The Judiciary in India has been the guiding force behind a number of legislations that have helped in bettering the lives of women.
Thanks to landmark judgments, women are now eligible for a share in ancestral property, able to work in offices in dignity, exercise their reproductive rights, continue using their maiden names after marriage, and secure equal rights in the armed forces.
The judiciary has also been instrumental in fine-tuning laws related to marriage and divorce, inheritance, guardianship of minor children, child prostitution and protection of sex workers from exploitation.
Right from Shah Bano to Visakha and Geeta Hariharan, the Supreme Court of India has been in the forefront, not only protecting the rights of women, but also ensuring that they get their due.
Courts in India have touched on practically every aspect concerning women, redefining the term ‘homemaker’ in so far as compensation under the Motor Vehicles Act is concerned, giving a new meaning to the increasing ‘live-in’ relationship, or interpreting the Shariat in the light of the Quran with regard to divorce of Muslim women.
However enlightened the courts’ judgments, what works against litigants is the long time it takes to get justice. This works against everyone but particularly against women who have fewer resources.
Lawyer T. Vasantha Lakshmi emphasises the need to reduce procedural delays once a case related to women reaches the court. “Procedural delays often help the accused to find ways to escape from the clutches of the law,” she says.
Though the Supreme Court has delivered several judgments that are considered ‘landmark’ judgments, women in India continue to suffer because of the different laws governing them and the lack of a court with a common jurisdiction to deal with issues related to women.
Women are forced to approach different foray to seek each relief separately. Women have to grapple with numerous legislations for the same or related issues, for example, Hindu women are governed by the Hindu Marriage Act (for divorce), Hindu Adoption and Maintenance Act (for maintenance), Guardians and Wards Act (for custody of children), and the Hindu Succession Act (for inheritance). Muslim women are governed by the Shariat Act and the Muslim Women Protection of Rights Act, while the Indian Divorce Act and the Indian Succession Act are primarily meant for Christian women.
Referring to multiplicity of Acts governing women, the department of women and child development, Government of India, in its document on court cases agrees that each of these acts vests jurisdiction in a different court.
“This multiplicity of litigation increases the physical and financial burden of litigation manifold.” Some laws still need strengthening. Says senior advocate Ch Nirmalatha, “In many divorce cases, women do not get maintenance as the divorced husbands disobey the decree. There should be stringent laws to ensure that maintenance is paid. Courts should work out a mechanism to oversee the payment.”
Judicial activism notwithstanding, political pressure often creates hurdles in the delivery of justice to victims. “Political pressures have been on the rise and this impacts the fair functioning of the police department.
It is not good for democracy if the police fail to act in cases of violence against women. In Andhra Pradesh the Sri Lakshmi case was a landmark judgment as the culprit was severely punished,” says legal expert J. Jnanamba.
The top court created a history of sorts in the Visakha case, which is now cited in almost every legal argument related to women. It protected women from sexual harassment at the work place, and framed detailed guidelines for both prevention and redressal.
There have been a number of orders, which state that the character of a rape victim should not form part of the proceedings during trial.
Women’s rights groups have been largely satisfied by the Supreme Court guidelines in the Visakha case that they feel no new legislation is needed to protect the rights of women. P. Durga Bhavani, vice-president of the AP Mahila Samakhya, observes that existing laws are sufficient to protect women.
“What we need is proper implementation of the legislations and judgments,” she says. Agrees social activist T. Shakuntala, “It is often the implementation of orders that causes more trouble. The Domestic Violence Act is a case in point. It is observed more in the breach.”
Advocate S.K. Nagoor says loopholes in the Constitution is the cause of the trouble. “The Constitution is prowomen only on paper,” she argues. “Loopholes in acts should be plugged. An amendment should be made to Section 498-A to make women-related cases non-bailable offences.”
Taking the approach of an activist, the Supreme Court drew up guidelines for dealing with the exploitation of sex workers. “Counselling, cajoling and correction, should be adopted to eradicate child prostitution and rescue girls from red light areas.”
In the Gita Hariharan case the court held that the mother too could be treated as a natural guardian under the Hindu Adoption and Maintenance Act, which hitherto has treated the father as the sole natural guardian.