Dispensation Of Justice And Conceptualization Of The Ethics Of Equality To The Empowerment Of Women

January 6, 2011

by Dr. (Mrs.) Priyadarshni M. Gangte The lofty height of idealism on “Equality” as enshrined in the preamble to the constitution of India is a manifestation of anti climax of inequality which has been in the existence in the traditional Indian society. Equality being the cardinal value of the constitution of India as against the backgrounds of elaborates valued and clearly perceived inequalities to secure justice, social, economic, and political to all its citizen has to be premises.

Obviously the constitution uses the word equality, the concept of the same are varied. According to Aristotle justice is equality. He conceives equality as a measure between two extremes – an equidistance (H.A. Bedau (ed) : Justice and Equality, (1971) London; p.18). However, Rawls (John Rawls : A Theory of Justice, 1973, London; p.60) theory of justice consists of the following principles:

First : Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others, and Second : Social, economic inequalities are to be arranged so that they are both (a) reasonably expected to be everyone advantage, and (b) attached to position and offices open to all.

In this connection, it is pertinent to elaborate what is conceived by Marxist theory on Women’s Oppression and Emancipation : Engels was the first Marxist to make a significant analysis of the oppression women in The Origin Of The Family, Private Property And The State. He examined family structures in different societies in different eras. He traced a historical transition from matriarchal to patriarchal family forms and identified the monogamous family as intrinsic to capitalism. He showed that the family, monogamy and women’s oppression are not natural, and had nothing with evolution but were specifically intended to control the ownership of private property through the protection of heirs. He thus saw the family as the institutionalized subjugation of women by men for the purpose of entrenching and perpetuating the capitalist system. Overthrow of mother’s right on which earlier societies were based laid the foundations for women’s subjugation, private property, monogamous marriage and patrilineal inheritance. “The first class opposition that appears in history coincides the development of the antagonism between man and woman in monogamous marriage, and the same coincides with the female sex by the male” (Engels, 1972 : 129). Now, let us examine some of the constitutional provisions sanctioning affirmative action to uplift women.

(i) Art. 14 : The State shall not deny to any person equality before law on equal protection of laws within the territory of India. (ii) Art.15(i) : The state shall not discriminate against any citizen on grounds only of religion, races, caste, sex, place of birth or any of them.

(iii) Art.15(3): Nothing in this article prevent the state from making any special provision for women and children. (iv) Art. 16: Provides equality of opportunity for all citizens in matter relating to employment or appointment to any office of state. (v) Art. 39: Provides that women have the right to adequate means of livelihood and should be equal work with equal pay. (vi) Art. 51: It shall be duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women. In implementation of the constitutional directives of equality of the sexes (Art. 39) and prohibition of discrimination against women (Art.15), Parliament in 1976 enacted the Equal Remuneous Act, 1976 prescribing for both sexes. Apart from this, clause (3) of Art 15 which permits special provision for women and children, has been widely resorted to and the courts have upheld the validity of special measures in legislation or executive orders favouring women. In particular, provisions in criminal law in favour of women, or in the procedural law discriminating in favour of women, have been upheld in Girdhar Vs State, A.I.R., 1953, M.B.: 147 (S.354, Indian Penal Code). Similarly, provisions providing for reservation of seats for women in local bodies or in educational institution are valid (P.M.Bakshi : The Constitution of India, 1995, Universal Book Traders, 80 Gokhale Market, Opp. Tishazari Courts, Delhi-54; p.22).

There is also improvement in law relating to rape case after Mathura rape case and also to abortion. In regard to maintenance, deserted women are questioned on the ground that it discriminates in favour of women and violates Art 15 and Art 15(2). It is said that a deserted husband should be awarded maintenance. As a result of various amendments in Hindu Marriage Act, 1955, 12 grounds of divorce are available of which two of the same meant to specifically to income. Hindu Succession Act 1956 envisages powers to women to inherit property. Again in order to curb the evil of dowry, the Dowry Prohibition Act 1984 was passed.

In few years, India has witnessed extensive and intensive developments in sphere of awareness of women towards their rights given in law. One contributing factor is education; of course, it helps a lot in the developmental process of women’s emancipation. The Union and State Governments have launched a few projects in the five years to improve the quality of lives of poor women in rural and urban areas and also the female children. The Mahila Samridhi Yojna (MSY) was launched by the Government in 1993, under the auspices of the Department of Women And Child Development, through the network of Post Office. Likewise the Rashtriya Mahila Kosh (RMK) plays a vital role, therefore, is national credit giving emphasis and concerns with the rural and urban women a joint venture by Non-Governmental Organisation and Self Help Groups. As an instance to cite towards the end of 1994, the Haryana State initiated a scheme to protect the girl child that Rs.2500/- (Rupees two thousand and five hundred) is invested in the name of a new born girl child, so when the child attains the age of 18, it will yield Rs.25,000. Besides, free education for girls in schools upto 10+2 level is also state government’s manifestation for upliftment of women.

Moreover, we have a programme for skill training and employment (STEP) for women initiated in 1985, based on integrated approach where inputs for skill and employment are combined with sensitization of women in the fields of health, education, family planning, non-formal education and awareness of legal rights (Mira Seth : Women And Development, Sage Publications, N. Delhi, Thousand Oaks London, 2001; p.83).

As a constitutional development, we have the Hindu Succession Act, 1956, of course, measures envisaged as to Right to Property by women though women’s position is not parable with that of men, is in fact a stepping stone to higher status. Hence the Hindu Succession Act, 1956 has also brought about radical changes in the pre-existing law and removed some gross inequalities. The Manipur Property Right, 2005, is also a landmark development in the history of Manipur in the legal perspective. However, its discourse to materialization is yet to be observed. Thus social change takes place gradually. Finally Hindu women can inherit property i.e. ancestral property. Now the Meitei women also enjoy both the ancestral as well as matrimonial properties. Women, of course, need to assert for themselves so also to fight for their rights tooth and nail (P.M. Gangte : Peace and Women, presented at the Workshop on Peace Education Among the Muslim Women, Organised by the Peace Education Centre, Manipur, Manipur University, Canchipur, Imphal at Lilong Haoreibi College on 20 Nov., 2007). Apart from this, television comedy producer-cum actor Jaspal Bhatia (Hindustan Times, 8th March, 2005) elegantly said in a seminar that majority of atrocities on women are committed by women. Instances are galore: the mother in-law on sister-in-law may in sometimes join in the torment of inflected domestic violence against a woman in her matrimonial home, and even act as accomplices in torture leading her to death. There are even cases where unmarried women have killed their own sister-in-law, contended Mukhul (Mukhul Mukherjee : Domestic Violence : The Crime Behind Closed Doors And The Role of Law Enforcement Agencies, 2001, Institute of Social Sciences, Delhi-70; p.4). Most of the women, including the educated women have looked upon the opposite sex always on to the superiority attitude inside and outside home. In this connection, it is pertinent to bring the comments made by the Malawi Mother known as Mama Joyce; “in India an educated lady cannot speak out against any male in front of whom is the fooliest” (Joyce Ng’ma, aged 53, Coordinator, Malawi Sub-Division, Africa of Global Staff U.R.I., Box 5038, Limbe, Malawi at the United Religions Initiatives, Global Assembly, held at Iskcon, Mayapur, West Bengal, India, on 30th Nov. to 5th Dec., 2008) while in the Group Discussion of Empowerment of Women to bring a Big Idea). However, if the individual educated man or woman realizes his or her own dignity, he or she would be willing to grant at least a part of what it is due to other.

However, the report of the committee on the status of Women candidly and altruistically brings out the aspect of reverse discrimination. Rejecting the suggestion for the reservation of jobs in favour of women, the committee noted the reservations when once granted are hard to withdraw later (Towards Equality : Reports of the Committee on the Status of Women, 304 (1974). Baxi has said that Indian constitution is based on patriarchal system is absolutely true because there was no woman while the constitution was drawn. (Upendra Baxi, the former Dean of Law Faculty, Delhi University and former Vice Chancellor of Delhi University, while delivering the Key Note address at the Seminar. Women Empowerment in India, organized by Delhi University, Delhi at Law Faculty on 15.4.1994).

Another landmark development to foster the upliftment of women is the 73rd Amendment in December, 1992, of the Constitution, provided for the reservation of 33% of seat reservation for women apart from those for the scheduled castes and scheduled tribes in Panchayats. Let us examine how this democratic institution has changed the political governance in the country in general so also in the state like Manipur in particular. The number of women whom the PRI (Panchayati Raj Institution) have brought into politics is governing be it in one village or a larger area such as a district is considerably different. The percentage of women at various levels of political activity has shifted dramatically, from 4-5 percent before the introduction of the Panchayati Raj to 25-40 percent since (Sujata D. Hazarika : Democracy and Leadership: The Gendered Voice in Politics, Vol.57, Number 3, September – December 2008, Indian Sociological Society, Delhi; p.362). The recruitment of woman in the army is one of the impacts of the 73rd amendment 1992 to the Constitution of India, so gender sensitiveness effort are on throughout the country in various stages in institution like police. Again the 74th Amendment (1993) to the Constitution of India has also provided for reservation of seats in local bodies of Municipalities for women, laying a strong foundation for their participation in decision making process. These democratic institutions have for the first time attempted to bring women into a system of governance upholding the principle of equality and justice.

The disconcerting aspect of the problem is that higher education and economic stability of young men in case of dowry and women in case of bride-price instead of serving to reduce the problem, aggravates it. The educated sections unashamedly contribute to it by demanding higher amounts or costly articles as dowries in the case of dowry. Available evidence suggests that the practice has spread to other religious groups like the Christians and Muslims (B. Shivaramayya : Inequality And Women, 1984, Eastern Book Company; p.66).

Moreover, manifestation of women empowerment, women have to aware of themselves, for they not fall into the ditch of problem i.e. letting themselves as the preys of male. Though, women empowerment emphasizes to avoid conflicts, with or without it, a girl, a wife, mother or grandmother or daughter-in-law or mother-in-law, might become a peace educator or activist i.e. the very idea of human society presupposes order, has been contended by Kuppuswamy (B. Kuppuswamy: Social change in India, 1979, Vikas Publishing House Pvt. Ltd. U/O.(India); p.15) i.e. social order and that refers to the existence of restraint the inhibition of impulse, or move specifically to the control in social life. Kipgen (Tongkhothang Kipgen, aged 65 years, Retd Director, Horticulture Department, Govt. of Manipur and General Secretary, Sadar Hills Chief Association, New Lambulane, Imphal, Manipur) has contended that mankind is yet to realize the fundamental aspect of attaining peace within himself and to the surrounding space he conquered. Thus espousing equality amongst his peers or non inhabitant especially to women is pre-requisite to actualize peace within himself and gain mutual respect and trust as a subsequent effect… ………… only than mankind will be able to fulfill his desire. However, according to the United Nations Declaration on the Elimination of Violence against women adopted by the United Nations General Assembly on 20 December, 1993 : The term ‘violence against women’ means any act of gender based violence that results in or is likely in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. Gender based violence refers to violence directed toward woman because she is a woman or which affects a woman disproportionately.

Thus, the World Conference at Vienna had condemned gender based violence as well as all other forms of sexual harassment and exploitation. The conference concluded that, ‘the human rights of women and girls are unalienable, integral and indivisible part of universal Human Rights. The Vienna Declaration for the first time thus recognised that gender based violence against women in public and private life has human rights concerns.

However, in this prevailing atmosphere it is not only the women in Third World countries who are subjected to rapes and molestations, even countries like U.K., U.S.A. and others, the number of rape crimes are increasing day by day. In this regard, a new ICM opinion poll commissioned by Amnesty International published recently is expected to go deep into the root cause of increasing crime against women. According to the opinion poll, a quarter (23%) of people in Wales and South-Wales behave that a woman is partially or totally responsible for being raped if she has behaved in a flirtatious manner. The poll ‘Sexual Assault Research’ published as part of Amnesty Internationals ‘Stop Violence Against Women’ campaign shows that similar “blame culture” attitude exist over clothing, drinking perceived promiscuity personal safety and whether a woman has clearly said “no” to the man (Amnesty International: Women also to be blamed for rapes – The Imphal Free Press; 30-9-2006). Let the violence of such not been institutionalized, education must be used as a weapon to eradicate; and to change in attitude, behaviour and habit, henceforth women should not be landed in problems like crime against them involving by themselves. Domestic violence and its legal ethics are apparently shown in the discourses where Mukul (Mukul Mukherjee, Op. cit; p.23) has personally taken up. Section 498A was introduced into the Indian Penal Code in 1983, it treats domestic violence as a serious, cognizable non-bailable criminal office punishable with imprisonment for a term of three years or five. For the purpose of this Section, ‘cruelty’ means – any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause injury or danger to life and limb or health (whether mental or physical). Section 304 B was also added to the Indian Penal Code in 1986, making punishable violence leading to ‘dowry death’ that is murder or suicide of women related to dowry demands. At the same time, the Indian Evidence Act was also amended, shifting the burden of proof for such deaths on the accused which meant that unlike other cases, the husband and his family would be presumed guilty unless proved innocent (ibid) Section 113A of the India Evidence Act: Presumption as to abetment of suicide by a married woman; and Section 113B of the Indian Evidence Act : Presumption as to dowry death are some of the notable laws.

We have Mathura Rape Case – sexual assault, IPC- 376 is inserted by the amendment of 1983, 386A, 386D are also added. Section 386A – new office is created as sexual intercourse with judicially separated wife with out her consent; is considered as an offence punishable with 2(two) year imprisonment and five. Custodial Sexual Intercourse – IPC 376 B, 376C, and 376D deal with sexual intercourse committed by custodial authorities against women in their custody, punishment with custodial rape five years imprisonment. Moreover, we need to create proprietary entitlement for women, all matrimonial property should be registered in the joint names of husband and wife, perhaps, it is not done so, the wife should have the right to ask injunction until the matter is solved if the marriage breaks down. Besides, parents should not be prevented from denying daughter their rightful share of property. And the right of wife to matrimonial homes also be guaranteed.

In 2001 the Government of India introduced in Parliament the protection from Domestic Violence Bill which came into force in 2005. It envisages that any conduct of the respondent shall constitute domestic violence if, he (a) Habitually assaults or makes life of the aggrieved person miserable by cruelty of conduct even if such conduct does not amount of physical ill-treatment; or (b) Forces the aggrieved person to lead an immoral life; or (c) Otherwise injuries or harms the aggrieved person. Singh (M.P. Singh, Jurisprudential Foundations of Affirmative Action: Some Aspects of Equality and Social Justice, Delhi Law Review, 1983-84; p.42) contended Justice is generally divided into legal and social justice, legal justice concerns the punishment of wrong doing and the compensation of injury through the creation and enforcement of a public set of rules, whereas, social justice requires equitable or just distribution of the social goods and evils or burdens and benefits. While distinguishing social justice from legal justice Miller says : Social justice concerns the distribution of benefits and burden throughout a society, as it results from major social institution, property system, public organisation, etc. (D. Miller : Social Justice, 1976; p.22).

I would like to lay certain methods of empowerment through complement of rights or powers to be empowered : (i) by creating penal sanction against certain types of behaviour that violates the dignity or liberty of woman; (ii) by creating new propriety entitlement for women such as giving a share in the matrimonial property or assuring them a right to work on equal wages (Art. 42 – Equal pay for equal work); (iii) by providing preferential treatment to women or providing for compensatory discrimination in their favour by receiving jobs, or seats in local self government institution, and (iv) by facilitating the exercise of liberty or freedom by such person. Whatever said and done, mass education is essential for women empowerment. In Manipur social change is needed, the trend of present society, mindset of mass cannot be conscious, economic, social and political consciousness through education is certainly increased. Women solely cannot bring the same, it needs male’s support heart and soul. Besides Bhattacharya (P. Krishnaprasad (ed) : Women And Society, Student Struggle, Vol.31, Issue No.2. February 2002 SFI-II, Windsor Place, New Delhi 1; p.5) has contended that education for women in India today requires be no different from the education that we envisage for all citizens. The specific constraints that prevent women’s access to education and reduce the possibility of their completing it have to be counteracted, however, opportunities have to be provided to enable them to of those who have been traditionally excluded from. The syllabus and curriculum in schools have to register the presence of women in society and also to break feminine stereotypes through texts.

In Manipur context, women can be categorized into three groups- (i) educated and employed; (ii) educated and unemployed; and (iii) uneducated group i.e. illiterate. The last group comprises the largest number, come out openly fighting against the social issues. These social activists, became very vocal, can reach to the extremes of any social dimensions, however, they are not working and fighting for themselves but for others particularly the male gentry. These illiterate women participated in the field are not able even to read and understand properly what actually is written and the meaning thereof on the banner in the eventuality like, to remove AFSPA, of course, our society has a meager number of educated women intellectual, accustomed to stay back from such activity i.e. within the four walls of home. Obviously, women empowerment will be a distant dream, maintained by Chinglen Maisnam, Economics Department, Manipur University, (interviewed on 25.2.2009.)

It will be interesting to note and examine what Jean (Jean P. Sasson, Princess, 1992, Doubleday Transworld Publishers Ltd., Berks, U.K. ; p.163) has asserted :

Only we modern educated women could change the course of women’s lives. It was in our power within our wombs. I looked to my wedding date determined anticipation. I would be the first of Saudi women to reform her inner circle. It would my sons and daughters who would remodel Arabia into a country worthy of all its citizens, both male and female. Hence, Saudi women are of course, have changed to certain extent, now they have become education director and minister. Here Princess is a book depicting all the social problems faced by Saudi females. Princess Sultana (name changed) one of royal Fahd princess, collected her own diaries whatever she experienced since her childhood till she become a mother. The book points out the discriminations and the injustices faced by females in a very orthodox and conservative society in Saudi Arabia.

It is also necessary to strengthen women’s sense of common identity by articulating the elements of feminist consciousness and presenting it as the special quality of women leadership (Indian Sociological Society, ibid; p.361) e.g. the Meira Paibis of Manipur have played a very important role as peacemakers not just between families, clans, and tribes but underground insurgents and government of India.

However, in the tribal areas, we find two sets of democratic institutions at work a modern democratic and traditional systems. The traditional systems never recognised the rights of women as primary decision-makers in matters of community issue like inter-ethnic conflicts crisis management, social sanctions, etc. Thus, Sujata (Ibid) has maintained traditional institutions and customary laws prevalent among tribal people, though portray an egalitarian socio-economic structure, is discriminatory when it comes to women rights in traditional governance and customary law. Womenfolk in this society have yet a long way of struggle to go to achieve desired goal of upliftment and empowerment. Moreover, when we deeply look at the status of Meitei women we feel that though liberated and omnipotent the Meitei women still need social security and more human treatment at the hands of the male partners (P.M. Gangte : Customary Laws of Meitei And Mizo Societies, Akansha Publishing House, N.Delhi-2, 2008; p.337).

Irene (Irene Salam, Department of History, Manipur University, interviewed on 11.3.2009) maintained that with the advent of globalisation much awareness has been created on the subject of women’s empowerment. Although this exist only on theory than in practice, some progress has been made on the ground level for instance in the sphere of economy. Women have been providing with technical and vocational training in diverse which have enabled them to pursue a sustainable livelihood. By becoming income earner they have contributed to the family kitty and thereby ensure a rise in the standard of living. In the social sphere although always held a high position, they have now become a voceriferous in asserting their needs and status. In the relative sphere women have become more active and not contend to just serve and remained in the background but would also like to be represented in the role of preachers and theologians. This is specifically applicable to the tribal community in Manipur because in the Meitei community the Maibis occupy a premier position in the performance of ritual associated with indigenous religion. Awareness of rise although on the rise has not been translated into practice mainly because women feel afraid to approach the law courts where justice is often delayed.

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