Open Access Research Article
Social Struggles of Women’s and LGBTQ Community for Legal Acceptance in India - by Naman Chaube
Published Paper
Article Details
Social
Struggles of Women’s and LGBTQ Community for Legal Acceptance in India
Authored by-Naman
Chaube
B.A.LL.B. (II ND Year)
Lloyd Law College,
Greater Noida
Abstract
With the famous saying of Thomas
Arnold “Law is primarily a great reservoir of emotionally important social
symbols, it develops, as language develops, in spite of, and not because of,
the grammarians. Though the notion of a ‘rule of law’ may be the moral background
of revolt, it ordinarily operates to induce acceptance of things as they are.
It does this by creating a realm somewhere within the mystical haze beyond the
courts, where all our dreams of justice in an unjust world come true.” The
socio-legal issues include privacy and confidentiality, also issues pertaining
and related to socially vulnerable, health insurance discrimination, employment
discrimination, individual responsibility, issues related to race and ethnicity
and implementation.
There are plethora of socio-legal
issues emerging in the society, which are needed to be addressed and to be
tackled under the lime light of the law, which is embedded in the territorial
boundary of the nation. This paper aims to focus on the light issues related explicitly
for the extreme groups of society, such as women, children, trans-genders,
people belonging to SC’s; ST’s and other minority groups. But being considered
the marginal communities of the nation women went to a lot to have equal status
and get opportunity in the society. Are women actually getting any rights?
There is no doubt that law treats every person equal before the law, under the
legal setup provided under different Act and the Constitution of India, 1950
but when the question comes about the ground of implementation of the same, we
see that majority of these communities do not even get the basic human rights.
The goal of equality is still very far. The author through this paper wants to
highlight the gaps that still persists in the Indian Society.
Keywords: Society, Laws, Gender Discrimination,
LGBTQ Community, Justice.
Introduction
What actually a society is? According
to what Emile Durkheim said in his teachings that the society is a system of
interrelated parts where no one part can function without the other. These
parts make up the whole of society. If one-part changes, it has an impact on
society as a whole, adding to what Aristotle told the world that Man is a
social animal and a man is biologically and psychologically equipped to live in
the groups which dealt in the society. With the imminent of the society, the
forthcoming of the religion, customs, traditions all materialize, which is
followed and believed by the people residing in that society. In fact, India is
the blend of different socio-cultures, ethics and values where religion plays a
vital role in the upbringing of the social norms in the society because of
which these socio-legal aspects are always a matter of question.
We are living in that state of
assorted society in which we are bound with the socio-legal taboos which not
only hinders the generic living conditions of an individual but also plays a
vital role in creating a social evil in one’s mind. Though the Indian society
have evolved through the ages and advancements have taken place in the diverse
fields of the society, but we are still lacking behind in the mindset of the
most common customs and traditions which was being followed from about 1000’s
of years. Security of an individual (explicitly for the extreme groups of
society, such as women, children, trans-genders, people belonging to SC’s; ST’s
and other minority groups), casteism, dowry, communalism, consumption of
alcohols, drug addiction, and the list goes till nowhere. The vibrancy of the
socio-legal problems exists in every sector of the society.
We all know that Article 14 of the
Indian Constitution, 1950 provides for the right to equality. But what is the
actual meaning of equality? Does it mean that equality should be given to all?
No, the true interpretation of this provides for equality among equals. Only
those are equals in a particular society should be treated equal. But, in our
society the women were not treated equal in the past decades due to which
special provisions are given to women community. Article 14 also talks about
the equal protection of laws, which says that for better public welfare,
classification is must, that different factors existing in our country and we
recognise them then only we can bring the new and better laws.
As per the Article 21 of the Indian
Constitution concerning protection of life and personal liberty - protects
gender privacy, identity and integrity[1].
That means security of an individual. If we take special reference pertaining
to the security of women and child which is mentioned in the Constitution of
India under article 15(3)[2]
which says that nothing in this article shall prevent the State from making any
special provision for women and children. For past 5 decades, the government
also promotes the weaker sections of the society with the special care, this
includes the schemes that benefit the women community in whole, some of the
government schemes are as follows:
1. Beti Bachao Beti Padhao Scheme: This
was the scheme launched on January 22 2015, by our Hon’ble Prime Minister in
the state of Haryana. The main target of this scheme was to ensure the welfare
of the women and children. This scheme ensures the survival, protection and
education of each n every girl child. This scheme also aims to re- address the
issues relating to the declining of the sex ratio over the past few years. It also
helps in creating social awareness for the girl child and renders itself in
enhancing the efficiency of welfare services developed for girls.
The Beti Bachao Beti Padhao Scheme
was applicable in the nationwide, which ensured the maximum outstretch, so the
3 groups were made for the commencement of this scheme.
·
Primary
Groups: which comprised of young and married couples, pregnant mothers and
parents.
·
Secondary
Groups: Which comprised of the youth of India, adolescents, in-laws, doctors,
private hospitals, nursing homes, diagnostic centres.
·
Tertiary
Groups: which comprises of general people of the country, religious leaders,
voluntary organisations, frontline workers, officials, media and women SHGs
Sector.
2. One Stop Centre Scheme: Next for the
list for empowerment of the women comes the One Stop Centre Scheme, which is a
centrally sponsored scheme of Ministry of women and Child Development, for the
addressing of the problems of violence committed against the women community.
The founding of this scheme was lead on 1st April, 2015 It is
basically a string of umbrella scheme for National Mission for Empowerment of
Women including Indira Gandhi Mattritav Sahyog Yojana. In this scheme, One Stop
Centre will be manufactured across the country both in private and public
spaces to provide integrated support and assistance under one roof to women
affected by violence irrespective of class,
caste, region, religion, marital status or sexual orientation.
3. Working Women Hostel: For the
promotion for the safe environment and safe accommodation for working women and
to provide day care facilities for their children, the Government of India came
up with a lucrative scheme of Working ‘Women Hostel Scheme’. This scheme
provides a particular preference for working women belonging to the
disadvantaged sections of society. The Scheme guidelines also provide the
reservation of seats for physically challenged.
4. Women Helpline Scheme: This scheme
also ensures the women empowerment that intends to give 24*7 emergency
responses to women affected by violence in private or in public places. With
the help of a single toll-free number (181), the universalisation of the women
helpline number has been cooked through in every State and Union territory of
India.
5. Mahila E-Haat: Mahila E-Haat is an
initiative scheme launched by the Ministry of Women and Child Development. This
scheme provides the wider opportunity for women entrepreneurs for using the
technology and present their products on an online platform. This scheme helps
the upcoming women entrepreneurs, women self-made groups (SHGs), NGOs. With
only a telephonic devices and internet connections, women can show case their
products along with descriptions and photographs. This initiative also supports
the ‘Make in India’ program through an online platform.
6. Mahila Police Volunteers: The Ministry of Women and Child Development, along
with Home Affairs, launched the Mahila Police Volunteers scheme in all States
and Union Territories. This central government-sponsored scheme aims to create
a link between police authorities and local communities to ensure police
outreach on crime cases happening against women. This scheme works to create a
safe woman-friendly environment and encourages women to join the police force.
7. STEP (Support to Training and Employment
Program for Women): One of the most effective women empowerment
schemes in India is STEP (Support to Training and Employment Program for
Women). It was introduced to provide training in skill development and to
assure employment to women. This government-backed scheme offers grants to
institutions and organisations to conduct the training programme. With the help
if this scheme, marginalised women (with special focus on SC/ST households,
women-headed households and families below the poverty line), asset-less rural
women and urban poor will be benefited.
8. SWADHAR Greh: SWADHAR Greh, one of the Government schemes for women's empowerment
in India, aims to provide shelter, food, clothing, social, economic and
health security. This scheme provides legal assistance to women and helps them
take initiative for readjusting in societies. Women who
are deserted and do not have any economic and social support, homeless women
(who survived natural calamity but do not have economic support), Women
prisoners (released but do not have a family), Trafficked women or girls
rescued or escaped from a brothel, Women suffering from AIDs, HIV will be
benefited and ensure the security and safety of the women.
9. Mahila Shakti Kendras (MSK): Another popular women empowerment scheme in
India is Mahila Shakti Kendra. This scheme was made basically for the
rural women. It aims to provide one-stop convergent support services to women
to develop skills, generate employment opportunities, and increase digital
literacy. This scheme is operational at multiple levels, such as national
level, state level, and district level. The Government intends to cover the 115
most backward districts by establishing 920 Mahila Shakti Kendras.
10. Rajiv Gandhi National Crehe Scheme: The Government has introduced National Creche Scheme
for the children of a working mother. This scheme provides day care facilities
to the children and guarantees to improve the health and nutrition status of
children. Further, this women empowerment yojana promotes physical,
social, and holistic development of children and educates parents to enhance
childcare methods or techniques.
These above-mentioned schemes
improved the living conditions of the women to a certain extent. There were
certain laws related also which fallen in the favour of women like The
Provision of the Protection of Women from Domestic Violence Act, 2005, Dowry
Prohibition Act, 1961, The Maternity Benefit Act 1961, Muslim Women (Protection
of rights on divorce) Act 1986, The Indecent Representation of Women
(Prohibition) Act 1986, The Commission of Sati (Prevention) Act, 1987. In 1976,
the Equal Remuneration Act was passed to provide for equal remuneration to
men and women for similar work.
Before a decade government also came
up with the scheme for the protection of the girl child. The name given for
this scheme was Ladli 2008, in which a particular amount was set aside
at the time of the birth of a girl child by the government, she will receive
this amount at the time when she will turn to eighteen years. This certain
amount will help her to for the completion of her education or for the marriage
of the girl child. There was another scheme by the name of Jaccha Baccha
Scheme, in which the state government take care of the girl child and take
full expenses which are related to medical assistance for the upbringing of the
child.
But, despite of having these
provisions, these laws and schemes, the women are still unsafe and been
harassed. It is not always easy for the women to take equal status in the
society. The gender gap embedded in the mindset of the male chauvinism of
demining and disregarding the character identity of a women. We do talk about
and personally I have learned that in Hindu Mythology the women are treated as
Goddess Laxmi of the house, the girl child is prayed in the holy Navratri
festive as “Kanya Pujjan”. Even in Quran, the holy book of Islam, forbids
female infanticide and instructs Muslims to educate daughters as well as sons.
Yes, we are respecting and praying the girl child in every religion, but when
it comes to the practicality of one’s life, the patriarchal society become
blind folded.
Gender
Discrimination:
Since the time, Rise of the Magadh as
an Empire in 558 BC took place till today, we have seen the plethora of
harassment and violence incidents which occurred on women community. The work
done by women is not valued and does not get any recognition. It was considered
that the main responsibility of women is to do household chores and bring up
the children.
We have seen that in the past the
practice of sati system (which have been abolished, but is still practised in
the backward areas of the nation), mental and physical tortures on women, the
triple-talaq (abolished with the help of Shayara Bano Case). We also saw the practice of having male
offspring as a blessing in the family and the female babies are being aborted.
Noy only in the Hindu Religion but
the cruelty on women was also seen in other religion too. The taboo of male
chauvinism grants a special provision to male counterparts in Muslim law to set
off their women by just saying, or by writing TALAQ! TALAQ! TALAQ. The Muslim
law sets three ways for the provision of divorce-
·
Divorce
by the unilateral act of the husband
·
Divorce
by mutual agreement
·
Judicial
Divorce
In Shayara Bano Case vs Union of
India[3],
the first provision was challenged by the petitioner in the court, but before
discussing the case let’s first discuss the second point that by which means
the Divorce in Muslim law can take place by mutual agreement.
Divorce by Mutual Agreement: So
basically, by two different ways this mutual agreement on divorce can take
place
Khula: In this category, the female
counterpart concerns to her male counterpart for the termination of the
marriage/ divorce of the marriage and if the male counterpart agrees to this decision,
the divorce of that tie-up meant to be completed.
Mubaraat: for this Category of this divorce,
both the male counterpart and female counterpart has the mutual consent for
divorce in the Muslim Law. Ask Ma’am
Divorce by the unilateral act of the Husband:
For the commencement of the divorce there are three categories also mentioned
under the Divorce by the unilateral act of the Husband-
Talak-e-ahasan: In Talak-e-ahasan, a single
pronouncement of Talaq word has been used by the male counter part to the
female counter part. But, a time period of 90 days is given to the couple for
the consultation to revoke the divorce. Elsewise, if the conciliation is not
maintained in 90 days, then the divorce will be completed.
Talak-e-hasan: In Talak-e-hasan, three times
pronouncement of Talaq word has been used by the male counter part to his
female counter part, but the word Talaq is not being used in one go, it is said
in time span of three months. If in the time span of 2 months, the
re-conciliation of the couple for staying in the marriage takes place, then the
revocation of divorce can be done. Elsewise, after 3 months if the last Talaq
word has been said by the male counter-part, then the divorce becomes
irrevocable. The period of 90 days is called Iddat.
Talak-e-biddat: In Talaq-e-biddat, if the male
counter-part says Talaq, three time in one go, then no one can revoke the
divorce process in this category.
For the abolition of Talaq-e-biddat,
the landmark case Shayara Bano vs Union of India[4]
came into picture. Shayara Bano filed a Writ Petition in the Supreme Court
pleading to declare three practises talaq-e-biddat, polygamy and nikah-halala
as unconstitutional as they violate the fundamental rights of women.
The issues which raised by Shayara
Bano Case was-
·
whether
the practise of Triple Talaq is constitutional?
·
whether the practise of Triple talaq is an
essential religious practise of Islam?
With the arguments, presented by the
Advocates of both the sides, the Constitutional Bench of the Supreme Court, by
3:2 majority, set aside and declare the practice of instantaneous Triple Talaq
or Talaq-e- biddat to be unconstitutional under Article 14. The Supreme Court
of India also talks about the essential religious practice of Islam and why
they entered in the matter of a religion. The court quoted that if removing a
practice cause a significant change in religion, that practice is referred to
as an ‘essential religious practice’ protects only such practices.
Some other analysis came in the
picture when we talk about this case, that whether constitutional law can
interfere in the personal law, as the practise of any religion comes under
strata of Personal law, the Court said that any law which is silent at any its
discretion, the Court can interfere in it and can make the suitable law which
can be beneficial for the any community or religion.
Now, what happened when the judgement
was given by the Hon’ble Justices, the Triple Talaq Bill, the Muslim Women
(Protection of Rights on Marriage) Ordinance 2019 was made and the bill was
passed in Rajya Sabha on 30 July 2019, and the punishment was added in the bill
that any male counterpart practising Talaq-e-biddat or pronouncing the word
TALAQ! three times in one go will be imprisoned for a term of three years and
also be liable for fine.
Dowry
System:
The practise of dowry is one of the
worst social practices that has affected our culture. For the independent
India, one of the land mark legislations is the passing of The Dowry
Prohibition Act in 1961 by the Government of India. Despite the fact that the
practise of both as giving as accepting the dowry is banned by law and such
acts are punishable under the Article 4 of The Dowry Prohibition Act, 1961[5]
which says that If any person
demands, directly or indirectly, from the parents or other relatives or
guardian of a bride or bridegroom, as the case may be, any dowry, he shall be
punishable with imprisonment for a term which shall not be less than six
months, but which may extend to two years and with fine which may extend to ten
thousand rupees. Whether it is a rural or urban India the system is so
thoroughly imbedded in our cultural that it continues unabated. The scope of
the dowry does not rest only till the given and take of the resources, it also
leads to the domestic violence, marital rapes, cruelty by in-laws against women
not only psychological but also the physical torture are related to the matters
of dowry. Domestic violence in India is an entrenched problem, and it has only
been exacerbated in the recent years. About 70 percent of women in India are
victims of domestic violence.
National Crime Records Bureau’s (NCRB), ‘Crime
in India’ 2019 report was worrisome but not startling. As per the report, in
India, a woman is raped every 16 minutes, and every four minutes, she
experiences cruelty at the hands of her in-laws.
An
analysis of National Family Health Survey (NFHS) 2015-16 data indicates that an
estimated 99.1 percent of sexual violence cases go unreported and that the
average Indian women is 17 times more likely to face the sexual violence from
her husband than from others.
In spite
of the recent amendments in the criminal law, various laws meant to protect
women from domestic violence and sexual assault have largely remained
ineffective.
Is Lady
Justice, just a statue placed blindfolded or really giving some unbiased
justice?
LGBTQ
Under the light of the law, our
constitution gives equal rights to men and women in every field and in the new
contemporary world we are now giving equal rights and equal opportunities to
those communities who were not recognized as the part of our society – Lesbian,
Gay, Bisexual and Transgender (LGBTQ Community).
The rights for the LGBTQ Community
had to fight against the two hundred years previous British Law era, that tend
to criminalised the homosexual intercourse, which was meant against the order
of the nature. It’s roots for the criminalisation of the homosexuality emerge
from The Buggery Act of 1533 when Thomas Macaulay drafted the non-amended
Section 377. This law defined ‘buggery’ as an unnatural sexual act against the
will of God and man and after wards it was published in the Indian Penal Code,
1860 which was drafted by Thomas Babington Macaulay.
But, the fight for the de-criminalise
of homosexuality started in before two decades when in the month of November, a
report 70-page report was released by AIDS Bhedbhav Virodhi Andolan (ABVA)
addressing the social issues, violation, the extent of blackmail, extortion
faced by the Gay people, especially at the hands of the police. The report
calls for the repeal of legislation that discriminated against the members of
the LGBTQ community, including section 377. When this report was published,
even the journalist didn’t aske any question because of the embarrassment faced
by them in asking the question regarding the community. In May 1994, the same
organisation AIDS Bhedbhav Virodhi Andolan (ABVA), filed a writ petition in the
Delhi High Court, demanding for providing the free condoms to the prisoners in
Tihar Jail, for those inmates who are in the sexual intercourse and also
demanded that section 377 be recognised as unconstitutional. Controversy erupts
when Kiran Bedi, the inspector general of Tihar Jail in Delhi, refuses to
provide condoms for inmates, by saying it would encourage the ground of
homosexuality, besides that inmates indulge in it. The petition was eventually
dismissed in 2001.
In the month of December 2001, the
Naz Foundation, a sexual health NGO working with gay men, files a Public
Interest Litigation (PIL) in the Delhi High Court, challenging the
constitutionality of section 377 and calling for the legislation of
homosexuality. Then in the month of September 2004, the High Court of Delhi
dismissed the case, saying there is no cause of action and that purely academic
issues cannot be examined by the court. A review petition filed by the Naz Foundation
was also dismissed a few months later. After the dismissal of the petition by
the Delhi High Court, in February 2006 the Naz Foundation files a special leave
petition in the Supreme Court, the Supreme Court reinstates it in the Delhi
High Court citing the fact that it is an issue of public interest. The voices
that were against the criminalisation of homosexuality and section 377 came
together and joins the petition, while the India’s ministry of home affairs
files an affidavit against the decriminalisation of homosexuality. Finally,
after a long hustle, in the month of July 2009, a landmark judgement by Delhi
High Court bench consisting of the then Chief Justice Ajit Prakash Shah and
Justice S Murali Dhar decides to strike down the section 377, saying it
violates the fundamental rights to life, liberty and equality as mentioned in
the Indian Constitution[6].
In December 2013, in the leading case
of Suresh Kumar Koushal and Anr. Vs. NAZ Foundation and ors[7],
where Suresh Kumar Koushal, a Delhi-based Astrologer, challenged the Delhi High
Court’s decision in the Supreme Court. The LGBTQ community suffers a
significant blow when the Supreme Court overturns the Delhi High Court’s
judgment, saying “Section 377 does not suffer from the vice of unconstitutionality
and the declaration made by the division bench of the High Court is legally
unsustainable”.
Finally in the next case of the
Supreme Court of India, National Legal Services Authority (NALSA) vs Union of
India AIR 2014 SC 1863. With the benches of Hon’ble Justice K S Radha Krishnan
and Hon’ble Justice A K Sikri, the Court has directed the Centre and the State
Governments to grant legal recognition of gender identity whether it be a male,
female or a third-gender. For the first time in the history of attaining the
criminalisation of homosexuality, the step has been taken in the favour of the
LGBTQ Community.
But, in today’s world with the help
of a landmark case i.e., Navtej Singh Johar v/s Union of India[8],
the five bench judges of the Supreme Court of India delivered a historical
verdict on sexual orientation in which the homosexuality, partially
de-criminalised as it was mentioned in the section 377 of Indian Penal Code,
1860. the section basically tells those Unnatural offences. —Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished
with 1[imprisonment for life], or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine. Explanation.
—Penetration is sufficient to constitute the carnal intercourse necessary to
the offence described in this section.
The main issue raised here was about
the unconstitutionality of section 377 of IPC
With the remarkable judgement the
court said that it doesn’t matter how small is the LGBTQ section, they also
have the right to privacy which includes intimacy. Court also stated that the
main objective behind retaining section-377 is to protect women and children
from being abused and harasses by carnal intercourse but consensual carnal
intercourse which is performed by the LGBT Community is neither injurious to
children and women.
Court further added that Right of
Choosing a partner for intimate relations is completely a matter of personal
choice which cannot be restricted. Any act done in affection by the LGBTQ
Community in public does not disturb the public order or moral values until it
is decent enough and is not obscene. Every person has a right to live with DIGNITY.
The Supreme Court declared that
section-377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of
the Indian Constitution and therefore overruled the judgment given in Suresh
Koushal and Ors Vs Naz Foundation and Ors.
We often heard a slang used by the
Legal officials that Justice Delayed is Justice Denied, though the
community of LGBTQ suffered for round about more than 200 years, but not only
they are greeted in the society but also being recognised as the citizen of the
nation. There are many such incidents which mark the presence and acceptance of
the community.
·
India’s
first transgender lawyer Sathyasri Sharmila, a citizen of Tamil Nadu enrolled
her name in the Bar Council of Tamil Nadu and Puducherry.
·
India’s
first transgender judge Joyita Mondal, at the age of 29, she was appointed at
Lok Adalat in North Bengal in October 2017.
·
India’s
first transgender police officer, Prithika Yashini, she was appointed to the
post of sub-inspector.
·
India’s
first transgender college principal, Manabí Bandopadhyay, she became the college
of Krishnagar Women’s College on June 7, 2015.
·
India’s first transgender person to contest
elections, Mumtaz, she came out to contest elections in Punjab from Bahujan
Samaj Party (BSP). She contested elections from the Bhucho Mandi constituency.
She has been working with BSP for over 11 years.
·
India’s
first transgender who became an MLA, Shabnam Mausi, she constituency elections
from Sohagpur constituency in district Shahdol, Madhya Pradesh.
·
India’s
first transgender soldier, Shabi, she joined the naval base in Vishakhapatnam.
·
Conclusion:
Thus, Social Legal Issues are now
being recognised by the authorised government officials by filling the gap at
different levels of social, economic and political fronts by addressing the
issues, by giving equal opportunities and by making schemes and policies to
exterminate these legal issues (Gender discrimination, dowry system, rights
pertaining to LGBTQ community) persisting in the society.
References:
[2]
Article 15, Indian Constitution 1950
[3]
Shayara Bano V Union of India and Ors, 2017 W.P.(C) No. – 000118-000118/2016
[4]
Shayara Bano Vs Union of India and Ors,
(2017) 9 SCC 1
[5]
The Dowry Prohibition Act, 1961
[6]
Naz Foundation v Government of Nct of Delhi 2009, 160 Delhi Law Times 277
[7]
Suresh Kumar Koushal and Anr. v Naz Foundation and Ors., Civil Appeal No. 10972
of 2013
Article Information
Social Struggles of Women’s and LGBTQ Community for Legal Acceptance in India - by Naman Chaube
Authors: Naman Chaube
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/14
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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