CONSTITUTIONAL PARADOX IN FEMINISM: A REFLICTION

IN SIGHS OF SILENT VICTIMS OF ARMED CONFLICT

Submitted by

SIVASAMPANTHAN.S

BA0130059

Project Submitted to

Prof. Ruchi Singh

TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
NavalurKuttapattu, Srirangam (TK), Tiruchirappalli 620009.

OCTOBER 2017
 TABLE OF CONTENTS

I. INTRODUCTION

II. WOMEN: THE SILENT VICTIMS IN ARMED CONFLICT

III. ARMED FORCES: MASCULINE OR RAPACIOUS POWER OF

NATION DURING ARMED CONFLICT

IV. WOMEN: THE SILENT VICTIMS IN ARMED CONFLICT

V. PARADOX IN CONSTITUTIONALISM AND FEMINISM

VI. WOMEN EMPOWERMENT: A FEMINIST POLITICS MYTHS

VII. CONCLUSION

INTRODUCTION:

Lord Denning1 elucidates the identical implication as that of quotation by Chaucer that a woman
feels and thinks as keenly and as clearly, as a man. She in her sphere does work as useful as a
man does in his. She has a much right to her freedom - to develop her personality to the full - as
a man. When she marries, she does not become the husbands servant but his equal partner. If his
work is more important in life of the community, hers is more important in the life of the family.
Neither can do without the other. Neither is above the other or under the other. They are equal.

Through the ages women has been placed on a pedestal mother of mankind in the literature and
religious books. Paradoxically, the most horrendous cruelties have been inflicted on her, often
without reason and mostly without just cause. Though we have entered the new millennium, the
status of women has not improved. The prominent cause is due to the traditional bias and
prejudice towards that section of the society, which how remained, for no fault of theirs,

1
Lord Denning, The Due Process of Law, Buttersworths, London, 1981, pp. 194-195.
discriminated against all these years, The discrimination stems not so much from legislative
insufficiency as from the attitudinal bias of the society.

Contemporaneous legislation, law, treaties and conventions have unequivocally established equal
rights for men and women as a global norm. In spite of all this, discrimination continues. The
sufferings can be traced to deep-rooted, social values in an essentially male dominated society
social and economic inequalities also contribute in no small measure to the continued denial of
all their human rights to women in general and to the disadvantageous and poor amongst them in
particular. Gender equality in most cases boils down only to a myth.2

ARMED FORCES: MASCULINE OR RAPACIOUS POWER OF NATION DURING

ARMED CONFLICT

The preamble3of India a vowal to be a Sovereign-means thereby India to be authoritative,

independent, imperial and free from external and internal control of any other nation. In order to
achieve this object sinewy armed forces are one of the muscular powers of a nation. The Indian
Army is the land based branch and the largest component of the Indian Armed Forces. Its
primary mission is to ensure the national security and defense of the Republic of India from
external aggression and threats, and maintaining peace and security within its borders. It also
conducts humanitarian rescue operations during natural calamities and other disturbances. The
Indian Armed Forces is a unified military of the Union of India comprising the Indian Army, the
Indian Air Force, the Indian Navy and various other paramilitary forces. Maintaining of peace,
security within the country, patrolling boarders and conducting counter terrorist operations are
the primary objective of the Indian Army. Beside these Army also conducts rescue and
humanitarian operations during calamities and disturbances. The Indian Army doctrine defines
the role of the Indian Army as (i) Primary Role: Preserve national interests and safeguard
sovereignty, territorial integrity and unity of India against any external threats by deterrence or
by waging war. (ii) Secondary Role: Assist Government agencies to cope with proxy war and
other internal threats and provide aid to civil authority when requisitioned for the purpose.4

2
A.S. Anand C.J., Justice for Women: Concerns and Expressions, Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 2nd Edition, 2003, pp. vii-viii.
3
Preamble , Constitution of India.
4
Hari678, The Rise of Indian Army and its Functions, Retrieved from < http://socyberty.com/military/therise-
War, armed conflict between states or nations (international war) or between factions within a
state (civil war), prosecuted by force and having the purpose of compelling the defeated side to
do the will of the victor. Among the causes of war are ideological, political, racial, economic,
and religious conflicts. Imperialism, nationalism, and militarism have been called the dynamics
of modern war. War is a "continuation of political intercourse by other means." War has been a
feature of history since primitive times so as atrocities on women. In ancient states warfare was
usually a community enterprise, but as society divided on a functional basis a warrior class
developed, and the army, large armed land force, under regular military control, organization,
and discipline.5 Although armies existed in all countries because safety and security of a nation is
a primary consideration. Constitution has also provided special provisions to them.

A tragedy is that whether we believe it or not, but this is the fact that women are raped during
armed conflict. It is not at all a matter of debate. There is not at all flaw in constitution provisions
because where on one hand it provides special status to armed personnel; on the other hand, there
is provision of court- martial. But the main point to highlight is that most of court martial cases
are based on violating their hard-core provisions. Have anyone witnessed an army personnel
prosecuted for causing atrocities on women during armed conflict? Is it not true that protection
provided under Article 34 is being misused by armed forces? The reason is always very obvious-
Lack of Evidence. However, has any one bothered to listen the sighs of silent victim who are
innocent and being ruined only as a result of agitation of war?

WOMEN: THE SILENT VICTIMS IN ARMED CONFLICT

The silent victims of war are women who are most vulnerable in armed conflicts. Women are
often singled out for human rights violations which are not inflicted on men, and assault on a
women body is used as a weapon of war. The general protection of the wounded, sick and ship
wrecked, prisoners of war and civilians-including the range of humanitarian provisions
governing weapons and tactics applies to all, regardless of gender. However, the provisions made
from women in the laws of armed conflict are in some respects outdated and inadequate. Break
out of armed conflict undoubtedly affect society, but women being particularly vulnerable are

of-indian-army-and-its-function/> visited on 5October, 2017.

5
Retrieved from < http://encyclopedia2.thefreedictionary.com/Armed+conflict
Visited on 5 October, 2017.
often the silent victims. War exacerbates the inequalities that exist in different forms and to
varying degrees in all societies. Women are not directly involved in warfare, however, the major
victims of warfare. One of the most obvious examples of the specific victimhood of women in
armed conflict is their vulnerability to sexual assault, rape, enforced prostitution, sexual slavery,
enforced termination of pregnancy and enforced impregnation are heinous attacks against the life
and the physical psychological integrity of person-then where is our constitution.

The enigma that is woman constitutes the target, the object, the stake of a masculine discourse
and a debate among men. Within that discourse, woman has been misinterpreted, forgotten,
variously frozen in show-case, rolled up in metaphors or simply buried beneath carefully stylized
figures. The term woman has often been dominated by an intent, a meaning, a thought; in other
words by the laws of a language constructed by man. This WHAT IS WOMAN? question is
posed by Simone de Beavoir in her seminal work, the Second Sex is answered by de Beavoir,
in the part of following passage:

humanity is male and man defies woman not in herself but as relative to him, she is not
regarded as autonomous being. And she is simply what man decrees, thus she is called the sex
by which is meant that she appears essentially to the male as a sexual being. For him she is sex-
absolute sex, no less. She is defined and differentiated with reference to man and not he with
reference to her, she is incidental, the inessential as opposed to the essential. He is subject, he is
Absolute- She is the other.

Taking this meaning for women is really a shameful for a nation. However, undoubtedly in war
and armed conflicts, she becomes merely an object of revenge.

PARADOX IN CONSTITUTIONALISM AND FEMINISM

In the context of present research paper the term constitutionalism refers to a specific method
adopted by modern democracies of safeguarding the autonomy of the individual self.6 In a
classic formulation the objective of constitutionalism as that of safeguarding each member of a
community.7 Constitutionality is driven towards the erasure of any kind of normative ethic which

6
Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law, University of Illinois
Press, Urbana and Chicago, 2004, p.1.
7
Carl Friedrich, Constitutional Government and Democracy, Boston, Ginn, 1950.
differs from its own unitary central ethic - a denial of subjective ethics and the assertion of
objectivity lay its emancipator potential. The term paradox of constitutionalism - that is, the
tension in which the need to assert various and differing moral visions comes up against the
universalizing drive of constitutionality and the language of universal rights. In an instrumental
terms feminist theories work for the potential source of equal rights and the emancipation of
women. Society being steeped in patriarchal values and practices, the law and the state where
seen as the only agents with the power and the legitimacy to bring about egalitarian social
transformation.

Article 348 reads as restriction on rights conferred by this part9 while martial law is in force in
any area. It provides that notwithstanding anything in the provisions of this Part iii of the
Constitution that is fundamental rights, Parliament may by law indemnify any person in the
service of the Union or of a State or any other person in respect of any done by him for the
maintenance or restoration of order in any where Martial Law10 in force. The indemnity
validates any sentence passed, punishment inflicted, forfeiture ordered or other act done under
Martial Law in such area. It offers an indemnity to members of armed forces of those (civil
authorities or police) connected with the maintenance or restoration of order within India for all
acts done within an area where Martial Law is in force.

So an Act of indemnity passed by parliament cannot be challenged on the ground that itviolates
fundamental rights. This power of Parliament is, subject to two restrictions: (1) the act must be
done for the maintenance of restoration of order, and (2) Martial Law was in force in the area
where the act was done.11

8
Article 34: Restriction on rights conferred by this Part while martial law is in force in any
area.- Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law
indemnify any person in the service of the Union or of a State or any other person in respect of any
act done by him in connection with the maintenance or restoration of order in any area within the
territory of India where martial law was in force or validate any sentence passed, punishment
inflicted, forfeiture ordered or other act done under martial law in such area.
9
Fundamental Right Part III of Indian Constitution.
10
Martial Law means the suspension of ordinary law and the government of the country
or part of it by military tribunals.
11
J.N.Pandey, The Constitution Law of India, 45th Edition, Central Law Agency, Allahabad, 2008,
p.383.
Martial Law is defined as12 meaning the suspension of ordinary law and the government of the
country or part of it by military tribunals. This power is necessary, otherwise any act done during
such time by executive or military authorities in pursuance of maintaining or restoring order can
be challenged in ordinary court of law when peace is restored. This may defeat the very object
for which the power is vested the power is vested in military and civil authorities during such
time.

Just try to probe into the other face of this provision. It will speculate the paradox of
constitutional provisions with feminist rights. The embarrassing situation is not that offenders
cannot be punished but the fact is that they never come in the eyes of court. After committing
heinous crime either they killed them or make them handicap. Therefore, there should be
vigorous and strong provisions in order to fill this lacuna.

The concept of Feminism13 in India cannot be termed as a singular theoretical orientation; it has
changed over time in relation to historical and cultural realities, levels of consciousness,
perceptions and actions of women as a group. In broad terms, feminism means an awareness of
women's oppression and exploitation in society, at work and within the family, and conscious
action by women and men to change their ideology. Feminism contains the idea of women as
powerful. In India through religious spaces women is portrayed powerful, and worshipped
them as goddess. This is western concept because in the West the notion of self rests in
competitive individualism where people are described as porn free yet everywhere in chains,
by contrast in India the individual isusually. It is prominent to note that the concept of feminism
is unique within Indian culture; it cannot be directly compared to feminism in western culture.
Instead, this issue is viewed in one of human rights within Indian context.14

In India there has been over a decade of feminist engagement with the law on the issue of
violence against women by demanding legislative action. 15 These efforts have been successful in
that every campaign resulted in legislative changes such as the The Dowry Prohibition
(Amendment) Act, 1984, The Indecent Representation of Women (Prohibition) Act, 1986, The

12
According to Whartons Law Lexicon, 1966, 18 L. ed. 28 (295).
13
Feminism in India, visited on 3 october2017.
14
Maitrayee Chaudhuri, Feminism in India: Issues in Contemporary Indian Feminism, New York,
2001, 2005.
15
Nivedito Menon, pp. 3-4.
Commission of Sati (Prevention) Act, 1987, The Immoral Trafficking (Prevention) Act, The
Hindu Widow Re-Marriage Act 1856;The Indian Christian Marriage Act, 1872;The Medical
Termination of Pregnancy Act, 1971, Criminal Law Amendment Act, 1983,The Family Court
Act, 1984; The Indecent Representation (Prohibition) Act, 1986; The Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994; The Immoral Traffic
(Prevention) Act, 1956;The Protection of Women from Domestic Violence Act, 2005; The Hindu
Succession Act, 2005.16 Development of women has been receiving attention of the government
right from the very first plan (1951-56). But the same has been treated as a subject to welfare.
The shift in the approach from welfare to development of women could have taken place only in
the sixth plan (1980-85). Accordingly, the sixth plan document adopted a multidisciplinary
approach with a special thrust on three core sectors of health, education and employment. The
seventh plan model had followed suit. The eighth plan (1992-97) with a human development as a
major focus played a very important role in the development of women. The ninth plan (1997-
2002) made significant changes in the conceptual strategy of planning for women. The process
of empowerment of women initiated during the 9th plan period has been continued in the tenth
plan period also for empowering the women on a strong platform for a action with definite goals,
targets and time-frame. New measures for gender empowerment and equity will be essential
components of the eleventh plan. (2007-12)17. Not even a single enactment for protecting women
against this heinous offence committed by army men.

Despite an overarching commitment to respecting citizens' freedom to express their views,

peacefully protest, and form their own organizations, the Indian government lacks the will and
capacity to implement many laws and policies designed to ensure the protection of rights. There
is a pattern of denial of justice and impunity, whether it is in cases of human rights violations by
security forces, or the failure to protect women, children, and marginalized groups such Dalits,
tribal groups, and religious minorities. The failure to properly investigate and prosecute those
responsible leads to continuing abuses. The government has failed to protect vulnerable
communities including Dalits, tribal groups, and religious minorities. While India claims that its
national and state human rights commissions ensure protection of human rights, these

16
Jurgen Haberma, Remarks on Legitimation Through Human Rights in the Post-national
Constellation, Political Essays, Cambridge, Polity Press, 2001, p. 114.
17
Ajit Kumar Sinha (ed.), New Dimensions of Women Empower, Deep and Deep, 2008, xxviii, 756,
from www.vedambooks.com/no.56854. htm. 4 feb. 2010
commissions are not fully independent-their members and chair are appointed by the
government-they lack sufficient resources to conduct their own investigations, and they are not
empowered to investigate violations.18However, the fact is that the law is not enough. The
constitutional recourse to the law creates a series of new legislative which often mean the
increase of state control, while implementation remains unsatisfactory.

WOMEN EMPOWERMENT: A FEMINIST POLITICS MYTHS

In the lap of the feminist theories the seeds of a new phenomenon find a fertile ground to grow
and enrich, the phenomenon known as women empowerment. Under the shadow of this
umbrella term I have observed a number of legal enactments have appeared in legal text books
and decorated in law libraries. Women Empowerment means to empower her with maximum of
rights and laws in her favor. It is on established fact that women represent very kernel of the
human society. In order to provide justice to women a golden instrument was used by
government: empowering women through law. The idea behind this concept is that when women
empower themselves with right education, development of the power of rational thought and
creative ability, they can act as vehicles of a consciousness higher than the material. Women
emancipation lies in their education and their economic liberation. It lies in their awareness about
rights as co-equal human beings.

Women empowerment particularly those belonging to weaker sections including Scheduled

Castes / Scheduled Tribes / other Backward Classes and minorities, majority of when are in the
rural areas and in the informal, unorganized sector - to education, health and productive
resources, among others, is inadequate. Therefore, they remain largely marginalized poor and
socially excluded. The economic empowerment of women through poverty eradication,
provisions of micro-credit, strategies to save them from the negative impact of globalization etc.
were stressed. Besides economic empowerment, socialempower of women through education,
nutrition, sanitation, environment, science antechnology and focus on women in difficult
circumstances were highlighted i.e. women affected by natural calamities, destitute women,

18
India: Human Rights watch-2009 report India 's failure to protect minorities
Retrievedfrom<http://newsgroups.derkeiler.com/Archive/Talk/talk.politics.misc/2009-
04/msg00067.html>, visited on 4 October
, 2017.
women in conflict regions, disabled, widows, deserted women, migrants and women who are
victims of marital violence.

The year 2001 was observed as women Empowerment Year. The National Policy for the
Empowerment of women was evolved in 2001. It is heartening to note that women have entered
into fields of profession and occupation, which were hitherto almost a preserve of the mob.
Today women are holding positions in every walk of life - senior Bureaucrats, Pilots, Service
Officers in Army, Navy and Air Forces, Doctors, Diplomats, Parliamentarians, Architects,
Engineers, Software Entrepreneurs, Business Entrepreneurs, Journalists, Writers, Fashion
Designers, Models, Advocates etc., and acquitting themselves very well.19

However number of such women is very small and some tangible progress has been recorded
women's equality cannot be achieved through equal opportunities due to unequal status of
women prevalent in society. It is, therefore, urgent that instead of debating on gender issues,
planning's, policy-making, decision-makings and impact evaluation we should change the mind
set-up of our Indian society which does not allow their daughters, sisters and wives to grace,
enrich and achieve extremes in this world.

WOMEN EMPOWERMENT IS MERELY A FEMINIST POLITICS: A MYTH

It means that in spite of plethora of provisions in the favor of women if till now at this time, we
still seek government to protect women under the shadow of their enactments and Still
demanding, demanding and demanding ..!It should be remembered by women that God helps
those who helps for themselves. When a new problem arises we want Law? Just to check human
beings. But the fact is that every crime is committed within human being not by animals, It must
be checked by us, we the citizen of India. Still female feticide is committed but not highlighted.
It means in making laws, there is no deficiency but we, Indians still living in the night of our
traditional ideas.

It is observed that the term women empowerment is only a myth. It is double edged weapon. On
one hand it is empowering women in law, legal books and giving them platform to see the

19
Neglecting the Mother, in A.S. Anand C.J., p. 23.
dreams. But on the other hand social, moral, customary culture and tradition drags her back for
the sake of family responsibilities. Women become just a skeleton for sacrifices. In spite of
plethora of legal provisions she is still humiliated at home, at place of work, in court rooms and
even in police stations.

In India it is taught to girls that ignorance is bliss. Sometimes ignorance is not bliss. Especially
when the unthinkable happens and she become on abandoned woman with nothing and no one
turn to. These are the voiceless ones for some reasons, they come to the parting of ways with
their partners. They are forced to realize that the path of least resistance, of voluntary surrender
of freedom, even total negation of their individuality of and the constant patch work that mended
a tattered marriage will no longer keep the garment of respectability over their heads.

Factors throughout history have forced women to become patient acceptors. Factors thought
history have forced women to become patient acceptors. The average Indian womans concept of
law and her rights as wife and mother are practically non-existent. It is high time that mass scale
legal educations are imparted to women in this country, for they have been treat as expendable
human material for far too long. In England, Europe or American woman can walk out of an
intolerable marriage with minor children, appeal to the nearest court, and become entitled to a
reasonable maintenance allowance until legal separation or divorce is granted. If the husband
tries to evade responsibility he lands himself in jail or faces legal action for disobeying the court.
In India, on the other hand, very few women would remain dream of getting involved in a legal
battle. Firstly the family wont permit it. Then too in this country legal procedures are extremely
complicated, long drawn and expensive. Thus in order to convert the equality of women from de
jure to de facto, educating female play an important role. Today in 21st Century, we are still
unable to boast of a society where there is total gender equality or gender equity. The question of
gender equality is merely a matter of theoretical discussion. Things are changing but rather
slowly.

CONCLUSION

In the research paper the focus is on some ground realities which I being a human being realize.
There are plenty of laws for the protection of women. But when the time comes for the
application of laws, then political pressures cannot let the judiciary be independent. The
woman is the subject of feminist politics in India. The category of woman as the subject of
feminist politics in India reflects a failure of constitutionalism. The army for safety and security
of a nation. It is sad to discuss the shabby picture of our army. Break out of armed conflict
undoubtedly affect society, but women being particularly vulnerable are often the silent victims.
Women are not directly involved in warfare, however, the major victims of warfare.

We, the people of India, have entered into the new millennium and even today our parliament
has to frame new laws day by day first for the sake of protection, security and dignity of women.
Did anyone ever probe into the root cause? Are we developing or our parliament will always be
busy in enacting legislations for the safety of gender equality?

What type of freedom we, the women are enjoying, if even today the women is overburden with
family culture but man is not . I am quite confused whether India is developing or imitating
western culture. Krishna Iyer, J.:

The fight is not for woman's status but for human worth. The claim is not to end inequality of
women but to restore universal justice. The bid is not for loaves and fishes for the forsaken
gender but for cosmic harmony which never comes till woman comes20

However, to the very contrast to it, Rights of Women have become a subject of feminist politics.
A woman has always been viewed in need of protection rather than being recognized as
individuals with rights. Thus feminists have argued that view of women I need of protection and
designation of rape as a crime against honor. The protection for women from sexual violences
are couched in terms of their equality and honor.21 It seems that if a woman claims her rights she
has to fight against the whole society.

Undoubtedly, the situation is much better than the past traumatic history of women. But at the
same time, there is no newspaper which does not contain the news of rape, sexual harassment at
work place, honor killings, NRI fraudulent marriage, abortions, female foeticide, domestic
violence, dowry etc. etc. Far law students, these crimes are to cram with their punishment, for
examination for faculty there is one subject to teach on women and law but it is only for us, the

20
V.R.K. Iyer, Law and Life, Vikas Publishing House, New Delhi, 1979, p. 31.
21
Charu WaliKhanna, Women Silent Victims in Armed Conflict (An Area Study of Jammu & Kashmir,
India), Serial Publications, New Delhi, Ist Edition, 2004, pp. 1-9.
present researchers are to probe into the fact that there is fundamental paradox in our constitution
which on one side provide gender equality in preamble, fundamental rights and directive
principles without understanding social economic culture of India. It is felt that India is neither
westernized nor it is able to conserve its culture of womanhood. This is the reason that women
has become a subject of feminism politics which is yet in the search of gender equality. Indian
judiciary is playing a prominent role in listening their silent voices but there is need of law not in
letters but in spirit.However, from the perspective of social practice rather than principle, social
inequalities appear to be particularly persistent and complex: each new step by women towards
public life removes some inequalities but give rise to new ones. Women find themselves at the
centre of paradox between tradition and modernity, identity and equality in industrialized
countries.22

In India, in spite of special constitutional framework and guarantees in addition to other

legislations.Crimes against women are rampant. They are on the increase. The constitution
imposes a fundamental duty on every citizen through Article 51 A (e) to renounce the practices
derogatory to the dignity of women. How many of us are aware of this fundamental Duty? Not
many, I think so. A citizen is expected to comply and respect this fundamental duty. The gravity
and responsibility becomes more on the shoulders of army Everyone look at them with hope,
trust and sense of secure y. When army becomes a danger for women-we can well imagine our
security in future! We take pride in talking of our constitution making special provisions in favor
of women- yes, indeed such provision do existthey were provided by the founding fathers,
after great deliberations. But the question is: Have the women been able to reap the benefits
provided for them under the constitution of India? The procedure for the attainment is justice is
so lengthy that girl turned into women and women becomes old lady when she get justice and
loses all hopes. There is still a long way to go to achieve the goals entrenched in the constitution

22
Giriraj Shah, Crime Against Women and Police, Vol. 2, Anmol Publications Pvt. Ltd., New Delhi, First
Edition, 2000, Preface.
REFERENCES:

BOOKS:

Neglecting the Mother, in A.S. Anand C.J., p. 23.

Giriraj Shah, Crime Against Women and Police, Vol. 2, Anmol Publications Pvt. Ltd.,
New Delhi, First Edition, 2000, Preface.
Charu WaliKhanna, Women Silent Victims in Armed Conflict (An Area Study of
Jammu & Kashmir,India), Serial Publications, New Delhi, Ist Edition, 2004, pp. 1-9.
V.R.K. Iyer, Law and Life, Vikas Publishing House, New Delhi, 1979, p. 31.
Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law, University
of Illinois
Press, Urbana and Chicago, 2004, p.1.