Women and Laws

March 29, 2016 Written By Gorki Bora

Pandit Jawaharlal Nehru, the first Prime Minister of independent India, once said – “If you want me to tell you what a nation is like, tell me the position of women in that country.” Legislations or laws form a potent source of emancipation for the marginalized sections of any society – minorities (of any kind : religion, region, class, caste or ethnicity) and women (ironically, constituting almost half of human population.) 

Who are the most gullible during communal violence? Women are raped, assaulted and murdered. Considered the honour of the house, they are the most victimized lot. The state, instead of maintaining the rule of law, connives with the criminals and perpetuates lawlessness and atrocities on women. Legislation is developed with the noble intention of undoing or at least alleviating the vile motives of the corrupt among the law enforcers. Laws also challenge the structural inequalities in the society built upon patriarchy and try to liberate women from the bondages of the home and hearth, of hoary traditions and customs that silence them into subservience. 

 

Pro-Women legislations- Tracing their trajectory

Indian women are legally entitled to reject child marriage, speak against dowry demands, ensure punitive action for organized crimes against the gender including trafficking, rape and sexual assault. From women-specific legislations like Dowry Prohibition Act, 1961Immoral Traffic Prevention Act, 1956 and Protection of Women from Domestic Violence Act, 2005 to women-related laws such as Medical Termination of Pregnancy Act, the Minimum Wages Act, the Hindu Succession Act et al., the state has tried to empower women, secure their basic rights and provide them protection. The Committee on the Status of Women (established 1975) provided far sighted recommendations such as establishment of state and national women commissions, landmark changes in succession and marriage acts etc. 

Lately, the Criminal Law Amendment Act – 2013 passed in the light of the brutal Nirbhaya gang rape case has equipped women with the legislative power that is more formidable and contemporarily relevant. Following recommendations made by the Justice Verma Committee report, the Act has brought in a myriad measures to ensure that justice is served. The Act is gender specific which means that the accused must be male. This is an important provision to ensure that the female victim is not wrongly framed. As Nivedita Menon points out, “Rape is an act of violence that must be seen in the context of deeply entrenched power inequalities between men and woman in our society. Gender neutral provisions only strengthen those already powerful, silencing the real victims.” The Act introduces new offences such as acid attacks, voyeurism, stalking, offences other than peno-vaginal penetration within the definition of rape, rape by husband on wife when separated etc.

 

Archaic elements in Indian Legislations

In the recent Cuddalore Rape Case, after second order by the Madras High Court setting aside the rapist’s conviction, the victim was forced to marry the man. According to an earlier order, the judge referred her case for mediation with her alleged rapist citing religion and its capacity for reconciliation. The move led to a huge public outcry. Such anachronistic judgements in this day and age show the context in which they are created. And a context in which women are seen as appendages rather than individuals possessing any agency, such pronouncements should not evoke much surprise.

The Criminal Law Amendment Act lauded for its progressive provisions has its share of obsolete content such as rejection of rape within marriage, raising the age of consent from 16 to 18 which by making consensual sex between children close to attaining the 18 years mark an offence, could enable parents to use the law inappropriately in cases of inter-caste/religion marriages. 

The antiquated face of the judiciary was apparent in the Mathura Case where the tribal girl raped in custody was considered one with ‘loose morals’ since she was sexually active and there were no signs of restraint on her body. Something like this calls for a systemic change in the mindset of society that is strictly biased and patriarchal. 

The uncodified personal laws, particularly the Muslim Personal law inhibit the liberty of women to a great extent. The Bhartiya Muslim Mahila Aandolan conducted a nationwide survey to study the Muslim women’s condition in India. It was evident from the findings that reforms needed to be made in the areas of jurisprudence and jurisdiction (whether they were governed by Sunni, Barelvi. Deobandi or Wahabi traditions), polygamy, marriage, divorce and inheritance. Most women believed that disputes could be settled if the law based on Quranic principles was codefied. Differing interpretations by varying schools of thoughts within Islam create difficulties for Muslim women as there are conflicting views on many significant issues particularly divorce. Pressure from orthodox Islamic groups on the state was visible in the Shah Bano case, whereby the government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which nullified the Court’s judgement guaranteeing alimony to Muslim women on separation. This was one of the many examples in which female freedom and rights were compromised since the state kowtowed before the conservative patriarchal sections within a community.

 

A brighter future ahead

Let’s take the case of Hindu Succession Act, for instance. The Act did away with Hindu woman’s limited estate and “granted ownership of all property and full power to deal with it and dispose it of by will as she likes”. In 2005, the Act was amended to allow daughters equal receipt of property as with sons. Such important changes in the law greatly empowered the Hindu woman who had to rely on sons/brothers/husbands/fathers for financial support. This is one tiny proof of the enormous potential of legislations made with good intent. True, laws are not the panacea of all evils, however with simultaneous alterations in societal mindset and structural understanding of gender, and promulgation of laws without any ulterior motives of appeasement or altercation, we can witness tremendous transformation in the status of women in the country. Laws shall serve as both deterring and empowering factors for the perpetrators and women respectively. People must keep their faith alive in the legal system and the enforcers must move beyond dilly-dallying and postponing the implementation of rules and service of justice. Legislations can and do work, so let’s be optimistic!  

Women and Laws

March 29, 2016 Written By Gorki Bora

Pandit Jawaharlal Nehru, the first Prime Minister of independent India, once said – “If you want me to tell you what a nation is like, tell me the position of women in that country.” Legislations or laws form a potent source of emancipation for the marginalized sections of any society – minorities (of any kind : religion, region, class, caste or ethnicity) and women (ironically, constituting almost half of human population.) 

Who are the most gullible during communal violence? Women are raped, assaulted and murdered. Considered the honour of the house, they are the most victimized lot. The state, instead of maintaining the rule of law, connives with the criminals and perpetuates lawlessness and atrocities on women. Legislation is developed with the noble intention of undoing or at least alleviating the vile motives of the corrupt among the law enforcers. Laws also challenge the structural inequalities in the society built upon patriarchy and try to liberate women from the bondages of the home and hearth, of hoary traditions and customs that silence them into subservience. 

 

Pro-Women legislations- Tracing their trajectory

Indian women are legally entitled to reject child marriage, speak against dowry demands, ensure punitive action for organized crimes against the gender including trafficking, rape and sexual assault. From women-specific legislations like Dowry Prohibition Act, 1961Immoral Traffic Prevention Act, 1956 and Protection of Women from Domestic Violence Act, 2005 to women-related laws such as Medical Termination of Pregnancy Act, the Minimum Wages Act, the Hindu Succession Act et al., the state has tried to empower women, secure their basic rights and provide them protection. The Committee on the Status of Women (established 1975) provided far sighted recommendations such as establishment of state and national women commissions, landmark changes in succession and marriage acts etc. 

Lately, the Criminal Law Amendment Act – 2013 passed in the light of the brutal Nirbhaya gang rape case has equipped women with the legislative power that is more formidable and contemporarily relevant. Following recommendations made by the Justice Verma Committee report, the Act has brought in a myriad measures to ensure that justice is served. The Act is gender specific which means that the accused must be male. This is an important provision to ensure that the female victim is not wrongly framed. As Nivedita Menon points out, “Rape is an act of violence that must be seen in the context of deeply entrenched power inequalities between men and woman in our society. Gender neutral provisions only strengthen those already powerful, silencing the real victims.” The Act introduces new offences such as acid attacks, voyeurism, stalking, offences other than peno-vaginal penetration within the definition of rape, rape by husband on wife when separated etc.

 

Archaic elements in Indian Legislations

In the recent Cuddalore Rape Case, after second order by the Madras High Court setting aside the rapist’s conviction, the victim was forced to marry the man. According to an earlier order, the judge referred her case for mediation with her alleged rapist citing religion and its capacity for reconciliation. The move led to a huge public outcry. Such anachronistic judgements in this day and age show the context in which they are created. And a context in which women are seen as appendages rather than individuals possessing any agency, such pronouncements should not evoke much surprise.

The Criminal Law Amendment Act lauded for its progressive provisions has its share of obsolete content such as rejection of rape within marriage, raising the age of consent from 16 to 18 which by making consensual sex between children close to attaining the 18 years mark an offence, could enable parents to use the law inappropriately in cases of inter-caste/religion marriages. 

The antiquated face of the judiciary was apparent in the Mathura Case where the tribal girl raped in custody was considered one with ‘loose morals’ since she was sexually active and there were no signs of restraint on her body. Something like this calls for a systemic change in the mindset of society that is strictly biased and patriarchal. 

The uncodified personal laws, particularly the Muslim Personal law inhibit the liberty of women to a great extent. The Bhartiya Muslim Mahila Aandolan conducted a nationwide survey to study the Muslim women’s condition in India. It was evident from the findings that reforms needed to be made in the areas of jurisprudence and jurisdiction (whether they were governed by Sunni, Barelvi. Deobandi or Wahabi traditions), polygamy, marriage, divorce and inheritance. Most women believed that disputes could be settled if the law based on Quranic principles was codefied. Differing interpretations by varying schools of thoughts within Islam create difficulties for Muslim women as there are conflicting views on many significant issues particularly divorce. Pressure from orthodox Islamic groups on the state was visible in the Shah Bano case, whereby the government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which nullified the Court’s judgement guaranteeing alimony to Muslim women on separation. This was one of the many examples in which female freedom and rights were compromised since the state kowtowed before the conservative patriarchal sections within a community.

 

A brighter future ahead

Let’s take the case of Hindu Succession Act, for instance. The Act did away with Hindu woman’s limited estate and “granted ownership of all property and full power to deal with it and dispose it of by will as she likes”. In 2005, the Act was amended to allow daughters equal receipt of property as with sons. Such important changes in the law greatly empowered the Hindu woman who had to rely on sons/brothers/husbands/fathers for financial support. This is one tiny proof of the enormous potential of legislations made with good intent. True, laws are not the panacea of all evils, however with simultaneous alterations in societal mindset and structural understanding of gender, and promulgation of laws without any ulterior motives of appeasement or altercation, we can witness tremendous transformation in the status of women in the country. Laws shall serve as both deterring and empowering factors for the perpetrators and women respectively. People must keep their faith alive in the legal system and the enforcers must move beyond dilly-dallying and postponing the implementation of rules and service of justice. Legislations can and do work, so let’s be optimistic!  

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