This article is written by Amulya Bhatia from Symbiosis Law School, NOIDA. This article talks about whether laws made for women in India are beneficial or detrimental.
India so proudly calls itself a progressive country but fails to treat and protect all its citizens equally. Patriarchy is a social structure where men are considered to have the primary power and this system prevails in India, resulting in women being treated as the “weaker” sex. The female population is less than the male population in India due to which discrimination and violence against women have unfortunately become an inevitable part of the characteristics of Indian society. From fighting to be treated equally within their own houses, to stepping out of their houses every day despite the fear of not returning, the struggles that women overcome every single day of their lives have been so normalized, that we fail to understand its impact on their well-being. Women in this country are called ‘India’s daughters’ but are treated far from how any daughter would be treated. The state of women has come down to the point that it becomes important to question if anybody even wants to be India’s daughter anymore. It is nothing but unfortunate that we still have to dwell upon the sufficiency of laws to protect women in the 21st century.
There have been attempts on behalf of the government to safeguard women by way of laws and regulations which circle the well-being of women. However, how effective are these laws, and have these laws even been able to bring a change in the general approach of the entire society towards women will be discussed in this article.
Need for women centric laws
Every human being deserves to be granted certain basic human rights. Unfortunately, not all people can enjoy and exercise these human rights equally, one such group being women and girls. All around the world, women are subjected to humiliation and violence, forcing them to fight a struggle that should have never existed in the first place. Whether it is a girl child being killed as soon as they are born, or the horrific incidents of sexual abuse we hear every single day, the state of women in India is beyond dreadful.
There exists a dialectical relationship between the law of the land and the ideology that prevails in society. Women need to stop being looked at as objects who are simply meant to please men and should be looked at as unique individuals with their passion, desires, and most importantly as having an agency of choice which is constantly snatched from them. The first step towards creating a society where a woman does not need to worry about others making decisions for her or violating her privacy and space would be through the legal structure in the country. Proper enactment followed by diligent implementation of women-centric laws is a prerequisite to creating a safer and just atmosphere for women in India and the only way through which these laws would prove to be beneficial.
Prohibition of Child Marriage Act, 2006
Child Marriage in India is a prevalent social evil that refers to the marriage of a person below the age of 18 without their consent. India is a country where daughters are not considered as family, but actually as someone’s property. This is a primary reason for a lot of young girls being married off. A lot of it also has to do with poverty and illiteracy which exists in the country. One example of where traditions of child marriage are followed is Rabari tribespeople who live in the Kutch region in the western state of Gujarat. While change is required at the grass-root level and traditional norms are required to be challenged, the government of India has enacted the Prohibition of Child Marriage Act, 2006.
The objective behind the implementation of this Act is to initiate necessary action in case of receiving information of the solemnization of any child marriage. The legislation gives our support in the form of medical aid, legal aid, counseling, etc. to support children who are victims of child marriage. The persons who can be punished under this legislation include anyone who conducts or abets child marriage, any male adult marrying a child, or any person who is in charge of a child like a parent or a guardian who has actively participated in the process of the marriage of a child.
It is no surprise that women often become victims of child marriage because of the patriarchal structure of the society where daughters are looked at as nothing but burdens who are to be disposed of as soon as possible by way of marriage. However, this Act has particularly been praised as it is gender-neutral. It takes into consideration the possibility of both genders being manipulated into this evil. This law does not hold the parties to child marriage accountable who did not give their consent, but their parents or guardian who cannot make such callous decisions for their children. This law also provides for counseling and maintenance of the girl child who is stuck in the web of child marriage.
India is a country with myriad religions, each religion having its laws which govern them. As a result, it is observed that the personal laws regarding child marriage are somewhat inconsistent with the general law, which is this particular legislature. There are inconsistencies in terms of when a person could be married. For example, Hindu law does not completely prohibit it, while there is a general provision for the same. In P. Venkataramana vs. State(1976), the Andhra Pradesh High Court observed that because Section 13(2)(iv) of the Hindu Marriage Act, 1955 gives a woman the right to repudiate her marriage which is solemnized before the attainment of the age of 15 years, it is conclusive of the intention of the lawmakers that child marriage is not completely prohibited under Hindu law. This legislature has failed to curb child marriages which are taking place across religions. Child marriage is a very sensitive topic and the government must not let religions make their laws on this as per convenience and all religions must be governed for matters concerning child marriage under the ambit of Prohibition of Child Marriage Act, 2006.
Dowry Prohibition Act, 1961
The practice of dowry is widely spread in India. The essence behind this custom is to honor the groom for accepting his wife in the marriage and is given in the form of gifts like household products, cars, and money. However, this custom has now turned into a way to extract as much money as possible from the family of the bride, the failure of which would lead to harassment of the married woman at the hands of her husband and his family. Dowry deaths are not uncommon in Indian villages and households. The inability to pay dowry is one of the root causes of the occurrence of domestic violence in a marriage. As a result, the Dowry Prohibition Act was enacted on May 1, 1961, to curb the practice of giving or receiving dowry to also avoid acts that are consequences of this malpractice. The Act since its enactment has undergone some amendments and the Domestic Violence Act, 2005 was implemented as another layer of legal protection for women who face violence within their households, the majority of which is related to the practice of dowry.
The most important benefit of prohibiting the practice of taking dowry is the creation of family harmony. This Act is an attempt to create awareness about the current dowry system that prevails and make people understand the damaging effects of the same. All are not equal in this society and the main objective behind this is to provide emotional and legal support to the innocent who are affected by this practice but are unaware of their rights. The relationship between Indian families is considered to be sacred and this legislation is also an aim to safeguard the integrity of Indian families. Stringent laws regarding this also create an environment of deterrence to discourage the practice of dowry by making sure that people understand the consequences of committing this dishonorable practice in the name of rituals.
In the year 2020, there were nearly 7000 dowry deaths which only go to show the inadequacy of the Act in question to curb this custom. For the complete eradication of the dowry system, there is a requirement to fight at the grass-root level. The government might have adopted anti-dowry measures but they have proven to be insufficient and this is a major criticism that this Act has faced. Moreover, the lack of proper implementation of this Act is another critique that leads to the failure of the enactment of the Dowry Prohibition Act, 1961. Along with this, there is also scope for women to misuse this Act and that is also a major concern for those who are dwelling upon the adequacy of this legislature to fulfill the purpose with which it was enacted.
Domestic Violence Act, 2005
More often than not, it is the women and children who are subjected and most vulnerable to domestic violence due to the patriarchal structure of the society we live in. This Domestic Violence Act, 2005 is enforced to ensure that a female victim of domestic violence can receive a four-fold support system, which would include residence orders, custody orders, protection orders, and a defendant’s money supply. In Meenavathi vs. Senthamarai Selvi (2008), it was held that a complaint under this Act cannot be filed against a woman, and women cannot be asked to be removed from the household of the victim, which goes to show that this Act is made for the protection of women.
Some of the main causes for women being subjected to violence, as seen since time immemorial, are trivial arguments with partners, refusal to engage in physical activity with them, non-payment of dowry, or even the inability to provide a male child. The main causes of battering women by their husbands include an argument with the partner, refusing to have sex with him, neglecting children, leaving the house without telling the partner, not cooking properly or on time, etc. In certain cases, female infertility often leads to family members being targeted. The basic idea behind the implementation of the Domestic Violence Act, 2005 is to secure those suffering because of the same.
Even in the 21st century, live-in relationships are looked down upon due to ancient beliefs. However, the Domestic Violence Act, 2005 provides for violence within a shared household and such a shared household also takes into account live-in relationships between a man and woman through Section 2(f) of the Domestic Violence Act, 2005. It was in the landmark judgment of Lata Singh v. the State of U.P. (2006) where it was recognized that even though a live-in relation between a heterosexual couple may seem immoral, but it is not illegal and thereby must be recognized under the Act. Most importantly, domestic violence is not just physical and has a bearing on the victim’s mental health but mental health is not given enough consideration in India. However, this legislation gives provision for physical abuse, verbal abuse, emotional abuse as well as economical abuse. The Act isn’t just about punishing people for the act of domestic violence but is implemented from a holistic perspective, putting the well-being of the victim first. It provides for counseling of the victim after the occurrence of the incident. In most situations, women are harassed not just by their partners, but also by the families of their partners and the Act also provides for such a situation.
The Act assumes that it is only women who can be victims. Moreover, the Act also assumes that there are only two genders, like most women-centric laws in India. As per Section 32(2) of the Act, it is stated that the statement of the woman who is the victim will be considered as true without any need for supporting evidence. This increases the possibility of misuse of this Act.
One of the major concerns that have been expressed regarding this Act is its lack of inclusion of mistresses. Such women too have rights and do not deserve to be harassed. However, unfortunately, in case they face violence by their partners, they cannot seek help under the purview of the Domestic Violence Act, 2005. The major concern is regarding the lack of infrastructure to ensure that the Act is not misused. It has been over 15 years since this legislation came into place and the world has changed a lot since then. Therefore, it is important for the laws of the country to also evolve with time.
Maternity Benefit Amendment Act, 2017
The work culture in today’s time requires the workers to be on top of their game, stay competitive and adhere to all possible deadlines with due diligence. Taking care of a newborn child along with the added pressure of performing the best on the work front can be exhausting and can lead to an inability to create a balance between the professional and personal life of the woman. This further creates inequality in terms of the work dynamic between men and women by way of taking away opportunities from women because of their absence at work as a direct consequence of their obligations. The Maternity Benefit Amendment Act 2017 has been implemented with the idea of safeguarding new mothers and avoiding any kind of backlash that they may face because of becoming a mother. It has also been proven that when the mother takes out time to bond with her infant, it improves her physical and mental health. The amendment made to this Act in 2017 was a progressive one and can be viewed as a step towards creating a more equal and safe workspace for women, doing away with the age-old patriarchal beliefs.
Maternity leave through the amendment made to this Act has now been stretched out to 26 weeks instead of 12 and provision has been made for women to work from home in those situations where it is possible so that they can properly maintain a balance between their work and personal responsibilities. The woman on maternity leave will receive the average daily wage for the period for which she is on leave. No employee can be terminated while they are on maternity leave as per the rules of this legislation. The Act before the amendment only provided for women who give birth to a child. However, after the amendment, there is a provision for mothers who adopt a child below a certain age. On top of this, the Act also requires the provision of compulsory crèche offices and mothers to be allowed to visit at least four times a day.
One of the major disadvantages or fallacies in this Act is the assumption that gender is binary, meaning that there exist only two genders, either men or women. There is no provision for those who do not fit into these two genders and are having a child. Moreover, even for two genders, this Act is not gender-neutral. There is no mention of paternity leave, implying that the duty of taking care of a child is that of a mother, solely. The Act may appear to be progressive on the face of it under the facade of wanting women to be able to manage both work and family and the government helping women to do the same, but this Act is promoting the idea that a woman must maintain a balance between the two, while a man is simply supposed to work. Also that an ideal woman can manage both work and family when that is far from the truth. It is the 21st century, and laws in this time need to be in line with the changing thoughts and beliefs instead of pushing forward the age-old patriarchal ideas, expecting the current generation to follow the same.
Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) – POSH Act, 2013
Sexual harassment has been described as unwelcoming or unwanted behavior by a person which causes discomfort or humiliation. Sexual harassment at a workplace becomes a concern since not only affects the terms and conditions of employment failing to create a safe environment, but also has a huge bearing on the working environment of an organization as it affects the working abilities of the person harassed. Sexual harassment at the workplace is a major problem also because it is a leading reason for fewer women choosing to work.
Women are more vulnerable to sexual harassment because they lack the power due to the societal construct of how a woman should be. Due to this, those harassed in the workplace end up resigning to their fate instead of raising their voice. This also has a lot to do with the fear of being ostracized by others or worse, not being believed. Since women do not have the proper mediums to go and complain, they tend to stay quiet and suffer.
Keeping this in mind, the legislature formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The need for such legislation was observed for the first time by the Hon’ble Supreme Court in Vishaka v State of Rajasthan (1997). It was in this case that the Court issued guidelines that were to be followed at all workplaces since there was an absence of any law providing measures to keep a check on the issues of sexual harassment at the workplace. This was a landmark case for the protection of women against sexual harassment at the workplace. The Hon’ble Supreme Court held that sexual harassment of women at the workplace violates her fundamental rights under Articles 14,15,19 and 21 of the Constitution. The guidelines laid down by the Supreme Court were to be treated as the law declared under Article 141 of the Constitution. However, it was only in the year 2013 that these guidelines were given the structure of proper legislation.
A survey was conducted in 2018, ‘Effectiveness of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’ through which it was observed that more than 75% of the organizations were complying with the regulation of the Act. In addition to this, workers now felt more safe and comfortable in their work environment. This Act is also a positive enhancement of the Vishaka guidelines. It includes within its ambit verbal harassment as well which is seen as a huge advancement. Training of employees has been compulsorily made a part of the organization which helps in educating employees, mitigating risk related to legal liability, and also floats an idea within the organization that indecent behavior will not be tolerated or excused. The Act has most definitely received a lot of support from the public at large which also creates deterrence in the minds of the organizations that the media and public are keeping a close check on their activities. The most important benefit of this Act is that employee productivity increases as no employee is working in fear or avoiding work due to being uncomfortable at work.
It has been observed in the past that while the number of women facing harassment at work is quite high, some men also undergo the same. Unfortunately, men who face sexual harassment at the workplace cannot seek help from authorities by way of this Act since it only provides cover for female workers. A major criticism for this Act is that it is not gender-neutral as it doesn’t just ignore men as victims, but fails to create a safe space for those who do not identify as either a man or a woman. Another criticism that the Act has faced is the time limit on when a victim can file a complaint. Sexual harassment has heavy consequences on the mental health of the victim and the time frame within which a complaint can be made must be extended considering the state of the persons who have suffered. The Act also lacks clarity in terms of the process of making complaints. Moreover, there is no provision in case one wants to make a complaint anonymously. Other than this, it must also provide for laws to make sure that the guidelines of this Act are being properly implemented within organizations.
Equal Remuneration Act, 1976
Women in India have been discriminated against since time immemorial, whether it is in terms of their rights, or what they can wear, or what opportunities they get. Imagine that you are a woman working in a factory, and you know that your work is of great efficiency. What if your male counterpart at work gets paid double for doing half the work that you do? Gender discrimination is not uncommon at the work front and to tackle the same, the Equal Remuneration Act, 1976 was enacted. The basic objective behind the implementation of this Act is the same amount of remuneration for both men and women for the same work done. What must be noted is that this does not mean that any preferential treatment is being given to women, but simply that women and men are at the same pedestal at work and will be treated equally. This provides a legal remedy to women who may not be paid adequately as opposed to the work they are doing simply because of their gender. This legislature is also in line with Article 14 of the Indian Constitution which thrives for equality within the Indian subcontinent.
This Act is a great way to bridge the economic gap between men and women which has only increased with time and is most certainly a step towards making India a country where men and women are treated equally. Equal treatment is not just limited to equal pay but extends to the way employees are treated, the basis on which they are recruited or promoted and the Act governs all these procedures to ensure a fair and just environment for all employees. If implemented properly, this Act has the power to change the way women are looked at in the professional world.
The first problem is the lack of proper execution of this Act which has the potential to change current societal norms. There is no system of checks and balances to ensure that the guidelines laid down through this legislature are followed by employers. More importantly, this Act very conveniently fails to take into account the other backlashes that women have to face to be able to work in the misogynist setup of this society. For example, a man has the liberty to work late till night and earn more money, but the same cannot be said for a woman. Such inequalities are not taken into account under the purview of this Act which shows the narrow-mindedness with which this piece of law was enacted.
Indian Penal Code, 1860
Other than the specific legislatures which have been implemented for the protection and well being of women in India, the legislatures that have been discussed above in detail, there are also various provisions under the purview of the Indian Penal Code, 1860 that provide for heinous crimes against women which women are subjected to every day, like rape, kidnapping, stalking, voyeurism, and the punishment for the same is also specified within the code. These laws must be stringent to create deterrence in the minds of the public and protect the women of this country.
354: Assault or criminal force to woman with intent to outrage her modesty
The Section states that anyone who assaults or uses criminal force on any woman, to outrage the modesty of knowing that their actions would in turn outrage the woman shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
354A: Sexual harassment and Punishment for sexual harassment
This Section lays down the acts which would amount to sexual harassment which are as follows:
1. Any unwelcoming physical contact and advances made
2. A demand made for sexual favors
3. Showing pornography to a woman against her will
4. Making sexual remarks
The Section also states that if a man commits an act mentioned in the first three points mentioned above, they shall be punished with imprisonment that may extend up to three years, or fine, or both. If a man commits the act mentioned in point 4, they shall be punished with imprisonment that may extend up to one year, or fine or both.
354B: Assault or use of criminal force to woman with intent to disrobe
If a man assaults or uses criminal force on any woman or abets any such act to disrobe the woman or compel her to be naked, they shall be punished with imprisonment for a term, not than three years but which may extend to seven years, and shall also be liable to fine.
According to this Section, if a man watches, or captures the image of a woman engaging in a private act in circumstances when a woman is under the presumption that she is not being observed by any other individual, the man who captures or even disseminates such image shall be punished on first conviction with imprisonment for a term not less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment for a term not less than three years, but which may extend to seven years, and shall also be liable to fine.
This Section states that if a man follows a woman, contacts or attempts to contact her for personal interaction irrespective of the woman showing a clear disinterest, or the man monitors a woman through the internet, email, or any other form of electronic communication, it would amount to stalking. However, if such communication is made to investigate a crime but authorization of the State, or in compliance with laws, or if the same is under circumstances considered reasonable, it would not amount to stalking.
On first conviction for the offense, the man would be punished with imprisonment for a term which may extend up to three years and shall also be liable to a fine. On second or subsequent convictions, the punishment shall be imprisonment which may extend up to five years along with a fine.
366A: Procuration of a minor girl
If a person induces a girl who is under eighteen years of age to go or do any act with the intention or knowing this will result in the girl being forced into illicit intercourse shall be punishable with imprisonment which may extend to ten years along with a fine.
366B: Importation of girl from a foreign country
Any person who imports a girl to India from any foreign country, who is under the age of twenty-one years with the intention, or knowing this act will result in forceful intercourse of the girl without her consent shall be punished with imprisonment which may extend up to ten years along with a fine.
There are certain circumstances laid down under this Section that describe instances when the act of ‘rape’ occurs by a man:
- When the act is against the will of a woman.
- When the act takes place without the consent of the woman.
- When consent exists, such consent has been obtained by putting the woman or any person she may be interested in, in fear of death or hurt.
- When consent is obtained, however, the man knows that he is not her husband and that the woman has only given her consent as she is under the presumption that the man is her husband.
- When the woman provides her consent, however, at the time of giving this consent, the woman is unable to understand the nature and consequences of the act to which she has provided consent due to unsoundness of mind or intoxication of any kind.
- When she is under the age of fourteen, irrespective of whether the girl has provided her consent or not.
An exception to this is sexual intercourse between a husband and a wife, where the wife is not under the age of thirteen. Clearly, the definition of rape excludes any sexual activity between a husband and a wife. This means that even in the 21st century, marital rape is still not criminalized. RIT Foundation vs Union of India (2015) started with petitions filed in 2015 and then was heard before the Delhi High Court as an attempt to raise questions about marital rape and criminalize the same. This Section has been defined as patriarchal and ignorant of the harsh realities of the society we live in.
376: Punishment for rape
Section 376(1) lays down the punishment for the offense of rape as rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
Section 376(2) mentioned cases of aggravated rape where the man is in a dominant position under his position and has authority which plays a vital role in altering the consent of a woman.
376A: Punishment for causing death or resulting in persistent vegetative state of victim
When someone commits an offense which is punishable under Section 376, as mentioned above, due to which it inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term not less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
376B: Sexual intercourse by husband upon his wife during separation
Sexual intercourse between a man and woman, who is living separately from him by virtue of a decree of separation or under any custom or usage without her consent, shall be punished with imprisonment for a term which may extend to two years and shall also be liable to fine.
376C: Sexual intercourse by a person in authority
This Section states that when a person is in a position of authority or a fiduciary relationship, or a public servant, or a superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time being in force, or a women’s or children’s institution or on the management of a hospital or being on the staff of a hospital, and abuses such position or fiduciary relationship to seduce any woman to have sexual intercourse with him, the same will not amount to rape but shall be punishable with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.
A major criticism of this Section is based on the use of the term ‘sexual intercourse’, implying that both parties involved have provided their consent and the lack of understanding of how a man in authority is in a position to dominate and alter the consent of the woman, in which case it should still amount to rape. This came into the discussion after the Swami Chinmayanand rape case in 2019.
376D: Gang rape
This Section states that when a woman is raped by one or more persons who have a common intention, each person shall be convicted of having committed the offense of rape and thereby shall be punished with rigorous imprisonment for a term not less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine. The fine imposed must be reasonable keeping in mind the medical expenses and rehabilitation of the victim.
498A: Husband or relative of husband of a woman subjecting her to cruelty
If the husband or the relatives of the husband subject a woman to cruelty, they shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine. Cruelty for the purpose of this Section has been defined as any conduct to incite a woman to commit suicide or cause grave danger to herself or harassment regarding coercing her or any person related to her to meet any unlawful demand for property or valuable security.
Section 67 of Information Technology Act, 2000
This Section states that any person who published or transmits or attempts to publish any content or material which is lascivious or appeals to the prurient interest shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to Rs 10 lakh.
Crimes against women essentially mean any direct or indirect physical or mental harassment to women. On average, one woman reports raping every 15 minutes in India. This is disheartening for a country that claims to pay tribute to and pray to women as goddesses as a part of their customs and traditions. The question that arises here is whether just the creation or enactment of laws is enough to call such laws beneficial for women. There is no doubt that women-centric laws are of great need in today’s time and age and are indispensable to protect the interest of women, but what good are those laws if they are not implemented properly. These laws are misused in a two-fold manner; either by not being able to provide justice to women because of poor execution of the laws or women themselves misusing these for their benefit to promote malafide agendas. If they were to be implemented properly, without the possibility of any loopholes, the misuse of the same would be next to impossible. The idea behind these laws is to lift women and not bring down any other gender. Any innocent person being punished is a gross violation of the principles of natural justice and also ruins the sanctity of these laws.
Therefore, along with enactment, the government of India also needs to put focus on the diligent implementation of these women-centric laws for them to truly prove to be beneficial for society.
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