India: Women Centric Changes In Indian Law

Last Updated: 5 April 2019
Article by Ashima Obhan and Vrinda Patodia

"We all know that women are half the world and hold up half the sky but where are they when it comes to equality?" – Leela Seth

The concept of equality, however, requires equity. The history of social development is also the 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. German philosopher and social scientist Friedrich Engels in his classical writing "Origin of the Family, Private Property and the State" states that, "Woman was the first human being that tasted bondage. Woman was a slave before slavery existed". 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 societal 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 right to education, inheritance rights, abolition of sati and polygamy as well as allowance for 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 than ever are engaged in business enterprises, international platforms, multi-national careers like advertising and fashion, and have better opportunities 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 Singhin 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 with regard to 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 which 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 with the objective of preventing and protecting women against workplace sexual harassment (which include 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 a maximum imprisonment of five years to men for adultery.

Unlike India's sexual assault laws, which are linked with consent of the woman, the 158-year-old adultery law did not consider the woman's will. Though women couldn't be punished under the provision, a husband could prosecute the man who had sexual relations with his wife, even if the wife was a voluntary participant in the act.

Last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law. He argued that it discriminated against men by only holding them liable for extra-marital relationships, while treating women like objects. All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional. The Court however 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 with equality along with men".Justice R F Nariman who wrote a separate judgment to concur with the judgments of Chief Justice Dipak Misra and Justice Khanwilkar, stated that Section 497 was an archaic provision which had lost its rationale. "Ancient notion of man being the perpetrator and woman being victim of adultery no longer holds good", observed Justice Nariman.

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 judgement that the 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 

Instant Talaq or "Triple Talaq" or "Talaq-e-Biddat" is an Islamic practice that allows men to divorce their wives immediately by uttering the word "talaq" (divorce) three times.

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 Talaqas unconstitutional by a 3:2 majority. The Judgment by the minority bench also further directed the Government of Union of India to lay a 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, inDecember, 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. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.

The Triple Talaq Bill makes declaration of talaq a cognizable offence, attracting up to three years' imprisonment with a fine.The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.

The Triple Talaq Billis 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 judgment in the Sabarimala case.By a 4:1 majority, the Supreme Court permitted entry of women of all age groups to the Sabarimala temple, holding that 'devotion cannot be subjected to gender discrimination'. The lone woman in 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.

The judgment was delivered in a 2006 PIL filed by Indian Young Lawyers Association challenging the centuries-old tradition of Sabrimala Temple banning entry of women of menstruating age inside the temple.

"Woman is not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump over faith.Biological or physiological reasons cannot be accepted in freedom for faith", said Chief Justice Dipak Misra while reading out portions of the judgement written out for himself and Justice AM Khanwilkar.

Justice Chandrachud in his separate but concurring opinion held that the idea behind the ban was that presence of women will disturb celibacy, and that was placing burden of men's celibacy on women. 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, is a pending bill in India which 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 rotation will be determined by 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 the Lok Sabha were to approve the bill, it would then 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 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 (See). A lot need to be done to ensure that Indian women have equal rights and we see an India defined by inclusive citizenship rather than exclusive.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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