Women's Access to Justice in India
The article “Women's Access to Justice in India” aims to emphasize the role of Law in providing justice to women in India.
The article “Women's Access to Justice in India” aims to emphasize the role of Law in providing justice to women in India. The Judiciary and Government have taken proper measures to protect and uphold the rights and privileges of women.
Introduction
The majority of societies in the world recognise patriarchy. Historically in India, women are considered goddesses. With the change in time and society, the status of women declined to a vulnerable group due to biological, political, economic and religious reasons. After independence, India became a welfare state, it is the responsibility of the state to ensure that justice is provided fairly and equally because it is a sine qua non. In the modern world, the problem of access to justice is extremely important. Women became a vulnerable group subject to discrimination, harassment, sexual abuse and many more. These obstacles are common because of how society and the law construct women and women's issues.
Hence women need to receive fair and equal access to justice in society. The phrase "access to justice" brings up the standard of justice administration, the effectiveness of the judicial system, constitutional rights, and many other elements.
"Where women are honoured, Their divinity blossoms" - Manusmriti
Barriers to Accessing Justice
In both households and workplaces, women face multiple barriers and gender-based discrimination. It is more difficult for women to achieve equality with men in the workplace due to these barriers. Gender inequality gets worse by legal restrictions. Barriers such as unequal rights and obligations in marriage, uneven inheritance privileges, and laws requiring women to get their husbands' consent before travelling or working, unfair wage practises at work.
Despite India having both substantive and procedural frameworks protecting women, and providing women with equal rights, access to justice is still slow and difficult. In the workplace, women are frequently the targets of verbal, physical, and sexual abuse, unequal pay, lack of post and pre-pregnancy benefits, and no hygiene or basic facilities are given. In households, women are deprived of basic knowledge, higher education, forced marriage and pregnancy, marital rape, uneven inheritance of property, and torture for dowry which in some cases leads to dowry death. In society, women are considered a burden on families.
Women’s modesty is disregarded if she registers a complaint regarding any injustice against her. Regardless of the type of violence against women, it has been seen that the police treat them with low priority and dismiss them as "private matters," explicitly violating the legal rights that women are supposed to have. Women continue to routinely face harassment and outright refusal when they first approach the police to register complaints.
Due to a lack of knowledge and opportunity, women in both urban and rural areas are not aware of their legal rights and options, or how to pursue them. Despite them knowing, women are harassed and forced to compromise when they complain about the injustice they faced.
Women are less likely to sue their spouses, family members, or the accused because they are dependent on them, fear them, and lack social support. Financial difficulties resulting from court cases, such as court fees and travel expenses, cause delays or make it impossible to achieve justice. There is an inadequate legal and judicial framework to address gender inequality in society. The weaker capacity of judges and the ineffectiveness of the legislature makes it worse.
Indian Legal Approach and Initiatives
The Preamble of our Indian constitution clearly states that “it shall be the duty of constitution to secure to all its citizen's equality of status and of opportunity”. The Indian Constitution guarantees women a dignified life and the right to equality. It also imposes an obligation on every Indian citizen to abstain from practices that are insulting to women's self-esteem or self-respect
- Article 14: Equality before the law
- Article 15: No one shall be subjected to discrimination only because of their religion, race, ethnicity, caste, gender, place of birth, or any combination of these criteria,
- Article 16: Equal and fair employment opportunities
- Article 21: Right to life and liberty
- Article 39: providing equal rights to men and women to an adequate standard of living.
- Article 42: The State shall provide for maternity leave and reasonable and decent working conditions.
- Article 51A(e): Indian citizens to abstain from practices that are insulting to women's self-esteem or self-respect
- Article 243: The state shall provide compulsory seats to women in gram panchayat, this has bettered the position of women's socioeconomic situations in rural communities
In Criminal Procedure Code,
- Under section 46 women cannot be arrested after sunset and before sunrise. In the case of serious crimes, a written report has to be submitted to the Judicial Magistrate First Class with whose permission, a woman police officer may cause arrest.
- Under section 100 if a suspected female is to be searched, it has to be done by a woman constable only with strict regard to decency
- Under section 160, in case of Interrogation, a woman cannot be called at the police station and shall be carried out at the place where the woman resides.
- Identity of women has to be protected in cases of sexual offences.
- Under section 154 if the public servant disobeys the direction under the law, and fails to record any information given to him under section 154 of the code (FIR) then they will be punished.
Under Section 12 of the Legal Services Authorities Act, of 1987, all women are entitled to free legal aid. Numerous provisions of the Indian Penal Code, Criminal Procedure Code, Evidence Act, Dowry Prohibition Act, Domestic Violence Act, Prohibition of Child Marriage Act, and Sexual Harassment of Women at Workplace Act respectively align with the Constitutional guarantee and make it easier to report and look into violence against women, particularly sexual violence
Effective Steps of Judiciary
In the case of Ram Kishore v. State of U.P, the complainant, filed an application under section 156(3) Cr.P.C. against accused persons for womanizing, molesting, physically harassing, and threatening girls. The applicant's daughter, a 14-year-old student, was followed by accused Ashish, a B.A. student, who teased her and physically harassed her.
The accused, along with other co-accused persons, abused the applicant and his family members, threatening them with dire consequences if further complaints were made. Despite FIR, no action was taken by the police or the Superintendent of Police, Hamirpur. The applicant then approached the Court of C.J.M., Hamirpur, seeking registration of the F.I.R. The Magistrate treated the application as a complaint and directed the applicant to appear before the Court for recording a statement under section 200 CrPC. The complaint reveals the serious allegations made by the applicant and his daughter regarding eve teasing and non-registration of the F.I.R.
The Court advised Magistrates in U.P. to carefully examine cases of crime against women and exercise jurisdictional discretion, considering the rapid increase in crime, against women. They must also prevent harassment of innocent persons through misuse of process.
In the case of Lilu Rajesh and Anr v. State of Haryana, the Supreme Court analyzed medical and legal procedures for rape survivors, determining that the 'two-finger test' was violative of women's dignity and privacy. The court found that a positive test result could not presume consent, especially for minor victims, and even if a person was habituated to sexual intercourse, it could not be a determinative question in assessing evidence for a rape conviction. The two-finger test is criticised for being unreliable, recalling traumatic events, and having little bearing on claims of rape. Hence the test is unconstitutional and is banned.
In the case of the State of Madhya Pradesh v. Jogendra, a woman committed suicide by setting herself on fire while five months pregnant as a result of her in-laws' persistent attempts to coerce her into giving them money to pay for the building of their home. The Supreme Court held that any type of property or valuable security, including money for a home's construction, falls under the definition of dowry.
The Dowry Prohibition Act of 1961 defines "dowry" as "any property or valuable security" exchanged between parties to a marriage. The husband and the deceased woman's father-in-law were found guilty by the trial court under Sections 304B (dowry death), 306 (abetting suicide), and 498A (Husband or relative of husband subjecting wife to cruelty) of the Indian Penal Code (IPC).
In the case of Shayra Bano v. Union of India, Shayara Bano and Rizwan Ahmed were married for 15 years. She had endured dowry harassment and domestic abuse. Her husband instantaneously divorced her by triple talaq in 2016 to obtain a unilateral divorce. A Muslim man can instantaneously divorce his wife under "Sharia Law" by saying the word "TALAQ" three times, without the need for government participation. It is also known as Talaq-e-bidat. This practice put the women at a disadvantage.
The Supreme Court declared that the practice of instant triple talaq (talaq-e-bidat) is against the basic tenets of the Quran and held it unconstitutional. The court has ensured that the ideas of equality especially gender equality are not a mere theoretical ideology.
Steps Taken by the Government for Women
The government is putting efforts into safeguarding women's rights.
1. National Commission for Women (1992) was established "to look at the legal and constitutional protections for women; consider corrective legislative measures; make it easier for grievances to be resolved; and provide advice to the government on all policy issues affecting women. In order to strengthen and improve laws like the Indian Penal Code of 1860, the Pre-natal Diagnostic Technique Act of 1994, the Dowry Prohibition Act of 1961, and the National Commission for Women Act of 1990, it took on the issue of child marriage. It also sponsored legal awareness campaigns and Parivarik Mahila Lok Adalats.
2. The Maternity Benefit Amendment Act 2017 for the private sector. The government extended paid maternity leave under this Act from 12 to 26 weeks. It stipulates that
a. every woman who adopts a child shall be entitled to 12 weeks of maternity leave, from the date of adoption
b. allowing women to work from home, which can be used following the 26-week leave period.
c. Organizations with more than 50 employees shall compulsorily provide a creche facility.
d. The organization shall conduct awareness about the maternity benefits at the time of appointment.
3. Beti Bachao Beti Padhao Scheme (2015) was launched by the Prime Minister of India to assure the girl child's survival, safety, and education. The main goals are to fight against discrimination based on gender, protect girls, give them access to school, and promote their involvement.
4. Women Helpline Scheme (2015) was initiated to provide a 24-hour emergency response to assist women who have been victims of violence in both private and public settings. Unrestricted Tollfree Women Helpline Number 181 is provided
5. NIRBHAYA Fund (2021) was initiated specifically to enhance the security and safety of women. It is a non-lapsable corpus fund that is managed by the Ministry of Finance's Department of Economic Affairs.
Conclusion
Women‘s rights have been essential for women‘s political growth, particularly in combating the privatization of women‘s oppression. The Indian Legal system has also been criticised for failing to protect women and girls due to corruption and weak law enforcement, among other things. In order to promote women's empowerment it is essential to look after proper and fair access to education, work, health care, and representation in political as well as economic fields.
It is important for us as a society to create a healthy and safe place for women and everyone. Despite India having many laws passed by legislators, administrative rules, and judicial rulings, and more specifically, community and personal woman organisations continue to support women's empowerment and defence, there is very little justice for them because of a lack of awareness and disinterest among women and society. This could involve stepping up public awareness campaigns, improving the criminal justice system so that it better meets the needs of women, and offering assistance to victims of crimes.
References
[1] Barriers in Accessing Justice, Available Here
[2] Access to Justice for Women in India, Available Here
[3] Ram Kishore v. State of U.P, Criminal Appeal No. 37 of 1964.
[4] Lilu Rajesh and Anr v. State of Haryana, Criminal Appeal No. 1226 of 2011
[5] Kakoli Nath, Finger Test: Why it is banned in India?, Available Here
[6] State of Madhya Pradesh v. Jogendra & Ans, Criminal Appeal No. 190 of 2012
[7] Shayra Bano v. Union of India, (2017) 9 SCC 1