Download Llb notes Llb notes Llb notes and more Summaries Law in PDF only on Docsity!
Women and Law Notes for 8th^ Semester BA.LL.B Paper Code: 412
Unit-1: - Introduction:
i.Status of Women in India ii. Status of Women – Position abroad B. Constitution of India & Women i. Preamble ii. Equality Provision Unit-2:- Personal Laws and Women
a. Unequal position of women – different personal laws and Directive principles of State Policy b. Uniform Civil Code towards gender justice c. Sex inequality in inheritance
d. Guardianship
Unit – III: Criminal Laws and Women
a. Adultery b. Rape c. Outraging Modesty d. Domestic Violence Unit – IV: Women Welfare Laws
a. The Dowry Prohibition Act, 1961 b. Pre-conception and pre-natal diagnostic techniques (Prohibition of Sex Selection) Act, 1994 c. Indecent Representation of Women (Prohibition) Act, 1986 d. Immoral Traffic (Prevention) Act, 1987 e. Family Courts Act, 1984
f. Labour Welfare Legislations: Maternity Benefit Act g. Factories Act h. Equal Remuneration Act Implementation of Wage Laws and Legislation on Women Employment
These notes will give the students a perspective of how the ground reality is with regard to the status in India as well as abroad with looking at the situation with a few specific indicators. These notes are research based on facts and figures. Discussions in class will be on the text from Women and Law by Prof Nomita Aggarwal.
Unit- Position of Women in India:
The position of women in ancient India has been a very complicated one because of the paradoxical statements in different religious scriptures and sometimes in the
same text at different places. Some have described their status as ‘equals to men’, while others have held not only in disrespect but even in positive hatred.
This is why it has presented many problems to sociologists while evaluating women’s status in India. The cultural history of India reveals that in India theoretically women enjoyed the status of devi (goddess) as described in many religious texts of Hindus, the majority community in India.
Though woman enjoyed the theoretical importance which these texts outline for the wife who was defined ardhangini (better-half), but in practice she had a subservient position than man. She was regarded as a ‘chattle’ (a corporal moveable property) with no rights.
It was generally seen and believed that women had lower status with reference to power and influence than men in all spheres of life—family, community, religion and politics. Till recently, it was held that up to marriage, she is protected by her parents, during married life, she is looked after by her husband, and after the death of her husband, she was used to spend remaining years of her life under the roof of her children without any will or desire and rights in the family.
She was not allowed to decide how money would be spent or invested. She did not have any money at her disposal. She had to take permission to spend money from her elders—father, brother or husband or any other male or female elder person in the family.
In brief, she had no personality of her own. Some scholars have explained this inferior status of women as a result of patriarchal code of living. The rigid codes of behaviour as outlined for women in Brahmanical texts were also responsible for the low status of women in India. In the following paragraphs we will survey, in brief, the position of women in India from Rigvedic period to modern times.
Rigvedic Period:
It is generally upheld on the basis of the instances depicted in religious texts (e.g., Vedas, Upanishads, Smritis, epics like Ramayan and Mahabharat and other Dharmasastras) that in ancient India, especially in Rigvedic period, women enjoyed equal status with men.
They had an honourable place in the society. They were not secluded from men and freely participated in public life. They attended great assemblies and state occasions. They studied the Vedas and composed hymns. They also distinguished themselves in science and learning at their times. They were considered intellectual companies of their husbands, as the friends and loving helpers in the journey of life of their partners, in their religious duties and the centre of their domestic bliss.
In Vedic times, women were not treated as inferior or subordinate but equal to men in all matters of life. They were given education and had a voice in the selection of their husband. Marriage was regarded as a religious bond. Child marriage was
Some of the Dharamsastras mention about the prohibition of Niyoga and widow remarriage. The widow was asked to devote herself to an ascetic life at home. Marriage became an irrevocable union as far as the wife was concerned.
The Smriti writers preached that the wife should look upon her husband as God. Widows were required to spend a life of penance and austerity. Sati had become popular by the 7th century AD. In this period, women were regarded just as a means of satisfying the physical desires of men.
Just to refer one instance of Mahabharata, it is said that ‘there was no creature more sinful than man … woman is the root of all ills’. This simple quotation is sufficient to prove that how disrespect was shown towards women. However, it is not out of place to mention here that Indian scriptures are full of paradoxical statements.
At one place, women were regarded as goddess, held in high esteem, where at other place in the same scripture, in some other context, they were regarded, no better than just slaves or chattels. Disre-garding what was practised at any particular time, the ancient Indian scriptures and documents (Mahabharata, Ramayana, Vedic hymns, and various codes of the law of Manu) gave women a very high and protected place in their basic moral codes.
Husband and wife stood as equals before God. Up to this period purdah (veil) was not commonly observed by women. Divorce was, however, not permissible to them. But then, it was not permis-sible to men either. Their position was not one of complete disability but one dictated by justice and fairness. Women used to help their male members of their family in economic pursuits. They sometimes accompanied their husband or other members of the family in hunting and agricultural pursuits.
Medieval Period:
The period between 11th century to 18th century witnessed further deterio-ration in the position of women due to the impact of Muslim culture. In this period, female infanticide, child marriage, purdah system, sati and slavery were the main social evils affecting the position of women.
The birth of a female child began to be regarded as curse, a bad luck. They were almost confined to the doors of their homes. There was further curtailment of freedom of women in matters of education, mate selection, public appear-ances, etc.
Purdah system came to be rigorously followed. Women education was almost banned. More and more feeling of conservatism increased about women. She not only continued to hold low status in and outside home rather her position worsened in this period.
It is often said that in India the purdah (veil) system came into existence only after the arrival of Moghuls. A.S. Altekar, in his book. The Position of Women in Hindu Civilization (1962) writes: ‘This for nearly 2000 years from BC 20 to 1800 AD, the
position of women steadily deteriorated though she was fondled by the parents, loved by the husband and revered by her children.
The revival of Sati, the prohibition of remarriage, the spread of Purdah and the greater prevalence of polygamy made her position very bad.’ Thus, there was a vast difference between the status of women in the early Vedic period and the subsequent periods, stretching from post-Vedic to the medieval period. The dual standards of morality set by Manu Smriti and other Smritis continue to prevail right up to now though some changes are visible in urban educated women.
British Period:
During the period of British rule of about 200 years (early 18th century to the first half of 20th century) some substantial progress was achieved in elimi-nating inequalities between men and women in matters of education, employment, social and property rights and so forth.
Sati, purdah, female infanticide, child marriage, inheritance, slavery, prohibition of widow remarriage and the lack of women’s rights in different fields were some of the problems which attracted the attention of British Raj.
Though the British rulers initially decided not to interfere with the traditional social fabric of Indian people (Hindus) and as such they took no steps to bring any change in the status of women in India. It is only in the latter half of the 19th century and the first quarter of the 20th century that they took some steps to abolish or change some social customs through legislative measures.
For such measures incentive was provided to them by some social reformers, such as Raja Ram Mohan Rai, Ishwar Chandra Vidyasagar, Dayanand Saraswati, Keshab Chandra Sen, Swami Vivekanand, Maharashi Karve, Justice Ranade, Mahatma Gandhi and others.
Through the efforts and the various movements launched by these great social leaders of the 19th century before independence, it had been possible to get many legislations passed and public opinion mobilized in favour of some issues of social reforms.
These steps have paved the way in removing the obstacles in the progress of women. Not only this, it had helped in eliminating inequalities between men and women and giving proper respect to the other-half of the society.
The most significant legislations relating to the problems faced by the Indian (Hindu) women passed during British period were as follows:
- Abolition of Sati Act, 1813.
- The Hindu Widow Remarriage Act, 1856.
Most of the social reformers and thinkers of the 19th and 20th centuries were influenced by the tenets of the liberal philosophy of the West, which empha-sized the principle of contract rather than status, a rational outlook of life and problems, freedom of speech, criticism of authority, questioning of accepted dogmas and finally the recognition of the value of the individual and insis-tence on the rights of man as opposed to his duties. They also got impetus from Upanishads and other Hindu scriptures.
The decades after independence have seen tremendous changes in the status and position of the women in Indian society. The Constitution of India has laid down as a fundamental right the equality of sexes.
But, the change from a position of utter degradation of women to a position of equality is not a simple case of the progress of women in the modern era. To uplift the status of women, many legislations pertaining to women were enacted after independence. These were mainly related to marriage, divorce, inheritance of property and employment.
Some of the important Acts are mentioned below:
- The Hindu Marriage Validity Act, 1949.
- The Special Marriage Act, 1954.
- The Hindu Marriage Act, 1955 (amended in 1986 and 2010).
- The Hindu Succession Act, 1956.
- Immoral Traffic (Prevention) Act, 1956.
- The Sati Prevention Act, 1987.
- The Dowry Prohibition Act, 1961.
- Indecent Representation of Women (Prohibition) Act, 1986.
- Prohibition of Child Marriage Act, 2007.
- Protection of Women from Domestic Violence Act, 2005.
- Compulsory Registration of Marriage Act, 2006.
Besides, the Acts especially related to employment are:
- The Factory Act, 1948.
- Employees Insurance Act, 1948.
- The Maternity Benefit Act, 1961.
- The Equal Remuneration Act, 1976.
The above legislations and many other emancipatory actions of the social reformers have no doubt raised the status of women in India but still much is to be done in this field. The institution of bigamy (man marrying any number of women) has almost come to an end; if detected, it has become a punishable offence. Today, both sexes have the right to a civil marriage.
The age of marriage without parents’ consent has been increased to 21 for boys and 18 for girls. Thus, monogamy along with facility of judicial separation, nullity and divorce (even on mutual consent), inheritance (equal share in paternal property), adoption, widow remarriage and sati abolition are some of the salient features of post-independence era which put men and women on equal footings from the point of view of legislative measures.
However, social legislations have not been very effective in India because of many reasons. One important reason is that most of the women are not fully aware of the measures adopted by the state for their upliftment and even if aware they do not use them because of the old social values that are still persisting. These traditions and values inhibit them to take any revolutionary steps.
Legal or legislative sanctions alone cannot bring any substantial change in the downtrodden position of women unless there is a marked change in their attitude and consciousness of men and women both. In this regard, their illiteracy is one of the great hindrances. According to the 2001 Census, 45.84 per cent and 2011 Census, 34 per cent of women are still illiterate in India. Even literate women also do not exercise their right of equality wherever it is required.
Thus, the status of women has been raised in the eyes of law, but they are still far from equal to men in every sphere of life. In practice, they continue to suffer discrimination, harassment, humiliation and exploitation in and outside home.
Theoretically, women might have been given more freedom but in practice, they still suffer many hardships, inhuman dignities and unworthy treatment everywhere. Within the home, she is still not treated at par with her male counterpart. Barring a few urban educated families, a baby girl is never welcomed with as much éclat and happiness as a baby boy.
Sometimes, the birth of a girl is regarded as a bad omen. They are not treated as equals to men, and not given due respect in the family (75 per cent women are in labour force but only 0.01 per cent has property rights). Male’s roles as father and husband still dominate over both his children and wife.
The power to govern the home and the authority still rests in the hands of male head of the household. The dominant father model still persists in most of the middle and lower class families. Leaving aside a few, in the so-called modern families wives
To conclude, let us quote Jessie Bernard (1981) who argued that the status of women cannot be compared with that of men. It is generally said that men have higher status because they are usually better educated and have more organizational skills and experience than women.
In addition to these, women acquire their status from their husbands, that they are socialized to think themselves as inferior, and they are physio-psychologically conditioned, to use the modern term, they are programmed to be wives and mothers, non-competitive with men because they are less able to compete.
Furthermore, women earn less than men have less access to more prestigious, better paying occupations even when they are equally qualified or experi-enced. Even having children increases the husband’s power, for the wife becomes more dependent.
STATUS OF WOMEN- ABROAD According to a survey from Natwest International Personal Banking, 83 per of women
who work abroad believe the experience will stand them in good stead for moving up the
career ladder.
Having spent time working overseas is generally considered to demonstrate to future
employers a number of important skills – such as a readiness to accept new challenges –
while also allowing individuals to take advantage of career-advancing opportunities
which might not have been available in their home countries.
Out of over 400 women interviewed by NatWest, over half (52 per cent) said that the
experience of working overseas had exceeded their expectations.
Many participants admitted however that despite improved career prospects, working
abroad could be difficult. Two-thirds said that they did not feel they were treated as
"equal in status" to their male counterparts, with around a quarter complaining of male
stereotyping (26 per cent) and of feeling left out from informal communication between
colleagues (21 per cent). Nearly a fifth also agreed that they found the lack of influential
mentors in their new home hard.
The country where women felt there was the most gender parity was Canada, followed by
New Zealand, the US, and Australia. The place that came out worst – out of the 12
locations featured in the survey – was the UAE.
Introduction: Constitution of India and women
The status of women in India has been subject to many great changes over the past few millennia. From equal status with men in Ancient times through the law points of the medieval period, to the promotion of equal rights by many reformers, the
history of women in India has been eventful. In modern India, women have adorned high offices in India including that of the President, Prime Minister, Speaker of the LokSabha and leader of the opposition. However, women in India generally are still exposed to numerous social issues. According to a global study conducted by Thomson Reuters, India is the “fourth most dangerous country” in the world for women. Women in India now participate in all activities such as education, sports, politics, media, art and culture, service sectors, science and technology etc. Indira Gandhi, who served as Prime Minister of India for an aggregate period of 15 years is a world’s longest serving woman Prime Minister. The Constitution of India guarantees to all Indian women equality under Article 14, no discrimination by the state under Article 15(1), equality of opportunity under Article 16, equal pay for equal work under 39 (d).
In addition, it allows special provisions to be made by the state in favor of women and children (Article 15(3)) renounces practice derogatory to the dignity of women (Article 51 (a)(e)). And also allows for provisions to be made by the state for securing just and human conditions of work and for maternity relief (Article 42).
Gender inequality:
Gender inequality is a form of inequality, which is distinct from other forums of economic and social inequalities and stems from pre exciting gendered social norms and social perceptions. Further, gender inequality has adverse impact on development goals as it reduces economic growth. It hampers the overall well being because blocking women from participation in social, political and economic activities can adversely affect the whole society. Many developing countries including India have displayed gender inequality in education, employment and health. It is common to find girls and women suffering from high mortality rates and vast differences in education level.
A discussion of women in Islam and the western world:
The rise of fundamentalism in the Middle East has reinforced the idea that Islam is ubiquitous in culture and politics, that tradition is highly respected and women’s status is low. Legal issues and the status of women in the Middle East are quite different of those of women in the Western society. The social position of women in Muslim countries is worse than anywhere else, for example a woman can work and travel only with the written permission of her husband or male guardian, they can not obtain divorce without their husband’s cooperation who in contrast can obtain divorce simply by filling out a divorce form. Many Islamic fundamentalist are against any change regarding women’s rights that can undermine male domination with regards to family and society. Their goals are to setup special curricula to train girls for their role as housewives, to restrict their access to political life, remove them from the legal profession, and to impose a rigid dress code. Despite these inequalities between men and women, for many of these women freedom of expression and equality do not seem meaningful goals to obtain. The majority of
roles they are expected to play. These social roles and expectations differ from culture to culture and at different periods in history).
Women and Poverty 70% of the 1.2 billion people living in poverty are female Women as Workers Women do more than 67% of the hours of work done in the world Earn only 10% of the world’s income And own only 1% of the world’s property2 The value of unremunerated work was estimated at about $16 billion, from which $11 billion represents the invisible contribution of women3 Women are paid 30-40% less than men for comparable work on an average4 60-80% of the food in most developing countries is produced by women5 Women hold between 10- 20% managerial and administrative jobs6 Women make up less than 5% of the world’s heads of state7 Women and Education 60 % of the 130 million children in the age group of 6-11 years who do not go to school, are girls8 Approximately 67% of the world’s 875 million illiterate adults are women 3 out of 5 women in Southern Asia and an estimated 50% of all women in Africa and in the Arab region are still illiterate
Women and Health Women account for 50% of all people living with HIV/AIDS globally10 In the year 2000, there were 80 million unwanted pregnancies 20 million unsafe abortions 5 lakhs maternal deaths 99% of these cases were reported in developing countries.
Child Sex Ratio (0_ 6 years) The child sex ratio has dropped from 945 females per 1000 males in 1991 to 927 females per 1000 males in 200112 The United Nations Children’s Fund, estimated that upto 50 million girls and women are ‘missing’ from India’s population because of termination of the female foetus or high mortality of the girl child due to lack of proper care13 Women as Workers Female share of non- agricultural wage employment isonly 17%14 Participation of women in the workforce is only 13.9% in the urban sector and 29.9% in the rural sector 15 Women’s wage rates are, on an average only 75 % of men’s wage rates and constitute only 25% of the family income In no Indian State do women and men earn equal wages in agriculture16 Women occupy only 9% of parliamentary seats less than 4% seats in High Courts and Supreme Court less than 3% administrators and managers are women17 Women and Education Close to 245 million Indian women lack the basic capability to read and write18 Adult literacy rates for ages 15 and above for the year 2000 were female 46.4% male rate of 69%19 Women and Health The average nutritional intake of women is 1400 calories daily. The necessary requirement is approximately 2200 calories20 38% of all HIV positive people in India are women yet only 25% of beds in AIDS care centres in India are occupied by them21 92% of women in India suffer from gynaecological problems 300 women die every day due to childbirth and pregnancy related causes23 The maternal mortality ratio per 100,000 live births in the year 1995 was 440 24
Although efforts have been taken to improve the status of women, the constitutional dream of gender equality is miles away from becoming a reality. Even today, ‘the mainstream remains very much a malestream’. The dominant tendency has always been to confine women and women’s issues in the private domain. The traditional systems of control with its notion of ‘what is right and proper for women’ still reigns
supreme and reinforces the use of violence as a means to punish its defiant female ‘offenders’ and their supporters. Hence it is of no surprise when the National Crime Records Bureau (NCRB) predicted that the growth rate of crimes against women would be higher than the population growth rate by 2010. To elucidate the subject, let us take a look at some government data, from the NCRB, 2002 and research done by some non governmentalorganisations. However it is important to mention here, the data presented here is only a partial reflection of the extent of crimes against women as most incidents of violence go unreported.
Female Foeticide Female foeticide in India increased by 49.2% between 1999- Source:NCRB ‘Crime in India, 1999-2000’ According to NCRB ‘Crime in India, 2002’ the following crimes were committed against women in India. Rape 16,373 women were raped during the year 45 women were raped every day 1 woman was raped every 32 minutes An increase of 6.7% in the incidents of rape was seen between 1997-2002 Incest 2.25% of the total rape cases, were cases of incest Sexual Harassment 44,098 incidents of sexual harassment were reported. 121 women were sexually harassed every day 1 woman was sexually harassed every 12 minutes An increase of 20.6% was seen in incidents of sexual harassment between 1997- Importation of girls/Trafficking 11,332 women and girls were trafficked 31 women and girls were trafficked every day 1 woman or girl was trafficked every 46 minutes
Kidnapping and abduction 14,630 women and minor girls were kidnapped or abducted 40 women and minor girls were kidnapped every day 1 woman or minor girl was abducted every 36 minutes Dowry Related Murders 7,895 women were murdered due to dowry 21 women were murdered every day 1 woman was murdered due to dowry every 66 minutes Domestic Violence 49,237 women faced domestic violence in their marital homes. 135 women were tortured by their husbands and in-laws every day 1 woman faced torture in her marital relationship every 11 minutes Domestic violence constitutes 33.3% of the total crimes against women A steep rise of 34.5% in domestic violence cases was witnessed between 1997-2002 Suicide 12,134 women were driven to commit suicide due to dowry 1,10,424 housewives committed suicide between 1997-2001 and accounted for 52% of the total female suicide victims
Research Findings Child Sexual Abuse Out of 350 school girls 63% had experienced sexual abuse at the hands of family members 25% had been raped, forced to masturbate the perpetrator or forced to perform oral sex Nearly 33% said the perpetrator had been a father, grandfather or male friend of the family Source: A research carried out 1997-98 by Sakshi an NGO Sexual Abuse Out of 600 women respondents 76% had been sexually abused in childhood or adolescence Of OfOf the abusers 42% were ‘uncle’ or ‘cousin’ 4% were ‘father’ or ‘brother’ Source: research carried out 1997-98 by RAHI an NGO Domestic Violence Over 40% of married Indian women face physical abuse by their husband 1 in every 2 women faces domestic violence in any of its forms_ physical, sexual, psychological and/or economic.
Unit - Introduction to Directive Principles of state policy and status of women:
(1) the economic and social principles, (2) the Gandhian principles, (3) Principles and Policies relating to international peace and security and (4) miscellaneous. 7.2. The economic and social Principles The state shall endeavour to achieve Social and Economic welfare of the people by: (1) providing adequate means of livelihood for both men and women. (2) reorganizing the economic system in a way to avoid concentration of wealth in few hands. (3) securing equal pay for equal work for both men and women. (4) securing suitable employment and healthy working conditions for men, women and children. (5) guarding the children against exploitation and moral degradation. (6) making effective provisions for securing the right to work, education and public assistance in case of unemployment, old age, sickness and disablement. (7) making provisions for securing just and humane conditions of work and for maternity relief. (8) taking steps to secure the participation of workers in the management of undertakings etc. (9) promoting education and economic interests of working sections of the people especially the SCs and STs. securing for all the workers reasonable leisure and cultural opportunities. (11) making efforts to raise the standard of living and public health. (12) providing early childhood care and education to all children until they complete the age of 6 years.
Universalisation of Education
The percentage of literate people at the time of independence was only 14%. Our government realized the importance of education and laid stress on the spread of literacy among the masses. Efforts have been made by the governments to raise this level. But a large section of our population is still illiterate. The foremost effort that is required in this field-is the spread of elementary education and its universalisation. Due to increased number of drop outs at the primary stage, the number of illiterates between 15 to 35 years of age has constantly increased. According to National Policy on Education, 1986, the government has launched National Literacy Mission, and ‘Operation Blackboard’ for the spread of mass literacy at primary stage. For those who were deprived of the benefits of education in their childhood, the government and many voluntary agencies are making special efforts to educate them by opening night schools and adult literacy centers. Many distance education programmes through correspondence courses, distance education and open learning have been started in different states. The National Institute of Open Schooling and several Open Universities have been set up to attain the goal of universalisation of education. The Directive Principles providing free and compulsory education for children upto the age of 14 years has been included through the 86th Amendment Act, 2002 in the list of Fundamental Rights under Article 21A. Though much has been achieved but still there is a long way to go to accomplish this objective of a welfare state.
Child Labour:
You have already read that one of the Directive Principles provides opportunities and facilities to children to develop in a healthy manner. You have also read about the Fundamental Right against Exploitation of children. Employment of children below the age of 14 years in mines and industries, which are hazardous to their health, is prohibited. Inspite of these provisions, the desired results have not been
reached. In most of the cases, the parent’s attitude is not conducive to the elimination of child labour. They force MODULE - 2 Notes 73 Directive Principles of State Policy and Fundamental Duties Aspects of the Constitution of India their children to do some sort of work to earn money and contribute to the family income. Poverty and social stigma are certain constraints on the path of eradication of this problem apart from the lack of will. All efforts by governments at various levels would prove futile unless the willingness and awareness to get rid of the social challenge comes from within. Dr. Abdul Kalam’s ‘dream of developed India 2020’ can be achieved only when the children who are the future of the country are secured and protected from being exploited. The children should not be deprived of their right to enjoy childhood and right to education.
Status of Women:
Indian society basically is a male dominated society in which father has been head of the family and mother’s position has been subordinated to him. The position of a woman in such a system is naturally weak. Women have been suffering a great deal on account of cruel social customs and religious practices like, pardah and dowry etc. Women as an integral part, account for 495.74 million and represent 48.3% of the country’s total population as per 2001 census. Necessity of raising the status and education of women has already been stressed in our Constitution through Fundamental Rights and various Directive Principles of State Policy. They have been provided with the right to an adequate means of livelihood and equal pay with that of men for their work. Women workers have also been provided for health-care and maternity-relief. Even in the Fundamental Duties stress has been laid on the duty of every citizen of India to renounce practices derogatory to the dignity of women. Many laws and judicial decisions have restored the dignity of women. To protect their rights, measures have been taken to give them share in the family property. For their emancipation from cruel practices like bride burning for dowry, wife beating, sati etc. laws have been enacted. Prohibition of female infanticide, foetouscide, discrimination against girl child and child-marriage are some of the other measures that will help in improving the status of women. To empower women, reservation of one third of seats through the 73rd and 74thAmendment Act, 1991,1992 for them has been made in the Panchayats and Municipalities. There is a similar proposal for reservation of seats for them in the Parliament and in the state Legislatures.
Critical Analysis Of Directive Principles:
Many critics have called these Directive Principles of State Policy as not better than ‘New Year Greetings’. Even the rationale of inserting such high sounding promises has been questioned. It has been asserted that Directives are in the form of holy wishes having no legal sanction behind them. Government is not bound to implement them. Critics point out that they are not formulated keeping the practical aspect these ideals in mind. Despite all this, it can not be said that these Principles are absolutely useless. They have their own utility and significance. The Directive Principles are just like a polestar that provide direction. Their basic aim is to persuade the government to provide social and economic justice in all spheres of
Muslim Women's Protection of Rights on Divorce Act), a uniform civil code became an issue of moment in the Indian political scene. Since the BharatiyaJanata Party (BJP), subscribing to a Hindutva ideology and politics, came to power at the Center in 1998 with the promise of instituting such a code, it continues to be a prominent issue on the agenda of the Indian state. Post-independence India followed a policy of cultural pluralism by maintaining systems of separate personal laws for Hindu, Muslim, and Christian communities, while concurrently assigning itself the goal of working towards a uniform civil code. Including a Declaration of Rights was very important to the early drafters. As Granville Austin noted: "India was a land of communities, of minorities, racial, religious, linguistic social and caste.... Indians believed that in their 'federation of minorities' a declaration of rights was as necessary as it had been for the Americans." 3 1 When addressing minority group safeguards in the Draft Constitution to the Assembly, Dr. B.R. Ambedkar, Chairman of the Drafting Committee, observed: I have no doubt that the Constituent Assembly has done wisely in providing such safeguards for minorities as it has done. In this country both the minorities and the majorities have followed a wrong path. It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose. It must recognize the existence of minorities to start with .... The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.32 The group rights granted to minorities, including restricting practices that were per se discriminatory against women, were not absolute, but rather were subject to state intervention. In sub- committee meetings, some members opposed allowing the free practice of religion and thought the definition of "practice" was too wide, since this could include such anti-social practices as devadasi,33 purdah,34 and sat.i35 Due to protest by the sub- committee members, the Advisory Committee on Fundamental Rights altered the Minorities Sub-Committee's provisions, and in its own report instructed that the right to practice religion freely should not prevent the state from making laws providing for social welfare and reforms, including laws protecting the rights of women, a provision established in Article 15 of the Constitution.36 Consequently, the drafters created fundamental constitutional rights with an explicit recognition of the need to protect group rights as well. Article 29, for example, protects the rights of groups to preserve their language, script, and culture and prohibits discrimination in access to public educational institutions based on religion, race, caste, or language.37 Article 30 protects the right of religious and linguistic minority groups to establish educational institutions. 38 Other articles of the Constitution that guarantee certain fundamental rights to all citizens also operate as safeguards for groups, such as equality before the law (Article 14), freedom from discrimination on the basis of religion, race, caste, sex or place of birth (Article 15), and equal opportunity in public employment (Article 16). 3 9 Articles 29 and 30 bestow a positive right on groups to preserve their culture, whereas Articles 14 and 15 are couched in more individualistic terms, granting negative rights to individuals to protect them from excesses of the State. While the negative protections from discrimination based on cultural affiliation appear in the early articles, the possibility of a uniform civil code that would ensure all citizens' equal rights to freedom from oppression appears in Part IV of the Constitution. This Part, named
the "Directive Principles of State Policy," contains a range of directives to the state to seek economic, social, and cultural protections for Indian citizens. Article 41, for example, addresses the right to work, education, and public assistance. 40 Article 38A addresses access to justice and free legal aid.4 1 Article 44 establishes the goal of a uniform civil code, though its language, like the language of the other articles in Part IV, is only exhortatory: "The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India." 42 The drafters hoped that a civil code would ensure harmony between groups and strengthen the secular fabric of the country. Instead, contemporary India suffers from internal strife and communal violence. The goal of harmonious multicultural co-existence has not yet succeeded in India where manifestations of continued inter-group tensions include the demolition of the Babri Masjid by a Hindu mob in 1993, followed by the Bombay Riots, in which over 400 persons were killed; the murder of a Christian missionary and his two sons by a Hindu mob in 1999; the Best Bakery case, in which eleven Muslims and three Hindus were burned alive in March 2002 to avenge the death of fifty-eight people on a train carrying Hindu activists in February of the same year; and the attack by Muslim terrorists on a Hindu temple in Gujarat that killed thirty persons in September 2002. Moreover, Indian leaders have failed to prioritize gender justice within the governance system, leading to a lack of protection for women whose communities operate under the personal religious laws. More recently, support for the adoption of a uniform civil code has not been based on a recognition that women's rights might otherwise suffer under the personal laws. Rather, the support, especially from the Hindu Right, stems from a desire to limit the rights of cultural minorities. RatnaKapur and Brenda Cossman have observed: It was this dichotomized discourse of the debate that inadvertently allied the women's movement with the Hindu Right and its vicious attack on minority rights. Despite the efforts of some feminist activists and organizations to distinguish their position, within the broader political discourse the positions were seen as one and the same. Feminist efforts to challenge the oppression of women within the private sphere of the family were appropriated, and transformed to support the communalist discourse of the Hindu Right.
As discussed above, the Indian Constitution exhorts the state to create a uniform civil code. Indeed, the idea of a uniform civil code predates the Constitution to the time of the British rule in India. Historians have noted that the institutionalization of separate laws reinforced the boundaries between minority communities and solidified identities along religious affiliations." Instead of moving toward a secular, equality-based legal system, the recognition of personal laws under the guise of protecting minorities from a dominant majority culture helped institutionalize patriarchal traditional practices that disadvantage Indian women. In particular, support for personal laws relating to polygamy, divorce, property inheritance, and maintenance, all of which directly impact the lives of women, lies at the center of the historical resistance to the implementation of a uniform civil code. At present, India does not have a uniform civil code that would apply to all citizens irrespective of their religious or cultural identity.45 However, all Indians can choose a civil marriage under the Special Marriage Act of 195446 irrespective of their religion. Should a couple register under this Act, they are bound by the Act's provisions, along with the provisions of the Indian Succession Act, 47 which relates to the
