In this blog post I will try and as comprehensively as is possible in a blog post, assess whether our Indian Legal system reflects the true spirit of Feminism or not. In case you would like to know more, please click on the hyperlinks throughout the post for in-depth study.
Purpose of Law
The law of the land is meant to guide people along the path of acceptable behaviour. Those who stray from the path become liable for punishment. It also upholds the rights of all of its people.
The Origin: The Constitution of India
The Constitution of India
is the holy grail of the Indian Legal System. It is the supreme law. It bestows Equality, Freedom, Fraternity and Justice upon the citizens of India. It lays down the basic framework based on which every other law in India has been enacted. No law can be passed in our country if it does not agree with the Constitution of India.
Now Article 14 and 15 of the Constitution of India touch upon Equality
“The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
This article without any exception, clearly indicates that men and women are equal in the eyes of law.
Article 15: Prohibition of Discrimination on grounds of Religion, Race, Caste, Sex or Place of Birth
If the article is read solely form the angle of Gender Equality -
- There can be no discrimination in general on the ground of sex,
- Special provision in the case of women and children are permissible.
Article 15 reinforces the equality principle in Article 14 but it also provides for special provisions for women if the need arises.
The rationale behind special provisions for women
Article 15 of the Constitution of India, allows for special provisions for women. And there are valid reasons for it. Women were and still are a minority group when it comes to several rights. Their position needs to be alleviated for true equality to be achieved. This is the reason why the law allows the State to support women in the following ways:
a) Setting up institutions exclusively for women
b) Reservation for women at public entertainments or in public conveyances
Before you think that women abuse this protection
, please read this article
by Bindu N. Doddahatti, an advocate at the Alternative Law Forum, Bangalore that busts the myth.
Gender Disparity in the Lawmakers and Protectors
The following 3 facts indicate the Gender disparity that exists in our lawmakers.
a) Drafting the Constitution of India
There were only 15 women members
in the Constituent Assembly comprising of 299 members led by B.R. Ambedkar who debated and drafted the Constitution of India. Only a mere 5% of women had a say in the drafting of the supreme law of the country.
b) Low representation of women in Parliament
The Parliament makes the laws of the country. A mere 11.8% of women have a say in the laws made by the supreme legislative body of our country.
c) Low representation of women in the Indian Judiciary
The state of the High Courts is slightly better with 4 Chief Justices and 68 women judges comprising of 10.86% of the total number of judges.
How can our lawmakers and protectors be expected to uphold the law in its true spirit of Feminism when wide gender disparity is present in these systems?
- Several laws have been enacted to protect the rights of women. And yet the sex ratio in India is on the decline!
- Many laws and provisions do not reflect the spirit of Feminism. In an extensive ana 2014 UN Report found several aspects lacking in our laws. The report finds the Hindu Succession Act 1956 to contain provisions that favour the husband’s family. According to the report the implementation of the Dowry Prohibition Act 1961 has been weak and how the courts have interpreted the definition of “dowry” narrowly. Read a summary of the report as published by digital news outlet, Quartz India.
- Some laws and provisions that would further the cause of Feminism are waiting to be enacted
- Criminalizing Marital Rape - By not considering marital rape as an offence, today we are condoning domestic violence.
- Women’s Political Participation Act – We know from about the lack of women in our law making bodies and yet this law is waiting to be passed.
- Decriminalizing homosexuality – Feminism propagates equality for all and hence stands against the discrimination of the members of the LGBTQ community
Some provisions are biased in favour of women and wrongfully so – such as the provision for adultery in the IPC.
- Amending the Medical Termination Of Pregnancy Act, 1971 - The conditions under which an abortion can be carried out are too rigid. Women must have more rights over their body.
Section 497, Indian Penal Code, 1860 makes adultery (sexual intercourse not amounting to rape) in marriage a crime with punishment up to 5 years of imprisonment or with fine or both.
It suffers from constitutional vices because it is tilted in favour of the women for the following reasons:
- A woman cannot be punished under the section for adultery and neither does she have the right to prosecute her own husband for adultery. Only the aggrieved husband has the right to prosecute the accused husband.
- Adultery with a married woman is a punishable offense and not that with an unmarried woman
- If a woman commits adultery with the consent or owing to the connivance of her husband, then it is not considered a criminal offense at all. This reduces the woman to be the ‘property of her husband’
- The woman who commits adultery is not considered an abettor and is not liable to punishment under the section.