Intersecting rights & claims

The Supreme Court of India on 15th October, 2020 gave a landmark judgement on women’s right to residence.

Update: 2020-11-29 04:38 GMT

Sonali Boro

(The writer can be reached at sonali741boro@gmail.com)

The Supreme Court of India on 15th October, 2020 gave a landmark judgement on women's right to residence. A bench of three judges – Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah – respectively ruled that a woman can live in her husband's family home even if she is estranged from him. This ruling overruled the top Court verdict from 2006, which denied an estranged woman the right of residence in her husband's home. It is true that in the recent year many changes have been brought into the laws relating to women rights and gender discrimination.

In 2018 three landmark judgements passed by the Supreme Court of India, on September 6, Section 377 Verdict was passed by India's top court decriminalizes homosexuality. In landmark verdict Upholding the rights of individuals, the Supreme Court decriminalized homosexuality saying that the "LGBT community has the same rights as that of any ordinary citizen. Respect for each other's rights and others are supreme humanity. Criminalizing gay sex is irrational and indefensible." However, while India may have scrapped the controversial Section 377 (A), there's still a lot of more that needs to be done for true equality to be implemented on the ground level.

On 27th September, The Supreme Court scrapped Section 487 of the Constitution Section 487 of the Indian Penal Code deprived women of their own consent and autonomy. The Supreme Court of India unanimously ruled to remove the 158-year-old law from the Indian Penal Code (IPC). The law had dictated that any man who has an affair with a married woman will be punished and the woman will only be looked at as the victim and forego legal consequences. An unmarried woman, on the other hand, couldn't be prosecuted for adultery. So a man couldn't be prosecuted, by his wife, for having an affair with an unmarried woman. And on 28th September the top Court delivered its verdict on women entry into Sabarimala Temple. The 5-judge constitutional bench headed by Chief Justice Dipak Misra ruled that women can now enter Kerala's Sabarimala temple, irrespective of their age. The judgement wasn't a unanimous decision with Justice Indu Malhotra voting against the petition. Since the judgement was passed, Sabarimala has been a point of contention with the local police and tribals opposing the entry of women and blocking off roads. The landmark judgement by the Supreme Court on 11th August, 2020, stated that daughters, just like the sons, will have equal coparcenary rights to their ancestral properties regardless of whether their fathers were alive or not on 9 September 2005.

Similarly Constitution of India also guarantees basic right to women like Fundamental right to equality before Law that is, equal protection of laws in India- Article 14, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. However Art 15(3) empowers state to make any special provision for women and children - Article 15, Equality of opportunity in matters of public employment or opportunity to any office under state and prohibits discrimination on ground of sex - Article 16, Freedom of speech and expression and freedom to practice any profession or to carry out any occupation, trade or business – Article 19, Protection of life and personal liberty - Article 21, Right to Privacy - Article 21, Right to property - Art 300-A, Political rights- women reservation in for instance, panchayats. Art 15 of the Constitution allows special provisions for women and children to be made for their welfare.

Under the Legal Services Authorities Act women and children are entitled to free legal aid. Doubt over here is not about the availability of rights but about the claimants of rights which are available for a dignified life of a woman in India. If we claim an equal society then why only 13% of farmland is owned by women according to the latest census data from 2011. Even in 21st century women make up only 11.2% of the members of the Lok Sabha after the 2014 elections and only 9% in state legislatures. No doubt literacy rate among the women is slowly increasing in India still there are 16.6% gap between male and female literacy rate in India, according to 2011 census report.

Despite advanced technology and medical facilities infant mortality rate is 44 per 1000 births in the year 2011. Crime rate against women is also increasing day by day which is 7.3 per cent from 2018 to 2019. A total of 4,05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018 (3,78,236 cases). Majority of cases under crime against women under IPC were registered under 'cruelty by husband or his relatives' (30.9%), followed by 'assault on women with intent to outrage her modesty' (21.8%), 'kidnapping & abduction of women' (17.9%) and 'rape' (7.9%). The crime rate registered per lakh women population is 62.4 in 2019 in comparison with 58.8 in 2018.

Contrasting the picture of our society, one hand obtains rights and another hand less women in the economy, the high rate of crime against women poses many questions. Question here I would like to raise is not about enjoying rights but about claiming the rights. Rights do not come from nowhere, rights are not sui generis. They come from claims. Rights do not make claims possible; rather claims make rights possible. Do we really claim our right? Do our surroundings provide opportunities to claim our rights? If so, in India in 2018, about 63 housewives killed themselves every day, on an average, making up 17.1% of all suicides. Since 2001, more than 20,000 housewives have killed themselves every year in India.

Why do women end their lives without claiming despite having basic right to life? Article 19 of the Indian Constitution guarantees certain rights to citizens- (a) to freedom of speech and expression; 'Do women have the right to talk about their desire of mind, body and spirit? Do women express their orgasms' (b) to assemble peaceably and without arms; 'Do women really go anywhere and meet friends irrespective of gender without taking permission from their parents, husbands and partners?' (d) to move freely throughout the territory of India; Do women really move freely from their home without asking their parents, husbands, without any fear of being a victim of any kind of violence. (e) to reside and settle in any part of the territory of India; 'do women have the right to reside and settle outside her in-laws home?

If these fundamental rights guarantee rights to reside anywhere within the territory then why restitution of conjugal rights under Section 9 of the Hindu Marriage Act can overrule the same. (g) To practise any profession, or to carry on any occupation, trade or business, do women are allowed to sell their body? In India does a woman aspire to be an escort? Why a victim is blamed for the rape? Why is a wife blamed for husband's deed? Why wives are expected to correct badly raised sons? Why are people sorry for divorcees? Why single women cannot become pregnant? Why are women living alone considered as available and vulnerable? Why are women only responsible for cultural, ritual and custom preservation?

There are many more questions unanswered. Many women organizations, women rights organizations and activists are leading movements for women rights, awareness and sensitizations are still to reach the conscience of the people and women specially. While talking about rights it is also necessary to talk about claims. We are already aware that violence against women and girls (VAWG) is one of the most widespread, persistent and devastating human rights violations in our world today remains largely unreported due to the impunity, silence, stigma and shame surrounding it.

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