LAW AS AN INTRUMENT OF SOCIAL CHANGE AND FOR WOMEN RIGHTS.

This article is written by Miss Simmi Kumari, first year BALLB student from Symbiosis Law College Pune.

INTRODUCTION & BACKGROUND

Law and society are intertwined. Both law and society regulate and influence each other. In fact, this aspect has two approaches. First, “law changes the society” meaning the law of the land brings thoughtful and systematic changes and compels the society to change according to it. The existence of a peaceful and developing society without the rule of law is inconceivable since the law is a binding force and contravention of the law implies punishment to the offender. Second, “society changes the law” meaning that society compels the law to change according to its requirements. Changes in social rules lead to changes in the law.(1)

The question here is whether the law changes the society or the society changes the law. Women have perpetually been the victim of evil practices of society and have been oppressed by the dominant group of the society in India and in almost all the countries around the globe. The patriarchal mindset of society has been the main cause of the suffering of women. Despite the society’s disapproval, the courts have been at the frontline in providing women their rights and protecting them. The law-making bodies of India have time and again taken the responsibility of giving equal rights and protecting women from barbaric practices of the society upon itself. Thus, law plays an important role in social control. I hereby cite a few examples that I will use to prove my stance.

In India, working conditions for women have not been very favorable since ancient times. Long before independence, Mahatma Gandhi emphasised upon the need to improve the status of women in India. He remarkably commented that the women were “not only… condemned to domestic slavery but when she goes out as a labourer to earn wages though she works harder than man she is paid less”.(2) Even after decades of independence, the working environment did not improve. Though there were no laws that barred women from participating in employment settings, it was the society and the social setup that regarded women as subordinates to men and denied them equal rights. Several organizations refused to employ married women. The regulations of various enterprises provide for dismissal from services of women employees during pregnancy. In Air India vs. Nergesh Meerza (1981), a bench of three judges of the Supreme Court gave a landmark judgment and struck down the Air India regulations that the court found arbitrary and unreasonable.(3)

Women in India are regarded as a liability and burden because of predominantly patriarchal social, cultural, and religious conventions.(4)  The fanatical obsession of Indian society with a male child is expressed in various forms like female foeticide. Female foeticide is the selective abortion of the girl child in the mother’s womb, done deliberately after the child’s gender is detected. Prenatal Diagnostic Techniques which were initially been developed to check abnormalities were now being misused to eliminate girl child. With the objective to prevent the abuse of Prenatal Diagnostic Techniques Government of India in its wisdom ratified the Preconception and Prenatal Diagnostic Techniques (PCPNDT) Act, 1994.(5) In the case of Centre for Inquiry into Health and Themes v. Union of India (2003), The Supreme Court in an attempt to prevent female foeticide issued guidelines to the Union and State governments for the effective implementation PCPNDT Act. 

Rights of Hindu women to inherit property have been repressed in Indian culture since the earliest times. As in most of the patriarchal society, females were denied property rights in male-dominated society and were only entitled to stridhan, which she received at the time of her marriage. Women were not entitled to make a claim on ancestral property, they were not considered coparceners. There were many efforts made by the law-making bodies to provide women with equal rights, but these attempts were eclipsed by socio-religious-cultural influence.(6) Finally, after constant juristic effort, Hindu Succession Act (2005) gave women equal right on ancestral property. In the case of Vineeta Sharma v. Rakesh Sharma, the Supreme Court took a step forward toward gender equality and cleared the last hurdle in Hindu Property Laws.(7)

CONTENTS

In the case of Air India v. Nargesh Meerza, Air India International and Indian airlines were two government corporations. Air hostesses of Air India International challenged the constitutionality of several provisions of Air India Employees Service Regulations and filed a writ petition in the Supreme Court. Provisions 46 and 47 of the aforementioned Air India regulation were discriminatory in nature. Under these provisions, an air hostess was terminated from service upon marriage if it took place within four years of inception of service, upon first pregnancy, or upon reaching the age of 35 years. The air hostesses asserted that these regulations were unconstitutional and discriminatory as there were no similar provisions for their male counterparts.(8) The Supreme Court found the provision of termination upon pregnancy to be “entirely arbitrary and unreasonable”, the Court said “this provision shocks the conscience of the court”. Justice K. Iyer in one of his judgments stated “The misogynous posture is a hang-over of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against women’s thralldom”. While the court affirmed the first provision that barred women from marring in the first four years of service, it struck down the provision which provided termination of service upon pregnancy. It also directed Air India to amend its regulations and permit women to work till they reached the age of superannuation same as applicable to male employees. This judgment removed the hurdle that stood between the way of women's full participation in economic activities.(9)

The Indian society was fanatically obsessed with male child which was expressed in various forms, including female foeticide. Manu, the Hindu religious text cites that a man cannot attain redemption unless he has a son to light his funeral pyre. With the development of Prenatal Diagnostic Techniques, there was increase in the number of abortions, the aborted child was mostly female. Female foeticide is sex selected abortion of a female fetus. This is the most barbarous killing of female child even before she is born.(10) To put an end to this barbaric practice of the society government of India in its wisdom passed the Preconception and Prenatal Diagnostic Techniques (PCPNDT) Act, 1994. This Act was enforced on 1st of January, 1996.Section 5 and 6 of the said Act barred determination of the sex of the foetus. This Act also provided regulations for the proper use of prenatal diagnostic techniques which was initially developed to detect disorder, abnormalities, and malformation of the foetus, but was being misused in the evil practice of female foeticide. In the case of CEHAT v Union of India, the court observed that tough the Act has been enforced 5 years back the government has failed to bring an action for proper implementation of the PNDT Act. And, earlier there were few clinics where ultrasound facilities were present but now even the remotest village has access to these machines. To provide a solution to all these concerns, the Supreme court prodded the legislature to bring in some amendments to the existing PNDT Act. The main objective of the amendment was to put an end to the sex selective abortion of the female foetus. Section 16 A was inserted in the PNDT Act, which provided for a board in each state and UT, this board was supposed to create public awareness, review the functioning of authorities, and monitoring the implementation of provisions of the PNDT Act.(11) The judiciary and the legislature yet again protected the women’s and safeguarded their rights.

The women in India were considered ‘paraya dhan’ which translates to wealth that belongs to somebody else. It was believed that male members of the family take forward the lineage of the family and therefore they were considered coparceners, women were not considered coparceners. This concept was deeply ingrained in the minds of Indians; therefore, women were denied the right to inherit ancestral property.(12) The Hindu Women Property Act,1937 was the first attempt by the colonial rulers to give women right to inherit landed property from male owners. But this Act had many flaws. The Hindu Succession Act,1956 gave women absolute right over both movable and immovable property including right to dispose of the property. But this act was not flawless, it was meant for unmarried daughters and married women could not inherit her father-in-law’s property when her husband was alive. The 174th report of the Law Commission of India proposed reforms under the Hindu Law thereby Hindu Succession Act, 1956 was amended. The Hindu Succession Act, 2005 gave women equal rights to inherit ancestral property same as their male counterparts. Thereby putting an end to age old tradition of passing on ancestral property only to male members of the society. But this Act had an essential condition that the coparcenary should be alive on the date on which the Act came into force to confer the status of coparcener on the daughter. However, In the case of Vineeta Sharma v. Rakesh Sharma the supreme court stated that the “Hindu Succession Act,2005 will have a retrospective effect”. The court further said even if the father was not alive on the date on which the said Act was passed, it should not become an obstruction in women claiming her share in the coparcenary property. With this judgement the supreme court cleared the last hurdle that stood in the way of women’s right on ancestral property.(14)

CONCLUSION

In the case of Air India v. Nergesh Meerza we see thought there was no law that prevented women from participating in economic activities. The society including big enterprises, created problems for working women. The Supreme Court had no difficulty in striking down the provisions that were found unjust. 

In the second example, concerning female foeticide, it is often said that the government failed to implement the PNDT Act, but what remains unsaid is the mentality of the society. Even after the law was passed by the legislature, the barbaric practice of female foeticide did not stop. People so desperately wanted a male child that even after the law came into force, they had the audacity of continuing with the practice of female foeticide. This in itself reflects that the society was not ready to accept this change. And had the law-making bodies not intervened the sex ratio of females would have been much below of what it is today. Women facing gender discrimination till today in various fields is self-evident to prove the fact that society is still not ready to give women equal rights.

Mahatma Gandhi wrote “Man has always desired power. Ownership of property gives this power”. And neither the man nor the society was ready to share this power with females. Even after the Hindu Succession Act, 1956 was passed, society was not ready to give women an equal share in property. The coparcenary would write a will in favor of any male member of the family so that women did not get their share in the property. It was even said that if a man has no son, he should adopt a son but not hand over the property to a woman. The legislature and the judiciary made attempts to give women equal rights but the patriarchal society kept on finding loopholes in the laws, to prevent women from claiming right on ancestral property.

In the above three examples, we can see how society was not ready to give women equal rights in different fields. But the intervention of the law-making bodies made it possible for women to get their rights. The court has stood as the saviour and protector of women's rights. Therefore, I conclude that the law changes the society by bringing systematic changes, which helps the society rise above the boundaries of caste, colour, sex, etc.

REFERENCE

1. Malik, K. P., & Raval, K. C. (2009). Law & Social Transformation in India. Allahabad Law Agency.
2. Sarkar, L. (1986). Constitutional Guarantees: The Unequal Sex. Centre of Women’s Development Studies.
3. Sarma, A. (2014). Discrimination Against Women at Workplace in India: A Legal Perspective. EBC Publishing. 
4. Dewan, B. S., & Khan, A. M. (2009). Social-cultural Determinants of Female Foeticide. Sage Journals. 
5. Sood, J. D., & Pillai, C. (2008). Female Foeticide in India. NUALS Law Journal.
6. Kuma, V. (1997). Proprietary Rights of Female Under Hindu Law. Journal of the Indian Law School.
7. Jain, A. (2020). Vineeta Sharma v. Rakesh Sharma. Bar and Bench.
8. Tandon, U. (2014). Constitutional Justice and Social Integration with Special Reference to Women. Yonsei Law Journal.
9. Sarkar, L. (1986). Constitutional Guarantees: The Unequal Sex. Centre of Women’s Development Studies.
10. Ahmad, N. (2010). Female Feticide in India. Core U.S. Journals.
11. Sood, J. D., & Pillai, C. (2008). Female Foeticide in India. NUALS Law Journal.
12. Malllik, S. (1997). Coparcenary Rights of Female Hindus. Law Journal Library.
13. Halder, D., & Jaishankar, K. (2009). Property Rights of Hindu Women. Cambridge University Press.
14. Sharma, D. (2021) Daughters: The New Equals?.