Revisiting Gender Equality


Advt. B. Premnath, High Court of Kerala

Women are pampered lot by the Laws, if the recent out burst by a group of women against a taxi driver in Kochi is any indication. Supreme Court has taken note of the misuse of the legal provisions by women, especially in invoking penal provisions. In Sushil Kumar Sharma Vs Union of India and others, “Unleashing of legal terrorism” is what the Supreme Court described the cases under Section 498A (cruelty by husband or his relative) of the Indian Penal Code which was indiscriminately

used by unscrupulous persons to wreak vengeance on petty ego issues. In a recent decision, on the same issue, in Rajesh Sharma & Others Vs. State of U.P and another, the Supreme Court deprecated the practice of automatic registering of case against in-laws and husband of a woman and directed the Police and the Magistrate to refer every such complaint to the committees set up by the District Legal Services Authorities to scrutinise for further action.

While it is true that in Lalita Kumari Vs. State of U.P the Supreme Court has made it mandatory to register FIR if the complaint makes out a cognizable offence, but the judgement does not altogether bar a preliminary enquiry in all cases before registering an FIR. In the taxi incident, there should have been a preliminary enquiry on the complaint by women, especially

when it was filed after a case was registered against them for beating up the driver. The police has obviously registered the FIR against the driver only because the complaint was by women. Can’t help thinking; Are women more equal?

The illiteracy of women and the oppressive tradition made the women unaware of their rights. Women in India were fortunate unlike their counter parts in the west, where they had to fight for a century for their basic rights. The balancing act was initiated by the Consitution of India when it gave equal rights to women with men from the very beginning, by virtue of Article 14. It didn’t stop there. Article 15(3) of the Constitution went a step further. It permits the State to make special provision for women and children.

It is with the object of women empowerment that laws are enacted for their protection. The Supreme Court has been zealously protecting the women in the arenas where they were neglected, be it Vishaka’s case regarding sexual harassment in work places, Hindu Female’s right to maintanenance, Mary Roy’s case upholding Christian women’s right to equal share in father’s property, Shah Banu Begum’s case right to maintenance, no bar to inter caste marriage under the Hindu Marriage Act, live in relationships tagged to domestic violence Act, prevention of female foeticide, guidelines for conducting trial of child sexual abuse/rape, to name a few. The judgment rendered by the Supreme Court terming the pronouncement of triple talaq held was the need of the hour in that community.

Supreme Court, in Sandhya Manoj Vankhede Vs Manoj Bhimrao Wankhede, held that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of protection of women from domestic violence act, 2005. Keeping in tune with the avowed object of the Act, in Hiral P. Harsora v. Kusum Narottamdas Harsora, Supreme Court has held that complaint under the Act is not only maintainable against an adult male person, but also against a female relative. Things have changed. Women empowered. Today, the voice of women is everywhere; in the Courts, in Parliament, in the bureaucracy, in the play ground and in the battle field. State is duty bound to ensure that whatever be the rights of women, it does not foray into the Fundamental Rights of other citizens, including the right to live and the right to carry his avocation. It is the political will that should ensure that the Laws wouldnot be misused.

The expression “equality before law” is borrowed from English law. In State of U.P. v. Deoman Upadhyaya, the Supreme Court held it as the negative aspect of equality. The “equal protection of the laws” in Article 14 has been borrowed from the 14th Amendment to the U.S. Constitution and has been described in the said judgment as the positive aspect of equality namely the protection of equal laws: “This subject has been so frequently and recently before this court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilized constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim s p e c i a l privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances.

No discrimination can be made either in the privileges conferred or in the liabilities imposed. But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure, it is well nigh impossible to make laws suitable in their application to all the persons alike. So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.”


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