Women And Law: Emerging Trends And Challenges In India – Analysis

Introduction

Since ages, women were subjected to various forms of discrimination and violence. The women were denied their rights and their identity was made dependent upon the males of the society. They have always been kept away from making essential decisions in families. Even today, such practices are prevalent in our society. Unfortunately, women are still struggling for equality in all spheres of their lives. 

Law has played a very crucial role in bringing reforms to the societal mindset. It has challenged patriarchy, ill-practices, and customs that were deeply rooted in society. It has contributed a lot in shaping and defining the rights of women. It has helped in securing justice to women and give due regard to their efforts in society. It took care of their special needs and provided a framework that brings women at par with men. 

It must be noted that these Indian reformative laws related to women had immensely struggled for their effective implementation in society, for example, the Dowry Prohibition Act, 1961; Protection of Women from Domestic Violence Act, 2005, and Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994. One of the probable reasons was that their objectives were found to conflict with the existing social practices. Women related legislations and rights directly stood against social behavior and sought immediate changes in such patterns. It is well said that Rome was not built in a day, so a social change cannot be brought immediately. It takes a persistent struggle of years to bring changes in the habits of a population. 

Our legislature should carefully draft laws to precisely target the core issues and provide an effective solution. It is yet another lacuna that the problems related to women are not considered with much seriousness. The absence of gender sensitivity among our politicians is a reason for the improper implementation of the laws. Women candidates must be encouraged to participate in political activities, thus representing the other half population adequately. Further, it is more appropriate when women related issues are discussed and forwarded by women members.  

Some laws were to be created while others are required to be amended in the present-day context. Article 15(3) of the Constitution of India provides that “State can make special provisions for women and children” to realize the right to equality. It permits affirmative action to remedy a wrong and safeguard the interests of women. Women have an insufficient understanding of the law and lack of access to the courts. Hence it is necessary not only to enact a law but to provide the required infrastructural tools to facilitate the law.

The 21^st century has brought a new approaches and challenges in the realm of women law. Modern society has slowly accepted the importance of women outside the four walls of her home. The contemporary times are equipped with new issues and look up to the existing legal regime for reforms. 

1 Violence against Women

1.1. Female Feticide

With the advent of pre-natal diagnostic techniques, the abortion of female fetuses became prevalent in society. The desire of a boy child led to the use of sonography machines for sex-selection and sex-determination purposes. In a bid to curtail female feticide, the government of India issued the PNDT Act in 1996. However, this Act was not being effectively implemented by the state and central government. In Centre for enquiry into Health and Allied themes (CEHAT) v Union of India, the Supreme Court directed both the governments to enforce the provisions of the Act immediately and banned all advertisements relating to pre-natal sex determination techniques. 

1.2 Domestic Violence

The legislature enacted the Protection of Women from Domestic Violence Act, 2005 to protect women living inside the domestic household from abuse, This Act covered the various forms of domestic violence and focused upon providing several reliefs to the women in distress. This Act is beneficial to provide legal and medical assistance to a wife against her husband and family member’s ill-treatment. Considering that women are not aware of their rights and remedies, provisions of the Act are required to be brought among the knowledge of the women in far rural areas, thus to implement the law effectively. Even when the lockdown restrictions were imposed due to COVID-19, the world has witnessed a significant rise in the domestic violence cases.  

1.3. Rape laws

To provide stringent punishment for the offense of rape, Criminal Law Amendment 2018 amends the Indian Penal Code that increases the minimum sentence for rape of women from seven years to ten years. Further, the rape and gang rape of girls below the age of 12 years will carry minimum imprisonment of twenty years and is extendable to life imprisonment ordeath. The rape of girls below the age of 16 years is punishable with imprisonment of twenty years or life imprisonment. The Act has also made certain changes in the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Code of Criminal Procedure, 1973. Unfortunately, despite these recent amendments, crimes related to rape are still frequent in the country.

1.4. Cyber Crimes

Young girls and women are primary victims of cybercrimes in India. Due to the absence of necessary cyber knowledge among them, many instances of such crime go unchecked and unreported. There is no specific legislation for the protection of women against cybercrime. Cybercrimes are the result of technological advancement that affects mental health more than her physical health. It includes cyber-stalking, defamation, cyber pornography, e-mail spoofing, phishing, etc. The Information Technology Act, 2000, and the Indian Penal Code provide for the provisions to prosecute the alleged violators; however, they provide minimal set protection and unequip to deal with ranging crimes. Thus, a specific Act comprising effective remedies to women victims is a need of the hour. Also, many states allow for the filing of E-FIR by the victims. 

1.5. Acid Attacks

In Laxmi v Union Of India, the Supreme Court imposed stringent regulations on the sale of acid in 2013 after considering a gradual rise in the number of acid attacks in India. This decision has banned the counter sale of acid by shopkeepers. Dealers have to observe several guidelines before selling the acid to the buyer, primarily including an acid sale only if the buyer provided valid identity proof and stated the need for the purchase. In 2013, the Indian Penal Code introduced Section 326-A and 326-B to provide stringent punishment to the accused of the acid attack. Even after so many amendments, the female gender is still facing fear and threats of being a victim.

2. Right to Work

Article 39(d) of the Indian Constitution provides for equal wages for equal work. It ensures that women shall not be discriminated against based on their sex. It guarantees similar benefits and treatment in respect of work of equal value. Further, the employer is obliged to provide safe working conditions for a woman. 

2.1 Sexual Harassment of Women at Workplace

A safe workplace is a woman’s legal right. Before the case of Vishakha v State of Rajasthan, India did not have any law on the issue of sexual harassment of women at workplace. The case brought forth various guidelines to protect the rights of women employees at workplaces. It stressed the requirement for legislation on this issue. Ultimately, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was enacted to ensure safe working spaces for women and to build enabling work environments that respect women’s right to equality of status and opportunity.  

2.2 Maternity Benefit Bill

Maternity Benefit (Amendment Act), 2017 amended the Maternity Benefit Act, 1961, that has increased the duration of paid maternity leave from twelve weeks to twenty-six weeks. The Amendment Act also provides paid maternity leave of twelve weeks for adopting and surrogate mothers. The Act will secure more participation of women working in the organized sectors. 

3. Family Laws

3.1  Triple Talaq

Muslim women had filed before the apex court, arguing the practice of husbands divorcing them through ‘triple talaq’, including by Skype and Whatsapp, violates their rights and significantly affect their lifestyle. In the case of Shayara Bano v Union of India, the Supreme Court ruled triple talaq to be unconstitutional and makes it a criminal offense. The Union Law Minister Ravi Shankar Prasad said that the practice of triple talaq was rampant despite the SC declaring it void, and it is necessary to bring legislation on the issue. Thus, Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2018, securing the interests of Muslim women. 

3.2.  Adultery

In Joseph Shine v Union of India, Supreme Court found Section 497 of the Indian Penal Court to be arbitrary and discriminatory against men and women and thus held unconstitutional. It was declared that Section 497 treats a married woman as the commodity of her husband. In his judgment, former Chief Justice Dipak Mishra noted that “Husband is not the master of wife. Women should be treated with equality, along with men.” Similarly, Justice D.Y. Chandrachud, in his separate view, termed Section 497 as a “codified rule of patriarchy”. The court strengthened the position of women by observing that marriage does not mean ceding the autonomy of one to the other. The ability to make sexual choices is essential to human liberty. The judgment got mixed reactions from society. Howsoever progressive is the verdict; it found itself in contradiction to social standards and will take substantive time for people to respond.

3.3.   Surrogacy

India required a law to regulate surrogacy that protects the interest of a surrogate mother. There were instances, for example, Baby Manji’s case, when the couple did not wish to proceed with the contract and left the baby behind with a surrogate mother. In December 2018, Lok Sabha passed Surrogacy (Regulation) Bill, 2016, prohibiting commercial surrogacy in India to protect women from physical exploitation. It allowed altruistic surrogacy only for couples who cannot bear children.

4. Right to Religion

The Supreme Court of India passed yet another progressive verdict in India Young Lawyer Association v State of Kerala. It allowed women of all ages to enter Ayyappa Temple in Sabrimala, Kerala. The provisions of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, restricted the entry of women belonging to the 10 to 50 age-group, violated the right of Hindu women to practice religion. Former Chief Justice Dipak Misra stated that any rule based on the segregation of women about biological characteristics is indefensible and unconstitutional. 

Conclusion

India has committed to achieving Sustainable Development Goals by 2030 by incorporating them into its national policies and programs. Goal 5 seeks to achieve gender equality and women empowerment. Women empowerment generally means empowering women to participate actively in all spheres of her life. They should be provided equal access to education, health, work, representation, and decision-making in political and economic fields. The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles. The Constitution not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favor of women. Under the framework of a democratic polity, our laws, development policies, plans, and programs have aimed at women empowerment in different areas. India has also ratified various international conventions and human rights treaties committing to achieve equal rights of women. Indian Judiciary has also actively taken many progressive steps for the empowerment of women. It has safeguarded the rights of women against all the odds. However, there is a difference of opinion among general masses, and these verdicts often face retaliation from them. 

There exist a gap between constitutional morality and social values. The law should aim to cover such loopholes and harmonize the interest of society with progressive goals. Many laws have been framed to address the issues related to women. However, their ineffective implementation is a great hindrance to achieve the desired result. It is essential to understand that based on patriarchy, societal conceptions restrict the law to secure its goal. Change has to be made at the individual level. As said by Mahatma Gandhi, “Be the change as you wish to see in the world.” So, one should transform at an individual level to bring reforms to society at large.

*The author is a research scholar at the Faculty of Legal Studies, South Asian University, New Delhi, India