Law

Access to Justice

Access to Justice & Women

1
Component - I (A) - Personal Details
Role Name Affiliation
Principal Investigator Prof(Dr) Ranbir Singh Vice Chancellor
National Law University
Delhi
Principal Co-investigator Prof(Dr) G S Bajpai Registrar
National Law University
Delhi
Paper Coordinator Dr. Bharti Yadav Assistant Professor
National Law University
Delhi
Content Writer/Author Dr.Mrunmayi M. Vaidya Assistant Professor
V.M.Salgaocar College of
Law, Panaji, Goa
Content Reviewer Dr.M.R.K.Prasad Associate Professor
V.M.Salgaocar College of
Law, Panaji, Goa

Component - I (B) Description of Module

Description of Module
Subject Name Law
Paper Name Access to Justice
Module Name/Title Access to Justice & Women
Pre-requisites Basic understanding of the status of women in India
Objectives To understand the role of law in promoting access to
justice for women
Keywords Women’s rights, Equality, Domestic violence, Women’s
Commission, Access to Justice

2
Component - II
Module IX Access to Justice and Women

Structure
1. Introduction
2. Learning outcome
3. International instruments
4. Constitution & Status of women
5. Women specific legislations
6. Special protection during access to justice
7. Grievance Redressal Mechanism
8. Summary
9. Answer & Hints
10. Reference & Suggested Readings

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:

3
 · 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 livelihood ii.
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:

4
 Four or five police lock ups should be
selected in reasonably good localities
where only female suspects should be
kept and they should be guarded by
female constables. Female suspect
should not be kept in a police lock up
in which male suspects are detained.

Interrogation of females should

be carried out only in the
presence of female police
officers/constables.

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

5
 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.

Self Assessment Question 1

Q. a. What is the significance of Art. 15(3) in protection of women rights?

______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________

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:

The Dowry Prohibition Act, 1961

The Protection of Women from Domestic

Violence Act, 2005

The Immoral Traffic (Prevention) Act, 1956

The Commission of Sati (Prevention) Act, 1987

Important
Legislations
The Indecent Representation of Women
(Prohibition) Act, 1986

The Medical Termination of Pregnancy Act,

1971

National Commission for Women Act, 1990

Maternity Benefit Act,1961

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

6
 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.
ii. 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 women ix
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.

Self Assessment Question 2

Q. a. What exemption does the Cr.P. C give to women during interrogation?

________________________________________________________________________
__________________________________________________________________

Q. b. What is the special provision for women under Legal Services Authorities Act?
________________________________________________________________________
_________________________________________________________________

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

7
more convenient to the woman victim. Following are the relevant laws providing for
mechanism for redressal of violation.
i. 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.
ii. 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:

• Protection order.
1
2 • Monetary and compensatory relief.

3 • Medical aid.

4 • Temporary shelter by State.

5 • Right to residence in the household.

6 • Right to maintenance

7 • Right to custody of children

8 • Injunctive relief against the respondent

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

8
 Complaint may be made to any one of
the following

Police officer

Protection Officer

Service Provider

Magistrate having
jurisdiction

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:

Compliant can be filed by

Women herself

Victim’s relatives

Neighbours having
information

Any social worker

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

Self Assessment Question 3

Q. a. What reliefs are available in cases of domestic violence?

___________________________________________________________________________
9
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:

Sexual Harassment include unwelcome

sexually determined behavior such as:

Physical contact and advances

Demand or request for sexual

favors

Sexually colored remarks

Showing pornography

Making sexual demands including

Physical Verbal Textual Graphic Electronic

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

10
 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;

• Women may be transferred on her

1 request

2 • May be granted leave for 3 months

3 • Seek any appropriate relief

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.

Self Assessment Question 4

Q. a. What relief can woman get pending inquiry of sexual harassment?

_________________________________________________________________________
_________________________________________________________________________
______________________________________________________________________
iv. 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?

11
 Complaint can be made orally or in writing. Complaints in writing
may be addressed to the Commission, its Chairperson, Members or
any other officers of the Commission. All such complaints would be
received by the Complaints and Investigation Cell. There upon the
Cell has to enter the complaints in the complaints register.

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

Recommend to the concerned Government or Authority

to initiate proceedings for prosecution or action

Recommend to the concerned Government or Authority

for the grant of such immediate relief to the victim or
the members the family

Recommend to the concerned Government or Authority

for the grant of such immediate relief to the victim or
the members of his family as the Commission may
consider necessary

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.

12
 Self Assessment Question 5

Q. a. Under the Personal Laws application for maintenance can be made to the ____________
having jurisdiction over Family matters, or to the __________________ wherever it
exists
Q. b. ______________ courts have jurisdiction over maintenance of women under Sec. 125
Cr.P.C
Q. c. A woman who has ______________ and cannot ___________ can make application for
maintenance

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.

i
Art 15: … shall not discriminate against any citizen… (3) Nothing in this article shall prevent the
State from making special provision for women and children. (4) Nothing … shall prevent the State
from making any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
ii
See. Art. 39 (d)
iii
See Art. 42
iv
AIR 1983 SC 378
v
1995 SCC (1) 14
vi
See Sec. 46.
vii
See Sec. 100.
viii
See. Sec.160.
ix
Sec. 12. Criteria for giving Legal Services. - Every person who has to file or defend a case shall be
entitled to
legal services under this Act if that person is - …
(c) a woman or a child; …
(g) in custody, including custody in … a juvenile home within the meaning of clause(j) of Section 2
of the
Juvenile Justice Act, 1986 (53 of 1986)…
x
In Sakshi v. Union of India (UOI) and Ors Writ Petition (Crl) No. 33 of 1997, the Court gave
following specific directions for trial of sexual abuse or rape;

13
 1.Requirement of a screen or such arrangement where the victim or witness will not be able to see the
face or body of the accused as it may lead to trauma and fear during deposition…
xi
Sec.3 of the Act includes in explanation of domestic violence, physical abuse, sexual abuse, verbal
and emotional
abuse, economic abuse, etc
xii
See http://ncw.nic.in/frmComplaintUnit.aspx
xiii
Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Divorce Act 1869, Muslim
Personal Law, Muslim Women Right to Protection on Divorce Act, 1986

14