Hey, this is Pranit Bhagat pursuing III BA LLB from ILS Law College, Pune. In this article, we shall discuss the various dimensions regarding the rights of women and personal laws in India.
INTRODUCTION
The concept of equality, however, requires equity. The history of social development is also a history of inequality. Inequality between nations, religions, ethnicity, class, caste, race, and sexuality. However, the question of women’s rights looms large, cutting through all the layers of social stratification. The feminist struggle for equal rights has been paved through legislation, be it the Suffragette movement and the right to vote, to employment rights, property rights, rights governing divorce and marriage to child-care and medicine – legislation based on equal rights affects the very values of society, impacting not just the way we vote, but the way we work, live and function as a family, the way we access education, healthcare, and justice. In India, the constitutionally guaranteed equality for women is often contradictory to the harsh social reality of the land and its cultural norms. The struggle for women’s equality began in India in the 20th century, during the struggle for Independence. In the fight against the British, western-educated leaders like B.R.Ambedkar, Mahatma Gandhi, Raja Ram Mohan Roy, and Savitribai Phule encouraged women to step away from their homes and hearths and enter the public sphere in the fight for Independence. Indian values, nationalism, and cultural heritage were glorified through the symbolism of ‘Mother India’. Perhaps for the first time in India, the idea that a woman is part of the larger Indian tapestry as a legal citizen took root. The inclusion of the female citizen into the public sphere necessitated citizenship rights and changes in the law such as the right to education, inheritance rights, the abolition of sati and polygamy as well as the allowance for the widow- remarriage. While a struggle for nationalism changed the legal landscape of women’s rights through the colonial era, the post-colonial era in India has been marked by sweeping changes such as globalization, neo-liberal policies, and the leaps and bounds in technological development. This has expanded women’s participation in the public sphere. More Indian women are engaged in business enterprises, international platforms, multi-national careers like advertising and fashion, and have better opportunities than ever because of the free movement of goods, capital, and ideas. Ideas that question the very nature of laws. Has our legal system kept up with social change? Does our constitution have provisions for equality or equity? Do rights guarantee justice? Is citizenship gendered? The following article gives a brief overview of the current spate of women-centric legal reform in India and concludes with a discussion on its socio-cultural impact on the very fabric of Indian citizenship.
Judicial Protection for Women’s Rights
The nation-wide outrage over the brutal gang rape and subsequent death of Jyoti Singh in New Delhi was the driving force behind the promulgation of the Criminal Law (Amendment) Act, 2013 (“Criminal Law Amendment Act“). The Criminal Law Amendment Act, 2013 that came into force on February 3, 2013, amended as well as inserted new sections in the Indian Penal Code concerning sexual offences. Some of the new offences recognized by the Criminal Law Amendment Act are acid attacks, voyeurism, stalking, intentional disrobing of women, and sexual harassment. In 2013, India adopted its first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act“) enacted by the Ministry of Women and Child Development, India. Workplace sexual harassment is a form of gender discrimination that violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15, and 21 of the Constitution of India. The POSH Act had been enacted to prevent and protect women against workplace sexual harassment (which includes the creation of a hostile work environment) and to address complaints of sexual harassment.
Maternity Benefit (Amendment) Act, 2017 (“Maternity Amendment”)
2017 witnessed the bold amendment to the Maternity Benefit Act, 1961 (“Maternity Act“). The Maternity Amendment extends paid maternity leave for women employees with less than two surviving children, from the original twelve (12) weeks to twenty-six (26) weeks. A maximum of eight (8) weeks can be taken before the expected delivery date and the remaining after childbirth. Women expecting their third child were also provided with the right to take twelve(12) weeks of paid maternity leave—six (6) weeks before childbirth and six after. The Maternity Amendment provided for mothers adopting a child below three months of age, or “commissioning mothers” to take twelve (12) weeks of maternity leave from the date of receiving the child. The Maternity Amendment enables mothers to work from home after completing twenty-six (26) weeks of leave subject to their work profiles and the employer’s consent. The Maternity Amendment also mandates establishments employing 50 or more employees to have a creche which is required to have prescribed facilities and amenities. Women employees have a right to visit the crèche four times a day, including during their rest interval.
Decriminalizing of Adultery
On September 27, 2018, a five-judge bench of the Supreme Court of India (“Supreme Court“) struck down another colonial-era law, Section 497 of the Indian Penal Code that prescribed maximum imprisonment of five years to men for adultery.
Unlike India’s sexual assault laws, which are linked with the consent of the woman, the 158-year-old adultery law did not consider the woman’s will. A husband can prosecute the man who had sexual relations with his wife, even if the wife was a voluntary participant in the act. Though, the women can’t be punished under this provision.
A petition to strike down this law was argued in the Supreme Court. It said that the law discriminated against men by only holding them liable for extra-marital relationships while treating women like objects. All five Supreme Court judges after hearing their case said that the law was archaic, arbitrary, and unconstitutional. However, The Court clarified that adultery will be a ground for divorce.
Dipak Misra, the then Chief Justice of India said that it’s time to say that (a) husband is not the master of (his) wife. Women should be treated equally along with men. Justice R F Nariman wrote a separate judgment to concur with the judgments of Chief Justice Dipak Misra and Justice Khanwilkar, stating that Section 497 was an archaic provision that had lost its rationale. Justice Nariman observed that Ancient notion of man being the perpetrator and woman being a victim of adultery no longer holds good.
Justice Chandrachud in his separate but concurring opinion said that Section 497 was destructive to woman’s dignity and also emphasized that “Respect for sexual autonomy must be emphasized”.”Section 497 perpetrates subordinate nature of woman in a marriage”, were his concluding remarks. Justice Indu Malhotra noted in her judgment that Section institutionalized discrimination.
This was the second colonial-era law struck down by the Supreme Court after it struck down the 157-year-old law which criminalized gay sex in India.
Triple Talaq
“Triple Talaq” or Instant Talaq or “Talaq-e-Biddat” are the different forms of Islamic practices which allow men to divorce their wives immediately by just saying the word “talaq” (divorce) three times before their wives. The Supreme Court, once again in its recent landmark judgment of Sayarabano Vs. Union of India pronounced on August 22, 2017, set aside the practice of “Triple Talaq”. The bench declared Triple Talaq as unconstitutional by a 3:2 majority. The Judgment by the minority bench also further directed the Government of Union of India to lay proper legislation in order to regularize the proceedings of divorce as per Shariat law. Taking into consideration the views of the Supreme Court, the Muslim Women (Protection of Rights on Marriage) Bill, 2018 (“Triple Talaq Bill“) was introduced in Lok Sabha by the Minister of Law and Justice, in December 2018. Better known as the Triple Talaq Bill, the bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. The Triple Talaq Bill made a declaration of talaq being a cognizable offence, attracting up to three years’ imprisonment and a fine.
The offence will be considered as a cognizable offence only if information relating to the said offence is given by
- the married woman (against whom talaq has been declared), or
- Any person related to her by blood or marriage.
The Triple Talaq Bill is pending the nod of the Rajya Sabha. In the interim period, an ordinance penalizing the act of triple talaq has been promulgated. The ordinance making the practice of instant triple talaq, a penal offence has been issued for a third time in February 2019.
Sabrimala Issue
The Supreme Court on September 28, 2019, delivered one of the most keenly awaited judgments in the Sabarimala case. The Supreme Court permitted entry of women of all age groups to the Sabarimala temple by a 4:1 majority stating that ‘devotion cannot be subjected to gender discrimination’. The lone woman on the bench, Justice Indu Malhotra, dissented. Then Chief Justice Dipak Misra, Justice R F Nariman, Justice AM Khanwilkar and Justice DY Chandrachud constituted the majority. “Woman is not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump faith. Biological or physiological reasons cannot be accepted in freedom for the faith”, said Chief Justice Dipak Misra while reading portions of the judgment written out for himself and Justice AM Khanwilkar. This stigmatizes and stereotypes women, he analyzed. Justice R F Nariman held that the customs and usages of Sabarimala temple must yield to the fundamental right of women to worship in the temple.
Women’s Reservation Bill
Women’s Reservation Bill or the Constitution (108th Amendment) Bill proposes to amend the Constitution of India to reserve 33 per cent of all seats in the Lower House Lok Sabha, and in all state legislative assemblies for women. The seats to be reserved in the rotation will be determined by a draw of lots in such a way that a seat shall be reserved only once in three consecutive general elections. The Upper House, Rajya Sabha passed the bill on March 9, 2010. As of today, the Lok Sabha has not yet voted on the bill and the bill still remains in limbo. If Lok Sabha were to approve the bill, it would have to be passed by half of India’s state legislatures and signed by the President.
CONCLUSION
Subsequent to the year 2013 that witnessed the promulgation of the Criminal Law Amendment Act and the POSH Act, there have been several other changes in the law that have been for the welfare, security, and benefit of women as well as with the aim to eliminate gender-based discrimination, one of the fundamentals of the Constitution of India. As we have seen the Supreme Court, has taken several initiatives and in some cases issued directions to the Government as well, but it is the practical implementation of these laws that is required to ensure equality of women.There are a great many difficulties that many Indian women face, which include poverty, female feticide, sexual harassment, lack of education, job skill training. India still ranks 108th among 149 countries in the World Economic Forum’s (WEF) Global Gender Gap Index, 2018. A lot needs to be done to ensure that Indian women have equal rights and we see an India defined by inclusive citizenship rather than exclusive.