Gender Laws In India

Introduction

“The day will come when men will recognize woman as his peer, not only at the fireside but in councils of the nations. Then and not until then, will there be the perfect comradeship, the ideal union between sexes that shall result in the highest development of the race.” – Susan B. Anthony (American social reformer and women’s right activists).

With the patriarchy being so deeply embedded in both our mindset and our laws, Indians have long accepted the current social situation as the default. Even in the most progressive households, daughters have far fewer rights than sons, from playtime and education to choosing a life partner and inheriting property. Girls are expected to assist in household duties as soon as they reach the age of consent – largely unpaid and unrecognized tasks that they are expected to complete throughout their lives. This unequal distribution of resources and opportunities persists into adulthood, with significant wage disparities and indiscriminate sexism in daily life. Similarly, boys who watch their mothers do all of the housework will naturally expect their wives and daughters to do the same.

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Gender inequality and violence have never been more widely condemned in India. The shocking increase in crimes against women, particularly after December 2012 gang rape in New Delhi, has sparked widespread protests and calls for change across the country. The incident, which is widely regarded as a historic moment in India’s fight for women’s rights, has also resulted in a few reformative changes in the criminal justice system, including provisions for stricter laws and faster convictions. Women’s participation in the public sphere has grown in the modern era. More and more Indian women are entering the workforce and working in business enterprises, banking, trade, international forums, and multi-national careers such as advertising and fashion, and have proven their worth as legislators, bureaucrats, judges, lawyers, doctors, engineers, accountants, and so on. Women seek strong laws and legislation in order to be strong stakeholders in nation-building. The government, led by Prime Minister Sh. Narendra Modi ji has been instrumental in elevating the status of Indian women by enacting a number of women-centric laws and legal reforms in India.

Political and Historical background of gender laws in India

Social, cultural, and political movements have had a significant impact on eliminating gender disparities and ensuring women’s rights. History has shown that society has changed gradually over time, and social reform movements have instilled in us the principles of liberty and equality. With the passage of time, the end of monarchy and feudalism, and the rise of democracy in politics, the international community and policymakers have recognized the need for a more egalitarian society that protects women’s rights. During the ancient period, evidence of mother goddess worship can be found in India’s ancient Indus valley civilization. As a result, the significance of a woman as a mother can be traced. It is believed that during the Rig Vedic period, the position of wife was honored and women’s position was acknowledged, particularly in the performance of religious ceremonies. Young girls’ education was regarded as an important prerequisite for marriage. The dowry system was not prevalent.

Over the course of time, the position of women deteriorated. The medieval period was dominated by Muslim rulers. With the arrival of Muslims in India, Indian women’s social movement was restricted. They were not allowed to attend public functions and were not allowed to participate in religious functions on equal terms with men. Female infanticide, Sati, child marriages, the Purdah system or zenana (women’s seclusion), Jauhar, and child marriage were all introduced. During this period the practice of dowry was prevalent. It was during the British rule in India, that women’s empowerment and upliftment began. Though the British were initially hesitant to interfere with the social and religious customs of the various religious communities, several social reformers such as Raja Ram Mohan Roy, Eshwar Chandra Vidyasagar, and Jyotiba Phule fought for women’s rights and education while also attempting to end the society’s evil customs and traditions. Their constant battles compelled the British government to outlaw Sati (widow immolation), allow widow remarriage, prohibit child marriage, and reduce female illiteracy.

While the struggle for nationalism altered the legal landscape of women’s rights during the colonial era, the post-colonial era in India has been marked by sweeping changes such as globalization, neoliberal policies, and rapid technological development. This has increased women’s participation in the public sphere. More Indian women than ever before are involved in business enterprises, international platforms, and multi-national careers such as advertising and fashion, and have better opportunities as a result of the free movement of goods, capital, and ideas.

Important Features of Gender Laws in India

In terms of gender equality, the Indian Constitution made things a little easier for women. Gender equality is mentioned in the Constitution’s Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles of State Policy. The Constitution not only guarantees women’s empowerment, but it also encourages the state to implement various equality and empowerment measures in favor of women.  The Constitution is the Supreme Law of the country.  Articles 14 and 15 protect the rights of women by ensuring equality and non-discrimination against Indians, among others, on the basis of gender. Article 16 guarantees equal opportunity in public employment regardless of gender. This article also includes a provision that allows the state to take affirmative action for women, such as reserving seats and positions in government jobs for them. The 73rd and 74th amendments to the Constitution ensured that seats in rural and urban local bodies were reserved for women in order to give them a greater political voice and empowerment. Article 39 provides equal pay for equal work to men and women. Article 51A protects women’s dignity by making it a duty for every citizen of the country to renounce practices derogatory to women’s dignity.

The country’s various gender laws have attempted to address practices that have confined women in society. These practices stem from centuries of social customs and traditions that have regarded women as inferior to men and exploited them throughout their lives. Women have been exploited at home, away from home, and at work. They have been denied education and adequate health care. As a result, gender laws in India have attempted to include provisions addressing these critical socio-political issues. These are the most notable aspects of India’s gender laws.

Socio-Legal status of women in modern India

Since independence, constitutional provisions, women-centric legislations, social welfare initiatives, policies, and practices (that aim to improve the socioeconomic status of women in India) have empowered women and provided them with security against injustice and crime.

Aside from constitutional provisions, laws have been enacted to address various types of injustice against women, including laws against dowry (Dowry Prohibition Act, 1961), domestic violence (Protection of Women from Domestic Violence Act, 2005), sexual harassment at work (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. Section 498A of the Indian Penal Code has been added to prevent cruelty to women (1860). Similarly, strict penal provisions have been incorporated into Section 326A of the IPC to prevent acid attacks. The Factories Act has been amended to provide better working conditions. The Equal Remuneration Act of 1976 ensures equal pay for men and women workers and addresses gender discrimination. Women’s wages and employment are also guaranteed under the Maternity Benefit Act of 1961, both before and after pregnancy confinement. Polygamous marriages are prohibited under the Hindu Marriage Act of 1955, and there are special provisions for divorce. Daughters are granted property rights under the Hindu Succession Act of 1956. The Law of Adoption and Maintenance Act of 1956 provides for the support of wives, widows, minor children, and poor parents, with a focus on women. Several social welfare initiatives, policies, and approaches have also been implemented to reduce gender disparities.

However, it is not true that such broad legal and social reforms have significantly improved women’s positions. For example, dowry is still prevalent. The cases of marital rape and domestic violence are hardly reported. This calls for a change in social structure and the empowerment of women through education.

Gender Laws: Judicial and Legislative Interventions

Several articles of the Indian Constitution and a slew of legislation and various judicial pronouncements in India advance the cause of gender justice and women’s empowerment. Some of the judgments that helped evolve the gender laws are-

“Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable.  It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men”. This was pointed out by the Hon’ble Supreme Court in State of Madhya Pradesh v. Babulal AIR 2008 SC 582.

Reservation of seats for women in schools and colleges has been upheld by the courts on a few occasions, such as in the Padmaraj Samarendra Vs. State of Bihar (1978) case, where the reservation of seats in a medical college for girls was challenged as discriminatory, but the court ruled in favour of reservation. This decision was made in accordance with Article 15(3) of the constitution, which gives the state the authority to make reservations for women and children if it deems it necessary.

In the case of Vishaka and Ors Vs. The State of Rajasthan and Ors, the Supreme Court delivered one of the most powerful judgements on the prevention of sexual abuse at work (1997). Vishaka and a women’s rights organisation filed the petition after a social worker in Rajasthan was gang-raped for opposing child marriage. This case resulted in the famous ‘Vishaka Guidelines,’ which define sexual harassment at work and provide guidelines for dealing with it. The decision was made in light of various international conventions that promote gender equality, the right to work, and dignity. Articles 14, 15, 19, and 21 of our constitution also guarantee these rights. These guidelines were regarded as a significant step forward in the advancement of women.

In Anuj Garg and Others V. Hotel Association of India and Others: (2008) 3 SCC 1, the Supreme Court declared that a ban on women working in establishments where liquor was served was discriminatory and violated Articles 14, 15, 19, and 21 of the Constitution. The Supreme Court also stated that with the advent of the modern state, new security models must be developed. It was suggested that there could be a setting in which the cost of security in the establishment would be shared by the State and the employer.

The government has recently worked hard through its recent policy redesign to make gender justice accommodating and considerate enough to include all related concerns. In the year 2001, the National Policy for the Empowerment of Women was launched with the goal of advancing, developing, and empowering women. The policy was widely disseminated in order to encourage active participation of all stakeholders in order to achieve its objectives. The government has launched a number of programmes in recent years to address and advance such goals.

Since 1986-87, the Ministry of Women and Child Development has administered the ‘Support to Training and Employment Programme for Women (STEP) Scheme’ as a ‘Central Sector Scheme’. The STEP Scheme aims to provide women with employability skills as well as competencies and skills that enable women to become self-employed/entrepreneurs. The Scheme is intended to benefit women in the country who are 16 years of age or older. The Rashtriya Mahila Kosh (National Credit Fund for Women) was established in 1993 to provide credit to lower-income women in India. In this regard, the government’s investment in skill training through programmes such as the Deen Dayal Upadhyaya Grameen Kaushalya Yojana is commendable.

Recently in March 2016, the Ministry of Women and Child Development also launched “Mahila E-Haat,” a bilingual portal. This is a one-of-a-kind direct online marketing platform that uses technology to help women entrepreneurs. This exclusive portal is the country’s first to offer a dedicated marketing platform for women. It aims to increase women’s financial inclusion and economic empowerment.

Thus, the judiciary and legislature have recognized the plight of women and the injustices they face in various fields and have attempted to address them by developing guidelines and policies and issuing directives to governments. As a result, women-centric legislation has been drafted.

Conclusion

Following the promulgation of the Criminal Law Amendment Act and the POSH Act in 2013, there have been several other changes in law for the welfare, security, and benefit of women, as well as with the goal of eliminating gender-based discrimination, one of the fundamentals of the Indian Constitution.

The Indian judiciary has made numerous ground-breaking decisions to ensure that the provisions are not only on paper.

These include reserving seats for women in the workplace, including educational institutions. The Andhra Pradesh High Court allowed reservation of jobs for women in public employment in the case of Government of Andhra Pradesh vs. Vijayakumar (1995), thus broadening the scope of article 15(3) to include the entire range of state activity, including employment. This is a strong affirmative action towards substantive equality, and it was passed despite the claim that it contradicts meritocracy.

The Supreme Court has also expanded the scope of this article to interpret Section 125 of the Criminal Procedure Code, which provides for the maintenance of wives, children, and parents. The Supreme Court interpreted the section to apply to a divorced woman’s right to maintenance in Rohtash Singh vs. Ramendri Smt. (2000), admitting that a woman becomes destitute after divorce.

The Supreme Court’s protectionist stance is perhaps best summed up in the case of Sanaboina Satyanarayana vs. Government of Andhra Pradesh (2003), where the court stated: “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.”[1]

As we have seen, the Supreme Court has taken several initiatives and in some cases issued directives to the government, but the practical implementation of these laws is required to ensure women’s equality.

Many Indian women face numerous challenges, including poverty, female feticide, sexual harassment, a lack of education, and job skill training. The World Economic Forum’s (WEF) Global Gender Gap Index, 2018 ranks India 108th out of 149 countries. Much work remains to be done to ensure that Indian women have equal rights and that India is defined by inclusive citizenship rather than exclusive citizenship.

Author: Tisha Sachdeva, A Student at Pravin Gandhi College of Law, Mumbai, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.

References

1. https://blog.ipleaders.in/historical-and-political-journey-of-women-laws-gender-laws/
2. https://www.jstor.org/stable/26552743?read-now=1&seq=4#page_scan_tab_contents
3. https://blog.ipleaders.in/legal-provisions-gender-equality-analysis/
4. https://unu.edu/publications/articles/achieving-gender-equality-in-india-what-works-and-what-doesnt.html
5. https://unu.edu/publications/articles/achieving-gender-equality-in-india-what-works-and-what-doesnt.html
6. https://aquaknow.jrc.ec.europa.eu/en/gender-water-and-development/15666
7. https://aquaknow.jrc.ec.europa.eu/en/gender-water-and-development/15666
8. https://indiafoundation.in/articles-and-commentaries/gender-justice-and-women-empowerment-judicial-and-legislative-interventions/
9. https://indiafoundation.in/articles-and-commentaries/gender-justice-and-women-empowerment-judicial-and-legislative-interventions/
10. https://indiafoundation.in/articles-and-commentaries/gender-justice-and-women-empowerment-judicial-and-legislative-interventions/

[1] https://blog.ipleaders.in/historical-and-political-journey-of-women-laws-gender-laws/