Women Rights – Lawdiktat

Male oriented Commission in Indian Army – MYTH OR REALITY

Tushar Bhatnagar — Fri, 04 Mar 2022 18:50:11 +0000

If patriarchy had a specific beginning in history, it can also have an end.

–Maria Mies

The word ‘Patriarchy’ is derived from Greek mythology which literally means “Rule of the father”. Male domination is much more than the concept of patriarchy and it is not even considered as societal wrong or a kind of discrimination. Patriarchy is a universal phenomenon found in every society as such. In India, a distinctive form of patriarchy peculiar to Hinduism and unique to India is Brahmanical patriarchy. Here are ways through which men can join the permanent commission, they are, National Defence Academy (NDA); Combined Defence Services (CDS); Air Force Common Admission Test (ACAT); Indian Navy Entrance Test (INET); TES entry, and NCC special entry. The introduction of women in the army took place in 1992 through the Women Special Entry Scheme under the short service commission. The reason women are deprived of permanent commission is that border regions are having some lacuna-like hygiene.

SCRUTINY/ANALYSIS:
Public Interest Litigation was filed in 2003 seeking permission to grant women permanent commission. A writ petition was also filed by Major Leena Gaurav on 16 Oct 2006. In the year 2008, the defense ministry passed an order stating that women officers from the Judge Advocate General and Army Education Corps will be granted permanent commission. Further, it was challenged by Major Sandhya Yadav in the Delhi High Court stating that, granted permanent commission is only for certain streams.

Delhi high court gave the judgment in 2010 stating that, women officers in the army and air force in SSC are allowed to get a permanent commission. This order was challenged by the government in the apex court. Even though the Delhi High court has passed fair judgment, it was not implemented by the defense ministry. In the case of Lt Col. Nitisha v Union of India, 1 hon’ble supreme court of India consisting of justice D.Y. Chandrachud and justice M.R. Shah threw light on it and granted a permanent commission of women army officers. The judgment was passed on 25 March 2021. The argument raised was, whether or not granting of the permanent commission of women army officers lead to indirect discrimination? Whether the rules given in the general instruction are violative of Article 14 of the Constitution of India? The court held that indirect discrimination is a violation of the Indian Constitution. Justice Chandrachud opined that the need for substantive equality, with reference to indirect discrimination the court, marked parallels from the Canadian Supreme court in the case of Fraser v Canada Attorney General 2 which ordered that there should be two-stage tests to determine indirect discrimination.

The agony of the court was obvious when it quotes the words of former US Supreme court judge, late Justice Ruth Bader Ginsburg, “I ask no favour for my
sex. All I ask of our brethren is that they take their feet off our necks.” Furthermore, it added that “The evaluation criteria set by the Army constituted systematic discrimination against the petitioners. This discrimination has caused economic and psychological harm and an affront to their dignity.”
Shortage of officers are witnessed these days in the Indian Army, male officers are getting reappointed but women are not getting appointed because of gender discrimination and these vacancies are supposed to be filled by suitable female candidates and must be entitled to get the pension after retirement as well as the permanent commission.

AMELIORATION:
It has been scientifically proven that women are more capable of dealing with pressure and are mentally tougher even with physical capabilities. Accordingly,
the judgment passed on 25 March 2021 declares that all women in India. The army has the right to be treated equally to their counterparts (male) by
practicing permanent commission in all the ten branches and shattering the gender stereotype of patriarchy unduly. Now it is high time for women to get
ready to meet the demands of physical, intellectual roles and responsibilities of the armed forces. Above all, the armed forces have to accept physiological
rights like child care and maternity off. The legal fights and debates so far have been centered on gender parity rather than an ethical assessment of women’s performance. The hon’ble supreme court decision was based on Articles 14, 15, and 16 of the Constitution of India rather than merit. Moreover, reforms in the military to break the male-dominated areas will be merit-based.

On 26th January 2022 that is, on the occasion of 73rd Republic day the country’s first woman Rafale fighter jet pilot Shivangi Singh was part of the Indian Air Force tableau at the Republic Day Parade. I am of the opinion when women can do and achieve anything and everything why to stress over gender equality. It’s high time for us to adapt and evolve.

BIBLIOGRAPHY:

Zainab Burmawala, “Patriarchy and permanent commission in Army” <https://lexlife.in/2021/05/13/patriarchy-and-permanent-commission-in-army/> (Last accessed on 15th Jan, 2022)

Legalserviceindia, “A Long Trip Patriarchy To Parity: Permanent Commission For Women In Army”<https://www.legalserviceindia.com/legal/article-7296-a-long-trip-from-patriarchy-to-parity-permanent-commission-for-women-in-army.html> (Last accessed on 16th Jan, 2022 )

Theprint, “SC cleared way for permanent commission but women must measure up for their armed forces role”<https://theprint.in/opinion/sc-cleared-way-for-permanent-commission-but-women-must-measure-up-for-their-armed-forces-role/632087/> (Last accessed on 16th Jan, 2022)

Krishnadas Raajagopal, “SC: Army’s evaluation process affects women seeking permanent comission”<https://www.thehindu.com/news/national/armys-evaluation-process-affects-women-seeking-permanent-commission-supreme-court/article34158356.ece> (Last accessed on 16th Jan, 2022)

Demystifying marital rape in India

admin1 — Fri, 05 Nov 2021 14:43:36 +0000

Marriage rape is so common in Indian society that it can be seen in any neighbourhood. Some complain about it, some do not. It is the act within marriage where one’s own spouse has sexual intercourse with another without her consent or forcefully. Here the main element which matters is that there should be no consent and physical violence here becomes immaterial. Now also more than two-third of married Indian women, aged 15 to 49, have been coerced to engage in sexual intercourse over the span of their marriage. As Indian society is a patriarchal society so males are more dominating on women which makes them weak and they have to stay after all the ill-treatment they face. If we see historically, sexual intercourse was supposed to be the right of the husband, engaging in the act without the spouse’s consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized. The issue of domestic violence and ill-treatment of women in marriage have taken attention internationally between half of the 20th century. The present study seeks to examine the Indian law perspective on marital rape and how it violates the rights of women. Further, it will be talking about some case laws that talk about the concept of marital rape and how it is proved to be a stigma on Indian society.

INDIAN LAW

The definition of rape is codified in Section 375 of the Indian Penal Code (IPC) mentions all forms of sexual assault involving non-consensual intercourse with a woman, states as an exception that “sexual intercourse between a man under the age of 15 and his own wife is not rape.”Marital rape is not a crime in India. Marital rape enactment in India relies on the understanding of the courts. According to section 376 of the IPC Punishing Rape, the rapist is either, sentenced for 7 years or more, or a sentence of up to 10 years, or if the, unless the lady raped, is his own particular spouse, and is not under 12 years old. This exception has its roots in the ‘Doctrine of Coverture’ which means non-independent legal status for women in the society and this is because of the male dominating society. As per the present law women and men are assumed to have implied consent when they agree to tie in a relationship and their unwillingness is not given importance then.

MARITAL RAPE VIOLATES WOMEN RIGHTS

ARTICLE 14: “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws”. Martial rape violates the fundamental rights of women which is enshrined and guaranteed by the constitution which is equality before the law. Exception 2 discriminates the married women to seek justice and gives them equal protection from rape and sexual harassment.
ARTICLE 21: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”. Marital rape is violative of Article 21 as the women are not protected from forced sexual acts which damage their mental and physical health, as well as their right to live with dignity, is harmed.
SECTION 375 OF I.P.C: The main purpose of this section was to punish those who dare to do such heinous crimes and protect women in society. But the exception 2 is far away from its objective because it gives the immunity to have forceful sexual intercourse with their wife who is about 18 years.

CASE LAWS

State of Karnataka v. krishnappa[1], In this case, it was held that sexual violence apart from being a dehumanizing act is violative of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour & offends her self-esteem & dignity it degrades and humiliates the victims.
Independent Thought v. Union of India [2], In this case, the age mentioned in exception 2 of section 375 of IPC was raised to 18 years from 15 years. This means that any husband having a forceful sexual course with her wife below 18 years would consider as rape.
Suchita Srivastava v. Chandigarh Administration [3], the Supreme Court, in this case, concluded that the woman has the right to make a choice to have sexual intercourse it is her right to personal liberty, privacy, dignity, and integrity under Article 21 of the Indian constitution.
Kharak Singh v. the State of U.P[4], the Supreme Court ruled that, in principle, the right to privacy within the scope of Article 21 is guaranteed. The right to privacy under Article 21 includes the right to sit undisturbed and uninterrupted. Intense sex of any kind undermines the right to protection and sexual safety. The doctrine of exclusion of marriage in the event of rape has been shown to undermine the right of protection of married women by unintentionally driving her into sexual relations.
State of Maharashtra vs. Madhukar Narayan Mandikar [5], In this case, the Supreme Court considered the aspects of security over one’s own body. The tragedy here is that while the court has driven her spouse in favour and has not yet protected her own body, a woman exposed to rape by a stranger is perfectly fine, but the couple’s rape.

CONCLUSION

The Indian Constitution has provided the fundamental rights which also include one of the essential rights i.e the right to equality and it is given in the right that there shall be no discrimination on the basis of caste, colour, gender, etc. Now men and women both are treated as separate legal identities. And many laws are now formulated to protect women from what all they have gone through in the past decades. Even though it is held in various case laws that a woman has the right to make a choice to have sexual intercourse it is her right to personal liberty, privacy, dignity, and integrity under Article 21 of the Indian constitution. But there is a need to reconsider and bring marital rape within the ambit of rape laws by eliminating section 375(Exception 2) of IPC. Marital rape is not completely criminalized in India. It is wrong and deserves government attention. Women raped by their spouses often endure long-term physical and enthusiastic problems. In this particular case, marital rape is even more horrific for women. Because she has to be with the abuser on a daily basis. Since the consequences of spousal rape are indeed high, there is clearly a strong call to criminalize the crime of spousal rape. There are many loopholes in the Women’s Protection Act from Domestic Violence because the law does not explicitly address spousal rape. This clearly demonstrates a shift in the state’s mindset that previously relied on non-interference in the family circle. Therefore, there should be legislation for the women who are suffering at the hands of their abusive marriage and become the prey of marital rape.

– Nancy Shonak

(Legal Intern, LawDIKTAT)

REFERENCES

[1] 2000 CriLJ 1793, JT 2000 (3) SC 516, 2000 (2) SCALE 610, (2000) 4 SCC 75, 2000 2 SCR 761, 2000 (2) UJ 919 SC, Available at- https://indiankanoon.org/doc/635584/

[2] Available at- https://indiankanoon.org/doc/87705010/

[3] Available at – https://indiankanoon.org/doc/1500783/

[4] 1963 AIR 295 SCR(1) 332, Available at – https://indiankanoon.org/doc/619152/

[5] AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849, (1991) 1 SCC 57, 1991 (1) UJ 109 SC, Available at – https://indiankanoon.org/doc/524900/