This article is written by Divya Kathuria, a student of Raffles University.

Introduction

“There is no tool more effective than the empowerment of women for development of a country.”- Kofi Anan.

 India being a developing country in order to develop needs the tool of women empowerment more than anything. According to World Bank, around 48.3% of our country consists of females[1] and there is no denying to the fact that since ancient times when women have been compared to goddesses in our country, ironically, they have been treated like rags. Although there is a huge difference the way women were looked at 50 years ago and today. But, the crimes against women are still rising rampantly and they still are deprived of certain rights which they deserve as men. However, judiciary has always tried its best to empower the females of country, be it by giving landmark judgments like of Shah Bano Begum or Daniel Latifi, Vishakha v. State of Rajasthan.

Through this article, I intend to analyze how our judicial system has actively played its role in the uplifting and empowerment of women in last 5 years.

1. What if she is a prostitute, she is a woman and human being too: Budhadev Karmaskar State Of West Bengal[2]

In this case, a sex worker was brutally murdered by appellant Buddhadev. The appellant Budhadev kicked her with fists and legs, and she fell down on the floor. The appellant then caught her by her hair and banged her head against the floor and the wall several times which left the victim bleeding from her ear, nose and head. The incident was witnessed by four persons, Abida, Maya, Asha and Parvati.[3]

The Apex Court in its division bench headed by Markandey Katju, J and Gyan Sudha Mishra, J stated: ‘we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.’

Not only this, but the bench acted quite actively and gave the directions to Central and State government to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India.[4]

Generally, our society views prostitutes as women of low character but, refuse to look at their situation from their perspective. The bench in this case must be appreciated not just for recognizing their right under Article 21 and directing the state and central governments to act for their welfare but also, to understand their perspective and impoverished situation. Even, they have cited the novels of Bengali writer Suresh Chandra Chattopadhya where many prostitutes have been shown to be women of high character. So, it sends a great message to society to not to look down upon on sex workers and give them a humane treatment always.

They are equally woman and equally human. It is that it was obvious that appellant would be punished because the eyewitnesses were there but, the message and directions it gave truly are an account of judicial activism.

2. Two finger test, it’s like getting raped once again: Lillu @ Rajesh & Anr vs State Of Haryana[5].

For the first time, the Supreme Court in this case realized the agony and trauma of a rape victim who had to go through two finger test give her character certification and after analyzing through various precedents, held that it is violation of victim’s right to privacy and dignity.

It held: “In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Thus, in view of the above, undoubtedly, the two finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.” 

The decision is definitely applaud able as it gave a sense of confidence and security to the rape victims. It did not grant any new right because women have already been conferred right to privacy by our Constitution but, it stopped the violation of their right to privacy and dignity which was going on from years and years and that too was of no use in the investigation. The Supreme Court very objectively and scientifically determined if it was helpful or not and even if it could be helpful, there can be nothing that can be kept on a pedestal higher than a woman’s dignity, that too an already traumatized woman. In my opinion, it was the repetition of the same crime against women behind the veil of legal medical procedures.

3. Stop Acid attacks, regulate and restrict the sale of acid: Laxmi v. Union of India[6]

On account of increase in number of acid attacks on women in the past few years, Supreme Court in order to curb these gave directions to Home Secretary, Ministry of Home Affairs associating the Secretary, Ministry of Chemical & Fertilizers to convene a meeting of the Chief Secretaries/concerned Secretaries of the State Governments and the Administrators of the Union Territories to curb and restrict the sale of acid throughout the country.

Acid attacks on women and girls in 2013 and 2014 have been 56 and 47 in number respectively as per the statistics of acid survivors’ organization.[7] Acid attack on a women is equal to taking away her identity from her and such rampant increase in this heinous crime was leading to terror amongst women and Supreme Court took a vital step and certainly led to the empowerment of women to an extent and was an important step towards the safety of women in country.

4. Unwed mothers need not name the child’s father: ABC v. The State (NCT of Delhi)[8]

Supreme Court in this latest and landmark judgment declared that now, an unwed mother is not bound to disclose the name of child’s father and also, she would have all the rights as a guardian to child under guardianships rights. She need not take father’s consent for guardianship rights.  Not only it was necessary to protect the child from social stigma but, also to protect mother’s fundamental right. It was certainly an avant-garde verdict on gender quality.

The Court emphasized that Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes specific provisions with respect to natural guardians of illegitimate children, and in this regard gives primacy to the mother over the father. Mohammedan law too accords the custody of illegitimate children to the mother and her relations. Name of father is always a myth while it is only mother whose name the person can always be sure of because she gave birth to him/her. This is one of the reasons why a mother should be given primacy or at least equality to exercise guardianship rights over the child. This judgment is evident of the fact that the highest court of land is deeply indulged in empowering women because it is the key to Nation’s development.

5. Living under the same roof, you are married under law: Dhannulal and ors. V. Ganeshram and ors.[9]

In this case, it was held by the division bench that continuous cohabitation of a couple together that is, ‘live-in relationship’ would raise the presumption of marriage unless otherwise proven. This was a case regarding the dispute for the property that their grandfather possessed would also be inherited by the woman with whom he lived for 20 years or not as she was not his legally wedded wife. The appellants referred to her as his ‘mistress’ but, not wife. The woman clearly failed to prove that she was the legally wedded wife of deceased but, the bench still held that she was eligible to inherit the property.

Generally, our society views the woman who lives with a man without getting married as his ‘keep’ or ‘mistress’ and looks down upon her which clearly means that she is deprived of her right to choose whether to marry or not. While it is also the societal fact that man doing this will never be condemned, the woman is seen as characterless and does not gets the rights of legally-wedded wife whereas she does all her duties of a wife. Supreme Court in this case decided to take a step to change such orthodox notions and gave women their right to choose whether to marry or not.

Conclusion

The Supreme Court has understood the very fact that women empowerment is the most indispensable route to Country’s development and cannot be ignored except at the stake of country’s deterioration. If almost half of the population of country is suppressed and inactive, then, it is obviously foolish on the part of us to think that the country will ever develop in the next few centuries also. Therefore, the court is trying its best to break and do away with all such traditional norms that look down upon women, has given judgments to prevent violence against women and to put them equally as men in the society.

In the country of Gods and Goddesses, it is quite a famous shloka of Sanskrit that must be adhered to: ‘yatra naryastu pujyante, tatra devta ramante’ meaning where women are worshipped, there God resides.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:  

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

[1] http://www.tradingeconomics.com/india/population-female-percent-of-total-wb-data.html; http://search.worldbank.org/all?qterm=female+population+in+india&op=  last accessed on 9^th July, 2015

[2] LC-2011-SC-CRL-Feb 14

[3] Ibid

[4] we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will
not be able to feed herself. We propose to have the response of the Centre and the States in this regard and hence the case shall be listed before us again on 04.05.2011 to be taken up as first case on which date the first compliance report indicating therein the first steps taken by the Central and the State Governments in this regard shall be submitted.

[5] on 11 April, 2013; Bench: B.S. Chauhan, J and Fakkir Mohamed Kalifulla, J

[6] (2014) 4 SCC 427

[7] http://www.acidsurvivors.org/Statistics/2 last accessed on 8th July, 2015

[8]  SLP (Civil) No. 28367 of 2011, DB:Vikramajit Sen,J; Abhay Manohar Sapre,J on 6 July, 2015

[9] 8 April, 2015; Bench: M.Y. Eqbal,J and Amitava Roy,J