have been registered by the National Crime Records Bureau, according to its recent data. It is well known that discriminatory and oppressive social attitudes, not to mention plain greed and corruption, infect the attitude of the authorities, and especially the police, in many cases when serious complaints go uninvestigated or are poorly investigated. Only when investigation is free, fair, and speedy and only when the conviction rate improves in cases where women are the targets of various forms of violence can crimes against women be brought down. The press has a key role to play in working against any cover-up in this area.

PROTECTION OF GIRL CHILD
The girl child’s discrimination begins before birth in the form of female foeticide. In India, the Ministry of Human Resource Development shows that the average enrolment rate of girl children, ages 6-14,14-18 as 93.47% and 36.77%. Of course, they also show that 61.5% of girl child drop out of school before completion of XII standard.
Poor and innocent parents are being trapped with catch lines of Diagnostics teams.
‘ Spend Rs.500/- now (to know sex of child) and Save Rs.1,00,000/-(dowry) later.’

My appeal is beware of such catch lines and save girl child. No doubt, with help recent technology, even if we spend Rs.500/-, there are such people who can tell whether the child is male or female. Some may argue that ‘ Sex selection is a consequence of Globalization or Technology. It is stupendious to support such arguments. We must save girl child for better society. Everyone shall know the imporatance of ‘woman’. See, Adam called his wife’s name Eve, because she was the mother of all living.”  the Qur’an introduced fundamental reforms to customary law and introduced rights for women in marriage, divorce and inheritance. In “Shaanthi parva”, when dharmaputhra requests Bheeshma to  explain about the nature of women.
‘Bheeshma explains women the women, who respects their husbands, worships elders and do their duties, sincerely with patience. the women are said as the mothers to the whole world, and it is also said that the house becomes a hell, where these women are not happy and these kind of women must be respected and treated kindly and Krishna also agrees this’.

As is observed by International Labour Organisation (ILO), there are more than 100 million girl children between the age group of five to 17 are child labour.
Immoral Traffic Prevention Act is another safe guard to protect girl child frm trafficking in relation to prostitution. Juvenile Justice (Care and Protection of Children)Act protects the rights of children. Human trafficking is a $8 million illegal business in India. Around 10,000 Nepali women are brought to India annually for commercial sexual exploitation.  Each year 20,000–25,000 women and children are trafficked from Bangladesh. Babubhai Khimabhai Katara was a Member of Parliament when arrested for smuggling a child to Canada.

Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)Act was paased in 1994 and it was amended in 2002. Under this Act, sex selection is a deep rooted problem in our country. No person is allowed to disclose the sex of a child in any form of communication and no Hospital or clinic or person is permitted to conduct sex determination tests. Child survival, Child development,Child protection and Child participation are most important even under the National Plan of Action for Chidren,2005. In order to raise the status of girl child, the Government passed the Balika Samriddhi Yojana in 1997. Of course, this scheme was changed in 1999-2000 and now the girl child can, who go to school, receive money from Rs 300/- to 1,000/-. To become a good human beings and responsible citizens of India, there is Kishore Shakti Yojana was introduced which looks all aspects of adolescent girls.

Sexual offences against children are also covered in the IPC. Under section 317 of IPC, if mother or father expose or leave a child in place with intention of abandonment, it is an offence. Section 360 of IPC states that kidnapping from India is the defined as the conveyance of a person beyond the borders of India without their consent. Section 361 of IPC says that if a male minor of not yet sixteen and female minor of not yet eighteen is taken from their lawful guardains without their consent, it is termed kidnapping from lawful guardianship. Section 362 of IPC defines abduction as compelling, forcing or deceitfully inducing a person from a place. Section 363-A says that to kidnap or maim a minor for the pupose or employment of begging. Section 366A of IPC says inducing a minor girl for illicit intersourse with another person is an offence. Section 366B says that if any girl is imported into India from any country for illicit intercourse is an offence. Section 372 discusses the selling of a child (below the age of eighteen) for the purpose of prostitution or to illicit intercourse with any person, or knowing that it is likely that the child is being sold for such a purpose. Section 372 states it is a crime to buy a child for the purpose of prostitution or to illicit sex from any person. Rape is an offence under section 375 of IPC. Section 369 of IPC says kidnapping or abducting child under ten years with intent to steal from its person is an offence. Under section 494 of IPC, bigamy is an offence. Under section 498-A of IPC, if a wife is subjected to cruelty by her husband or relatives of husband, it is an offence.

Conclusion and Suggestions
Fortunately, the Hon’ble Supreme Court of India and the High courts interpret Constitutional provision in favour of women and girl children. Whenever there is a anti-women legislation, rule or order of the Government or any other agency then the Courts comes into picture to rescue the rights of women and girl children. It is the helper of the last resort and fortunately, it is also working for the welfare of the women and girl children. It is time to understand that there is a common challenge and  urgency  of a common response  to this growing menace in society.  The  need  of the hour is to give an expression of shared responsibility to the shared sense of crisis and an acute and growing concern over the violence and criminality affecting women.  No amount of  participation in any polls would help the matters if the crime  in society, particularly against women and girl children, is not eliminated . Fighting crime is more important than anything else. Despite the trauma women across all classes are reporting crimes such as rape and assault and do not feel helpless or abandoned by family or society as was the prevalent case before. Society is changing and government is forced to take action as it has run out of excuses such as society’s mindset or class divide.
In the cases of M.C.Mehta vs State of Tamil Nadu (1991), Goodrocks Group Ltd vs Centre of West Bengal18, Lakshmi Kant Pandey vs Union of India, Sheela Barse vs Union of India19, Unni Krishnana J.P vs Union of India and Bachapan Bachao Andolan vs Union of Inda(2011), the Hon’ble Apex Court emphasized on the rights of child and that The Indian Government has to take effective steps for implementation of the principles laid down in those cases for welfare of Women and children.
Child Labour Welfare, Child welfare and right to Education, Adoption of child, Sexual Exploitation of children, Re habilitation of child prostitutes are challeges before us and the activism of Indian Judiciary as to this subject matter is a signal contribution for protection of rights of women and children.
Every child is innocent. Save them and it is responsibility too. A child can do an act yet children cannot defend themselves. So, we have to protect them. If you hate girl child, your future family may forget the word ‘mother’.
‘Save Girl child,Else your son will be forced to be ‘GAY’ is sound slogan which makes us to mull over the importance of survival of girl child.
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