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Submitted during Internship under Legal Specs by Tanya from Campus Law Centre

Every coin has two sides. On one side, women are taking top positions in various fields including bureaucracy, judiciary, defence forces, entrepreneurship, sports etc. but the other side of the coin is still struggling to shine and get its value.

There is no civilization, tribe, community or even the modern state which has not discriminated on the basis of sex because the difference exists. Since civilization began, we have lived in a patriarchal set-up save for some matriarchal communities in the southern and northeastern parts of India.

Women were not given basic rights by birth, they had to ask for them and even fight for them if required. Today, we have the right to vote, the right to equal representation, the right to equal remuneration and the right to a safe working environment because someone fought for it. The list of women of indomitable spirit is endless. They endured all the pain and mental trauma and stood upright for their rights.

The sacrifice which brought reformation in rape laws

It took the lives and dignity of two women to get the existing rape laws. For the unjust interpretation of rape laws by the Supreme Court in 1978, Mathura had to see the accused persons roaming free.[1] The judgement sparked enormous outrage across the country, prompting the rape laws to be modified.

Later when one of the accused in the Nirbhaya case went unpunished because he was a minor, revisions were made to the POCSO act to penalize juveniles if they are found guilty of committing heinous offences.

Previously, FIRs could only be registered at the police station with jurisdiction over the area where the crime took place; however, following the Nirbhaya case, it was thought necessary to put in place the provision of zero FIR.

Shayara’s battle to put an end to the practice of triple talaq

The practice of Triple Talaq continued in India until Shayara Bano knocked on the apex court’s doors. She was allegedly a survivor of domestic violence and dowry harassment and was divorced unilaterally through triple talaq.[2]

She filed a petition in the Supreme Court for a declaration that the practices of triple talaq, polygamy, and Nikah Halala in Muslim personal law as illegal, unconstitutional, and in violation of equality before the law (Article 14), non-discrimination (Article 15), right to life with dignity (Article 21), and right to freedom of conscience and religion (Article 25). On the other hand, the Court preferred to focus solely on the issue of triple talaq.

A constitution bench of five justices was set up. The bench consisted of Justices from five major religious communities of India. The practice of triple talaq was held unconstitutional by a 3:2 majority.

Two judges dissented, Chief Justice Khehar and Justice Nazeer. This minority bench observed,

“Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat' as a means for severing their matrimonial relationship.

The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (three pronouncements of 'talaq', at one and the same time) – as one, or alternatively if it is decided that the practice of 'talaq-e-biddat' be done away with altogether, the injunction would continue, till a legislation is finally enacted. Failing which, the injunction shall cease to operate.”

Justice Kurian Joseph has boldly shown his disagreement with the minority view of CJI by stating that:

"I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law." [3]

Disappointingly, there was not a single female Judge on the bench. Shayara’s efforts would have been futile had one more judge dissented.

Contribution of Bhawri Devi: The PoSH Act

The indomitable courage of the Bhawri transformed the lives of working women in India. She was part of the Women Development Program of the Rajasthan state government. As a part of her job, she tried to stop child marriage, failing which she carried out rallies and protests. In retaliation, she was attacked by five men belonging to the upper caste who gang-raped her in presence of her husband.[4]

She endured the trauma of unfortunate incidents and decided to fight for herself. Because she was at the workplace doing her job when the incident occurred, the term ‘sexual harassment at the workplace’ was used for the first time in this case. She won this battle with the help of an NGO named Vishakha and judgement came to be known as Vishakha guidelines.

The Supreme Court ruled that sexual harassment of women at work constitutes a violation of women's basic rights. Articles 14, 15, and 21 of the constitution are extensively violated, while Article 19(1)(g), which protects every citizen’s right to practice any profession or carry on any occupation, trade, or business, is openly flouted due to unsafe working conditions at the workplace.

The rising cases of sexual harassment at the workplace and non-compliance with Vishakha guidelines led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Why it took so long for these reformations to take place?

To address the above question, we need to understand the process of reformation. The existing laws can be amended in two ways, one by the legislature and the other by the judiciary. Legislature creates or amends new laws by itself or on public demand. The political representation of women in Parliament is just 10.5% and the scenario of women Members of Legislative Assemblies (MLAs) across all state assemblies is even worse with the national average being just 9%. [5] In the last 75 years of independence, women’s representation in Lok Sabha has not even increased by 10%. This under-representation is the primary cause of the above issues not being taken up and the delayed justice.

The Supreme Court, on the other hand, has the authority to declare existing legislation unconstitutional, but the aggrieved party must fight a long battle from the subordinate court to the Supreme court. Sadly, only a few have the resources and connections to reach the apex court and the determination to fight. Justice is still a privilege for the poor.

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