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WELCOME ADDRESS

Lt. Gen. V.R. Ragahvan (Retd.)

The Honble Justice Prabha Sridevan,
ladies and gentlemen, it is my special
pleasure to welcome you. Some of you are
our regular friends and partners in the
activities of the Centre. A word about the
Centre itself: it was started two years ago,
primarily because we believed that an
organization of this nature does not exist in
Southern India or what we call Peninsular
India. We believe that Peninsular India
plays a very significant part; it is perhaps
the best-governed part of India, with the
highest GDP growth rate, greater social
concern and greater political stability.

Indeed, I think in Delhi no government can
survive without at least two of the five
Southern states being part of that world
and yet the perception of security as they
are here, do not necessarily get co-opted
into the system up North. What do we
understand by security? Our idea of
security is much more than purely the
military dimensions, the military budget
and the armed forces. We believe that
security for the citizen is really the well
being of the citizen. I might remind this
informed audience that seven or eight
years ago a number of polls were
conducted by major journals and I spoke to
the editors of India Today and Outlook
etc.. and said why dont you include
national security in that. So, amongst the
ten or twelve questions the voter was
asked, what worries you most?. In there,
the voter had placed national security at
the bottom of the list, not because he
doesnt care for security, but for him
security means empowerment, health and
education, law and order and justice,
economic growth pattern, environment etc.
These are the components of security truly
in the beginning of this century and in all
these components women play a major
part and yet their voice doesnt get the


kind of platform it deserves. Therefore, we
attach greater importance to the gender
dimension. For example the two research
fellows of the organization have made it a
point that there is a proper general
distribution amongst them for it will build
capacity into women to be able to take
their positions in their respective field.
Therefore, Dr. Geeta Madhavan has kindly
put together this very efficiently in the
seminar on Women and Legal Security. I
am delighted that so many of you have
come from outside and from Chennai to
participate in this. I would like to draw
your attention to your folders, where Dr.
Geeta Madhavan, the Seminar Director has
put two or three papers and some
information sheets and she has highlighted
about violence against women in Europe.
She has given three very disturbing
examples from Spain, France and
Switzerland. Its not as if the Indian Sub-
continent is a black hole, as far as women
are concerned there are many black holes.
In all this endeavour to get that wonderful
start we could not have had a better
Inaugural Speaker than the Honble Justice
Ms. Prabha Sridevan, known for her
empathy and support and concerns for
womens issues. We look forward to her
Inaugural Address for both inspiration and
for putting down the points and the
guidelines that are necessary for us to
deliver it.

INAUGURAL ADDRESS

Introduction of the Chief Guest Dr.
Geeta Madhavan

The Honble Justice Prabha Sridevan, Gen.
Raghavan and ladies and gentlemen, I
consider it a pleasure and a special
privilege to welcome Justice Prabha
Sridevan here. She needs no introduction
to the people of Chennai - every one
knows that she comes from an illustrious
legal background. At a time when there
were very few women lawyers and I had
just entered the profession, I was very
nervous and overwrought by the grandeur
and the seriousness of the legal profession.

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It was at such time watching persons like
Madam Judge, who was then a lawyer,
conduct herself with great dignity,
confidence and lan that made the new
entrants feel that we too could make a
mark in this challenging profession. Since
then shes always been an inspiration to all
the new comers. I am grateful to you
Madam for taking time off from your
schedules and other commitments and
being with us here this morning.

The Honble (Mrs.) Justice Prabha
Sridevan

I am very happy to be here to inaugurate
this seminar. Yesterday, I had the pleasure
of inaugurating a seminar at the Dr.
Ambedkar Law University where I was
told what was told just now, that they
could not think of a better speaker than
me. So Im hoping for the day that you
will all say that you could not think of a
better speaker than a man judge to speak
on women and legal security, gender
justice, etc. I think that should be the aim
for all of us because it seems to me that
repeatedly women are asked to speak
about their rights almost as if we are
pleading for what is rightfully ours.
Though the seminar is on legal security,
my focus will be on women and legal
rights in my inaugural speech, human
rights, which I think, partakes of whatever
is going to be delivered during this
seminar. Not withstanding lofty ideals and
numerous International Declarations and
Conventions, high-level rhetoric and
naming of days in the cause of women the
failure of protection of equality rights for
women must shame us all. Violence
against women is a matter of equality as it
is an offence against human dignity and a
violation of human rights. So each time
there is an act of violence, the right to
equality is violated. CEDAW specifically
calls upon the member states to pursue
policies to eliminate violence against
women. It will be easy to understand why I
call violence against women as an equality
issue. From the general recommendation
No. 19 adopted by CEDAW on the
interpretation of discrimination as it relates
to violence against women as follows, I
quote, The convention on Article 1
defines discrimination against women. The
definition of discrimination includes
gender-based violence that is directed
against a woman, because she is a woman
or that affects women disproportionately.
It includes acts that inflict physical, mental
or sexual harm or suffering.

The Judge of the Alberta Court of Appeals
said that Equality is the common bond
which runs through our world idea of
justice. It represents everything that is
noble in a nation, and brings out the best in
its people-respect, tolerance, fair play and
a willingness to accommodate difference.
But why would we violate this ground
norm of equality? We are reasonable, we
can see inequality, we are fair, we are just.
Yes, we can see, thats what we all think.
But what stops us from seeing right? But
as Justice Cardozo said, In each of us
there are forces which shape our thoughts
and they are born of inherited instincts,
traditional beliefs, acquired convictions
and the result is an outlook on life, a
conception of social needs.

So each of us is actually a stream of these
currents going in the direction the currents
take us. Some important factors which
guide the direction are myths and
stereotypes. Myths and stereotypes come
in the way of our recognition of equality
rights of women. Some myths are: if a
marriage is broken the women must be at
fault; a single women must be a loose
women; a commercial sex worker cannot
complain of rape and if a women is
dressed in a particular way and is raped,
she asked for it. Myths like these have
contributed to the perpetration of injustice
to women.

Two women who were as qualified as the
men, if not more, were denied appointment
to be the members of an Education Trust
because the Scheme Judges thought only
men had experience. This decision was set
aside on the ground that it runs contrary to
the Rights of Equality and also violates the

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principles that we have adopted to
ourselves by being parties to CEDAW.

In the city of Los Angles Department of
Water and Power, Marie Manhart, the US
Supreme Court Justice observed that, It is
now well recognised that employment
decisions cannot be predicated on mere
stereotyped impressions about the
characteristics of males or females. Myths
and purely habitual assumptions about a
womans inability to perform certain kinds
of work are no longer acceptable reasons
for refusing to employ qualified
individuals or for paying them less. Here
the Supreme Court talks about the
perception of women at the work place. I
have read and I am sure many of you may
have read the excellent autobiography On
Balance written by Justice Leila Seth. Till
now she is the only Chief Justice to head a
High Court. She says, when she was a
lawyer, her husband was a very senior
executive in a company. If the father was
working, the children knew that they
should shut up, but if the mother had
spread her cases on the table and was
working it was all right to jump on it. The
line dividing the mother and the
professional is always blurred whereas it is
very clear when it is the father or the
brother or the son. This works to the
disadvantage of women at home and at
work place.

What are a womans human rights? When
I say woman, it includes the girl child too.
They are inalienable and integral to her
person. What is this woman entitled too?
She is entitled to full development of her
personality. She has fundamental
freedoms, the right to live, work and
engage in all social activities with dignity.
She has the right to equal participation in
political, social, economic and cultural
life. These rights must be safeguarded and
ensured for they are indispensable for full
national development, social and family
stability - cultural, social and economic
growth and, if I may add, security too.

How would a country forge forward, if
50% of her population were going to be
deadweight? Which would happen if the
women are put in a disadvantageous
position. Judge Claire Heureux Dube of
Supreme Court of Canada says, Myths
and stereotypes are both pervasive and
difficult to recognise because of their
cultural and collective origins. This is
very important especially in India when a
women tries to assert her rights and she is
told, no, we are anyway considering you
as a lady so please dont assert your
rights and it kind of silences her because
she is told we are honouring you so
please keep quiet. I think you will
recognise the various situations in the
system. To continue with the quotation,
We acquire myths and stereotypes as the
same way we learn other attitudes and
behaviour- from our families, our
colleagues, our culture and heritage in the
form of arts and literature, the media,
jokes, music, rock videos and
advertisements. They are, therefore, deeply
embedded in our unconscious, even while
they inform our conscious conscience
reasoning process. Myths and stereotypes
are usually generated by those who
dominate the political, social and
economic structures of any given society.
They are, therefore, a powerful tool for
maintaining the status quo, since they are
so firmly entrenched in the collective
cultural conscience that even the victims
of the stereotypes are apt to believe in
them, and therefore accept responsibility
for their victimization. The all-pervasive
hold that these fallacies have on our
consciousness must be removed. Many of
these baseless notions result in gender
inequity.

The time is right for introspection. The
almost unshakeable firmness with which
these notions are embedded in our
consciousness is because they are
patriarchal assumptions and are born out
of the inability of the male psyche to
comprehend a condition peculiarly within
the experience of the women.

Recently a workshop was conducted for
sensitising newly recruited young judges.
One of the exercises was to draw the Line

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of Equality. This is an imaginary line and
one assess the hurdles in the way of a
particular category of individuals in
reaching this level. The participants were
asked to imagine a person in a wheelchair,
a social activitist, a women whose brother
had raped her child and a male graduate.
They were asked to imagine all the hurdles
in their way to reach this imaginary line of
equality. The person who faced the
maximum hurdles was the woman,
whereas the person who faces virtually no
hurdles was the young male law graduate.
From this exercise it was apparent even to
the trainees, that as far as the women are
concerned her equality rights are non-
existent or are very minimal.

In fact, at this workshop of which I was a
faculty member, I had a very poignant
experience. We had asked two women
who had suffered violence to come and
speak about their experience. They were
not of course litigants before the local
Court because that would have been unfair
as the participants were local judges. There
was this women who had had acid poured
down her throat by her husband and that is
what she had come to complain to the
judge. The workshop was conducted four
years after the incident. And immediately
after the incident, her voice would not
have been what it normally would have
been. It would have probably improved
with therapy and when she spoke, she
probably croaked and she said the entire
courtroom laughed including the judge. I
am willing to be very generous. Perhaps
the laughter from the judge was more a
reflex action, but just imagine what
message it conveys to the woman. She
asked us, hume kahan se insaf milega?
(where will we get justice) and we had no
answer. So people in power should send a
message across that they understand it is
not favouring, it is understanding.

At the Conference of International
Association of Women Judges at Dublin in
May 2002, the theme was Judicial
Creativity. The keynote address delivered
by Dr. Angela Ward referred to the
opinion of Justice Cardozo. Insignificant
is the power of innovation of any judge
when compared with the bulk and pressure
of the rules that hedge him on every side.
Innovate however, to some extent he must,
for with new conditions there must be new
rules. All that the method of sociology
demands is that within this narrow range
of choice he shall search for social
justice. Please do not think that this is
something within the power of only a
judge. Anybody who holds a position
where he can set things right, he or she can
easily do this. In dealing with the issue of
rights, the attitude and approach must
change. When the stagecoach has given
way to jet travel then the traveller must
change. In fact, as far as the law declared
by the Supreme Court in cases relating to
violence against women, there has been a
constant evolution and increased
sensitivity and understanding of the
womans equality right. Rape is now seen
as a violence against society, as violation
of the equality rights of the weak by the
aggressor; as an act which causes not just
physical impact but damages the woman
psychologically, mentally and emotionally.
At the Dublin Conference we shared our
experiences. An African Judge who was a
magistrate told us, the magistrates court
was on the first floor and the ground floor
was a bar. During her lunch time she could
not even go to the rest room which was on
the ground floor for fear of the crude
remarks that may be passed by the men in
the bar. So, you understand that this
inequality or this damage which the
woman suffers is not peculiar to our
country, it is universal. At the Dublin
Conference one Judge observed that
human rights are by their nature anti-
majoritarian, designed as they are to
prevent large-scale governmental
violations. These become feasible when in
a given moment the abusing authority
enjoys the support of the majority. This
was in reference to the Human Rights
violation by the state. But if we consider
the human rights of women as equality
rights then they are also anti-majoritarian,
because the male component in social,
economic and political power graph is
majoritarian. Population wise the male-

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female ratio may be equal, no doubt, it is
indeed coming down and it is not healthy.
Unless there is a radical change in the
attitude and willingness to recognize the
equality rights and a conscious effort on
the part of all of us equality rights will
continue to be violated. Unless one take
the oath of affirmation to provide support
so that the women also reaches the land of
equality, it will not happen. A major
example of the thrust given to this goal of
equality is CEDAW. The Supreme Court
of Costa Rica in Calderon Vs the President
of the Republic and another, had upheld
the domestic constitutional protection of
the free access to public post available
equally to women and men and ruled that
the Costa Rican Government was bound to
give to women special qualified treatment
since socially they are not on equal terms
with men. This is equality in action. Its
not linear equality but equality in action. It
rendered unlawful the appointment by the
Costa Rican government of all male panel
to the Board of Directors.

With great pride, I heard at the Dublin
Conference how the international
community views the part our Supreme
Court has played in achieving the goal of
equality by harmonizing state practice with
the international conventions. Not just one
speaker but many, including the UNHCR
applauded our Supreme Court for the
forward thrust it has given in achieving
Gender Equality. But the trouble is while
its true that the Supreme Court repeatedly
gives us guidelines, it should percolate
downwards. It should reach the common
man, it should reach the roots, and in that
regard we should all make an effort to see
the message does go.

Particular mention was made at the
landmark case, Vishaka Vs. State of
Rajastan and others, where the Supreme
Court observed, that there was no reason
why international conventions and norms
cannot be used for construing the
fundamental rights expressly guaranteed in
the Constitution of India which embodied
the basic concept of gender equality in all
spheres of human activity.

So, when we actually talk of human rights
of women, what we are referring to is the
upholding of the womens equality rights.
When we talk of women and human rights,
we are actually talking about womens
rights as seen from three different
perspectives. Women have the right to be
treated equally with men. This is
guaranteed by our fundamental rights
namely Art. 14 which the doctrine of
equality and in Art. 15 and 16 which
guarantee equal protection and non-
discrimination. The next perspective is the
right to equality in action. This is
affirmative action. We have already seen
how far below the women are from the
line of equality. Therefore, she has to be
treated differently so that there is equality
in action. This is called Substantive
Equality, opposed to formal equality. This
is taken care of by Art. 153 which clearly
lays down that the equality principle shall
not prevent the state from making special
provisions for women. This article
recognizes the reality that women have
been socially, economically and politically
handicapped for centuries and in order to
give them the power to plead equally with
men, there should be affirmative action.
Finally, women are entitled to equal
treatment in personal laws. Such
provisions have been challenged time and
again on the ground that it amounts to
discrimination on the grounds of sex.
Though they are defended on religious
grounds, it is evident that the scales never
tilt against the male but always against the
female. There has to be awareness
amongst us all to see the situation from
these three perspectives and to rectify the
inequalities.

While on the subject of inequality I come
back to the issue of violence and you may
wonder why. Because violence intimidates
the women from asserting her equality. We
will never see, we who are fortunate, that
the women or the girl who has suffered
inequality lacks even the language to
speak of it. How can we communicate the
injustice unless we can speak? These
women and girls who suffer violence do

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not have those tools. What is the basis, the
underlying drive behind an act of violence
against women? You may think it is lust,
passion, or uncontrollable sexual
behaviour. But you would be wrong. The
basis for it is the assertion of power
against the women to tell you that you
dont matter and that is why seriously I
have objections to the use of the word
empowerment of women I think it is
because of the exertion of power by the
men on women over the centuries that
women have suffered. Let us use some
other word, not power. It is basically a
power show which treats the women not as
a human being but as an object without
human rights which can be violated
wilfully and with incriminity.

What do the women expect and how
should we change to meet their
expectations? The changes to be made are
primarily attitudinal to acknowledge that
the women are equal and the rest will
follow. It has been found that while all
crimes against women have violent effect,
domestic violence is more venal because it
is a silent stalker and the attack is repeated
by the confidence that the offence will not
come to light. One of the myths is that
domestic violence does not happen or that
it happens only in some groups. Actually,
it cuts across all known divisions; racial,
social, economic and geographic. In
United States vs. Dixon, it was observed,
Realisation of the scope of domestic
violence.. the single largest cause of
injury to women has come with
difficultyAnd it has come late.
Domestic violence is the product of
patriarchal tradition. At a workshop were I
attended as a facilitator , a trainee could
not comprehend the concept that no one,
including the husband, has the right to
force himself on a women. He just could
not understand that no husband had that
right, because he thought, it is my
property. Her right over her body, her right
of physical integrity is guaranteed by our
Constitution. We may think we have laws.
Yes, we do have laws. They are all there
on paper but the record of our laws in how
they have been translated into reality is
clearly not very promising. The woeful
records, for instance of Dowry Prohibition
Act makes one cynical about the success
of any pro-woman enactment. In domestic
violence matters, society, courts and law
enforcement agencies have been more
keen on protecting the autonomy of the
home than the womens physical
autonomy.

One of the greatest living judges of the
Constitutional Court of South Africa,
Sachs J, in the State Vs Godfrey Baloy
observed, in practice the concept of
autonomy has been used to protect the
abusive husband from the actions of the
State but not the abused wife from the
actions of the husband. This stress on
privacy has contributed towards greater
opportunity for violence and justification
for non-interference. It is believed that
violence by the husband is justified in
certain circumstances and that ultimately
the family unit should be preserved. At
what cost should family unity be
preserved? Even if she is battered verbally,
psychologically or physically? If the
family unity is a prime value, why do we
have partition suits? Then we should
ensure that the property is not divided. So
the law applies differently where the
family unity relates to a mans right to
property. It deals differently where it
relates to womens right to personal
security. We know and acknowledge that a
mans right over his property is to be
upheld, even if it results in the division of
jointness. Is a mans property more
important than a woman herself? These are
questions that we should ask our selves
during the deliberation of the seminar. I
wish you all success and I am very
thankful that I was invited today to share
my thoughts with all of you.






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SESSION I WOMENS
RIGHTS

Chairperson: Dr. Susila Mariappan

This is the first session on Womens
Rights. Ms. S.K.Priya will speak on Child
Birth, Maintenance and Custody of
Children. Ms. Sheila Jayaprakash will
speak on Property Rights and Inheritance.
Moreover, I am very happy that I am asked
by the organizers to chair the session on
Womens Rights. Madam Justice Prabha
Sridevan has already elaborated in her
speech on the rights of women. In fact, in
the entire world, 50% of the population are
women. In US, UK, Japan and all the
developed countries the illiteracy rate of
women is only 1% or 2%. However, in
India the womens illiteracy rate is almost
61%. That is the reason our country is still
categorised under the developing stages.
The entire countrys social, economic and
cultural development revolves around
womens development.

In the entire world, the women working
force is almost one third. In the worlds
property, women have only one in a
hundred. As far as India is concerned 90%
of the women are working in un-organised
sectors. Women illiteracy is 61 in 100.
That is 61%. Drop out rate in higher
education is almost 78%. Women in
executive jobs are only 6%. Women in
administrative service are only 8%, in
corporate sector it is only 1%. Therefore, it
indicates indirectly that women are still in
the undeveloped or developing stage. In
addition, they are yet to know about their
rights, especially women in the village
sector. We have got plenty of rights.
Despite equality of women in social and
cultural aspects, discrimination against
women still exists. Public organizations
should come forward to free the women.
The fundamental rights of women are yet
to be ensured. Women should have the
rights to choose their prospective husbands
and after giving birth to children, both men
and women should share the responsibility
of taking care of the children. Women
have equal rights to participate in the
political election. Therefore, we have
plenty of rights but at the same time,
judiciaries and the intellectuals say to
enjoy the rights women have to be bold
enough to sit along with men and work.
They should be keen to exchange their
ideas with men. They should have the
capacity to guide and advice others, they
should be knowledgeable of the state,
national and international affairs. To be on
par with men, they have to build capacity,
they have to build scale. We have to try in
all aspects and in all sectors to be on par
with men.

Women are mainly child carers: they are
nurses, they are primary school teachers.
Local statistics show that the major role
women play in USA is being Bank Tellers.
In Austria they are chimneysweepers. In
Russia, majority of the women are doctors.
In India, majority of the women are road
builders and in Nigeria, they are street
food vendors. Women have to be given
important roles in all sectors. It is said,
tell me, Ill project; teach me, Ill
remember; involve me, Ill learn. So
women would learn a lot and they would
come up in life provided they are involved
in adequate measures.


Ms. S.K. Priya

Marriage, Divorce, Guardianship and
Custody in India

After Justice Prabha Sridevans speech on
equality, I thought I should focus my paper
on marriage and divorce viewed from the
constitution angle of equality. And as we
all now know the CEDAW, the
Convention on the Elimination of the
Discrimination Against Women, has been
bred into our constitution and the touch
stone - the test of equality is actually the
CEDAW. Art. 16 of the CEDAW, talks
about choice in marriage. It says women
should have the right to choose if, when
and whom to marry. As already known,
our marriage and family laws are based on
religious laws, personal laws and are

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different for every community. There are
some similarities; I will first deal with
those.

There is really no law that says that all
should get married. However, the thought
exists that marriage is the culmination of
your student-hood and your entry into
adulthood. In our society it is seen
especially for women, as some pinnacle of
achievement and if you dont reach that
pinnacle you are not only on the shelf, but
you have failed somehow. This has its
disadvantageous consequences for women.
If not married, rural women for instance,
face tremendous social pressure. You are
not considered part of society.

Culture dictates that marriage is the
ultimate aim especially for women and we
have many sayings in all languages in
India about girls and their place in society
and their need to get married. The age to
get married is dictated by law and it is
different for each community. The Hindu
law says the girls have to be 18 and the
boy 21. In Christian Law, both have to be
18. For Muslims, its 16 and 12. Therefore,
it differs from community to community
though we do have a law that says that
child marriage is prohibited and it is
criminal activity to encourage child
marriage.

When we look at the laws themselves there
is no illegality except in the secular law,
the Special Marriage Act. When
conducting a seminar on the subject of
marriage, the first question I was asked by
rural women was, why 18 and 21? City
people rarely ask me about this distinction
in law. If you are an adult at 18 and are
allowed to be an owner, to start a bank
account, if you can drive a car at 18 then
why cant you get married if you are a
man? You are already, as far as India
Majority Act is concerned, a major.
Regarding who we can marry, each
personal law governing marriage, the
Hindu, Christian, Muslim and Special
Marriage Act have different standards
about whom we can get married to. For
example in the Hindu law, you cannot
marry someone of the same Godra or who
is a Supenda. In most of the laws you
cannot marry a linear descendent or
ascendant, i.e. you cant marry you own
grandfather, father, mother, daughter or
son. There are also other differences, such
as in Muslim law, you can marry your first
cousin, but you cannot do that if you are a
Hindu. You can marry, by custom, in
Tamil Nadu one type of first cousin, that is
a first cousin by the female line. Therefore,
there are cultural differences. Some of this
is because of social conditioning and some
because of health reasons. However, it
limits the choice. Why should the state
dictate whom we are to marry, because all
these laws are administered by the state no
matter if it is based on religious law or not.

The other question about choice, the High
Court is flooded with several habeas
corpus petitions by parents, who insist that
their daughters have exercised their choice
in marriage, and use all sorts of means,
fake birth certificate and so on to cancel
the marriage. In case of suspicion, the
parents can approach the jurisdiction to
decide whether this was a marriage by
choice or kidnapping. Even though we
believe in equality, our constitution says,
men and women are equal and there is no
law which says you cannot choose whom
to marry, culture dictates that in fact there
is hardly any choice about whom to marry.
This is heterosexual relation. When we
start talking about same sex relations there
is absolutely no choice in the law. In fact
same sexual relations are considered
criminal activity and I think we should
start waking up to the fact that same sex
relationships are a reality in India. It is just
under the carpet now because of the
criminalisation.

When speaking about the choice of
ceremony, in Hindu law in Tamil Nadu,
there is a choice. You can choose not to
have a religious ceremony, and have a
secular ceremony and still get married
under the Hindu Act. I am talking about
the Suyammariathai Marriage. However,
there are other laws. The ceremony is
fixed, except in Muslim law, where there

10
is no fixed ceremonies as marriage is a
contract. Its only Muslim law where
marriage is a contract, but it is not the
same in most cases again because of
culture and socialisation. Yet, it is the one
law, which actually gives a lot of freedom
of choice because anything can be stated in
the contract. Recently in the paper, there
was this article about a woman (Muslim
law does not recognise divorce for women,
one has to go through court as there is a
state law) who wrote about taking divorce
in the contract and every one in the family
had done the same.

In rights of marriage, there is really
nothing that says that you have certain
rights when you enter into marriage.
However, when you look at the divorce
laws, then you get an idea of the rights you
do get in marriage. You have the right to
inherit the spouses property, the right to
reside in the matrimonial home and to co-
habit with the spouse, not to be treated
with cruelty, mental or physical, not to be
deserted without due course and some of
these are protected by the criminal law as
well. A right to maintenance during the
marriage and during a petition for divorce,
a right to congenial rights, not to live with
a person who has been convicted on grave
charges are other laws under Muslim civil
and Hindu law. Not to live with a person
who is suffering from grave incurable
diseases like mental illness and leprosy
and not to live with an impotent spouse are
some other laws. These are the types of
rights with regard to marriage and most of
them are negative, not positive rights about
what you can or cannot do.

If we look at the judgement under divorce
courts, it is given under Hindu law and
some of the other laws, that a woman not
being able to cook is a grave problem,
because the courts think that one of the
womens duties under marriage is to cook.
I have seen this type of judgement. All of
this is actually dictated by social
conditioning, by the culture surrounding
all these laws. They reinforce certain
stereotypes that women are mothers, their
place is in the home, they really do not
have much value. Even today some
employers informally have told me that
they do not want to really employ women,
because for them, a woman is not serious
about her career, it all stops with marriage.

When we come to divorce, most of the
laws do recognize divorce on mutual
consent. They also recognise the
restitution of conjugal rights and divorce
on fault. These also are fairly uniform
thought, the legal effect may differ slightly
from law to law, but the fault is similar
However, its only the Muslim law as I said
which actually talks about contractual
relations and one of the grounds for
divorce is not being maintained according
to her status in life during marriage which
is a very valuable right and it recognises
fixed sums on divorce which the other
laws dont recognise.

There is also a concept of maintenance but
not a concept of distribution of
matrimonial property in any of the laws.
Therefore, a woman is to be maintained
even after divorce but she does not have a
right, even though one has a right in
marriage to share the spouses property.
She, in reality, on divorce does not get a
fair share; she only gets maintenance
which is a much lesser concept. Of course,
there is the other issues of criminalisation
of adultery and bigamy and even though
counselling is written into the family
courts act, most of the counselling is
actually mediation for settlement and not
really psycho-social counselling which
would led to a certain closure. The papers
recently published a series of cases where
women are trying to chase husbands who
had gone out of the country and so on.
This involves years of frustration. In these
cases if there is some kind of psycho-
social counselling, women can just get on
with their lives. If at all, they get their
husband to pay them something, that is far
in the future.

Then we come to guardianship. As you, all
know, in the Hindu Law the father is the
natural guardian of the child. But in recent
times, as in the Gita Hariharan case, which

11
did not really dissolve the issue, the
mother becomes the legal guardian only in
the absence of the father. In Hindu Law,
custody is based on the welfare of the
child and the law fixes guardianship. In
other cases, guardianship could go to
either. In Muslim Law, however, the
guardianship remains with the mother only
up certain age, when it passes to the father
and his heirs, his family. So while there is
no uniformity of the laws in this subject, in
some laws there is a clear distinction
between the male and the female, the
mother and the father, and it is not always
the welfare of the child which is
considered.

In India, the Constitution Articles 14, 15,
16 and 21 guarantee the equal protection
of laws irrespective of gender and the
protection of right and liberty and the rule
of law. The right to equality and non-
discrimination is a right protected under
the CEDAW, the ICCPR, and the UDHR.
When examining women's position under
the family law, it would be necessary to
apply the standards enshrined in the
Convention for the Elimination of all kinds
of Discrimination Against Women,
adopted by the United Nations General
Assembly in 1979 and subsequently
ratified by India on 20
th
January 1993.
Womens rights are now accepted as part
of human rights and therefore the
responsibility for safeguarding these rights
have now been enjoined on the ratifying
states.

CEDAW is the only legally binding
international instrument dealing with the
rights of women. It is comprehensive
defining discrimination against women,
and committing state parties to work for
the elimination of such discrimination. It
recognizes that background status and
class can determine discrimination and
hence has special provisions for rural
women. It is all pervasive, dealing with
diverse aspects such as sexual
stereotyping, marriage, family economic
and social benefits, health, employment,
the legal system political participation,
education and maternity.

CEDAW has also assumed greater
significance because of its own use in
recent judgments by Supreme Court to
throw light on the law, to enforce state
obligation under the convention, and
finally to use it to frame guidelines for
which have the force of law for the
realization of womens rights.

In Valasamma Paul
1
vs. Cochin
University, the Supreme Court clubbed
CEDAW and the Indian Protection of
Human Rights Act together and read them
into the constitutional fundamental rights.

The final word on the subject was stated in
Masilamani Mudaliar v. Idol of Sri
Swaminatha Temple
2
.,in which the court
stated the principles embodied in
CEDAW became integral part of the
Indian Constitution and the Human Rights
Act" and became enforceable. The Visaka
case
3
, which deals directly with sexual
harassment, has put paid to any doubts that
may remain on the enforceability of
CEDAW. Not only has the court
articulated new rights viz., right to work
with dignity in a safe working
environment, but has used CEDAW to
formulate guidelines for prevention of
sexual harassment in the workplace.

Article 16 of the CEDAW deals with the
right of choice in marriage- the right to
choose: if, when and whom to marry. We
can examine family law in India with the
rights protected by this Article as a
guideline.

Right to Choose Whom to Marry

In India, the law does not dictate to you
whom to marry. You can marry anyone of
your choice. There is no uniform civil
Code and family law is based on personal
law with an alternative civil law which
persons can choose to be governed by.

1
Valasamma Paul vs. Cochin University (1996) 3
SCC 545
2
(1996) 8 SCC 525 para 18
3
(1997 ) 6 SCC 241

12
However, as we shall see, the choice
begins to get restricted by law to a greater
or lesser extent depending on whether you
choose to get married under your personal
religious law or civil law. Law is not an
edifice that stands alone.

Restrictions based on religion:
If you want to get married under Hindu
law:

He or she [and you] has to be a Hindu [
or a Buddhist or a Jain].
You can marry a person of a different
caste.
You cannot marry a person who
belongs to the same gotra.
You cannot marry a sapinda [ sharing
the same ancestor unto five degrees
from the father i.e. unto great-great-
great-great grandfather or sharing the
same ancestor unto the third degree
from the mother] unless there is a long
standing custom to that effect in your
family or community.

If you want to get married under
Muslim law:

Both the bride and groom should
be Muslims[ conversion is
allowed] or one of them could be a
Jew or a Christian.

If you want to get married under Indian
Christian law:

Either the bride or the groom
should be a Christian.
If you want to get married under
secular law [ civil marriage]

The bride and groom may be co-
religionists or belong to different
religions.

The Wedding Ceremony

Under Hindu Law:

The ceremony is according to
customary
rituals and practices.
If saptapadi is customary in the family
or community of the bride and groom,
then it is essential.
You could also choose to have
a suyamariathai seerthirtham ceremony.
Suyamariathai marriage is possible only
within Tamilnadu. No priest is necessary.
The bride and groom exchange garlands,
rings or the groom ties a thali on the bride,
and each declares his or her consent to the
marriage in the presence of
friends/relatives/others.

Under Muslim Law:

A maulvi and witnesses should be
present to record consent of both
parties.
The nikahnama [contract of
marriage] should be in writing.
The amount of mahr or amount
payable to the bride should be
decided and recorded in the
nikahnama.
Any condition or clause may be
added to the nikahnama, according
to the agreement between the
parties.
Under Christian Law:

The ceremony may be performed:
a) by a priest
b)by a licensed Minister/person , or
c)by a Registrar or by someone else in
his presence.

Every marriage must be
solemnized between the hours
of six in the morning and seven in
the evening.
The Church may grant special licenses
to solemnize the marriage at other times.
The marriage may be solemnized
anywhere

One of the persons intending
marriage has
to give notice in writing in a prescribed
format to any licensed Minister/ Registrar.
Indian Christians may obtain the certificate
without notice if:

13
1) the groom is above 21 years and the
bride is 18 years neither party has a
spouse living
2) a declaration of consent to the
marriage is made by both in the
presence of witnesses.

The marriage may be solemnized[
within two months of the notice]:
a) in the case of a minister of the
Church of England or Scotland,
according to the ceremonies of that
Church
b) in the case of a licensed minister,
in any way he deems fit
c) before a Registrar, in the manner
desired by the parties.
All marriages have to be registered.

Under Civil Law:

The parties intending marriage
have to give notice in writing in a
prescribed format to a Registrar of
the District in which either party
has resided for more than a month.
The Registrar will display the
notice in his office for thirty days.
If no objection to the marriage has
been raised, he will solemnize the
marriage within three months of
the notice's date.
The parties will have to sign a
statement, attested by three
witnesses that there is no lawful
impediment to the marriage.
The parties may choose any form
of ceremony but they will have to
say, " I, (A) take thee (B), to be my
lawful wife (or husband)" in the
presence of three witnesses.
The parties and witnesses will then
sign the Marriage Certificate Book
and a copy will be issued to the
parties.

Hence, there is no uniformity and a
restriction of choice based on religious and
personal law, which is condoned by the
state. Marriage under most of the personal
laws is treated as a sacrament , which
leaves very little leeway for the parties to
choose clauses or ceremonies. The Muslim
law where marriage is treated as a contract
is a welcome exception though in practice,
again, lack of agency and education leave
women very little choice in deciding their
marital futures. Recently, the Indian
Express newspaper interviewed one family
where the women were able to insert
divorce clauses for themselves in the
nikahnama, which gave them the same
rights as men. In the matter of ceremony,
again, there is very little scope for choice,
though the civil law permits a religious or
customary ceremony, the suyamariathai
amendment offers an alternative to Hindus
in Tamilnadu and Indian Christians have
maximum choice by law.
Even under civil law, some states have
framed rules whereby in interreligious or
intercaste marriages, the communities are
informed even when the bride and groom
are adults. This defeats the very purpose of
the civil law marriage.

Same sex marriages are not recognized in
India and the penal law punishes
intercourse by same sex couples. Such
laws not only restrict choice but are
draconian in their provisions, repressive,
unnecessary and should be removed from
the statute books.

Right To Choose When To Marry:
Restrictions on Age:

Hindu Law
The bride should be above 18 and
the bridegroom should be above 21
years.
Muslim Law:
Both should have completed 15
years. If the bride is younger than
15 years, her father's consent is
essential.
Christian Law:
The bride should be above18 and
the bridegroom should be above 21
years. If the bride or groom is a
minor, the consent of the father or
guardian of a minor is necessary.
Civil Law:

14
You can marry a foreigner or an
Indian citizen in a foreign country
or in India if the bride is above 18
and the bridegroom is above 21
years.

Here again there is no uniformity in the
law. The penal law prohibits child
marriage. However, while the civil law
prohibits under age marriages, the other
laws do not., recognizing customary
practices. As well, where the age of
consent is 18 for women, it is raised to 21
for men, while the age of majority is 18 for
all citizens of India. There is no rationale
why this anomaly exists where men can
drive cars before they can get married. The
only explanation which comes to mind is
that it is a perpetuation of the stereotype
that women should always be younger
than their spouses.

Other restrictions:
There are other restrictions common to
both personal and civil law which are
based on capacity to consent and
prevention of incest.. Even here, there is
no rationale for the occasional
anomalies[for e.g. marriage to first cousins
of the male bloodline is allowed under
Muslim law but not under the other laws,
though Hindu customs especially in South
India permit the marriage of first cousins
and uncle and niece] except a desire to
endorse customary practices. Under the
personal laws, non-consummation, mental
illness and leprosy is also a restriction
which has been opposed by human rights
activists as a restriction of choice.

The Right Not To Marry:

The guarantee of equality does protect
persons who do not choose to marry.
However, in practice, single men and
women are discriminated against in the
market, and single women are seen as easy
targets for violence and exploitation.
Conversely, married women especially
mothers are discriminated against in the
area of employment and all young women
are seen as potential lay-offs by
employers.

The marriage laws generally recognize the
following rights:-

Rights On Marriage

To inherit the spouse's property
To reside in the marital home and
co-habit with the spouse
Not to be treated with cruelty,
mental or physical
Not to be deserted without due
cause
Not to cohabit with a convert to
another religion [under Hindu,
Muslim and Christian Law]or an
apostate[ Hindu law]
To maintenance [only for the wife
under Muslim/ Christian law /civil
law, for either spouse under Hindu
law].
To conjugal rights [all laws]/
marital duties[ Muslim law]
Not to live with a person who has
been convicted on grave charges
[Muslim, civil, Hindu law].
Not to live with a person who is
suffering from grave/incurable
mental illness or epilepsy or
leprosy.
Not to live with an impotent spouse
or one who wilfully refuses to
consummate the marriage.

Divorce

The recent amendments to the Indian
Divorce Act and the penal code has
brought about a fair degree of uniformity
in Indian family law. The differences
between the civil,[ The Special Marriage
Act] Hindu [ The Hindu Marriage Act] and
Christian[ The Indian Divorce Act] law
have become very minor, almost
negligible. Under the Muslim Law, a man
does not have to approach the court for a
divorce. However, the woman does have
to prove grounds in court [ Dissolution of
Muslim Marriages Act]. The notable
exception is the woman who adds the
talaaq-I-tafweez [right to divorce] clause
to her nikaahnama. She can divorce her

15
husband without resort to the court on the
happening of the contingency in the
clause.

Legal Remedies

You can ask for any of the following
remedies: -
For a divorce-
a) this may be contested/resisted by
your spouse or
b) you may both file a petition for
divorce by mutual consent
For restoration of conjugal
rights[ i.e. if your spouse refuses
to live with you without good
reason]
For a judicial separation[ i.e. if
either party is unsure of a
permanent separation but would
like to live apart from the spouse]
To annul the marriage [civil,
Christian and Hindu marriages]
For a protection order under
Christian law, where a wife may
get an order protecting her
property, and earnings from her
husband and his creditors after
desertion.
For maintenance/alimony for
yourself or your children [Civil,
Christian, Hindu law]
For custody of children

Legal effects of remedies

Either spouse may remarry after a
divorce.
Both parties lose their rights to
inherit each other's property as
spouse.
Children of the marriage may
reside with either, depending on
their preference/ welfare.
Children do not lose any right to
property that they acquire by birth.
The court may grant alimony to the
children and the needy
spouse/wife.
The court cannot compel a spouse
to live with another but property of
the recalcitrant spouse may be
attached.
Neither party may remarry after
mere separation.
Neither party needs to cohabit with
the other after separation.
Neither party loses the rights to
property that he/she had already
acquired by marriage.
Void marriages are not recognized
by law and the decree of nullity
granted by court is a mere
formality. Neither party acquires
any right as against the other.
Voidable marriages are valid in law
until the court issues a decree of
nullity. Hence until the marriage is
declared void, parties acquire rights
against each other.
Children of void and voidable
marriages are legitimate but after
the decree of nullity [before in void
marriages] they do not have a right
to inherit any other relative's
property except that of their
parents.
Both husband and wife may file a
petition together for divorce.
The husband under Muslim law
does not approach the court for
relief. He can unilaterally
pronounce divorce.

Reasons for which the court may grant
relief:-

You have been treated with cruelty,
mental or physical. [ Cruelty is not
defined and depends on the judge's
understanding of the term. For
e.g.;, a wife's refusal to cook or
continual nagging may be
interpreted as cruelty]
husband's association with women
of ill-repute or immoral behaviour[
Muslim law]
husband attempting to force the
wife to lead an immoral life[
Muslim law]
husband disposing off the wife's
property or preventing her from

16
exercising her right over it[ Muslim
law]
husband preventing the wife from
professing or practicing her
religion[ Muslim law]
husband neglecting one of his four
wives[ Muslim law]
You have been deserted without
due cause for a continuous period
of not less than two years [ Hindu,
Civil, Christian law]
Your spouse has converted to
another religion [under Hindu,
Muslim and Christian Law]or
become an apostate[ Hindu law]
Your spouse is undergoing a
sentence of imprisonment for seven
years or more for an offence
[Hindu, Muslim, Civil law].
Your spouse has, after the
solemnization of the marriage, had
voluntary sexual intercourse with
any other person [Hindu, Christian,
Civil law].
Your spouse is suffering from
grave/incurable mental illness or
communicable venereal disease or
leprosy[ for two years under
Muslim and Christian law].
Your spouse has not been seen or
heard of for seven years [four years
in Muslim law].
Your spouse has wilfully refused to
consummate the marriage [ground
for divorce under Christian law
(voidable under civil law) {under
Muslim law the wife can sue on
this ground if the non-
consummation continues for three
years}].
Your husband is impotent and has
been so since the time of marriage [
void under Civil law, Christian
law, voidable under Hindu law,
ground for divorce under Muslim
law].
Your husband has been guilty of
rape, sodomy or bestiality [only the
wife can sue on this ground]
[Hindu, Christian, Civil law].
Your spouse has not resumed
cohabitation for a year [two years
under Christian law] after the
passing of a decree of restitution of
conjugal rights [Christian, Hindu,
Civil law] or judicial separation or
awarding maintenance [to the wife]
[Hindu, Civil law].
Your husband has failed to provide
for your maintenance for two years
[Muslim law].
You were married to your husband
by your guardian when you were
below 15 years and the marriage
has not been consummated but has
been repudiated after the age of 15
years and you are below age of 18
years [Hindu and Muslim law].
You can choose any ground
recognized by Shariat to divorce
your husband [Muslim law].
Your spouse belongs to the same
gotra. [ void under Hindu law]
You spouse is a sapinda [ (sharing
the same ancestor unto five degrees
from the father i.e. unto great-
great-great-great grandfather or
sharing the same ancestor unto the
third degree from the mother) {
void under Hindu law unless there
is a long standing custom to that
effect in your family or
community}].
Your spouse is a blood relation or a
near relation [ (a lineal ascendant
or descendant or their spouses, a co
born of yourself or your father or
mother or
your first cousins) { void under Hindu,
Christian, Civil law} ].
Your spouse was legally married to
another [void under Hindu,
Christian law Civil law].
The bride was below 18 and the
bridegroom was below 21 years [
ground for proving void marriage
only under civil law].
You or your spouse were not
capable [i.e. not mentally unsound
or insane] of giving free and fair
consent [ void under Civil law,
Christian law, voidable under
Hindu law].

17
The consent of the bride or the
groom was coerced or obtained due
to fear of physical harm or of
threats or due to fraud [voidable
under Hindu law, civil law].
The bride or groom was suffering
from recurrent attacks of epilepsy
or insanity[ void under Civil law]
Your wife was pregnant by some
other person at the time of
marriage.[voidable under Hindu
and civil law].
Under Christian law, a spouse may
obtain a decree for judicial
separation on the ground of
adultery, desertion or cruelty.

Adultery and Bigamy have been brought
under penal law. The procedure is
cumbersome and a wife cannot complain
against her husband's adultery. These
provisions only emphasize the gender bias
and need to be struck down. They can
remain civil offences, accessible by both
spouses.

Maintenance

In most divorce cases, maintenance will be
awarded for the duration of the case
(interim) or in the long term. Under Hindu
law, both spouses can claim maintenance,
but in other cases, only the wife can claim
it. The amount is discretionary and usually
based on the judge's understanding of the
needs of the wife and in some cases, the
child. There is no concept of marital
property in India. Muslim women can
claim only the dower agreed upon at the
time of marriage. The penal law provides
for a discretionary amount to be paid by
the husband as a measure to protect against
the destitution of wives, even divorced
wives.

Guardianship and Custody

Though there is a civil law regulating
Guardianship, which also serves as the law
for Christians and Muslims, Hindu
personal law is the only law regulating
adoption. Since it applies only to Hindus,
we have the strange situation whereby, all
those who profess other religions, have to
approach the court as guardians of their
proposed wards and not as prospective
adoptive parents. Under Hindu law, the
father is the natural guardian. Even though
Supreme Court has modified this by
judicial pronouncement
4
, by naming the
mother as guardian when the father is
absent or unable to assume guardianship,
the mother still is legally only a custodian
and not a guardian of her child, when her
husband is capable of guardianship.
However, despite this, courts have tried to
treat the welfare of the child as the
paramount consideration in cases of child
support and custody.


The gender bias that pervades other
institutions re-enforces and perpetuates the
discriminatory nature of the law. All
societal institutions, family, the legal
systems, the market place, the community
and the state all are inter-linked and work
together to perpetuate inequalities within
the system. So whenever woman engage
with the law they discover that it is not
only fails to reflect their reality and
aspirations but also that it reflects gender
bias and class bias that is endemic,
systemic and structural.
Besides law being all- embracing, it is a
necessary part of any struggle to deal with
its limitations and to challenge its
gendered precepts.
Therefore the womens movements and
the Bar face a unique challenge. The task
before them is to utilize the precedent set
by the Visaka case to give greater meaning
to the right of equality by applying
CEDAW and thereby develop new
jurisprudence both in the field of domestic
implementation of International Law and
Womens Human Rights.


Ms. Sheila Jayaprakash

Right to Property and Inheritance


4
Gita Hariharan v RBI ( AIR 1999 SC 1149)

18
The right to property and the laws
governing inheritance lie within the sphere
of Family Law. These laws pertaining to
marriage, divorce, maintenance, custody,
succession, inheritance and adoption
though secular in nature have been tied to
the religion followed by the parties. They
define the rights of the parties in the
private sphere and when rights in the
private sphere are curtailed the rights
granted in the public sphere cannot be
accessed.

Under the Constitution of India no citizen
is to be discriminated on the ground of sex.
The Preamble to the Constitution declares
to secure to all the citizens of India, social,
political and economic justice along with
equality of status and opportunity. Part III
of the Constitution guarantees The
Fundamental Rights of the individual.
Article 14 guarantees equality before the
law and equal protection under the law.
Article 15 prohibits discrimination on the
ground of religion, race, caste, sex, or
place of birth and Article 15 (3) gives the
State the right to make special provisions
for women and children. Laws which
violate these fundamental entitlements are
ultra vires the constitution and should be
struck down but sections of Family Law
which are violative of the equal protection
of the law have continued in our statute
books.

The laws pertaining to inheritance and the
right to property will have to be looked at
under the laws governing Hindus, Muslims
and Christians.

Under the ancient Hindu Law property
held by a woman was of 2 kinds (1)
Streedhana property and (2) Non-
streedhana property. Streedhana property
was her absolute property. She could
alienate it and on her death it devolved on
her heirs. Non-streedhana property was
inherited from a male or a female and the
woman had no power of disposition and at
best she had a limited interest for her
lifetime. These ancient laws gave women a
specific right of residence and a right to
maintenance. The right to maintenance
was linked to succession of land and the
obligation to maintain a woman devolved
on the male member who by survivorship
took the property of the deceased. This
was an inalienable right and the charge on
the property was transferred even to a
purchaser for consideration.

As the ancient texts gave way to social
legislation for the benefit of women the
law took away with one hand what it gave
with the other. The Widow Remarriage
Act of 1856, which was meant to protect
the rights of a Hindu widow took away the
limited property rights she inherited from
her dead husband. Earlier widows from the
lower castes had the right to remarry while
retaining the right to the property of the
deceased husband. This law was
detrimental to the rights of these women.
Under the Hindu Womans Right to
Property Act of 1937 all schools of Hindu
Law were amended to confer greater rights
over property to women but the right
conferred was only that of a limited estate.
The woman had no power of alienation
and on her death it reverted to the heirs of
her husband by suviourship.

The Hindu Succession Act of 1956 sought
to codify the law pertaining to interstate
succession. Testamentary succession was
in accordance with principles laid down in
the Indian Succession Act. The changes
brought about by this Act were far-
reaching and fundamental. Earlier,
property inherited by a Hindu female was
only a limited estate, which on her death
would revert to the heirs of her late
husband. This concept of limited estate
was abolished under Sec 14 of The Hindu
Succession Act. It conferred rights on both
movable and immovable property. It
removed the disability of a Hindu female
to hold property as an absolute owner and
converted the limited estate held by
women at the commencement of the Act
into her absolute property. This section
comprehensively defined the word
property to include property received as
an inheritance, at partition, as a gift,
property received in lieu of or as arrears of
maintenance and also stridhana property.

19
Section 14 does not relate to secession but
only enlarges the limited rights of women
to ownership of property.

In Tulasamma v Sesha Reddy (AIR 1977
SC 1944) Bhagwati J explaining the
reason for the inclusion of section 14 states
it was to achieve a social purpose by
bringing about a change n the social and
economic position of women in Hindu
society. It was a step in the direction of the
practical recognition of equality of the
sexes and was meant to elevate the woman
from a subservient position in the
economic field to a pedestal where she
could exercise full powers of enjoyment
and disposal of property untrammeled by
artificial limitations on their right to
ownership by a society in which the will of
the dominant male prevailed to bring about
the subjugation of the opposite sex. It was
also a step to ensure the uniformity in the
law relating to the nature of the ownership
of streedhana. The aim of the section was
(1) Practical recognition of the equality of
the sexes. (2) To elevate the position of
women in the economic field. (3) to
remove the artificial limitations placed on
women with reference to ownership of
property.

The Hindu Succession Act made women
class 1 heirs and the position of a mother,
widow, daughter and widowed daughter-
in-law was elevated to that of a son. The
principle of simultaneous succession i.e. of
female heirs taking a share along with the
sons was an innovation.. It undermined the
principle of survivorship, which was a
distinctive feature of the Hindu Joint
Family system and abolished the
preference to male heirs. It was a definite
act of the legislature to improve the lot of
women and give effect to the principle of
equality of the sexes, as enshrined in the
Constitution. The act also abolished the
disability of a widow succeeding to her
husbands property in case of remarriage,
conversion or unchasity. A co-parcenor i.e.
the member of a Hindu Joint Family could
now make a will. The difference between
married and unmarried daughters was
removed and it embodied the order of
succession for stridhana property.

Further inroads were made into Hindu law
when The Hindu Succession (T.N.
Amendment) Bill 1989 introduced Sec 29-
A and created a legal fiction that a
daughter shall become a coparcener in the
joint family akin to a son, with a right by
birth.

In spite of these amendments there is still
gender discrimination. The mother of a
Hindu male inherits as a class 1heir while
the mother of a Hindu female stands third
in the line of inheritance only after the
heirs of a deceased son-in-law. The
husband and children of a deceased Hindu
female are the class1 heirs and if there is
no one belonging to this class the heirs of
her deceased husband are next in line and
only after that her mother and father.

The restriction of the right to partition by
daughters of a dwelling house wholly
occupied by members of a family under
Sec 23 of the Act is not in keeping with
the spirit and tenor of the other progressive
sections. In such a property the woman has
a right but it is kept in abeyance. The right
of women to claim partition of a dwelling
house does not arise until the males decide
to divide their respective share. Women,
only if unmarried, widowed or deserted are
given the right to residence. The presence
of one son successfully blocks daughters
from claiming partition. It is an exception
to the general rule that succession cannot
be postponed.

This section was interpreted by the Apex
Court in Narashima Murthy V Susheelabai
and others (1996 (3) SCC 644).The Court
held that even in the case of a sole
surviving male heir the section comes into
play The legislature intended that during
the lifetime of the surviving male
heir(s)they should live in the parental
dwelling house and partition at the behest
of the female heir would render the male
heir homeless/shelterless. The right to
claim partition by the female heir is kept in
abeyance and deferred during the lifetime

20
of the male heir or till he partitions or
ceases to occupy it.

The rights of women under Tenancy and
Land laws have also been negatived. In
Sucha Singh v State (AIR 1997 P & H
162) The Punjab Security of Land Tenures
Act 1997 was held constitutionally valid
even though the holder/owner of land was
allowed to select a separate area in respect
of an adult son but not a daughter. The
Court held that the discrimation was not
on the grounds of sex but because a
daughter has to go to another family after
her marriage and marriage is a normal
custom universally practiced.

In Madhu Kishwar and others V State of
Bihar and others (1996 5 SCC 125 ) The
Chotanagpur Tenancy Act of 1908 was
challenged. It sought for a declaration that
the sections which provide in favour of the
male succession to property be declared
ultra vires the Constitution. The court
refrained from striking down the
provisions as such on the touchstone of
Article 14 as this would bring chaos in the
existing state of law. There would follow a
beeline for similar claims in diverse
situations.

The Indian Succession Act lays down the
law pertaining to inheritance and
succession testamentary succession for
the Hindus and both testate and interstate
for Christians. Under the Hindu law a
widow or a mother inherit on par with
lineal descendants and in the absence of
any one of the group the rights of the
others are not disturbed. Under the
Christian law a widow is entitled only to
1/3
rd
share, the lineal descendants
(children) being entitled to the other 2/3r
d
share. When there are no children the
widow is entitled to one half and the other
half shared equally between his kindred,
i.e. brothers, sisters and father. In the event
of the father having predeceased his son
then the mother is entitled to the fathers
share. The mother of a deceased Christian
man is not entitled to any share if there are
lineal descendants and in the absence of
children she is entitled to a share only if
there is no father alive. While the Christian
woman never faced discrimination in
owning property her position in matters of
inheritance is not on par with her Hindu
sister.

Under the Muslims Law the mode of
inheritance is fixed with 4 classes of heirs
(1) sharers who are entitled to a
prescribed share in the property of the
deceased (2) residuaries who are persons
who inherit the residue after the sharers
have been allotted their prescribed shares
(3) distant kindred includes all blood
relations who are not sharers and
residueries and then (4) unrelated
successors (e.g. Universal legatees or
escheat to the Government ) in the absence
of all the other groups. By rules of
exclusion the claimants are determined and
the shares of the actual heirs granted by
the rules for allotment within that class. A
Muslim cannot bequeath his property by
means of a will in excess of 1/3
rd
of the
total estate. The share of a Muslim
daughter is half the share of a son. The
method and the shares differ under the
Shia, Sunni and Hanafi law.

In no other facet of law is discrimination
against women so open and blatant. In
matters of employment or inequalities in
the public sphere the courts have been
quick to balance rights but in the private
sphere inequalities are left to exist. In The
State of Bombay v Narasu Mali (AIR 1952
Bombay 84) the High Court by a method
of convoluted thinking held that even
though the personal laws are in force in a
general sense it is does not fall within the
laws in force used in Article 13(1) of the
Constitution. Since the validity of the
personal laws is not derived by mere
legislation it does not have to conform to
the provisions of Part III of The
Constitution.

The fundamental rights to equality before
the laws, which is ensured by the
Constitution should form the framework
within which the State can and should
work to remove the gender and social
inequalities that exist and have existed

21
between its citizens. The Courts have tried
to balance this right of equal protection of
the law with the fundamental right which
guarantees the freedom to follow religious
practices of ones choice and has given the
right to religious freedom priority over all
other rights. The right to equal protection
of the law and enjoyment of other rights
guaranteed by the Constitution are violated
when religion is given an important role
within the legal system. If the basic
proposition is that fundamental rights
cannot be curtailed then they cannot be
curtailed in the guise of religious freedom.
Equality does not mean the grant of rights
to a group while permitting the violation of
rights of individuals who make up the
group. Fundamental rights guarantee the
rights of individuals and the dignity of
individuals who make up the group has to
be upheld. Interpretation of the
constitutional guarantee of equal
protection of the laws requires the
elimination of laws, which discriminate
not only between groups but also between
individuals within these groups. Women
do not inherit as women they are classified
in accordance with their marital status
unmarried, married or widowed and each
status bringing with it its own handicaps
and until these inequalities are removed
women will be denied their constitutional
entitlements.

SESSION II SECURITY
OF WOMEN INSIDE AND
OUTSIDE THE HOME

Chairperson: Mr. R. Sekar, I.P.S

Its a great pleasure for me to be here and
you would have noticed there is a change
in the Chairperson. As Madam Justice has
rightly said, why should only women talk
about womans rights, let a man talk about
womans rights, too.

We started with some provisions in the
Indian Penal Code to deal with violence
against women. However, as these were
not adequate enough to address the
emerging forms of violence in society
several Acts viz the Dowry Prohibitions
Act of 1961, Indecent Representation of
Women Prohibition Act 1986, Tamil Nadu
Prohibition Act of Eve Teasing of 1998
amended in 2002, Tamil Nadu Prohibition
of Harassment of Women Act 2002, the
Pre-natal Diagnostic Techniques
Regulation, Prevention and Misuse Act
1994 were enacted. With all these Acts,
are we able to really achieve what we
wanted?

It is important that the mindset of every
individual has to change and only that will
bring about the social change which leaves
the women with equal rights or more rights
and men begin to treat women on par.

I would like to read out a poem that
underlines the horror of violence against
women, happening everyday somewhere.

Today another woman died
And not on a foreign field
And not with a rifle strapped to her back,
And not with a large defense of tanks
Rumbling and rolling behind her.

She died without CNN covering her war
She died without talk of intelligent bombs
And strategic targets
The target was simply her face, her back
Her pregnant belly

The target was her precious flesh That was
once composed like music
In her mothers body and sung

In the anthem of birth
The target was this life
That had lived its own dear wildness,
Had been loved and not loved,
Had danced and not danced.

A life like yours or mine
That had stumbled up
From a beginning
And had learned to walk
And had learned to read
And had learned to sing.

Another woman died today
Not far from where you live

22
Just there, next door where the tall light
Falls across the pavement

Just there, a few steps away
Where youve often heard shouting,
Another woman died today.

She was the same girl
Her mother used to kiss
The same child you dreamed
Beside in school.
The same baby her parents
Walked in the night with
And listened and listened and listened
For her cries even while they slept

And someone has confused his rage
With this womans only life.

- Carol Geneya Kaplan

I am giving some of the statistics within Tamil Nadu which shows that cruelty of the husband
against women has increased to about 60% compared to 2002 and 2003.


Incidence of crimes against women:

Head-wise incidence of reported Crimes Against Women during 2002 & 2003 along with
percentage variation are given below:-


S. No. Crime Heads 2002 2003 % Variation in
2003 over 2002
1. Rape 512 557 8.79
2. Kidnapping & Abduction 720 632 -12.22
3. Dowry Death 247 220 -10.93
4. Cruelty by Husband and his Relatives 966 1555 60.97
5. Molestation 1866 2022 8.36
6. Sexual Harassment 1766 881 -50.11
7. Importation of Girls 0 1
8. Indecent Representation of Women
(Prohibition) Act
5 6 20.00
9. Dowry Prohibition Act 219 176 -20.00
Total 6301 6049 -4.00


3
Percentage Distribution of Crime Against Women During 2003
Cruelty by Husband
and his Relatives
26%
Dowry Death
4%
Kidnapping &
Abduction
10%
Rape
9%
Importation of Girls
0%
Indecent
Representation of
Women (Prohibition)
Act
0%
Dowry Prohibition Act
3%
Molestation
33%
Sexual Harassment
15%
Rape Kidnapping & Abduction
Dowry Death Cruelty by Husband and his Relatives
Molestation Sexual Harassment
Importation of Girls Indecent Representation of Women (Prohibition) Act
Dowry Prohibition Act


Ms. Geeta Ramaseshan

Violence Against Women

The Presentation proposes to address
violence against women both in the realm
of the public sphere and in the so-called
private sphere. This raises some crucial
issues in the realm of criminal law. For a
large number of women the family is a site
where her security is completely
compromised. But violence inside the
home is often considered to be in the realm
of the private sphere and hence outside the
purview of legislation.

In the 80s with the persistent campaign
of the womens movement certain changes
were made to criminal law with the
introduction of Sections 498 A (cruelty to
a married woman) and 304 B (dowry
death) to the Penal code. At the same time,
the Supreme Court introduced the concept
of breach of trust as an offence in marriage
in cases where husbands were not handing
over the properties that belonged to their
wives. Changes were also brought to the
Dowry Prohibition Act. A stock taking of
the implementation of these legislations
would indicate that while women are
taking recourse to the law it has left many
outside its purview. All these offences
address violence within the institution of a
marriage thereby excluding a large number
of women who may not be in a marital
relationship and still face violence every
day. By the term marital relationship, I
also include women who are not able to
prove their marriages due to lack of legal
evidence. Other categories of women who
are excluded are single women in the
family such as elderly women, sisters and
widows who are just a small denomination
of the larger kinship of Indian families.
Though technically under the general
provisions of Penal law such women can
take recourse to the criminal justice
system, very few women come forward in

25
this regard. When they do the agents of the
system often advise them to adjust and
compromise. If one were to compare the
security of women with that of men - even
a cursory study of partition litigation
would indicate that when men seek
recourse to the law for securing a right in
the family, it is often understood and
accepted. But women who seek action
against violators in the family often face a
hostile system that discriminates them in a
defacto way even when dejure law offers
them limited protection.

The taking and giving of Dowry is an
offence. But the legislation exposes the
limitation of addressing a social and
economic issue as a crime. Thus dowry,
which is acceptable social behavior
suddenly, acquires the cloak of a crime
when a complaint is filed and persons who
are charged with it acquire the tag of
deviant social behavior. When the
demands of change in laws were made in
the 80s the womens movement wanted
the State to address not just changes in
criminal law but also changes in family
law relating to inheritance. But the State
responded only by changing criminal law.
Thus dowry which is an economic issue
linked to the status of women got linked to
dowry death which is crime. A seven-year
cut off period was provided for complaints
of such nature. In the process a large
number of violence against women in the
family such as honor deaths in the case of
inter-caste marriages, acid attacks on
young women and deaths due to other
factors apart from dowry got excluded
from the special category of crimes against
women. And as indicated earlier other
women from the family have been
excluded. The cut off year of seven years
has also not had a reasonable nexus with
the object, as there is no indication that
violence in a marriage even if it is linked
to dowry stops after seven years.
In the public sphere, rape and sexual
harassment are two instances of violence
that affect the security of women outside
the home. The definition of rape has been
the subject of much discussion. Suffice it
to say that it is very narrow in scope
having come into existence a hundred and
fifty years ago. While there is a campaign
to change the law from one of rape to
sexual assault, the implementation of the
law leaves much to be desired. The subject
is very vast and I will limit myself to the
practice of cross- examination followed in
trial courts. Despite the Supreme Court
asserting that a victim/survivor of rape is
not an accomplice the cross-examination
follows the same pattern of expecting her
to speak explicitly of an act in a culture,
which prohibits women from expressing
themselves in such a way. It acts as a
double-edged weapon as when a woman
does muster courage to speak about the
violence she is often thought of as
immoral adding discredit to her story.
The problem o f convictions in cases of
rape are that it is often viewed as a crime
of passion by all the actors of the criminal
justice system rather than as violence
against women. The term sexual
harassment does not exist in the Penal
code. It has formed part of our vocabulary
because of the judgment of the Supreme
Court in Visakas case in 1997 where the
Court defined sexual harassment in the
workplace. The Penal code uses the term
outraging the modesty that is fraught with
difficulties. Because modesty itself is so
problematic. How do we determine
modesty and most important of all, who
determines it? There has even been a case
where a court has held that an attempt to
rape a baby could not be sustained because
babies have no modesty!
There are many other areas where the
security of women is compromised as in
trafficking. But trafficking is a separate
issue and I do not wish to delve into it for
lack of time.
I do not underscore the benefits of these
legislations many of which have evolved
due to sustained campaign by the womens
movement. I am raising only a few issues
here to highlight the problematic areas in
which criminal law operates and would
stress that more and more recourse to
criminal law without addressing other

26
areas will only be counter productive.
Apart from this while programs on gender
sensitisation, monitoring and campaigns
are very essential and their importance can
never be underscored what has to be given
serious consideration is that one must have
a realistic and holistic overview of the
criminal justice system. The system as it
exists today is crumbling under its weight.
There are increasing allegations of
corruption and abuse of power. To expect
the same system to deliver justice to
women is a tall order. What we need to
also address is measures to strengthen our
civil laws at the same time. For the
strength of a civilized society rests in
having a strong structure of civil law
which is unfortunately very weak in India
both in the substantial and
procedural..realm.


Ms. Rashmi Bhure

Silence, Suffering, Struggle: Sexual
Harassment of Women at the Work
Place in India

Traditionally in India a womans jobs were
confined to three Cs- Cleaning, Cooking
and Child Care. Women were labelled as
homemakers. Women were the deprived
section of the Indian society. Serious
attempts were made in India after
independence to elevate the status of
women. The makers of the constitution
took the first step in this direction by
recognizing equal status of women. They
guaranteed gender equality (includes
protection from sexual harassment and
right to work with dignity, which is a
universally recognized basic human right)
and justice in the Preamble itself as well as
in Articles 14, 15 and 16 with the
emphasis on equality of men and women
before law, prohibition of discrimination
on ground of religion, race, caste, sex or
place of birth or any of them and equality
of opportunity in matters of public
employment. Further progressive legal
enactments have undoubtedly empowered
Indian women with juridical equality.

Educational facilities were made available
to women and initially a few urban women
could take the advantage of these facilities.
Techno- social changes provided
opportunity for women not only to get
modern education but also unfurl the new
avenues for gainful employment outside
their homes. In the recent years increasing
number of educated women have started
accepting occupational roles of varied
nature. More women are seen competing
with men in non- traditional sectors and
women are also holding the decision-
making posts. This change in womens
status in last five decades has brought a
new awareness about their position as well
as their resistance to exploitative social
order. The women are now coming out of
the stereotypes of homemakers and are
struggling to be in the new role of
managers outside the homes. This
change in womens orientation has brought
in forefront her silence, suffering and
struggle inside the four walls of the house
and also outside the house.
The present paper is confined to the
contemporary problem of sexual
harassment faced by women in India at the
work place. It is important to note here that
while the problem of sexual harassment
faced by women is universal in nature but
the solution to the problem may not be
universal. Since the problems of Indian
workingwomen have their roots in the
social and cultural traditions of India, so
the issue of sexual harassment of Indian
women at workplace has to be viewed
within the specific socio-cultural
parameters of the Indian society. The
concept of chastity deeply rooted in
Indian Hindu culture makes the sexual
harassment issue contextually very
different than the western countries where
the code of chastity is not implemented
as rigorously as that in India. Moreover,
the paper discusses certain important
measures to be taken to avoid and tackle
the problem of sexual harassment.

Review of Literature

It was during late 1970s that social
scientists in the West started conducting

27
studies to find out the nature and the extent
of violence against women. In India
selective studies have been conducted in
this area. The focus of these studies has
been domestic violence, rape, and female
infanticide or dowry deaths. Ghadially
Rehana: Women in Indian Society, 1988
i
,
Bhattacharya Rinki: Behind Closed Doors,
2004
ii
. Many researchers in the last three
decades have concentrated on the dual role
dilemma faced by women while sharing
her responsibility at home and workplace.
That is the balancing act played by women
as homemaker and wage earner. Ramu
G.N: Women, Work and Marriage in
Urban India, 1990, Dube, Leela and
Palriwala: Structures and Strategies:
Women, Work and Family, 1990, Dak
T.M: Social Transformation in India,
1990.
iii
Most of the work prior to 1990s
in this field either made no mention of the
problem of sexual harassment or just made
passing references to it. The reason for this
can be that sexual harassment was seen
mainly as a problem in Western countries.
Some writers also conveniently assumed
that no such problem existed in India
though we can find documented record on
sexual harassment way back in 1950s.
Hansa Wadkar a film actress in her
autobiography Sangate Eaika written in
early 1950s has mentioned about the
sexual harassment faced by her at the
workplace. Further when she went to lodge
a complaint to the magistrate about the
sexual harassment the magistrate raped
her. This is just not her personal memoir
but a documentary testimonial.
However, from mid 1990s a few isolated
attempts have been made to explore the
problem of sexual harassment faced by
women in India at the workplace. Various
non-governmental organizations published
reports and case studies on sexual
harassment.
iv


Understanding Sexual Harassment

Sexual harassment of women at the
workplace is not a new phenomenon. Only
our awareness is recent because middle
class women started facing the problem at
the work place. Women have been
suffering in silence for number of years
since they stepped out of the house for
work but the awareness to the problem is
new today. Sexual harassment at the
workplace is becoming increasingly
serious problem for both victims and the
employers. According to Indian Centre for
Human Rights and Law (ICHRL)
estimates, nearly 30 percent of women at
the workplace face sexual harassment in
one form or another.
v

A large number of sexual harassment cases
are not filled. Even if victims go to the
police many eventually withdraw charges
due to embarrassment; helplessness due to
no family support in this struggle and the
fear of being ridiculed or worse still of
loosing their jobs. Therefore women
continue to be victims silently.
In addition to job related disadvantages,
victims of sexual harassment suffer from
stress with serious consequences for their
mental and physical health. Employers
without a specific policy and procedures
for dealing with incidents of sexual
harassment may have to face problems of
absenteeism, poor work performance and
the loss of valued employees as well as the
possibility of costly litigation and
compensation awards to employees
subjected to sexual harassment.
In the unorganised or informal sector
where the large numbers of women in
India work, the work environment is poor.
The existing safety and labour laws are all
but ignored. The inadequate or non-
existent toilet facilities for women leave
them particularly vulnerable, as they must
use nearby fields or other spaces. Sexual
harassment incidents take place in cities as
well as in remote villages.
Sexual harassment at the workplace is
indicative of the fact that attitudinal
changes are yet to come by. There is a
clash between the change in formal status
of women and the attitudinal change
towards women.
Sexual harassment on one hand is seen as
a social problem of considerable
magnitude, on the other it is treated as very
common, indeed, its social malady that
most women themselves fail to recognize
it is problem and treats it as normal.
vi


28
The upbringing of many women in India
have been done in a way that they are too
often trained to think that their business is
to please men, especially if the man is in a
superior position. The phenomenon of
sexual harassment until recently eluded a
definition, a label or a name.

What is Sexual Harassment?

Sexual harassment can be described as
unwelcome sexual advances, which may
include sexual innuendoes, inappropriate
sexual gestures and proposition of sexual
favours. In more blatant forms, such
harassment may include leering, pinching,
grabbing, hugging, patting, brushing
against and touching. Sexual harassment
of women at work place
vii
would further
mean unwelcome sexual advances that
interferes with her performance or creates
an intimidating and hostile work
environment. Sexual harassment is
demeaning behaviour and is usually about
the abuse of power. Some have argued that
sexual harassment is a result of mens
increasing insecurity with the rise of
women in employment. Male dominated
occupations allow males more power than
females through both occupational
position and cultural stereotypes. In
traditionally male-dominated occupations,
male workers also derive power from male
co-workers group support. Due to this men
use sexual aggression as a weapon to
undermine the worth of womens work
and self-esteem. Further cultural norms
prescribe expression of aggressive feelings
by men, while women have been taught to
repress aggressive displays.
viii
The
powerful goddess durga or the fearless
jhansi ki rani are worshipped or glorified
by Indians but the same society is still not
ready to accept the rebellious image of
women as women is always typed cast as
victim.

The Supreme Court Judgement: Vishaka &
Ors. V. State of Rajastan & Ors.

The term sexual harassment is constantly
being redefined and extended in legislation
and court decisions. In one of the most
progressive judgments in the recent
judicial activism, the Supreme Court on
August 13, 1997 recognized sexual
harassment at workplace as a violation of
the constitutional rights of women and
outlined guidelines for the prevention,
deterrence and redressal of sexual
harassment.
The landmark judgment of Vishaka vs. the
State of Rajastan, 1997
ix
case began
around the incident of alleged brutal gang
rape of social worker in a village of
Rajastan. The incident revealed the
hazards to which the working women may
be exposed and the urgency for safeguards
in the absence of legislative measures.
The Vishaka judgment once again
questioned the status of Gender Equality
and the Right to Life and Liberty in
India. This case based itself on Articles 14,
15, 19(1) (g) and 21 of the Indian
constitution.
x
Sexual harassment at
workplace is seen as a violation of these
fundamental rights. Such violation,
therefore, attracts the remedy under Article
32
xi
of the constitution for the enforcement
of these fundamental rights of women. The
fundamental right to carry on any
occupation, trade or profession depends on
the availability of a safe working
environment.
xii
Right to life means life to
leave with dignity. Further Vishaka case
also violated the Articles 42, 51(a), (c), (e)
and 253.
xiii

The Supreme Court judgment in the
Vishaka case initiated debate on the issue
not just among womens group, lawyers
and activists, but also among women in the
workplace. Undeterred by the absence of
legislation covering the issue of sexual
harassment at the workplace, the Supreme
Court has laid the necessary guidelines and
norms in, Vishaka v. State of Rajastan for
the protection of the fundamental rights of
women, violated as a result of sexual
harassment at work. The Court has
emphasized that that the guidelines and
norms being laid down by it had to be duly
observed at all workplaces or other
institutions until a legislation is enacted for
this purpose and that these should be
treated as law under Article 141 of the
constitution. These guidelines are in

29
accordance with the recommendations and
conventions of various international
organizations like the ILO and European
Communities Commission.
xiv

As per the guidelines given by the
Supreme Court of India and the
Womens organizations, sexual
harassment includes:
xv


Verbal or physical contact with the
intention of sexual relations may be
quid pro quo- i.e., in exchange
for favours such as promotions,
employment perks, better grades
etc. The power of the person in
authority (employer, supervisor,
professor, etc.) to sexually harass
increases in direct co- relation to
lack of organization of the potential
victim group- i.e., women
labourers in the informal sector,
temporary workers, students,
women in institutions for the
mentally/ physically handicapped
etc. are most vulnerable.
Sexual harassment by colleagues.
Sexual harassment by clients-
particularly in professions where
womens role is sexually
packaged- such as airhostesses,
worker in beer bars etc.
Sexual harassment of women in
authority- to undermine the
position of women. Recent and
increasing number of cases of
newly elected, active women
members of panchayats being
stripped naked and paraded are
examples.
Sexual objectification of individual
though sexual relations not
intended (harassment on the road
etc.)
Hostile, anti- women environment
(pornography in public places, foul
language etc.) This may no be
directed at any women employee in
particular, but the effect on women
is one of discomfort.

The guidelines are significant as for the
first time sexual harassment is identified
as a separate category of legally
prohibitive behaviour. The guidelines
also includes the following:

Preventive steps: The employer
should take appropriate steps to
prevent sexual harassment. These
include:
(i) Express prohibition of sexual
harassment at the workplace
should be notified, published
and circulated in appropriate
ways.
(ii) The rules or regulations of
government and public bodies
relating to conduct and
discipline should include rules
or regulations prohibiting
sexual harassment and provide
for appropriate penalties in
such rules against the offender.
(iii) Appropriate work conditions
should be provided in respect
of work, leisure, health and
hygiene to further ensure that
there is no hostile environment
towards women at workplaces
and no women employee
should have some reasonable
grounds to believe that she is
disadvantaged in connection
with her employment.
Criminal Proceedings: Where
such conduct amounts to a specific
offence under the Indian Penal
Code or under any law the
employer shall initiate appropriate
action in accordance with law by
making a complaint with the
appropriate authority. In order to
ensure that the victims are not
discriminated against while dealing
with complaints of sexual
harassment, the victims should
have the option to seek transfer of
the perpetrator or their own
transfer.
Disciplinary Action: Where the
offence amounts to misconduct
under service rules appropriate
disciplinary action should be
initiated. When such conduct

30
amounts to an offence under the
Indian Penal Code, the employer
shall initiate action by making a
complaint with the appropriate
authority.
Complaints Procedure: A
complaint mechanism/ complaint
box should be created in the
organization. This complaint
mechanism should ensure time-
bound treatment of complaints. A
woman should head the complaint
committee and not less than half of
its members should be women. In
order to prevent the possibility of
undue pressure or influence from
senior levels, a third party
especially a NGO familiar with
sexual harassment should be
involved in the complaints
committee.
Workers Initiative: Employees
should be allowed to raise issues of
sexual harassment in workers
meetings and other appropriate
forums.
Awareness: Awareness of the
rights of female employees in this
regard should be created in
particular by prominently notifying
the guidelines.
Third Party Harassment: Where
sexual harassment occurs as a
result of an act or omission by any
third party or outsider, the
employer and person in charge will
take all steps necessary and
reasonable to assist the affected
person in terms of support and
preventive action.

The Central and the State Governments
are requested to consider adopting
suitable measures including legislation
to ensure that the guidelines laid down
by this order are also observed by the
employers in Private sector. These
directions would be binding and
enforceable in law until suitable
legislation is enacted to occupy the
field.

The Supreme Court has held in
Apparel Export Promotion Council Vs.
A.k. Chopra (1999), that in any case
involving charge of sexual harassment
or attempt to sexually molest, the
courts are required to examine the
broader probabilities of the case and
not get swayed to insignificant
discrepancies or narrow technicalities
or the dictionary meaning of the
expression molestation. The court
also held that the statement of the
victim must be appreciated in the
background of the entire case.

Impact of Sexual Harassment on Women

The impact of sexual harassment on
women is multi dimensional in nature. It
has a long-lasting social, psychological,
physical and economic effect on women.
To understand the impact of sexual
harassment on women one must listen to
the account of its victims as no one
conveys the truth of sexual harassment
better than the women who have endured
it. The women feel disgusted, insulted and
scared by any sort of harassment. For
young girl students sexual harassment
affects their academic progress and
personality development.

Economic insecurity is another fallout of
sexual harassment. Loss of job and
livelihood, whether the women quietly quit
the job or protests and quit, and most
women are forced to this point. In some
cases demotion, the women employee is
transferred if she does not succumb to the
demands of boss in the office. Though for
some women the option of changing their
situation by changing their jobs is not an
option due to fear of unemployment.
Sexual harassment also has effects on the
womens psyche. In such cases the usual
trends seen are nervousness, loss of self-
esteem and confidence, humiliation,
avoidance, changing dress and behaviour,
guilty feeling that somehow they caused
the behaviour. Restrictions rise on
womens mobility vis--vis late nights
shifts and traveling by public transport at
wee hours.

31

According to Madhu Kishwar, many
women are also afraid that if they raise
their voice against sexual harassment then
they will be pushed from the izzatdar
bahu beti samaj(respectable society) to
the patita samaj (fallen woman), this
defamation effectively silences women.
xvi

Such ideas are deep rooted in the large
middle class society in India.

If a women
dares to speak out against harassment in
the workplace, there is a counter attempt
by the person who harassed to malign her
character. Often the colleagues in the
office witness harassment in silence or
support the slander campaign of the
harassing person It is this fear that induces
most women to endure their tormentors in
silence.

The Women Who Struggled

While most women bear the burnt of
sexual harassment in silence some have
dared to take on their tormentors.
xvii
In the
absence of effective and immediate
remedial measures of sexual harassment at
the workplace prior to 1997 these incidents
have turned into complex issue. Some
names of the complainants have been
changed to maintain the anonymity.

Bhanwari Devis case has become a
landmark case in womens struggle for her
rights in India. When Bhanwari Devi a
social worker or saathin of a
development programme run by the state
government of Rajastan, was gang- raped
as a punishment for trying to stop child
marriage. A womens organization called
Vishaka, filed a writ in the Supreme
Court to intervene in the matter and take
steps to discourage and penalize sexual
harassment at the work place.
xviii
Their
grievance was that while working women
remained vulnerable to sexual harassment
at the work place, neither the legislature
nor the executive was taking any effective
preventive measures in this behalf.
xix

Hence Vishaka approached the Court for
the enforcement of the Fundamental
Rights of the workingwomen as
guaranteed by the constitution. In the wake
of this incident the Supreme Court issued
guidelines. The Bhanwari Devi case
revealed the hazards to which a
workingwoman is exposed and the
depravity to which sexual harassment can
stoop.

Bhanwari Devi case is a case with a
difference. In September 1992 five high
caste men gang- raped Bhanwari Devi for
trying to create gender awareness among
rural women. Bhanwari Devi had to face
hostility and humiliation from doctors and
the police while struggling to prove that
she was been raped. Bhawari Devi could
not prove her case in the Court because of
official apathy in providing her adequate
legal assistance. The difference in the case
came when the village panchayats set up a
committee for dispensing instant justice.
Women representation including Bhanwari
Devi was included in the committee for
hearing the case. The rest is history.

Sexual harassment at the workplace, as an
issue, captured the collective
consciousness of the workingwomen once
again in the Shehnaz case. Shehnaz
worked with Saudi Arabian airlines. Her
services with Saudi Arabian airlines were
terminated because she refused to
surrender to the sexual demands made by
her superior. Shehnaz was not one to give
up. She fought for 11 years. In 1997, she
was awarded full wages and continuity of
services with effect from 1985. When
Shehnaz rejoined the Airlines she was
immediately transferred to Chennai. She
then filed for an injunction on the transfer
and also claimed damages for the sexual
harassment and emotional pain and
suffering caused to her. In April 1999,
Mumbai High Court restrained the
company from transferring her and
directed the company that she be allowed
to join the company.
xx
But by this time the
long struggle had shown its casualties,
Shehnaz developed an estranged
relationship with her husband. Further,
Shehnaz suffered mental depression and
was not taken back by the company
despite the doctors giving medical fitness
certificate. Shehnaz had to again go to the

32
Court and ultimately got the order to be
reinstated in January 2000.

In 1994, Doordarshan (Hyderabad)
producer Sailaja Suman took director
P.L.Chawla to court on charges of
defamation, criminal intimidation and
trying to outrage her modesty. She filed
two different cases in the metropolitan
magistrates court. Unfortunately, Suman
was transferred to Lucknow. The most
well known instance of a sexually harassed
woman taking the help of law to seek
justice is that of Rupan Deol Bajaj. In
1988, Bajaj a senior IAS officer was
sexually assaulted by the then DGP of
Punjab, KPS Gill. Accusing him of
indecent behaviour, Bajaj fought an 8-year
legal battle. The entire bureaucracy and the
political establishment were trying to
protect Mr. Gill. More shocking was when
Mr. Gill was awarded with Padmashri
while the case was pending. Later Gill was
convicted and sentenced to three months.

The jobs that bring women social exposure
are usually the ones where sexual
harassment is most frequent and
dangerous. The job of a nurse falls under
this category. Aruna a nurse in KEM
hospital in Mumbai underwent the blatant
form of sexual harassment i.e. rape by one
of the ward boys in the hospital when she
was working in the night shift. Aruna
struggled to seek justice with the help of
police and courts but ultimately went into
a long depression. To make the society
aware about sexual harassment at the
workplace and specially Arunas case one
of the eminent director of the Marathi
Theater Vinay Apte also staged a play
based on this case Katha Aruna Chi(The
Story of Aruna).

Some of these cases may appear to be
reel- life stories but they are real life
stories. The list of women strugglers is too
long to list as their saga is endless. These
cases discussed above are merely
representative examples of the hard times
under which each women had to undergo
to fight for her right to dignity, both in
work pace and outside. The struggle of
these women also brings out the courage
demonstrated by the women of educated
and empowered class like Rupan Deol
Bajaj, but the courage is seen even among
those women who not are very educated
and belong to a traditional patriarchal
society. Its been observed that not many
cases are filed from women belonging to
the middle class section of the society. The
reasons for this are that there is a lot of
pressure from these families and relatives
for not raising the issue, as they fear that
their reputation in the society will be at
stake. Also if the girl is unmarried she may
ruin her marriage prospects because she
would be then suspected of having a
loose character. In the case where the
women are married they are worried that
their marital life will be in rocks. Thus
large number of these cases remains
submerged.

The 1997 Supreme Court Guidelines and
Thereafter

Despite the 1997 Supreme Courts
judgment in the Vishaka vs. State of
Rajastan and the guidelines issued therein
on sexual harassment at the workplace
most institutions have failed to set up a
complaints committee; they have not even
publicized the verdict and created
awareness about it.
xxi
For e.g. out of 357
colleges under the University of Mumbai
only 57 colleges have established the
committees as directed in the Vishaka.
Very few institutions have taken the
directions given by the Supreme Court
seriously. So, very few women are even
aware about it. Due to this the women who
are aware about these guidelines have to
begin their struggle right from pushing
their institutions to constitute a complaint
box/committee as per the guidelines.
One of the astonishing facts is that the
judiciary which has employed a large
number of women, has been the most
reluctant institution in setting up the
complaints mechanism.
The institutions where the initiative has
been taken to set up a complaints
committee the experiences of women there
is unpleasant at times. The committee

33
many times blames the women by saying
that she is gloating/overreacting the
incident or her complaint is imaginary.
The committee in some cases advices the
women to adjust/cope with the situation
and not complain as that would affect her
career in long run. Besides some
committees ask such derogatory question
to the complainant that further they
experience humiliation. Such insensitive
and indifferent attitude of the
institution/complaint committee
discourages and demoralizes the women.

In 1999, two years after Supreme Court
pronounced sexual harassment at
workplace a violation of the right to life
and liberty, it emerged in a controversy
after two teachers and the receptionist of a
school run by the prestigious Delhi Public
School (DPS) chain publicly accused its
principal of harassing them into
resignation. All the three women from the
DPS, Faridabad said that their school
management failed to respond to their
complaints and instead the principal was
allowed to make their work conditions so
uncongenial that they were left with no
choice but to resign.
xxii
This shows that
women are still quitting jobs rather than
fighting unwelcome advances from their
male bosses. On the other hand, the school
also failed to set a complaints committee
as laid down in the Supreme Court
guidelines. Former Chief Justice
J.S.Verma who passed the landmark ruling
in the Vishaka case in the context of the
DPS case blamed social apathy for a
situation in which women employees
continue to be harassed with impunity,
especially in the private sector.
xxiii


In December 2000, Senior IAS officer
Nalini Netto won the first round of her
battle against former Kerala Transport and
Forest Minister. The crime branch filed a
charge sheet against him for physically
assaulting her. This was the charge sheet
against him for physically assaulting her.
This was the first time that a sexual
harassment case involving a minister in
Kerala had reached the Courts. The Kerala
Government appears to have deliberately
subverted the Vishaka judgment by setting
up the Justice Sasidharan Commission,
which has no legal legitimacy as it
amounts to conducting a parallel enquiry
when a police enquiry is already on. No
male judge is supposed to enquire into a
case of sexual harassment yet a sitting
Judge, Justice Sasidharan, was appointed.
This commission had consistently
victimized Nalini insisting on holding a
public trail though in camera hearing is
mandatory as laid down in Vishaka case.

In one of the famous case in the corporate
world which created shock waves was of
Sales and Marketing Chief and Director of
Infosys, Phaneesh Murthy who had to quit
when the former employee sued him in the
US for sexual harassment. It was a shock
for the company to receive the very first
case of sexual harassment against a senior
and successful executive. Infosys after
Phaneesh Murthys $ 3 million settlement
is now more prepared with draft policies
and an active Human Resource
Department that ensures employee
sensitization. The Infosys case raised
certain fundamental questions. With
industrial and economic development does
the society simultaneously change? Has
the cultural change taken place in
piecemeal only in some metros or urban
pockets? The private sector in the urban
and semi urban areas today recruit large
numbers of women. The socio- cultural
background and the value system from
which the women come and the global
culture in the private sector may
completely vary. This may create a
discomfort for the women while working
in the office and would have an effect on
her performance in the office.
Today large number of women are
working in call centers. The call centers
work culture is very different from a
traditional work environment in India.
Late working hours, flexi times, office
arranges to drop its employees at mid
night. As call centers pay high salaries
women from various strata of the society
are attracted towards these jobs. These
women many times then face the dangers
and trials that exist in workplace. The

34
women who work in bars at late night face
similar problems. The society has still not
progressed to accept women coming home
at such odd hours. Women are thus caught
in a bind and constantly are struggling.

Though meager in number certain
welcoming changes are taking place. Tata
Steel was one of the pioneering companies
to follow the Supreme Court judgment in
Vishaka case. Tata Steel Management and
Tata Workers Union signed an agreement
for including sexual harassment as an act
of misconduct in the Works Standing
Orders. Today when more and more
women are entering the work force it is
important that the institutions in which
they work take utmost care to provide
them a secure and safe workplace. Such
examples should be multiplied all over
India.

Police Response to Sexual Harassment
Cases

A great deal of cynicism exists regarding
police action in sexual harassment cases.
Womens organizations have severely
criticized various aspects of policing in
recent period. One of the biggest problems
has been that womens complaints of rape,
molestation or sexual harassment are
routinely disbelieved.
xxiv
Refusal to file
complaints has been documented as a
serious problem faced by victim survivors.
Criminologist Arvind Tiwari of the Tata
Institute of Social Sciences (TISS) says,
over 50 percent of crimes against women
go unreported.
xxv
Several women
complainants had to bear the brunt of
insensitive police officers who would ask
awkward and embarrassing questions and
compel the victim to withdraw her
case.
xxvi
Due to such indifferent approach
of police many sexual harassment cases
are not registered and thus the statistics
available of sexual harassment cases do
not project true figures.

Strategies to be Adopted by Women for
dealing with Sexual Harassment

Sexual harassment cases are rampantly
increasing in India today. The Supreme
Court has passed guidelines in 1997 that
govern sexual harassment at the work
place. Sexual Harassment Of Women At
Their Work Place (Prevention) Bill, 2003
is pending in Parliament. Despite the
Supreme Court guidelines many
institutions still have not set up
complaints box/committee. Many
institutions that have set up the complaint
committees they are merely ornamental in
nature. Besides many women due to the
fear of victimization remain silent and do
not prefer to complaint. Since the
organizations have shown apathy despite
of the Supreme Courts ruling there is a
need for women to take collective steps to
deal with the problem of sexual
harassment. Struggle in isolation would be
fatal for a women or it would turn into an
endless struggle. The women can make
their struggle easier by following these
measures:

Protest against any sexual
harassment at the work place, as it
is a crime.
Women must overcome the
mentality of tolerance and must
realize the fact that sexual
harassment is not inevitable but is
avoidable.
Women must learn to say no to
any harassment.
Women must express strong
resistance the very first time when
such demeaning advances are made
other wise it may be interpreted as
a sign of approval.
In case some one behaves in a
manner that will make the women
uncomfortable, she should protests
loudly at once so that others know
that such conduct has been meted
out to her.
The women colleagues in the
workplace should support the
woman who is being harassed to
get redress. They can make group
representations to the committee.

35
Women can collectively do
symbolic strikes.
Women should make themselves
aware about the complaints
committee set up by the office and
its working procedure
The organizations that have not set
up such committee the women
workers here should collectively
put pressure on the organization to
set up immediately a complaints
committee.
Women should register a First
Information Report (FIR) with the
police station.

Apart from all these measures to be taken
the most important strategy the women
have to plan that is to change their own
perceptions on the issue of sexual
harassment.

Measures for the Organizations

All the organizations, institution,
universities should implement the
guidelines given by the Supreme Court
immediately. Besides that there are certain
steps suggested to the organizations, which
will help the organizations to create a safe
and conducive environment for women at
the workplace:
Organization should become
pioneer in formulating the policy
on sexual harassment. That will
project the culture of the
organization and build a
progressive image.
If big companies set such examples
other organizations would follow
them.
A progressive image of the
organization will help in increasing
its business.
To create a friendly work
environment in the workplace.
Women should not be
discriminated on any grounds.
The organizations must publicise
its policy on sexual harassment
widely through meetings, circulars,
posters etc.
Joint workshops for men and
women workers should be
conducted to make them aware and
sensitised to this issue.
An appropriate complaints
committee should be established.
The complaint committee should
be put through attitudinal test.
Orientation towards gender issues
should be imparted through
training, counselling etc.
The victim should be given legal,
psychological and other assistance
at every stage of the enquiry.
The organization must circulate the
names of the members of the
committee and call for objections if
any, from the victim.
The complainant should also be
permitted to have a person whom
she trusts on the committee.

Conclusion

Sexual harassment of women at the work
place is becoming a burning womens
issue today. Though large number of
women are entering the workforce since
the past few decades there is still a large
section of Indian society which is yet to
get used to the idea of employed women.
What is most important today is that the
women have to get integrated into the
workforce. As more and more women join
the workforce the law must ensure that
women are able to enjoy the rights
promised to them by the Constitution. It
has to be ensured that women are treated
with dignity and assured of gender
equality and not discriminated against on
account of their sex.
After the 1997 Supreme Court judgment
more and more women are now speaking
out about sexual harassment in the
workplace. To do so the complainants
have to be very daring because they
have all kinds of labels put on them and
are made out to be liars. Their lives are
made more traumatic. In most situations,
the complainants colleagues including the
women do not want to openly come
forward in support fearing risk to their

36
jobs, their careers or the reaction of their
families. The management does more to
suppress the information and spread false
information leaving the complainant more
helpless and more victimized. However,
there are instances of management
support, friends and colleagues rallying
together and outcomes favourable to the
victims.
Is it power, attitude or insecurity that
perpetuates sexual harassment at the
workplace and makes the accused
complain that the judgment is a tool for
women to misuse? This has been a
controversy in debate. Men have expressed
their worry that women may use sexual
harassments laws to settle scores with
somebody or gain mileage. There are
certain cases where the woman may have
taken the legal route to fix somebody.
Such cases have been seen in recent times
in the entertainment world, corporate
sector and even educational institutions.
The fear expressed by men is definitely not
imaginary. Police must investigate such
matters thoroughly before registering a
case and taking action on it because an
individuals reputation is at stake.
On the other hand, there are still a large
number of women who fear to approach
the courts even for serious sexual crimes
such as rape, because of the abysmally low
record of convictions and the damaging
publicity. Women from the lower section
of the strata are unable to afford the
expenses and are unable to stand the
delays in getting justice. To overcome this
delay in justice speedier trails becomes
inevitable. In India the situation further
gets aggravated due to lack of education
and a social tendency to blame the victims
of sexual assaults for having brought the
situation upon them. Unless women
psychologically empower they will
continue to be victims and victimization
will continue.
Even the best legislations will have no
effect unless the perception of people
towards women undergoes a major
change. The environment in the workplace
should be such where the women can feel
safe and respected and not victimized
because of her gender. Anyone genuinely
concerned about the status of women in
India would have to acknowledge that a
law alone cannot deal with the complex
issue of sexual harassment. A law can
act as a deterrent because it could make
men who do not think twice before picking
on women or trying to pick them up in
their workplace, pause and reconsider their
actions. It could also give women the
confidence to speak out and complain if
they are harassed. At the same time, even
the best law cannot solve a problem that is
rooted in unequal gender relations, often
complicated by factors of class, caste and
religion. Women employed in the lower
rungs of an organization are far more
susceptible to sexual harassment than the
power women, of whom the numbers are
still minuscule but growing. Quite often,
although not always, the latter can deal
with this kind of harassment petty or more
serious because of the confidence their
class or position in the organization gives
them. The former, however, are afraid of
losing their jobs and therefore silently
tolerate the intolerable. Even without the
law there is already a legal precedent set
by the Supreme Court in the Vishaka case,
where it laid down that all organizations
employing women should set up a
complaint committee that will allow
women to report to them in complete
confidence if they are victims of any form
of sexual harassment. Very few
organizations have complied with this
ruling. Even those that have set up such
committees have done so only after
women either within or outside the
organization have put some pressure. The
complaints committees approach is also at
times quite indifferent. Unless sufficient
importance is given to changing the
attitudes of members of complaints
mechanism seeking justice in cases of
sexual harassment will be an exercise in
futility.

Sex and sexuality are seen as taboo in
India, things to be kept behind closed
doors. The need today is to educate
children through schools and colleges
about these issues that will change their
mindset towards these problems. Recently

37
St. Xavier College, Mumbai had an
interactive session for students on the issue
of sexual harassment. More and more
such exercises should be conducted in
educational institution so that we are able
to create a gender sensitive generation.

Instead of suffering in silence or ignoring
harassment there is a need to cultivate
social pressure and lobbying for bringing
to light incidents of sexual harassment.
Guidelines/ laws are complimentary to
social mobilization and public campaign
but its not a substitute for them. Legal
measures or remedies are of only
facilitatory nature in dealing with social
issues.


i
Ghadially Rehana (ed.), Women in Indian Society:
A Reader, New Delhi: Sage Publications, 1988.

ii
Bhattacharya Rinki (ed.), Behind Closed Doors:
Domestic Violence in India, New Delhi: Sage
Publications, 2004.

iii
Ramu G.N, Women, Work and Marriage in
Urban India, New Delhi: Sage Publications, 1990.
Dube, Leela and Palriwala (ed.), Structures and
Strategies: Women Work and Family, New Delhi:
Sage Publications, 1990. Also see Kaur, Satnam
and Punia R.L, Home and Job: Emerging Role
Conflict Among Women in Dak, T.M (ed.), Social
Transformation in India, Delhi: Ajanta
Publications, 1990.


iv
Saxena Shobha, Crimes Against Women And
Protective Laws, New Delhi: Deep and Deep
Publications, 1995. Kapur Aanachal (ed.),
Kaamkaji Mahilaonke Aadhikar: Mudde Aur
Ramitiya, New Delhi: ILO, 1999.Menon Nivedita,
Embodying the Self: Feminism, Sexual Violence
and the Law in Chatterjee Partha and Jaganathan
Pradeep (eds.), Community, Gender and Violence.
Subaltern Studies XI. Permanent Black, New
Delhi, 2000.Dasgupta Rajashri, The Politics of
Silence: Sexual Harassment At Workplace,
Kolkata: Sanhita, 2001. Baxi Pratiksha, Sexual
Harassment, Seminar 505, September 2001.

v
Predator or Victim? , Bombay Times, July 27,
2004, p.1.

vi
Supreme Court Judgment on Sexual Harassment
at Workplace, Landmark Judgment Series-1,
NAWO (National Alliance of Women), New Delhi:
NAWO, 1997.

vii
Workplace is an area where the employee is
required to represent, carry out, perform or

implement any duties, obligations or services.
Home would be a workplace for a domestic maid.
For women working in field jobs the area she
covers of her work represents her workplace.

viii
Mitra Joyati (ed.), Women And Society:
Equality and empowerment, New Delhi: Kanishka
Publishers, 1997, p.69.

ix
For the proceedings of the case see in the
Supreme Court of India Criminal Original
Jurisdiction- Vishakha & Ors. (Petitioners) Vs.
The State of Rajasthan & Ors. (Respondents). Also
see on http://www.elaw.org/.

x
Article 14 of the Indian Constitution provides-
The state shall not deny to any person equality
before the law or the equal protection of the laws
within the territory of India. Article 15 of the
constitution says The state shall not discriminate
against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
Article 19 (1) (g) to practice any profession, or to
carry out any occupation, trade or business.
Article 21 of the Constitution provides that- No
person shall be deprived of his life and personal
liberty expect according to the procedure
established by law.

xi
Article 32 (1) and (2) The right to move the
Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is
guaranteed.
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, whichever may be
appropriate for the enforcement of any of the rights
conferred by this Part.

xii
See on http://www.elaw.org/.

xiii
Article 42 provision for just and humane
conditions of work and maternity relief- The state
shall make provision for securing just and humane
conditions of work and for maternity relief.
Article 51(a) Fundamental duties-It shall be the
duty of every citizen of India- to abide by the
constitution and respect its ideals and institution.
Article 51(c) Promotion of international peace and
security- The state shall endeavour to- foster
respect for international law and treaty obligations
in the dealings of organised people with one
another. Article 51(e) 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.
Article 253 Legislation for giving effect to
international agreements- Notwithstanding
anything in the foregoing provisions of this
chapter, Parliament has power to make any law for

38

the whole or any part of the territory of India for
implanting any treaty, agreement or convention
with any other country or seventh schedule List I-
Union List.

xiv
The European Communities Commission has
emphasized worldwide that the most effective
method of combating with this menace is to
develop and implement a preventive policy at
enterprise level.

xv
For the details of guidelines see, Women
Workers: Gender Concerns vis--vis Occupational
Health- A Workshop Report - Society for
Participatory Research in Asia and Asian South
Pacific Bureau of Adult Education, April 22-24,
1999, Kathmandu, Nepal.

xvi
Kishwar Madhu, Off The Beaten Track:
Rethinking Gender Justice For Indian Women,
New Delhi: Oxford University Press, 1999, 167.

xvii
Dasgupta Rajashri, The Politics of Silence:
Sexual Harassment At Workplace, Kolkata:
Sanhita, 2001, p.37.

xviii
Bhateris Ghost On The Move, The Tribune,
February 14, 2000, Online Edition,
http://www.tribuneindia.com.

xix
Ibid.

xx
See Dasgupta Rajashri, The politics of silence,
2001,p.39.

xxi
Harassment at Work, The Hindu, Sunday,
March 04, 2001, Online Edition, http://
www.hindu.com/.

xxii
Raj Ranjit Dev, India-Pakistan: Justice Still
Eludes Indias Sexual Harassment Victims, May
19,1999, on website http://www.atimes.com/ind-
pak/AE19Df01.html

xxiii
Ibid.

xxiv
Baxi Pratiksha, Sexual harassment, Seminar,
no. 505, September 2001, p.58.

xxv
Crimes Against Women Up By 73 pc, The
Times Of India, Mumbai, July 27, 2004, p.1.

xxvi
Ibid.


Dr. Shanta Mohan

Violence Against Women

Unlike the other panellists, who have had
legal training I look at these issues from a

different point of view. Being a social
scientist I look at the reasons for the
particular issues discussed here.

I would like to start at this point by
drawing attention to a few issues to focus
on so that we do not lose track. The earlier
panellists have already seen that most of
these issues are private which operate in
the private sphere and which are mostly in
the matrimonial homes. So I would first of
all like to say that one has to look at
violations or violence against women
operating right from the womb to the
tomb. I would say that todays girl
children dont even have a right to be born.
They die even before they are fully formed
in the womb of the mother. So we are
destroying the right of the girl child even
to be born and to survive I would like to
point out that 2001 census has shown that
female children in the age group of 0-6 are
in the ratio of 700:1000 in the state of
Punjab alone and this is very distressing
and it means that we do not give value to a
women or to a girl child. I think we need
to look at this with a lot of concern
because if this trend continues,
demographically we are going to end up in
a lot of trouble. A study conducted on an
all India basis has shown, in spite of
legislation on sex determination and
abortions, that there are mobile clinics
which go to the rural areas into the
villages, conduct scans and on the spot
abort foetuses. So I think I do not have to
further stress the point as to how serious
this problem is. At 0-6 despite the
scientific information saying that female
children have a greater life expectancy at
birth, shows a high infant mortality rate
which means deprivation and neglect of
girl children is a reality. This is also a form
of violence against the female child. If her
right to security within the home to
adequate food, health education is not
given priority, that means it is violence
that is perpetrated against the girl child.

The second point that I would like to bring
to notice is that we need to look at women
as a very heterogeneous group. Generally

39

we combine all women under one category
of the female sex. Experience of violence
is different across class, caste and religion
and that has been brought out by our
earlier panellist who has spoken quite
deeply upon personal laws that affect
women. So I think that women need to be
understood from the intersection of class,
caste and religion and other factors.
Particularly the most vulnerable sections
who are deprived of most intangible
resources like education and skills, who
are poor whose very subsistence for a
days survival rests on the next meal that
they get and those belonging to the lowest
caste. The kind of violations they face, not
only within their family but also outside
the family, needs to be noted.

Now coming to our extended researches
that we have conducted from our institute,
we tried to find out why this inequality
exists and why this kind of violence is
perpetrated. The main reason for them is
that women lack access to resources and
control over them. They may be both
private and public. Thats where the inter-
sectionality of various security issues
become very crucial, because you cannot
see violence as only one form of physical
or mental security to women without
looking at other implications. Women go
to the police station only if the issue
becomes intense and beyond control. And
if the police personnel think that the family
is the centre to which she should try to
adjust and try to live with them, then one
is taking the chance of seeing her being
terminated at a point of time. These
disparities lead to disadvantages that
women face which get perpetuated and
reinforced so that they cannot escape from
the trap of exploitation and victimization.
We have to be aware of this trap because
even within our own families, women who
submit themselves to transmit the
stereotypical images of women and try to
teach how they should behave as good
women. I will not go into the details of
what good women mean but just to give
an example a man always praises the
women whose is a willing partner rather

than a brave, strong, articulate and right
thinking woman. So there is a lot of force
even within the family which perpetuates
stereotypical images and any diversion
from that stereotypical image is considered
not acceptable in society.

Coming to violence, if you look at who
perpetuates it and where it is perpetuated,
the ground is the family itself. So the first
place where women get their dignity
violated is within the homes. It is
perpetuated by the family members,
whether it is the spouse or the in-laws or
the parents themselves. In the public
sphere it is mostly by colleagues in the
work place. There is also the state
perpetrated violence which we do not
speak of because we think the state is
clean from ever indulging in violence
against womens rights. If we look at the
violations against tribals, at the atrocities
in police custody, women in armed
conflict situations and so on then we see
that the state can also be partner to
violations of womens dignity. Whom do
the women approach for reprisal? They
have to approach the perpetrators for
giving them reprisal. Within the family
they approach the closest relative to the
spouse who in many cases is not going to
be supportive of the women who is trying
to raise issues. At the village panchayats
which are mainly comprised of men, their
empathy for the male is much higher that
the empathy for the women. Their
empathy for the survival of the family is
much higher than their empathy for the life
of that woman. Therefore, they do not take
a very sensitive and empathic stand in
relation to womans questions. They think
a woman who comes up to speak about her
family members is a woman who lacks
competence. It is easier for the family to
take up questions of violence that is
reported against the public. In cases of
caste-based violence, the caste is ready to
take up the matter and give support to the
women. Same is the case in religious
violence and so forth. However, within the
family they do not want to take positive
action. The socialization and

40

internalisation of characteristics among
men and women within a society is such
that women do not like to report violence.
Women are afraid to talk about violence.
Even today women tend to blame
themselves for the violence but will not
blame the perpetrator for the violence.
Under these circumstances when women
speak publicly on violence one should say
that this women has come because she
finds no other recourse or action.
Therefore the responsibility of the family,
the community and the police has to be
very focused. They should know that if
some people are talking about women
misusing certain laws that there is more of
misuse by other interested parties than the
women themselves.

Finally, there is the inter-sectionality and
without addressing other security issues of
womens access to judicial enforcement
and other socio-economic and political
rights, its hardly ever possible to address
violence. Only when women are found in
critical numbers, only if they have support
systems available to them, only if they
have a very sensitive partnership with men
and patriarchal institutions, can it be ever
possible for them to get any form of
redressal from the violations that they face
in everyday life.


SESSION III
RESPONSIBILITY OF
MEDIA AND SOCIETY


Chairperson: Dr. Shanta Mohan

The post lunch session is a very important
session as it talks about the responsibility
of the media and society in issues
concerned with legal rights of women. We
have speakers who are practioners and
experts from the media. They will be
sharing their experiences with us about
medias responsibility to society regarding
women and its ethical commitment to
issues relating to women.


Mr. Jnani Sankaran

Media Ethics and Responsibility

Talking about media ethics and its
responsibility within the media circles,
media critics have always said it is an
oxymoron, like discussing a benevolent
dictator because a dictator cannot be
benevolent and one who is benevolent
would not turn into a dictator.

The two do not go together. This has been
a view of media critics always and even
within the media, ethics does not provoke
much debate within the professional
circles. I have been in the profession for
nearly thirty years now and during the first
decade of my professional work I noticed
there was much discussion of media ethics.
During my second decade it slowly waned
and in the present decade I rarely come
across any media meeting where media
ethics is considered a vital issue. Its
because ethics, as an issue in our society
has taken the back seat long ago in all
walks of life and not just the media. In the
legal profession, judiciary, police, teaching
community, etc., no one talks about ethics
anymore except for academic reasons.

Naturally, in the media circle also ethics is
a vital issue worthy of discussion and
serious thought. Since we are all
concerned with the legal aspect of the
issues I would like to look at the law with
relation to media ethics. It is very strange
that media does not have its rights legally
ensured, just as media doesnt have a legal
sanction for its rights and there is no direct
bearing on ethics also. All media rights,
particularly in terms of freedom of
expression, are not institutional. The
Constitution of India gives the freedom of
expression only to the citizens and not to
the organization. Therefore, the media
personnel, media staff and media
practioners have this right only as
individual citizens and not as
organizations. The Hindu as an
organization does not have a right to

41

freedom of expression, but the editor of
The Hindu as a citizen draws this right and
exercise this right just as any other citizen
can. In the US Constitution freedom of
expression is guaranteed even for
organizations of media, but the Indian
constitution does not provide for that.
Therefore, its an indirect right that the
media is enjoys in terms of freedom of
expression.

Similarly, the question of enforcing of
ethics is also not direct; it is indirectly
brought to bear upon the media through
various other laws which protect the rights
of the individuals. eg. the Law of
Defamation or the Law of Citizenship. The
conflict therefore has always been, not vis
a vis the media, but people outside the
media, i.e. the consumers of the media.

There is also another plane where this
conflict exists: i.e. within the media.
Within the media whose ethics are we
talking about? My ethic as a T.V.
presenter, as a writer or a journalist and
my ethics vis a vis my organizations
ownership is always in conflict. Therefore,
the ethics of the profession is rarely
determined by the practioners of the
profession. It is done by the financers of
the profession and those who run the
organization. This means there is a conflict
that exists within the media and whenever
I am not able to resolve this conflict within
the system, there is only one option to quit
and look for another job. But for people
who are running the organization in the
print or electronic form it is business ethics
that determines what the media ethics
should be. Moreover, where business
ethics and media ethics are in conflict,
business ethics always prevails. One can
quote so many incidents both from abroad
and from our own Indian experience to
illustrate all these points. In a small county
in the US, a weekly sports newspaper,
catered to a small community of about
50,000 citizens and sustained itself only
through advertisements. The editor had to
sack the photographer of the paper one day
for an innocuous photograph. The

photograph was about a hockey match and
there was nothing wrong or unethical
about the photograph. The issue was that
the hockey players were using hockey
sticks with the logo of a rival company.
The sponsoring company was upset, and
called the editor and said we are
supporting your paper but your paper
carries a photograph where the rival logo
is visible and this goes against our
interest. Therefore, the editor had to sack
the photographer.

Maybe from point of view of business
ethics this can be justified because the
sponsor of the paper has the right as a
businessman to demand the priority. But
when we look at the journalistic ethics, all
that happened was the reporting of an
event for the benefit of the reader. In most
newspaper and T.V. organizations its the
business practice that determines the
media ethics.

Many of us individuals who work in media
are often more concerned about media
ethics relating to the individual
professional behaviour. There is a trend
about which individual journalists, writers,
T.V. personalities are deeply concerned.
For example, the case of the Buddhist
monk immolating himself to protest the
Vietnam War. He was photographed in
detail so that the rest of the world could
see what the Buddhist monk did. Stage-by-
stage, in the photograph the Buddhist
monk can be seen dying. What is the ethics
of the individual journalist, the
photographer in this case? Should he have
saved the monk or merely recorded the
event? This is a dilemma for a human
being. As a fellow human being are you
going to save the monk, prevent him from
burning himself? Or because the monk has
already announced that he is going to do it
and he is engaged in what he had
announced, you only record it for the sake
of your profession and take it to the rest of
the world? So the photojournalist was
following professional ethics which could
come in conflict with the human value.
When you see a fellow human being

42

suffering do you intervene or not? Here
fundamental human ethics comes into
conflict. There have been arguments pro
and against this issue. There were some
who argued that the monk was trying to
bring to the notice of the world, a bigger
issue, involving more human beings and
the professional journalist was justified in
being a collaborator in working towards
that goal. Is it a question of one human
beings suffering being put to end or
bringing to light the sufferings of several
thousand human beings? These are grey
areas in media ethics and there have been
similar instances throughout the world.

Closer home - should Nakkeeran Gopal
have told the police where Veerapan was
or not? What is the media ethics involved?
Throughout the world, journalists have
always stood by one principle: never
divulge the source. Even if the law of the
land demands that you have to divulge the
source of the information, journalists have
said that its my professional ethics not to
divulge the source of information.
Therefore, I shall defy the law of the land
and take the punishment which the law
gives. I will undergo punishment for
following my ethics. But then the law of
the land demands that a wanted brigand or
a terrorist, anyone possessing information
about such a person has to share it with the
state apparatus. Therefore, media ethics
comes into conflict with the legal situation.
Sometimes media questions the ethics of
the state, when the media fights the state it
has a collective fraternity. So these are
grey area and at the personal level I have
always been more worried about media
ethics vis a vis women. If you go through
the morning papers, inevitably you will
find at least one or two news items in
every Tamil paper relating to crime,
particularly about commercial sex
workers. And you always find their
photographs. Some newspapers give more
coverage to these crimes. This intrudes
with the privacy and personal right of the
women involved. Under the law we know
that anyone who is accused is innocent
unless proved guilty. Hanging by media or

trial by media starts when the photograph
is published. A person has a right, an
individual right not be photographed while
being brought to court and unless the court
convicts her, she is not a criminal, or an
offender. We always find that is could be
petty thieves, burglars or commercial sex
workers, photographs appear in papers and
television also shows the video footage.

Some of us in the media and the State
Womens Commission wrote to the City
Police Commissioner that he should
instruct all the police officers that they
should not release these photographs to the
media. This happened nearly two years
ago and despite an assurance from the
Commissioner of Police at that time, the
practice goes on and Tamil newspapers
continue to publish photographs of women
and commercial sex workers. A public
inquiry or public hearing on social issues
are meant for certain reprisal mechanisms
to listen to these grievances. They are not
really meant for the consumption of the
larger public. The rights of the individual
victims involved are not really taken into
account, both by the organizers as well as
by the media. Therefore, photographs are
freely taken of child victims, who have a
future ahead of them and the publicity in
the media always affects them, particularly
young girls who are drawn out of their
house at the very impressionable age and
who have to be rescued.

Unfortunately there is no mechanism
within the media to regulate or to guide
media ethics. What kind of practice should
one follow? I did a course on journalism
for about 10 months before joining the
profession. There almost every teacher
would repeat two golden maxims. One:
facts are secret, comments are free, two:
when in doubt, cut it out. And for 30 years
I remember these 2 golden rules, but as a
consumer of media, I find that these rules
are often violated. Even when in doubt,
nobody cuts it out. It is allowed to go in
print and one can always issue denial and
then a follow up on that. Facts are secret
and comments are free is also violated and

43

reporting itself becomes commentative. It
is not reserved for editorialising; the very
style of reporting mixes facts and
comments.

After analysing all these problems I would
like to ask who really enforces media
ethics? Its very difficult to enforce a media
code or an ethic for the simple reason that
media is not a centralised structure or a
centralised system, where the ownership is
singular or a monopoly. The ownership is
diverse and they are all competing with
each other for a slice of the market and
therefore it becomes much more difficult
to bring them under one roof and make
them adhere to certain code. You might
not have come across any newspaper
owners organization ever announcing a
code of conduct in this country. There are
several organizations for the owner of
newspapers in India. They have never
talked about media ethics. But you always
find or come across the editors conference
of India talking about media ethics.
Various associations of journalists and
editors talk about ethics but they dont
have a teeth in terms of implementation of
all these hopes and the professional bodies
do not have effective mechanism.

This leaves a whole space to the state
apparatus to regulate, but then it is a very
tricky and a grey area. The state can
regulate only in terms of specific
grievances like the Defamation Act.
Similarly, there are other laws particularly
those relating to portrayal of women in an
obscene way or vulgar way or bad
projection of women. These laws can be
applied, but they exist in book and are
seldom enforced even by the law enforcing
authorities. The law enforcing authorities
always have their excuse that they do not
have enough staff or infrastructure for
enforcement.

The Board of Film Certification says that
they can censor a film but they cannot
ensure that it is only the censored film that
is shown in the theatre. If somebody is still
going to show the uncensored film unless

there is a complaint they would not know
about it. Even when there is a complaint
they have to go to the regular policing
system to take action.

I would like to draw the attention of this
audience to one more section of this
society which can still exercise its right
and strength to have an influence on
media, viz all of us, the consumers of
media. As readers and viewers of the
printed and electronic media we are
consuming media. I talk about consumer
rights vis a vis media because the media
owners are talking more about media as a
business and a product. We are consuming
a product and since the owners are talking
the business language, we should in turn
talk the same business language and
demand the consumers rights. The
consumer right vis a vis media is not as yet
codified or defined. Maybe more
challenges by the law will get it codified
and a juris prudence about media
consumption will evolve. When we watch
a bad television serial which projects
women and children in bad light or we
read a newspaper article which is against
womens interests, we just talk about it
amongst ourselves. Very few of us take a
pen and a paper and write a letter about it.
I have found that the consumer support to
a conscientious journalist like me would
have helped me to go a long way, when
the support has been lacking from within
the profession.

I have an incident to share with you: I
write on environmental issues, political
analysis, youth issues and womens rights.
I was allotted about two pages every week
in the magazine to write on serious issues
such as the de-salination of the Bay of
Bengal so that Chennai can be saved from
water shortage. One of my colleagues
writes film gossip and is allotted three
pages. The following week my article got
three letters from the readers and my
colleagues article got not less than 400
letters. Out of these 400 letters, hardly 10
condemned the article. The other 390
letters received by the office was from

44

happy readers who wanted to know more
about a film stars private life. The editor
called me to say my article was a dead
weight and, it did not evoke reader
response. I was asked to reduce my article
to one page: for something like the
drinking water problem of Chennai!

This is not the complete story when I go to
seminars meetings I interact with various
sections of the society: students, workers,
different categories of the society. People
share their comments and views on my
articles. I ask them why they have not
written their views to my editor. The editor
is fed with only one view from one
articulate section of the consumers while
the other section of the consumers who
have to be articulate are not. They do not
communicate their point of view and this
has been a handicap for many sincere
journalists in every organization. Please
buy at least ten post cards and whenever
you watch a television program which you
appreciate, mail a card. If you do not like a
program, still mail a card. To the question:
who is listening, my answer is, between
not writing a card and not getting a result;
writing a card and waiting for a result is
better. When more people write and more
people communicate, we will have a better
situation. Media ethics can be brought
about if the consumers become more
conscious about what they really want
from the media and what they really do not
want.


Mr. Sudhangan

Social Responsibility and Sensitivity

Lot of debates and seminars make us
interact with society and in turn feel
responsible towards society. Not everyone
likes the private life of actors and
actresses: one classic example of consumer
reaction is the magazine Junior Viketan. In
my career, I have had to compromise on
certain stages, reporting on film pages. For
the first issue in 1983 I went with a
photographer to a film stars house for an

article on how to tie the madisar saree.
The idea was that Ananda Viketan which
was very conservative should change that
image and catch up with the popular
magazines, therefore, it was ok for Junior
Viketan to carry such photographs. The
response for the first issue was very good
as it was a new weekly, but by August the
magazines circulation dipped. The owner
called the new recruits of the group and
said if you cant touch a higher figure he
would have to close down and we would
have to seek a job else were.

Later, among the contemporary weeklies,
Junior Viketan was among the first to
carry an old ladys photograph on the
cover page instead of a glamorous face.
This photograph was taken in a home for
the aged. The old lady was not interested
in the gifts being offered, she just wanted
me to spend some more time with her. The
loneliness of the old lady led to a series of
stories on the plight of the aged. The series
was accepted and the joint editor told me
there was good response to human-interest
stories. The circulation went up and we
had a very successful experiment not
reporting films for four years. Only serious
issues and investigative issues were given
preference in the magazine.

Initially, the growth of the media in India
was along with the freedom struggle and
the commitment to the nation. Everything
was part of it. When the magazine was
started by S.S. Vasan, although it was a
business venture there was a social and
moral commitment intertwined with the
business interest. However, the trend has
changed. Who wants to see someone in a
television channel talking about global
terrorism, international poverty or
eradication of poverty beyond
Johannesburg? There is a preference
among viewers to watch film based
programmes over serious issues. The
media is not highlighting social issues
because of its interest in ratings. After the
invasion of the satellite channels and
thanks to our prime decision on
globalisation, the programs in channels are

45

not decided by the owners of the channels.
The contents are now decided by the
multi-national ad companies.

On a festival day or a national holiday, for
example Independence Day, from the
breakfast show through the day interviews
of actor or actress are shown in almost all
the channels. For the sake of customs,
there will be a telecast of some patriotic
songs after which it will revert to the film
personalities. Therefore, when a multi-
national decides the content of a media, it
is difficult to expect social responsibility.
In the print media, the normal practice is to
popularise a weekly or daily so that it
reaches a larger mass. It has to circulate
among a larger audience as larger
readership would result in more
advertising for the magazine. This trend is
now reversed and the marketing
department has control of the contents.

Some interesting fact is that the
responsibility lies with the media as well
as the consumer. Therefore, it is necessary
to question our sensitivity on certain
issues. Some parents are happier when
their child goes to a TV show and dances
to a latest film song. Few parents are proud
that their child appeared on TV and recited
Bharathiar songs or recited 100 Thirukural
or spoke on issues of concern.

It is the responsibility of organizations like
CSA to build social responsibility. The
role of the media is also very important. In
every channel, religious heads take slots to
propagate the religion. Perhaps social
organizations can, by paying and taking
time slots with television channels convey
messages and ideas to the masses.
Globalisation to some extent is corrupting
the media and influencing it, which in turn
influences the whole culture and social
values. It is not sufficient if journalists
discuss about the medias social
responsibility. It should involve the
proprietors also.

The media should be made more aware of
social responsibility and they should be

made more sensitive to vital issues
concerning women and security. In this a
think tank like the CSA has a major role to
play, i.e. create a climate where the media
feels responsible for the role it plays in
society.