9 Access to Justice & Women

Dr.Mrunmayi M. Vaidya

1. Introduction

Women have always been glorified as goddesses to be adored and revered for all the virtues they possess. They have been clothed with divinity and felicitated as goodness and sacrifice personified. There has been a gradual degradation of status of women due to various socio-economic reasons resulting in grave violations of their rights as human beings at all levels not only outside the household but more so in their own house.

Women by nature are caring, affectionate, sensitive and considerate, thus making them more vulnerable to abuse and exploitation. The perpetrators of wrongs against women are not only the men but also the women themselves. This is the reason why several laws have been enacted and various mechanisms put in place to resdress the wrongs against women. The process of access to justice for women has to be very simple and convenient due to the very fact that women are very reluctant to approach the law due to their nature of putting up with violation of their rights.

2. Learning Outcome

After reading this module the reader would be able to

1.Understand the need for special protection of law in case of women

2.Identify special enactments meant to guarantee rights of women

3.Learn procedural protection to women in relation to administration of justice

4.Comprehend grievance redressal mechanism under various laws relating to women

3. International Instruments Relating to Women

The International Community has been very sensitive in its approach towards women’s rights generally and access to justice mechanism for women particularly. There are several International Instruments for the protection of rights of women through the world. Following are a few important Instruments:

• Convention on the Political Rights of Women 1954
• The Declaration on Protection of Women and Children in Emergency and Armed Conflict 1974.
• Convention On The Elimination Of All Forms Of Discrimination Against Women 1979.

There are several other Conventions which once ratified, the member States are bound to implement through their Municipal laws. These instruments are the guiding force behind many of the Municipal provisions.

4. Constitutional Status of Women Rights

The Indian Constitution has special provisions for protection of rights of women. In fact it accords special status to the women in the country.

• Preamble: Preamble of the Constitution states that it intends to secure to all its citizens “equality of status and of opportunity”. Equality is the basis on which further progress in achieving rights of women is possible.
• Fundamental Rights: Article 14 of the Constitution provides that the State shall not deny to any person equality before law or the equal protection of the laws. Art. 15(1) restricts State from discriminating against any citizen on grounds only of sex among other things. The most important provision is Art. 15(3)i which enables the State to enact special laws to protect rights of women and give them special status. Even in cases of employment under State, there has to be equal opportunity as envisaged by Art. 16.
• Directive Principles: The Directive Principles of State Policy require the State to secure to men as well as women equal opportunities to acquire means of livelihoodii. It also directs the State to formulate policies for ensuring maternity benefitsiii, etc.
• 73rd and 74th Amendments to the Constitution provide reservation for women in Panchayats and Municipalities.

The Constitution has overall provisions to secure the rights of women and to safeguard their dignity which are reflected time to time through various legislations as well as judicial pronouncements. In Sheela Barse v. State of Maharashtra,iv the Supreme Court took serious note of the violence committed on women prisoners confined in the police lock up in the city of Bombay. The Court has given the following directions specially dealing with women prisoners:

In Delhi Domestic Workers case, the Supreme Court indicated the following broad parameters in assisting the victims of rape.

1.The complainants of sexual assault cases should be provided with legal representation.

2.Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station.

3.The police should be under a duty to inform the victim of her right to representation before any questions are asked of her and that the police report should state that the victim was so informed.

4.A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

5.The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the Court was sought or obtained.

6.In all rape trials anonymity of the victim must be maintained, as far as necessary.

7.It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss.

8.Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

9.National Commission for Women shall evolve such scheme as to wipe out the tears of such unfortunate victims. Such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India will examine the same and shall take necessary steps for the implementation of the scheme at the earliest.

5. Women Specific Legislations

Based on the understanding of the fact that women are disadvantaged due to difference in their emotional and physical traits it is all the more necessary that they are accorded special treatment. There are several legislations enacted for this purpose. These legislations serve the purpose of mainly eradicating the popularly known social evils of which majority of women are victims, as well as give special exemptions and protection in appropriate situations so as to reduce the inconvenience which they face due to the fact of belonging to a particular gender.

Following are a few relevant legislations:

6. Special Protection during Access to Justice

Women are in need of special protection especially when they are faced with the process of administration of justice. There are high chances that a woman may be exploited or abused during their contact with the complaining Authority or the investigating agencies. The handling of such cases by the police may pose high risk if appropriate procedures are not in place. There are therefore laws enacted to give special procedural protection to women. i. Criminal Procedure Code:

The Code gives protection to women in the process of arrest. Women cannot be arrested after sunset and before sunrisevi. If the allegation is in relation to a serious crime, written report has to be submitted to JMFC with whose prior permission a woman police officer may cause arrest. Even in case where the person of a suspected female is to be searched, it has to be done by a woman constable only with strict regard to decency vii . Even for the purpose of interrogation a woman cannot be called at the police station. Interrogation has to be carried out at the place where the woman residesviii. The Code also contains provisions where identity of the woman has to be protected.

Legal Aid Entitlements:

The most important requirement in relation to access to justice for any person is the right of legal representation. The Legal Services Authorities Act, 1987 provides such aid to womenix by providing for free legal assistance. An application has to be made to the Legal Services Authority regarding the same. Woman belonging to any economic strata is entitled to claim legal aid under this law.

iii. Family Courts

Most of the matters in relation to women are regarding their rights pursuant to family relationship. There are special Family Courts constituted to decide matters such as divorce, maintenance, custody of children, etc. These matters are sensitive and sometimes may be very personal. Therefore the Family Court set up which involves in camera proceedings, is very desirable especially for women as there may be explanations and arguments which may be embarrassing and uncomfortable. The Family Courts procedure is not complex like the procedure in other courts and the representation can be made by the parties personally. Though the set up is not meant to protect rights of women exclusively, it goes a long way to make the procedure more convenient for women.

7. Redressal Mechanism

The commission of an offence calls for the redressal of the grievance by the Justice Delivery System. The laws governing this process therefore become important. Women are silent sufferers. They are reluctant to approach the legal system to seek help or take action. Therefore it is necessary that the grievance redressal mechanism be less cumbersome and more convenient to the woman victim. Following are the relevant laws providing for mechanism for redressal of violation.

Regular Criminal Courts

Many of the offences against women are covered under the Indian Penal Code 1860. These offences are redressable through the regular criminal courts including Judicial Magistrates, up to Sessions Courts and further High Court and Supreme Court. The Criminal Procedure Code applies in such courts. In cases of certain offences the Law provides in camera hearing on application. Through judgmentsx the court has laid guidelines in cases of victims of rape when they come in contact with justice delivery system to avoid secondary victimization.

Domestic violence

The worst kind of violence which women face is the violence within the household. The perpetrators of such abuse are the closest of those related to her, which makes it all the more difficult for her to seek justice. The Protection of Women from Domestic Violence Act, 2005xi to a great extent, redresses this difficulty.

The law provides various remedies to the aggrieved women, such as:

The process is very easy as it is not necessary to file a police complaint. The complaint may be oral or written.

The complaint registered with police, protection officer or service provider is forwarded to the Magistrate who has to proceed accordingly.

Compliant can be filed by

The proceedings under the Act are civil in nature, therefore more convenient.

iii. Sexual harassment at work place

With changing times, women have now stepped out of the house and have taken up several vocations. At such a time the most prominent problem which working women face is sexual harassment at the work place. Therefore there is a law enacted titled, “Sexual Harassment of Women at Work Place (Prevention, Redressal and Prohibition) Act, 2013” to redress the same.

The Act defines sexual harassment which include such unwelcome sexually determined behavior such as:

The Act requires the constitution of Internal Complaints Committee by the employer or in absence a Local Complaints Committee by District Officer.

Complaint and the procedure:

Aggrieved woman can complaint to Committee in writing. Complaint can be made to Internal Complaints Committee. In absence of Internal Complaints Committee, complaint can be made to the Local Complaints Committee. After receiving the complaint the Committee conducts the inquiry. During the pendency of the inquiry the victim is entitled to the following measures;

The final Report is submitted by Committee to employer/District Officer. While submitting the report the Committee may recommend

• Action according to service rules if found guilty
• Deduct salary of the person charges and to be paid to the aggrieved woman

This law makes redressal of the grievance easy for the aggrieved woman as the enquiry has to be completed within 90 days.

Women’s Commission

The most important body in relation to protection of rights of women is the Commission for Protection of Women constituted under the Act of 1990. There is a National Commission at the Centre and State Commissions at the State level. These Commissions can take suo moto cognizance of offences against women. Complaints can be filed directly to the Commission which does the follow up of the matter with the appropriate authorities. The Commission has the power to investigate into such matters.

How to register a complaint?

Powers of the Commission:

During the inquiry if it is found that there is violation of any rights or negligence in the prevention of violation of any rights by a public servant, the following steps can be taken.xii

v. Maintenance

Very important aspect of rights of women is the right to get maintenance from husband or other relatives. Various Family lawsxiii as well as the Code of Criminal Procedure provides for maintenance to the woman. A woman who has no income of her own and cannot maintain herself can make application for maintenance.

Under the Personal Laws, application can be made to the District Court having jurisdiction over Family matters, or to the Family Court wherever it exists or under Sec. 125 Cr.P.C to the Judicial Magistrate First Class.

There are ample laws to protect the rights of women as well as to provide redress to them if aggrieved. There are several government policies in place. There are various initiatives taken to encourage women to seek redress. However only having laws in place is not enough. It is necessary to create awareness and change the mind-set of the society to strengthen the women.

8. Summary

Women though glorified as goddesses, have always been victimised due to their physical and emotional vulnerability. There are several offences committed against women such as dowry deaths, rape, outraging modesty, female foeticide, etc. There is therefore a need to strengthen the women through laws so that they can seek justice in case of violation of their rights. There are several instruments at the International level to protect their rights like the CEDAW, etc. these instruments are ratified by various member States and made a part of their Municipal legislations. The Constitution of India contains several Articles which mandate the State to make laws for protection of women’s rights and at the same time to avoid discrimination against women. India has a plethora of legislations concerning rights of women, like the Maternity Benefit Act, Equal Remuneration Act, etc.

There are provisions in Criminal Procedure Code, etc which accord special procedural protection to women when they come in contact with administration of justice mechanism. Also under specific legislations there are special redressal mechanisms like in cases of domestic violence, sexual harassment at work place, etc. with the help of such mechanisms access to justice has become available in a more convenient manner. This will go a long way in ensuring justice to the women and protecting their dignity.

REFERENCES:-

1. Aruna Goel, “Violence and Protective Measures for Women Development and Empowerment”, New Delhi, Deep & Deep Publications, 2004,

2. Awadhesh Kumar Singh and Jayanta Choudhury “Violence against Women and Children-Issues and Concerns”, New Delhi, Serials Publications, 2012,

3. G.B.Reddy, “Woman and The Law” , Gogia Law Agency, 5th edition,2005

4. Krishna Pal Malik, “Woman and Law”, Allahabad Law Agency, 1st Edition 2009

5. Sheetal Mishra, ‘Gender Justice: The Constitutional Perspectives and the Judicial Approach’, AIR-APR 2006

6. http://ncw.nic.in/