GENDER EQUALITYAPPLICATION OF INTERNATIONAL COVENANTS IN DOMESTIC SPHERES
by Justice Manju Goel+
Cite as : (2004) 7 SCC (J) 23
Liberty, equality and fraternity, the three principles on which the French Revolution of 1789 was based did not mean liberty for women and equality between men and women. The concept of equality, even for Karl Marx, did not call for any adjustment in the positions of men and women. In contrast, Joseph Mazzini who, in the days when political thinkers could provoke only the thought of rights, could exhort in his essay "Duties to the Family1" to forget that man was in any way superior to woman, said:
"Love and respect Woman. Do not seek only consolation in her, but strength, inspiration, redoubling of your intellectual and moral faculties. Blot out of your mind any idea of superiority to her; you have none whatever. The prejudice of ages has created through unequal education and the perennial oppression of the laws that apparent intellectual inferiority which you use today as an argument for maintaining the oppression. But does not the history of all oppression teach you that those who oppress rely always for their justification upon a fact created by themselves?"
By the time the Constitution of India was drafted the demand for equality between men and women was fully recognised. Human rights were being conceptualised by the United Nations. The UN Charter is the first ever international agreement to proclaim gender equality a fundamental human right. Intergovernmental Commission on the Status on Women (CSW) met for the first time in 1947 to discuss implementation of the UN Charter when writing of the Indian Constitution was under way. The Universal Declaration of Human Rights like the International Covenant of Economic, Social and Cultural Rights, 1966 and the International Covenant of Social and Political Rights, 1966 lay stress on equality between men and women. The other covenants relating to labour have also referred to the equality to women and the need for special action to provide justice to them. Covenant on Elimination of Discrimination Against Women, 1981 (CEDAW) adopted by the General Assembly in 1979 has come to be recognised as an International Bill of Rights for Women. The Covenant prohibits all distinctions and restrictions and the exclusion of the enjoyment and exercise of empowering women, her rights and freedomcivil, political, economic and cultural. The preamble to CEDAW maintains that "the full and complete development of a country, the welfare of the world and the cause of peace requires the maximum participation of women on equal rights with men in all fields". The equality principles were reaffirmed in the Second World Conference on Human Rights at Vienna in June 1993 and in the Fourth World Conference on Women held in Beijing in 1995. India was a party to this Convention and other Declarations and is committed to actualise them.
The fundamental rights and the directive principles which themselves have incorporated the equality principles have been perceived to have been influenced by the Universal Declaration of Human Rights. In Kesavananda Bharati v. State of Kerala2 Chief Justice Sikri observed:
"148-49. I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly, on 10-12-1948, the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. The Declaration may not be a legally binding instrument but it shows how India understood the nature of human rights."
The Constitution makes specific mention of equality between the sexes in Articles 14, 15(1) & (2) and 6(1) & (2) which prohibit discrimination against women and also make room for affirmative action which is so eloquently spoken of in CEDAW and subsequent declarations aimed at implementation of CEDAW. The directive principles of State policy contained in Part IV of the Constitution direct the State to protect human rights of women including right to equal pay for equal work, the right to health and work in hygienic conditions, right to maternity benefits, etc. The Equal Remuneration Act, 1976, the Maternity Benefit Act, 1961, the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, the Dowry Prohibition Act, 1961 and the Immoral Traffic (Prevention) Act, 1956 are some of the enactments which owe their existence to those provisions of the Indian Constitution. Even without CEDAW and other conventions, the State was under obligation to bring about gender justice. And yet the importance of the international covenants cannot be lost sight of.
Parliament itself has been endowed with the power to make laws in order to give effect to international covenants. Article 253 of the Constitution provides:
"253. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
The domestic laws are sovereign and no international covenant can be preferred to the domestic law. In order to make the international covenants effective all State parties to the covenants agree to enact laws in line with the obligations under the covenant. Most covenants include a clause requiring the State parties to do so. The Constitution has thus made arrangement by empowering Parliament to make such laws by providing Article 253 and thereafter by putting an obligation on the State to give effect to the covenants by such enactments by providing such an obligation under Article 51.
The Supreme Court in Kesavananda Bharati case2 has used the Universal Declaration for proper understanding, of the Constitution provisions. In the words of Justice Sikri: (SCC p. 333, para 151)
It seems to me that in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and solemn declaration subscribed to by India. It may be mentioned here that Article 51, inter alia, calls upon the State to make endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.
Thus the Supreme Court accepted in this judgment the usefulness of an international covenant for interpreting the language of the Constitution and mandated that such an interpretation is required unless it was intractable.
Subsequently, legal developments have gone further ahead. The Supreme Court has gone beyond using the international covenants only for interpretation of municipal laws. The Supreme Court has not only gone ahead to provide a relief, not available in the municipal laws, but has even gone on to grant a relief available in a covenant despite India having reserved its options to ratify a particular clause in it. Reference can be made to the observations of the Supreme Court in the case of D.K. Basu v. State of W.B.3 relevant portion of which is quoted here:
"42. Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that 'anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation'. Of course, the Government of India at the time of its ratification (of ICCPR) in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life."
The Government of India at the time of ratification of the Covenant had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. Still the Supreme Court taking advantage of the Covenant and a line of judicial decisions starting from Nilabati Behera v. State of Orissa4 has gone on to award compensation to a victim of unlawful arrest.
Coming to gender-specific matters, the first temptation is to cite the case of Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa5 in which the Supreme Court has traced the history of the enactments of the Equal Remuneration Ordinance, 1975 and subsequently the Equal Remuneration Act, 1976 to the Equal Remuneration Convention of 1951. The spirit behind the Equal Remuneration Act is traced to Article 39(d) of the Constitution which provides that the State shall in particular direct its policy towards securing equal pay for equal work for both men and women and also to the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (for short the Equal Remuneration Convention, 1951) which was adopted by the General Conference of the International Labour Organisation on 29-6-1951. India is one of the parties to the said Convention. Article 2 of that Convention provides that each member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, insofar as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value and further that this principle may be applied by means of: (a) national law regulations; (b) legally established or recognised machinery for wage determination; (c) collective agreements between employers and workers; and (d) a combination of these various means. The Court also took note of the fact that the Equal Remuneration Ordinance of 1975 was promulgated in order to ensure that the provisions of Article 39(d) of the Constitution of India might be implemented in the year which was being celebrated as the International Women's Year. The Court observed that there was discrimination in payment of wages to lady stenographers and such discrimination was being perpetuated under the garb of a settlement between the employees and the employer. The Court finally not only made it mandatory to pay equal remuneration to lady stenographers as their male counterparts but also observed that the ground of financial incapability of the management cannot be a ground to seek exemption from the Equal Remuneration Act, 1976.
In the case of Sheela Barse v. Secy., Children's Aid Society6 the Supreme Court emphasised the need to give effect to international covenants. It said: (SCC p. 54, para 5)
"In 1959, the Declaration of all the rights of the child was adopted by the General Assembly of the United Nations and in Article 24 of the International Covenant on Civil and Political Rights, 1966. The importance of the child has been appropriately recognised. India as a party to these International Charters having ratified the Declarations, it is the obligation of the Government of India as also the State machinery to implement the same in the proper way."
By far the most important judgment giving effect to CEDAW is that of Vishaka v. State of Rajasthan7 In this judgment the Court has traced the provisions in the Constitution which prohibited discrimination on the ground of sex, as also the provisions dealing with the requirement to give effect to international treaties. The Court makes a special reference to CEDAW in paragraph 13 of the judgment by quoting the general recommendations of CEDAW in respect of sexual harassment, some of which are very relevant in the context of the article and therefore I quote the same here: (SCC p. 250)
"Violence and equality in employment:
22. Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.
23. Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints, procedures and remedies, including compensation, should be provided."
How to use these recommendations in the functioning of the courts in India? The Supreme Court has given the solution also. It says that in the case of an international covenant not inconsistent with fundamental rights and in harmony with it, the same must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. The relevant part of the judgment is quoted hereunder: (SCC pp. 248-49, para 7)
"7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till Parliament enacts legislation to expressly provide measures needed to curb the evil."
This judgment was used with profit in the case of Apparel Export Promotion Council v. A.K. Chopra8 in which disciplinary proceedings for sexual harassment leading to dismissal from service were upheld by the Supreme Court. In this case on the allegation of sexual harassment an employee was charge-sheeted and was eventually dismissed from service. The Court observed that the behaviour of the delinquent employee of sitting close to a female subordinate and touching her amounted to molestation and not simply attempt to molest. In this judgment also the Court has drawn strength from the International Labour Organisation Seminar held in Manila in 1993 where sexual harassment was recognised as a form of gender discrimination. The Court has also drawn on CEDAW, 1979 and the subsequent Beijing Declaration. It has observed that "the courts were under an obligation to give due regard to international conventions and norms for considering domestic laws, more so, when there is no inconsistency between them and there is a void in the domestic laws."
The Court laid down a scheme which provided that the machinery should be in place in every organisation employing men and women so as to immediately take care of any incidence of sexual harassment.
The case of Vishaka7 and AEPC8 find their reflection in the subsequent judgment of the Supreme Court in the case of Githa Hariharan v. Reserve Bank of India9 which by interpretation of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, has made some room for gender equality in the matter of guardianship of a minor. Section 6(a) of the Hindu Minority and Guardianship Act lays down as under:
"6. The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girlthe father, and after him, the mother:
Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;"
The subject before the Court was whether a mother can be a guardian of a minor during the lifetime of the father. The Court ruled: (SCC p. 239, para 16)
"16. While both the parents are duty-bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason in unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be 'absent' for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act." (emphasis in original)
For coming to this conclusion, the Court placed reliance on CEDAW, 1979 and the Beijing Declaration. The Court said that India has ratified CEDAW in June 1993. The Court also says that the interpretation of Section 6(a) made in this judgment gives effect to the principles contained in this instrument and that the domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them.
Despite all the gender-specific equality provisions in the Constitution of India and the attempt of the Government of India and also of the court, there are many legal provisions suffering from gender bias. The provisions which activists are never tired of mentioning are those of Sections 155(4) of the Indian Evidence Act, which says:
"155. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him-
(1)-(3) * * *
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character."
The provision is still on the book despite the fact that the Supreme Court has held that even a prostitute has a right to privacy and it is not open to any and every person to violate her person as and when he wishes (State of Maharashtra v. Madhukar Narayan Mardikar10). All questions which shake the credit of a witness/complainant are relevant. But this provision has gone a step ahead and seeks to attack the woman who has suffered the indignation of being raped.
Another peculiar provisions is Section 498 IPC:
"498. Enticing or taking away or detaining with criminal intent a married woman.-Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such women, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
The offence under Section 498 IPC is bailable and non-cognizable. The ingredients of the offence are entirely covered by Section 366 IPC which prescribes a punishment which can extend up to ten years. The offence is non-bailable and cognizable. It is not understood whether if the kidnapped person is a married woman, the offence can be dealt with leniently making it punishable only by two years.
For long there is a cry to fill the gap between the offence of rape punishable under Section 376 IPC and the offence of outraging the modesty of a woman covered by Section 354 IPC. It is well known that there can be numerous offences which are even worse than rape but not covered by the definition of rape, which can be tried only under Section 354 IPC, punishment for which extends to two years and can even be disposed of only with a fine whereas the offence under Section 376 IPC is punishable with a minimum imprisonment of seven years.
The law relating to succession are glaring examples of inequality still pervading in our system. Women are not recognised as coparceners in the joint Hindu family. The self-acquired property devolves on survivors as per Schedule 1 of the Act. Class I heirs include mother, widow and daughter as successors of a Hindu male dying intestate. In Daya bhaga school, women have some better right than that of Mitakshara as they become the coparceners. Yet on account of the freedom to bequeath by a will very often the female's right to property by succession gets curtailed. It is common experience that the patriarchal sentiments are so strong that the father would rather write a will bequeathing all his properties to his sons in order to ensure that no part of his property falls in the hands of his daughter/daughters. In this respect, the Muslim women stand at a better footing inasmuch as only 1/3rd of a man's property can be given away by will.
Section 23 of the Hindu Succession Act is again a glaring incidence of gender bias in law. One of the main driving factors behind the enactment of the Hindu Succession Act was to give right to property to women yet by enacting Section 23, the right to enjoy the property is very much restricted for women. The female heirs are not entitled to sue their brother for partition. It is only if one of the brothers choose to partition the property that the sisters can get a share in it. Further the Schedule giving Class I heirs also reflects inequality. As can be seen clearly while the son's son's son and son's son's daughter get a share, a daughter's daughter's son and daughter's daughter's daughter do not get anything. Similarly while the widows of a predeceased son and grandson are Class I heirs the husband of a deceased daughter or a granddaughter are not heirs. The Law Commission in its 174th Report of May 2000 has proposed amendment to the Hindu Succession Act. We can only hope that the wait to see the draft into a law will not be long.
It is a matter of solace however that five States of India, namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have brought about their own amendments in the Hindu Succession Act in order to eliminate inequalities. The State of Kerala has altogether done away with the joint family system in an attempt to bring about equality in property rights.
These are some of the areas where legislation has still much to do in bringing about equality between men and women to fulfil the obligation not only of the international conventions but also of the Constitution of India. The present paper has focussed entirely on the state of law. Let us not think that law can remedy the inequalities and bring about justice, development and empowerment. It can act as a springboard no doubt but much executive initiative, change in social mindset and involvement of all sections of society is required to achieve the ends. When will commodification of women end? How long will they be exploited in the name of virtue and honour? Justice S. Rajendra Babu in one of his speeches commenting upon society's attitude to women said:
"Sita was not born, but found, and after marriage, exile, agnipariksha and abandonment was her lot. Yet there is not a single temple of Sita, and Rama is adored as the ideal Man-Maryada Purushottama Adarsha Purusha."11
Women get nothing being Sitas. Let us look for Durga and Kali in them.
+ Judge, High Court of Delhi at New Delhi.
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1 Duties of Man and Other Essays, Joseph Mazzini (1805-1872).
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2 (1973) 4 SCC 225 (p. 332, paras 148-49).
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3 (1997) 1 SCC 416 (p. 438, para 42).
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4 (1993) 2 SCC 746
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5 (1987) 2 SCC 469 (p. 474)
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6 (1987) 3 SCC 50
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7 (1997) 6 SCC 241
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8 (1999) 1 SCC 759
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9 (1999) 2 SCC 228
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10 (1991) 1 SCC 57
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11 Gender JusticeIndian Perspective by Hon'ble Mr Justice S. Rajendra Babu, (2002) 116 ALT (J) 1.
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