WOMEN AND LAW
– Tapan R. Mohanty*
The relationship between law and society is indeed a complex and intertwined with a variety of issues. But broadly it is believed that the long road to self-actualization, liberty of thought and expression, and the vision of a just, fair and equitable society is interspersed with encounters and experiences with a series of socialprocesses, products and dynamics ofhuman interaction.The history of human civilization is replete with examples where people of sacrificed their lives, livelihood and liberty to achieve these societal objectives. Out of a number of such efforts to bring social change law and legislation is one and to be liberalis the most important one. Consequently, the dimension of law and social change has been a subject of serious discussion among jurist, socialand politicalscholars. In this project an attempt has been made to critically examine this aspect with the input of case laws and of a particular legal provision.
However,an understandingof theperspective of law and social change can be possible only when wecan define these concepts, identity their characteristics and explain the interrelationship. Social change is ordinarily defined as a ‘process of alteration or modification of social structure, social institutions and their function’. In other words any modification or alteration in the socialrelationship of individuals and groups, theirideas, beliefs and institutionalarrangements can be referred as social change. In this sense changes occurring in political ideology and administration, economic establishment, cultural pattern are variability of social change. Change in our attitude, aptitude, patterns of expression too fall in the same category. One can site the example of movement of society from matrilinealto matrilineal,from matriarchy to patriarchy and the attempted change from patriarchy to gender- neutral society is the manifestation of social change. Change in our norms, practices,traditions and belief system are culturaldimension of socialchange. Similarly, though lawis generally defined as, ‘an ordered arrangement of rules and practices those regulate human conduct’, the best definition comes from Donald Black, as of ‘governmental social control’. Further, Fuller defines law as ‘subjecting human conduct to the governance of law’ and taken together one can identify the social feature of law. Needless to add scholars from both disciplines find the study of the relationship between law and society both complex and challenging.
The Relationship between law and society can be examined from two perspectives:
• First one is the impact of law in bringing about social change.
• Second one is the role of society in necessitating legal transformation.
The law has often been defined as a mechanism of dispute resolution among conflicting parties with conflicting interest or with a shared interest. Then law is not only a regulating mechanism but also has an intrinsic valueof welfare, guarantying freedom and equality. It is in this sense the evolution and development of law has been recognized as a parameter of development. Needless to add in a Country like India which is vitiated with superstitious,hierarchy, inequality and exploitation, law comes as a savior and probably well ahead of its time. Out of a significant number of legislations and legal reforms initiated over the years enabling legislations for played a significant position in bringing social transformation.
Man as a socialanimal displays a number of animalistic instincts like cruelty,torture and discrimination. Often these discriminations are based on biologicaltraits,superiority likephysicalstrengths, naturalsuperiority and inferiority and the tendency to segregate and dominate others. Sociologists defined these trends and explained it in terms of social stratification. Out of these multiple layers of divisionaldistinctions one is social stratification. Social stratification has many mainly caste, class, power, property, gender etc. Gender discrimination was the most ancient and all pervasiveforms ofdiscrimination. This division between men and women based on biologicaland sociologicalconditioning has led to wellspread discrimination and exploitation of women in general and in traditional societies in particular. This discrimination and exploitation is wellfounded in work participation rate and access to political power.
Theimage of Indian woman is uniquely associated with beauty, demure and docility. This is the profile of an Indian woman thatone constantly looks for as a wife, a fact can be attested from the matrimonial advertisements thatspread overfrom English daily’s to vernacular ones. Indian society fed on the culture of Ramayana and Mahabharata has affected the male psyche where he looks for woman characterized by Sita and yet refused to be Ram when it comes to his term. But this does not take anything way from Indian woman rather her credibility and care reflects in the face of adversities. She has played rather well in fulfillingalltheroles that society has bestowed upon her from time to time; be it a mother, wife, daughter or sister. Allroles played by her with customary determination, dedication and care. It is indeed, these features that madeher to be equated with Goddess and allour Goddess were wilding enormous power and panache be it Goddess of wealth, power or art.
However, things have really turned ugly over the years in general by that yardstick and certainly deplorable by any standard. The dowry deaths, rapes and torture, harassment at workplace and declining female child ratio indicates towards the poor status of women in India. The scenario may be slightly better elsewhere but in generalwomen of the world suffers from severe discrimination and belittlement all over the world, the worse offenders being south Asian and west Asian societies. The hand that rocks the cradle has no one to wipe her tears. The plight of women across the world has of late been realized and has resulted creating a number of enabling legislation and legal instruments alleviatingtheir suffering.
CEDAW: Convention on Elimination of all forms of Discrimination against Women was passed by theUnited Nations GeneralAssembly in 1979 and is know as the Women’s Right Bills across the world. CEDAW provides a framework where women of the world would be providedopportunities and access withoutbeing fearfulof discrimination and exploitation. This international instrument intends to protect the economic, political, social, educational and family rights of women. Over the years CEDAW has become the benchmark for the development of the fate ofwomen and their empowerment.
Since time immemorial law has endeavored to protect and ensure the rights of women in the Indian society. A lot of intellectual rigor and legal acumen has been invested in carving a law that will undo the decades of harm done to the women. These laws are serving the purpose of making a dent in the obsolete customs, traditions and practices. However, the mother of all laws In order to undertake this mammoth venture of women empowerment, the followingActs are playing a very crucial role.
Hindu Succession Act : The Hindu Succession Act has played a pioneering role in strengthening the rights of the women in the society. Under theAct, the properties of a Hindu male dying intestate devolves, in the first instance, or equally among his sons, daughters, widow and mother and include the specified heirs of predeceased sons and daughters.
PCPNDT Act : This Act is a noble effort to combat the menace of declining female child sex ratio in the county. It prohibits the selection before, or after conception, and for regulation of pre-natal diagnostic techniques for the purpose of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities etc. This Act provides immense immunities to women under Section 24. It provides that notwithstanding anything contained in the Indian Evidence Act, the Court shall presumeunless thecontrary is proved that the pregnant women was compelled by her husband or any other relative, as the case may be, to undergo the sex determination test.
Sexual Harassment Bill : Sexual harassment has been a disabling factor in the empowerment of women in the society. The constant fear of sexualharassment atworkplace pushes them again in the four walls of their houses. The proposed Sexual harassment bill provides for protecting women from sexual harassment specifically at workplace by imposing stringent punishments on the perpetrators ofthe crime.
Dowry Prohibition Act :The Dowry prohibition Act has gone a long way in savingthe lifeand dignity of hundreds of women which otherwise was beingsacrificed on the altar of theage old dowry system. The Act presupposes that only genuinely aggrieved women would lodge complaints and that they would invariable tellthe truth. Though some sections of thesociety have complained ofmisuse oftheActto implicate men stillit has proved to be in the larger interest of the women.
However, the most important source of empowerment of women has come through Constitution. TheConstitution ofIndia has severalarticles which provides foundation for equality of women especially Art.14, 19, 21 etc. Over the years the courts have also played a key role in empowering women particularly the Supreme Court of India.