This article is written by Rangita Chowdhury of Symbiosis Law School, NOIDA. It talks about the various facets of women and gender laws – their historical perspective, gradual evolution, implementation, and also the bottlenecks and the lacunas that still need to be addressed.
Social, cultural, and political movements have had profound effects in removing gender inequalities and ensuring women’s rights. History has shown us that society has changed gradually over time and social reform movements have inducted the principles of liberty and equality in our understanding. With the passage of time and end of monarchy and feudalism and the advent of democracy in politics, the need for a more egalitarian society, where the rights of women are preserved, has been properly appreciated by the international community and policymakers. This political consciousness, with a change of mindset of the people through the attainment of education, has made a meaningful contribution in addressing the social customs and traditions that have historically relegated women to a position of inferiority. Legislations have followed this evolution as a natural course of action, resulting in the framing of gender laws that seek to emancipate and empower women.
Historical background of gender laws
“Gender equality implies that women and men, and girls and boys, enjoy the same rights, resources, opportunities, and protections. It does not require that girls and boys, or women and men, be the same, or that they are treated exactly alike.” (UNICEF)
Gender bias and inequalities exist in society in different forms and levels. It has existed for centuries and prompted countries across the world to frame legislations to reduce this injustice through affirmative action and positive discrimination.
Differences exist at the workplace (working conditions, wages, sexual exploitation, etc.), at home (unequal distribution of work, domestic violence), access to health and education, property rights, during the marriage, entrepreneurship, access to credit, and a host of other areas.
The journey to reduce such inequalities and promote a level playing field thus necessitated providing legal protection to them. But the path was not as easy as the lives of women were predominantly controlled by males (though it is true to a large extent till now as well) who wanted to keep them subjugated.
One of the earliest known movements advocating women’s rights was perhaps by the Shakers, which was an evangelical group that practiced segregation of the sexes and strict celibacy. They were practitioners of gender equality. This movement gathered to the ground in America in the second half of the 18th century and it put gender equality into practice. Gender equality movements gathered further ground after the 2nd World War. The United Nations and other international agencies adopted several conventions that promote gender equality.
In India, empowerment and upliftment of women started during the British rule. Though the British were initially reluctant to interfere with the social and religious customs of the different religious communities, several social reformers like Raja Ram Mohan Roy, Eshwar Chandra Vidyasagar, and Jyotiba Phule fought for women’s right and their education and tried to put an end to the evil customs and traditions of the society. Their constant fights forced the British Government to abolish Sati (widow immolation), allow widow remarriage, forbid child marriage, and reduce illiteracy of women.
The unequal social structure that favours sons over daughters, considers women as commodities and properties of the male. Unjust inheritance and property laws, deep-rooted social belief of inferiority of women, illiteracy, lack of proper health care, neglect, unequal power structure, discrimination at the workplace, harassment by the husband and in-laws and many other unjust practices had resulted in degrading the position of women in society. Without legal support and affirmative action, it was clear that their position in society would not improve.
Salient features of gender laws in India
Gender inequality always has and always will be a social issue in India unless there is the desire to change it from within, by both the men and women.
Women, like men, also have the right to be treated on an equal footing. Race, colour, caste, creed, religion, or sex does not allow us to treat people differently. But since women have been historically discriminated against by the patriarchal society, various legislations have been enacted in the country that assists women and fights injustice.
The Constitution is the Supreme Law of the country. The provisions here that safeguard the rights of women are articles 14 & 15 which ensure equality and non-discrimination of Indians, among others, on the ground of sex. Article 16 guarantees equality of opportunity in public employment irrespective of sex. This article also has a proviso which enables the State to take affirmative action for women such as reservation of seats and posts for them in government jobs. The 73rd and 74th amendment of the Constitution has ensured reservation of seats for women in rural and urban local bodies to give them greater political voice and empowerment. Article 51A protects the dignity of women by making it duty bound on every citizen of the country to renounce practices derogatory to the dignity of women.
The various gender laws enacted in the country have tried to address practices that have pinned women down in the society. These practices have their roots in the age-old social customs and traditions that have held women inferior to men and exploited them throughout their life. Women have been exploited at home, outside the home, and at the workplace. They have been denied access to education and proper health care.
They have also been denied equal opportunities at work such as inferior working conditions and unequal wages. They have also denied property rights. Their security outside their home has always been threatened. Without dowry, it is still difficult to arrange a groom for her. Rape, molestation, sexual abuse, domestic violence, immoral trafficking – women face the most heinous atrocities and crimes throughout the length and breadth of the country.
Therefore, gender laws in India have tried to include provisions for addressing these vital socio-political issues. These are the salient features of gender laws in India.
Socio-legal status of women in modern India
The role of women in nation-building is undisputed. And hence their empowerment of paramount importance in the society. The status of women in India has undergone great changes over the past few centuries. In independent India, women participate in all walks of life – education, literature, culture, sports, politics, and in other fields. Women in India have adorned high offices. But despite this, it has to be admitted that a vast multitude of women still leads a life of impoverishment and subjugation.
Aspirations of women, their desire to achieve success in life, attainment of education, political and social movements advocating women’s rights, and most importantly, changes in the society have gradually brought about an improvement in the position of women in the society. Enabling legislation, affirmative actions, and judicial interpretations have tried to address the anomalies and improve the quality of life of women. Hence, law and justice are perhaps the most important means by which the progression of women in society has been achieved.
Since independence, Constitutional provisions, women-centric legislations, social welfare initiatives, policies, and practices (that seek to improve the socio-economic status of women in India), have empowered women and provided them security against injustice and crimes committed against them.
Besides constitutional provisions, laws have been framed to address various kinds of injustice against women, such as laws against dowry (Dowry Prohibition Act,1961), domestic violence (Protection of Women from Domestic Violence Act, 2005), sexual harassment at workplace (Sexual Harassment of Woman at Workplace (prevention, prohibition, and redressal) Act, 2013), and immoral trafficking (The Immoral Traffic (Prevention) Act, 1956), to name a few. To prevent cruelty against women, Section 498A has been inserted in the Indian Penal Code(1860). Similarly, to prevent acid attacks, strict penal provisions have been incorporated vide Section 326A of the IPC. Amendments have been made in the Factories Act to provide better working conditions. The Equal Remuneration Act, 1976 ensures equal remuneration to men and women workers and addresses discrimination against women on the ground of sex. The Maternity Benefit Act, 1961 also provides the security of wages and employment to women immediately before and after confinement due to pregnancy.
The Hindu Marriage Act, 1955 prohibits polygamous marriages and makes special provisions for divorce. The Hindu Succession Act of 1956 confers property rights to daughters. The Law of Adoption and Maintenance Act, 1956 provides for the maintenance of wife, widows, minor children, and poor parents with special emphasis on women. Several social welfare initiatives, policies, and approaches have also been taken to reduce inequalities between men and women.
However, it is not a fact that the position of women has improved markedly on account of such sweeping legal and social reforms. Law cannot be interpreted in isolation. It has to be read in conjugation with society and the social structure needs to be understood. Age-old beliefs, lack of education, lack of self-confidence, and lack of empowerment are all responsible and these need to be addressed at the right earnest.
For example, dowry is hardly reported. Both parties consent to it. The father of the bride is forced to accept this due to his economic condition and so-called inferior social status (as the father of a woman). Thus, dowry is a common practice. In spite of a strong deterrent in the form of section 498A of IPC (cruelty against married women), many of the perpetrators of dowry deaths are not punished. Frequent out of court settlements take place. The father of the victim often agrees to close the case in return of money which he feels is the better option as it will help him to marry off his other daughter(s).
Similarly, most marital rapes and domestic violence cases are not reported, though these also constitute cruelty against women. The legal provision which does not consider forced sexual activity by the husband with his wife above the age of 15 years as rape, also goes against women. Domestic violence cases are also not reported as women are economically dependent on their husbands and would face their wrath if they displease them by going to the police.
These are some examples. We can give many more. They prove that various crimes committed against Indian women have their root cause in the socio-economic structure and age-old social practices of India and hence in-spite legal protection and enabling policies, they are hard to contain, particularly among the marginalized and poor sections of the society.
Change of social structure is a difficult task. Law cannot be read in seclusion; neither can it address all wrongdoings alone. Changes in the mindset of the society at large and women, in particular, are very important. Education, economic upliftment, and empowerment are the key issues that need to be addressed. Proper, timely, and rigid implementation of all legal provisions is another aspect that needs to be looked into to improve the socio-legal status of women in India.
How gender laws have evolved through judicial pronouncements
The drafters of the constitution made sure that our constitution is a flexible document and not a rigid one because they were aware of the fact that laws need to change and evolve with a changing society. A lot of legislations and regulations were enacted after independence, including some landmark judgements that have changed the course of society. A few of them also focused on gender issues, on improving the conditions of women and the other oppressed classes. There are judgements which set new rules and standards of conduct and behaviour and stopped the perpetration of crimes. Some of the judgements and laws which helped evolve the gender laws of today are :-
Reservation of seats for women in schools and colleges was upheld by the courts on a few occasions like in the Padmaraj Samarendra Vs. State of Bihar (1978) case where the reservation of seats in a medical college for girls was contested as discriminatory, but the court held otherwise and supported reservation. This judgement was given in consonance with Article 15(3) of the constitution, giving the state the power to make reservations for women and children if it considers necessary.
The judiciary under various cases has tried to uphold the constitutional goal of ‘equal pay for equal work’ embodied under Article 39(d) of the Constitution, implicit with articles 14 and 16. The Supreme Court first constitutionalised this right in the case of Randhir Singh Vs. Union of India (1982).
One of the most powerful judgements by the Supreme Court regarding the prevention of sexual abuse at the workplace was delivered in the case of Vishaka and Ors Vs. The State of Rajasthan and Ors. (1997). The petition was filed by Vishaka and a women’s rights group after a social worker in Rajasthan was gang-raped for stopping child marriage. This case resulted in the formation of the famous ‘Vishaka Guidelines’ which define sexual harassment at work and guidelines which deal with it. The ruling was in consideration of the various international conventions which promote gender equality, the right to work, and dignity. Our constitution also ensures these under articles 14,15,19 and 21. These guidelines were considered a major step towards the upliftment of women.
Thereafter, the Government enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act in 2013, which superseded the Vishaka guidelines.
Rights of sex workers and sexually abused women have been deliberated by the courts too. In Budhadev Karmaskar Vs. State Of West Bengal (2011) a sex worker was brutally murdered. The petition was filed on this issue, demanding respect and equal rights for sex workers. The Supreme Court held that sex workers need to be treated equally in society because they are being compelled to work in this industry due to poverty, not on their will. Society views them as women of low character but they should try to understand their perspective and not demean them. They deserve as much respect as people of other professions. The court issued directions to the state governments to act in their welfare, make suitable schemes for them, and sensitize the public on this issue.
Acid attacks on women are made to humiliate them and scar them for life. It is one of the most brutal forms of assault on women. After the Criminal Amendment Act, 2013, acid attacks were given a separate identity and punishment, earlier they were categorized under offences caused by ‘grievous hurt’. In the landmark case of Laxmi Vs. Union of India and Ors. (2015) a PIL was filed by Laxmi, who was attacked by three men in Delhi who threw acid on her face because she refused to marry one of them who was continuously pursuing and harassing her. She had to go through multiple surgeries and a lot of physical and mental trauma. The men were granted bail by the High Court after being convicted of murder by the Lower Court. Laxmi thereafter filed a PIL regarding the easy availability of acid and the lack of regulations and provisions relating to rehabilitation of survivors. The court upheld the petition and strengthened the laws relating to purchasing acid. The IPC was amended and sections 326-A and 326-B were inserted. These sections exclusively deal with acid attacks. Section 357C was added to the CrPC too, under which all private or public hospitals are now bound to provide medical treatment to acid attack victims free of cost. The government also declared acid as ‘poison’ and issued a ban on its sale.
Domestic violence is widespread in India. The government of India addressed this issue by enacting separate legislation, the Protection of Women from Domestic Violence Act (2005). The act recognised domestic abuse as not only physical violence but also as mental, verbal, and economic abuse. The law mainly laid down protection measures for the victims of domestic violence.
There are also many other laws that have been framed for the upliftment and development of women like the Dowry Prohibition Act, Factories Act, etc.
Thus, the judiciary has appreciated the plight of women and the injustice faced by them in various walks of life and has tried to address them by framing guidelines and policies and issuing instructions to the governments. These have resulted in the framing of women-centric legislations.
Incidents of violence against women
Women have perpetually been victims of physical and sexual violence and abuse. Every day in newspapers and news channels we read about such incidents. These acts are committed typically because women are considered the weaker sex. Inequality exists in all walks of life. Indian society is a patriarchal one, where men are considered the head of the family who controls women and family affairs. Earlier practices like Sati, child marriages plagued the country until they were banned and legislation enacted. Rape is the most prevalent crime women go through nowadays.
Dowry deaths, witch-craft related murders, honour killings, female infanticide and foeticide, marital rape, throwing of acid, and domestic violence largely make up the types of violence women face in today’s society. The internalised misogyny which exists among us is the reason why women are disrespected and looked down upon. They are not given their fair share of resources, like access to education from an early age and taught to conform to the gender norms of society.
Married women stay in abusive marriages because divorce as a practice is frowned upon by society and economic hardships outweigh other considerations. Women are not taught to be independent and are always expected to function according to the wishes of their male counterparts. Lack of education and social practices and customs which consider women inferior to men need to be properly addressed. Until it is done, violence against women will be hard to contain.
What to learn from the Women’s Rights Movement in the USA
Women’s rights movements or women’s liberation movements first started in the United States in the 19th century. They are also called the feminist movements as feminism talks about equality between men and women. The initial movement focused on the right to vote for and own property. The second wave of women’s rights movements occurred around the 1960-70s, where the focus was on equality of opportunities and personal freedom and fighting other social stigmas. The third wave of these feminist movements focused on social, financial, and cultural issues. These movements occurred from the early 1990s till late 2010. They also campaigned exclusively for greater political representation. The fourth wave was recent since around 2012 which campaigned for intersectional equality and the use of internet tools.
These movements prove that years of oppression will give rise to social and political uprising, people unite to fight injustice when it becomes unbearable. It also proves that people have to work in groups and stay united to achieve their goals. Every citizen of a country who is politically and socially conscious needs to press upon the authorities to bring change in society.
India, the largest democracy in the world has since independence, believed in affirmative action for women. The constitution-makers were aware that unless unequals are treated differently, the plight of women will continue. They understood that formal equality would be of no use in this regard. What is required is substantive equality that would address the core issues of discrimination and try to correct them. Thus, the Fundamental rights, directive principles, and the fundamental duties, all have laid special emphasis on women’s welfare.
We must understand that the equality provisions under the Indian Constitution are not enough as men and women have never enjoyed a level playing field. Unlike can never be treated alike. Thus, special provisions for women have been provided in article 15(3) understanding their vulnerability and lack of opportunity. Hinging on the theory of protective discrimination, the Indian judiciary has taken many paths breaking decisions to ensure that the provisions do not remain on paper only.
These include the reservation of seats for women in employment, including educational institutions. In the Government of Andhra Pradesh Vs. Vijayakumar (1995), the Andhra Pradesh High Court has allowed reservation of jobs for women in public employment, thus widening the scope of article 15(3) to include within its ambit, the entire range of state activity, including employment. This is a very strong affirmative action towards substantive equality and was passed quashing the argument that it contradicts meritocracy.
The Court further analyzed the issue stating that merit is not the forte of the privileged only. The marginalized sections, including women oppressed for years, can be equally meritorious but how can they prove it unless given the opportunity? I, therefore, agree that the judgement is not discriminatory and does not go against the principle of natural justice. It rather enforces natural justice through positive discrimination.
The Supreme Court has also widened the scope of this article to interpret Section 125 of CrPC which provides for the maintenance of wives, children, and parents. In Rohtash Singh Vs. Ramendri Smt. (2000), the Supreme Court interpreted that the section applies to a divorced woman’s right to maintenance, admitting that a woman after divorce becomes destitute.
Thus laws that are primarily focused on women’s justice have many times been interpreted within the constitutional ambit of article 15 (3) and used by the court to ensure affirmative action for women. Another example of the Supreme Court interpreting article 15(3) in favour of women is in Municipal Corp. of Delhi Vs. Female Workers (2000) where the Supreme Court held that temporary workers (here women) are also entitled to maternity benefits.
Article 15(3) has also been used to interpret the Hindu Succession Act of 1956. The Supreme Court has held that law must be so interpreted that it is in harmony with the constitutional goal of removing gender-based discrimination. In Sesharathmma Vs. Manikyamma (1991), the Supreme Court held that the Hindu Succession Act gives women the absolute right to property.
The protectionist attitude of the Supreme Court can perhaps be best summed up in Sanaboina Satyanarayana Vs. Government of Andhra Pradesh (2003) case where the court observed that: “It is no exaggeration to place on record that instances of violence against women and children, particularly females, such as raped dowry deaths, domestic violence, bride-burning, molestation, brazen ill-treatment of horror, vulgarity and indecency are not only rampant but on phenomenal increase casting a shadow of shame on the society, the culture and governance of this country and it seems that cruelty to women and problems of battered wives have become ironically almost a worldwide phenomenon. Such a situation deserves special treatment in the hands of the State.”
All this is true but what has actually happened in practice is very much debatable. Lack of political will has come as a hindrance in many cases. A classic example is the non -implementation of reservation of seats for women in Parliament.
Socio-economic conditions have also come in the way of deserving and needy women. Special relaxations and provisions for women have mostly been lapped up by the better-off sections, leaving the poor, marginalized, and the oppressed women still in darkness. The patriarchal society has not allowed women to come forward and fight for their rights. Violence against women still continues unabated in various parts of the country. Women still find it hard to report incidences of rape and molestation as the social structure is such that they do not get proper support from the house, the society, and the government machinery. Age-old beliefs, mindset, and male domination still continue to control the destiny of women in India.
Even where the law comes to the help of women, the societal structure has found a way to bypass it. The 73rd amendment of the Indian Constitution provides for reservation of seats for women in Panchayats. Women do get elected, but in reality, the institutions are run by their husbands or male members of their household. The elected Pradhans and Sarpanchs also perhaps feel comfortable not to come forward and contribute towards the upliftment of other women of the locality.
So, legislation alone is not enough. The social structure has to change and the patriarchal hegemony has to change. A strong political will is the order of the day. Confidence building measures need to be initiated to make women feel confident about their abilities. I feel, Education, health-care, and economic empowerment are the key takers on which the country should focus if we want to see the gender laws making any tangible difference in the lives of Indian women.
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