Open Access Research Article
FEMINISTIC APPROACH: THE LEGISLATIVE RESPONSE & PROTECTION
Published Paper
Article Details
FEMINISTIC APPROACH: THE
LEGISLATIVE RESPONSE & PROTECTION
AUTHORED BY - SANJANA DWIVEDI &
DR. MONICA KHAROLA
University- THE ICFAI LAW SCHOOL,
ICFAI UNIVERITY, DEHRADUN
Abstract
The pursuit of gender equality
involves a close analysis of the role that legislation plays. This book
examines this issue via a feminist lens, recognizing the potential for legal
frameworks to advance development while emphasizing the importance of a nuanced
approach to ensure that they do not perpetuate existing power inequities.
Historically, legislative progress
has been critical in ensuring women's rights. Examples include job
discrimination laws and violence-prevention laws. However, a feminist critique
is necessary. Current legislation may unwittingly maintain patriarchal
structures. Sometimes protective measures have unintended repercussions,
reducing women's autonomy. Furthermore, a "one-size-fits-all"
strategy may fail to address the specific needs of marginalized women who face
the convergence of sexism and variables such as race or class.
This article would examine how legislation
cannot exist in a vacuum. True equality cannot be achieved without social
transformation in addition to legislative improvements. Feminist movements play
an important role in advocating for legislation and ensuring its effective
implementation. They also attempt to change cultural beliefs that perpetuate
gender disparities.
Keywords:
Feminism, Legislation, gender-equality, misuse.
Women in the workplace can use feminist jurisprudence to better
understand and express their rights against discrimination, challenge sexist
corporate rules, and support programs that promote gender equality. It is an
important weapon for working women to ensure equal treatment and respect for
their rights.
The feminist school of jurisprudence or philosophy of law is correctly
based on the four waves or phases of feminist thought observed in human society
in order to achieve individual, political, social, economic, and cultural
equality between genders, as well as its growing influence on the legal and
judicial systems of India and abroad.
In India, a variety of legal protections protect women's employment
rights. The Constitution guarantees gender equality, a principle defined by the
Supreme Court to include protection from discrimination and sexual harassment.
The Indian Penal Code includes specific sections such as 354A, which
addresses sexual harassment, and 375, which defines rape and imposes
appropriate penalties. Additionally, labor regulations help to safeguard women,
with the Equal Remuneration Act preventing salary discrimination and the
Maternity Benefit Act providing paid leave to expectant and new moms. The
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act tackles workplace harassment and establishes procedures for
handling complaints.
These regulations collectively aim to make India's workplaces safer and
more equal for women, and being aware of these rights helps women to express
themselves when necessary.
Traditional
Laws
Manusmriti, a traditional law published in the fifth century CE, defined
our society's social framework. It was regarded as the ultimate guide to living
a moral life, as it detailed the roles and responsibilities of the four varnas:
Brahamans, Kshtriye, Vaishyas, and Shudra. Manusmriti describes the roles and
responsibilities of women as dependents who require ongoing protection and
supervision throughout their lives.
It emphasized the attributes of "good women," prohibited widow
remarriage, and promoted child marriage and the dowry system in society. We
can't find much discussion about unmarried menstruating women since they were
once considered a threat to social balance. Manusmriti is the only text that
has had an impact on women's social strata in society, and women continue to be
burdened by age-old patriarchal views. It is one of the most hardest challenges
to overcome. Because patriarchy has been so deeply embedded in our society from
the outset, changing it is extremely difficult.
India is a country where women's status and position have fluctuated
dramatically. They were viewed as dependant on their dads at a young age, and
later on their spouses after marriage. In matriarchal homes, women were seen to
be physically stronger than men. However, pregnancy, childbirth, and
menstruation weakened their physical strength, and they became reliant on men
for sustenance and protection.
Women's standing in society was thought to be one of the most contentious
issues. On the one hand, she was referred to as Devi or Goddess, while on the
other, women were denied their fundamental right to exist.[1] Women held prominent family
positions during the Rigvedic period. They were allowed to study the Vedas and
educate themselves.
The wife and husband participated in a variety of rites.
Many educated ladies, such as Ghosa and Apala, lived during this time
period. They had the right to choose their husbands. They had the right to
their father's possessions. The complexity of the caste system, which emerged
in the later Vedic period, led to a decline in women's well-being. Women's
rights were significantly eroded. An ideal woman was expected to be obedient,
able to keep her lips shut and accept her husband's commands. The birth of a
daughter was highly undesirable and viewed as a source of grief.
Most women have lost their right to education. The marriageable age for
women has gradually decreased. A 30-year-old man marrying a 12-year-old girl
was meant to make a wonderful match. For many years after the Vedic period, the
law book Manusmriti had a negative impact on women's situation and standing.
Manu degraded the status of women. It stated that women should worship their
husbands, follow their directions, and treat them like gods.
Manu's rules reduced women's social status in comparison to all other
groups in society. Women's positions changed dramatically throughout the
British period as a result of Western culture's influence on Indian society.
The status of women degraded. She was regarded as inferior to males in
every respects.
Female education was given just a minor priority. In the late nineteenth
century, while India was in the process of gaining independence, many important
social reformers came up to advocate for the advancement of women's place in
society, and a movement was launched in various regions of the country, but it
was limited to the upper middle class.
Following India's independence, various legal reforms were implemented to
better women's positions and equalize them with males. For example, Article
15(3) of the Indian Constitution empowers the Parliament to adopt special
provisions to protect women's rights.[2] Article 16 ensures that all
people have equal opportunities for employment or appointment in any
governmental office. [3]
The Special Marriage Act of 1956, the Hindu Marriage Act of 1955, the
Prostitution Immortal Traffic Act of 1958, the Dowry Prohibition Act of 1961,
and the Domestic Violence Act of 2005 are among of the laws enacted to protect
women's dignity and standing in Indian society.
With independence, women were granted equal standing with males. The
administration began to implement several regulations and modifications to
improve the status of women. Some laws were enacted to specifically benefit
women. Historically, women's poor position prompted lawmakers to enact these
particular laws and privileges for them.
Laws In
Relation To The Idea Of Feminism
Feminist jurisprudence focuses on gender equality in terms of politics,
economics, and society. India has seen an increase in the representation of
women in all sectors of society. For example, with the enactment of Article 243
D, 33% of Panchayat Raj seats are now reserved for girls. In cases like as Air
India v. Nergesh Meerza & Ors[4]. and Vishakha v. State,[5] our judiciary ensured that girls would no longer experience process
discrimination. As a result, we have economically empowered girls.
There are social assistance and guidance programs for girls, as well as
the SWADHAR and UJJAWALA programs, and a comprehensive program for stopping
trafficking and rescuing, rehabilitating, and reintegrating victims of
trafficking for industrial sexual exploitation.
The surges of feminism in India are the result of a lengthy journey that
honours every woman's struggle against sexism and repressive behavior in
society. They overcame hurdles by increasing discourse about women's
exploitation. Some of the outstanding outcomes of these battles are highlighted
below:
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013, is a breakthrough law that protects women against sexual
harassment in the workplace. Sexual harassment is defined in the Act as any
unwanted sexually motivated physical, verbal, or nonverbal action that creates
an intimidating, offensive, or hostile working environment for women.
It applies to all workplaces, whether public or private, including
offices, factories, shops, hospitals, and educational institutions.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act requires employers to take particular steps to prevent and
resolve occurrences of sexual harassment in the workplace. Employers, for example,
must create a safe workplace for women and respond quickly to sexual harassment
accusations. Displaying a noticeboard describing the complaint filing procedure
under the Act is also required.
The Complaints Committee established by the Act must include at least 50%
female members, with a woman chairing the committee. This committee has the
ability to evaluate sexual harassment accusations and make appropriate
recommendations to the employer. Victims of sexual harassment can file
complaints directly with the Complaints Committee or through their employers.
Victims of criminal acts such as rape, assault, or stalking can seek the
police. The Sexual Harassment of Women at Workplace (Prevention, Prohibition,
and Redressal) Act of 2013 is an important step in promoting gender equality
and protecting women's rights in the workplace. All working women should be
informed of their rights under this legislation.
The Maternity Benefit Act of 1961 is an Indian labor regulation that
provides paid maternity leave to female employees. The act applies to all
businesses with ten or more employees. The statute applies to all women who
work in such places, including daily wage earners, ad hoc workers, and contract
employees. The act allows pregnant women and new moms to take six months, or 26
weeks, of paid leave for their first two children. The female employee has the
right to depart if she becomes ill as a result of her pregnancy or birth.
The act also includes rules for creches at or near the workplace, as well
as nursing breaks during working hours, forbids discrimination against female
employees based on pregnancy or motherhood, and imposes fines for violating its
requirements.
The Equal Remuneration Act of 1976,[8] passed by the Indian Parliament, seeks to eliminate gender-based
discrimination in wage and remuneration payments. The Act, which applies to
companies with five or more employees, prevents employers from paying different
compensation to employees of different genders for equal labor.
The Act, which stems from proposals made at the Second International
Conference on Women in Mexico City in 1975, is consistent with India's
constitutional principles, which were created in 1950 and emphasize equal
compensation for equal labor for both men and women.
Article 39(d) of the Constitution directs the state to abolish sex
discrimination in employment, whereas Article 14 guarantees equality before the
law and equal protection regardless of gender. Despite these constitutional
protections, effective execution was inadequate, resulting in women being paid
less than men for equivalent work.
The Equal Remuneration Act has emerged as critical law aimed at
preventing wage and salary discrimination against women. The Act's provisions
have been enhanced by subsequent amendments, the most recent of which was made
in 2019.
The Indecent Representation of Women (Prohibition) Act of 1986 is a law
in India that forbids indecent representation of women in advertisements and
media. The act was created to preserve women's dignity and keep them from being
objectified and abused.
The Act defines 'indecent representation of women' as any image of a
woman that is intended to create sexual arousal or to condone or incite
violence against females. It includes any image of a woman's bodily parts that
is sexually suggestive, as well as any depiction of a woman engaging in sexual
behavior.
The Act also forbids the creation, publication, sale, distribution,
exhibition, and broadcasting of indecent portrayals of women. It also demands
that all types of media adhere to the criteria established by the act. The
Indecent Representation of Women (Prohibition) Act has been criticized for its
ambiguous definition of 'indecent representation' and for failing to address
other types of gender-based violence. Nonetheless, it is a vital regulation
that safeguards women's dignity and safety.
The Dowry Prohibition Act of 1961, passed by India's Parliament,
prohibits the trade of dowry. The act criminalizes both giving and receiving
dowry, with the goal of reducing the country's traditional practice of dowry.
Dowry, as defined by the act, is any property or valued security transferred
directly or indirectly from one party to a marriage to the other, and it
applies to all Indian citizens regardless of religion, caste, or creed.
The act makes several exclusions, such as gifts given during births,
marriages, or engagements, as well as gifts given by family or friends during
festivals, which are exempt. Penalties for violating the legislation include
imprisonment for up to five years and a fine of up to ?15,000.
The Dowry Prohibition Act was enacted to fight the practice of dowry,
however its efficacy has been limited. Some families provide dowries
clandestinely, only revealing it after the wedding. Additionally, bogus charges
of extortion have been reported. Despite its faults, the Dowry Prohibition Act
is an important step toward fostering gender equality in India.
5. Uniform Civil Code & Inequality
in marriage
Feminist philosophers and writers have long affected MPs and judges, who
make and interpret the law, respectively. In law schools, one quickly learns
the names of masculine criminologists, social reformers, and lawmakers.
However, little is taught and learned about female activists who achieved
significant changes in the laws of the land through dedicated efforts and
long-standing legal challenges. One such woman activist is the late Justice
Leila Seth, a former Supreme Court of India Judge and author of several books
on law who worked tirelessly to bridge the divide between sons and daughters in
terms of family, matrimonial, and property inheritance laws.
The age-old assumption that once married, daughters have no right to
their father's property is no longer accurate. Justice Seth was a member of the
Law Commission from 1997 to 2000, and she proposed numerous significant reforms
to Hindu laws for the benefit and empowerment of women. Her efforts paid off
when her recommendations for equal succession rights for daughters became a
reality. The Hindu Succession (Amendment) Act of 2005 eliminated Hindu women's
position as a 'limited owner'.
Thus, a daughter, whether married or unmarried, is now treated equally
with her brothers when it comes to inheriting family property. She can make a
claim and obtain an equal portion.
Many battles have been won by female campaigners such as J. Seth.
However, the purpose of the Uniform Civil Code (UCC) has yet to be achieved.
Given the growth of Indian family and matrimonial laws, the need for a UCC is
undeniable. According to Justice Seth, 'We have the right to equality, and if
you teach people the right to equality, and you teach people that you don't
destroy a woman's legal or sexual liberty after marriage, things will change.
All Indian women are guaranteed essential rights and freedoms under the
Indian Constitution of 1950. Article 14 states, 'The State shall not deny
any person equality before the law or equal protection of the laws within the
territory of India.' Furthermore, Article 15 prohibits discrimination based
on religion, ethnicity, gender, caste, or even place of birth. If all women are
equal in the eyes of the law, then the same law must apply to every woman and
daughter of India.
In the lack of a UCC, women's civil and personal laws vary. This creates
obstacles when women seek justice, since they must navigate multiple judicial
hearings and delays in executing the law.
For example, polygamy, which allows a man to marry numerous wives at the
same time, has only been partially handled in India. The injustice done to the
first wife and her children in a polygamous marriage cannot be contested.
Polygamy, in reality, threatens population control measures and causes economic
challenges.
Feminists, on the other hand, argue that
"monogamy comes with several benefits ranging from lower crime
rate and violence against wives and children on the one hand, whereas greater
parental investment, financial productivity in terms of GDP, and female
equality on the other."
Monogamy, as feminists have long argued, secures a bond of trust and
fidelity between husband and wife, as well as shared rights and duties, leaving
less room for injustice, cruelty, desertion, sexually transmitted illnesses,
and divorce.
As a result, monogamy became institutionalized in numerous communities
around the world, including ancient India, Greece, and Rome. A monogamous
marriage and a small family size result in lower living costs. With increased
spending power, the family can get better access to healthcare, education, and
recreational activities.
As a result, feminists and courts have advocated for monogamy,
emphasizing the economic benefits it provides over polygamy. Currently, India
has separate personal laws for Hindus, Christians, Muslims, and Parsis. The
main commonality between these laws is that the marriage laws applicable to
Hindus, Christians, and Parsis support monogamy.
However, there is no legal barrier in Muslim law that prevents a male
from remarrying while his first marriage is still valid. However, a woman under
any of these laws, whether Hindu, Christian, Muslim, or Parsi, is not permitted
to remarry during the duration of her legitimate marriage, unless she becomes a
widow or divorcee, or the marriage is deemed null and void. Polygamy was not
punishable in India prior to the passage of the Indian Penal Code (IPC), which
was enacted in 1860.
S. 494 of IPC,[11] 1860 states: ‘Marrying again during lifetime of husband or wife:
Whoever, having a husband or wife living, marries in any case in which such
marriage is void by reason of its taking place during the life of such husband
or wife, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine…’
S. 495 of IPC, 1860[12] states: ‘Same offence with concealment of former marriage from person
with whom subsequent marriage is contracted: Whoever commits the offence
defined in the last preceding section having concealed from the person with
whom the subsequent marriage is contracted, the fact of the former marriage,
shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.’
However, these legal requirements of the IPC, 1860, do not apply to
persons subject to Muslim law. Because India has numerous matrimonial laws,
women continue to confront cruelty and injustice in marriage, maintenance,
polygamy, divorce, child custody, and other areas. There is still a long way to
go until women gain equality in all aspects of life.
In cases such as 'Lily Thomas v. Union of India,'[13] marriage disparity was emphasized, which can be solved if Article 44 of
India's Constitution, i.e. the UCC, is implemented. However, the UCC has yet to
see the light of day. Goa is an interesting example. In the state of Goa, the
Portuguese Civil Code continues to apply. Goa is the only state in the country
with a UCC, regardless of religion, caste, gender, ethnicity, etc.
As a result, members of the Hindu, Christian, Muslim, and Parsi faiths
are subject to the same laws regarding marriage, divorce, child custody,
alimony, succession, and other issues. This Code also prohibits polygamy in
Goa, stating that regardless of gender, a woman or a man cannot marry when a
valid marriage exists. If Goa can achieve this consistency, then so can the
rest of India.
If the country has uniform legislation, all women will have same marital
privileges as males, making marriages happier and more durable. It will also
reduce the expense of litigation, resulting in faster justice for women.
6. Films and Digital Voyeurism
Some argue that films, like laws, have always been created by men for
men. Previously, women filmmakers were virtually unknown. Only male producers,
screenwriters, and directors created films to entertain people, and the
majority of these films were developed from a male-centric perspective, with
females depicted in passive and submissive roles rather than active, robust,
decision-making, and powerful positions.
Women were frequently depicted as victims of violence and debauched
ladies for the illicit enjoyment of spectators. According to research, watching
films with sexually explicit content is directly associated with an increase in
crime against women and children. Laura Mulvey[14], a British feminist film scholar, stated that "the cinema offers a
number of possible pleasures." One is scopophilia.
The Oxford English Dictionary defines 'Scopophilia' as 'Sexual enjoyment
gained largely from seeing others when they are naked or engaged in sexual
activity; voyeurism.'[15] In fact, research undertaken over the years have linked watching violent
crimes and explicit themes in films to actually committing those acts in real
life by males aged 12 to 40.
The sexist and prejudiced attitudes depicted in films were mirrored in
reality. Psychiatrists and feminist legal experts have both condemned
scopophilia in its various manifestations, including watching films. The UNESCO
Global Media Violence Study[16] (supervised by Prof. Dr. Jo Groebel) is a must-read in this direction.
This excellent study exposes the detrimental consequences of media violence on
youngsters. These data, which cover the years 1996 and 1997, are quite
alarming, pointing to children's television viewing patterns in various
countries.
Violence in television, films, and reality shows has a harmful impact on
people's behaviour both inside and beyond their homes. those who viewed pornographic
content were more likely to commit domestic violence against their wives and
children than those who did not consume such content. Children's regular
exposure to violent and adult content has been a key cause of adolescent
delinquency, as well as severe drug usage. The World Organization of the Scout
Movement collaborated with Utrecht University on this study.
Schoolchildren's behaviour changes dramatically when they watch such
sophisticated content at a young age. One such example is the Independent
Television Commission's 1998 poll done in England. As 46% of youngsters had a
television in their bedroom, they were becoming addicted to adult content.
Unfortunately, less than half of all parents watched and prevented their
children from watching shows that were inappropriate for their young minds.
Scopophilia, therefore, is not only addictive but also violates the human
rights of women and children.
As a result, it poses a major threat not just to women and children in
the West, but also in the East of the world. According to a 1998 Independent
Television Commission research poll, 46% of children in England have a
television in their bedroom, whereas only 43% of parents supervise and prevent
their child from watching inappropriate programming. According to feminist
filmmakers, one of the great risks of watching violent and explicit content in
the dark atmosphere of a theater is that those who watch such content on a
frequent basis experience pleasure and elevated dopamine levels.
High levels of dopamine have been linked to a variety of mental health
and neurological disorders. Such arousal or desire in male audiences to emulate
the behavior presented in the film proves to be exceedingly dangerous for human
society and can be related to an increase in the occurrence of horrible crimes
such as rapes of children as young as five and women. As a result, feminist
social reformers and psychoanalysts saw the need to remodel films and
television serials with better quality, compassionate, and relevant material, hence
lowering crime rates.
Women filmmakers entered the scene, creating films from a feminine
perspective. This required studying every subject from the feminine
perspective. Fine arts such as paintings, literary arts such as novels and
poetry, and performing arts like as theatre and film all saw significant
transformation, with a transition from male-centric to female-centric and
feminist art, bringing both genders on the same plane. The masculine gaze was
supplanted with 'the female gaze.' Furthermore, just a few years after India
gained independence, the Cinematograph Act of 1952 was passed.
The Central Board of Film Certification (CBFC) was also established as a
statutory authority in India to regulate films under the provisions of the Act.
It fulfills its function of certifying films for public showing. One of the
reasons on which the Central Board can refuse to certify the picture at all is
'vulgarity, obscenity, depravity, double entendres, or scenes humiliating
women, including sexual assault.' Almost all films with brutally strong
violence and harsh language, humiliating, disrespectful, or demeaning sequences
against women or any social group, and naked content will be prohibited by
legislation in order to reduce crime and safeguard the public conscience and
sanity.
The Board is part of India's Ministry of Information and Broadcasting.
According to Section-354C of the Indian Penal Code, 1860, 'voyeurism' is
defined as ‘viewing and/or capturing the image of a girl or woman going
about her private acts, where she believes no one is watching her. This
includes a lady who is using a toilet, naked or in her underwear, or doing a
sexual act.’
The sentence for this crime is from three to seven years in prison and a
fine. In 2012, a horrifying and spine-chilling occurrence occurred in Delhi as
part of the Nirbhaya Gang Rape.[17] The horrible crime sparked a wave of outrage and horror across the
country. As a result, the criminal law was modified in accordance with the
Justice Verma Committee recommendations. To outlaw digital voyeurism in India,
Section-354C was inserted to the IPC, 1860[18] as part of an amendment to the law relating to women's protection.
Furthermore, Section 67A of the IT Act [19]states that if any sexually explicit material is released online, the
individual who publishes it would face a 5-year prison sentence and a monetary
fine of up to ten lakh rupees.
Following the precedent set by 'Justice K.S. Puttaswamy (Retd) vs Union
of India,[20] the incorporation of the 'Right to privacy' in Article 21, which provides
the 'Right to life and personal liberty,' any voyeuristic act is completely
prohibited.
The right to privacy is a fundamental right that all Indian citizens,
especially women, deserve.
Despite regulations aimed at curbing 'voyeurism' and protecting women's
dignity, the number of cybercrimes against women has not decreased. Although
Indian regulations allow for the censorship of films and television
programming, the present generation of women and children faces a significant
threat from voyeuristic content on various social media platforms, websites,
blogs, chat bots, and OTT platforms that are rife with pornography and child
abuse. Online sex scandals have recently dominated the headlines in newspapers.
These websites must be outlawed immediately, and new laws enacted to
penalize cybercriminals. It is extremely tough to track down crooks in
internet. The country's cyber laws require multiple urgent modifications to
stay up with changing times.
These Acts may be viewed as watershed moments in the evolution of
feminist felony theory. The Hindu Succession (Amendment) Act of 2005 was
enacted in order to eliminate discriminatory clauses and provide women the
right to inherit possessions. Prior to this amendment, women had no statement
of inherited assets. The Nirbhaya Gang rape case prompted the amendment of the
Criminal (Reform) Act 2013, also known as the Anti-Rape Act of 2013. The
widespread outrage following the brutal gang rape and subsequent homicide of a
physiotherapy intern in Delhi acted as the push for the amendment.
This proposal seeks to provide people convicted of sexual offenses
against women a faster trial and heavier penalties. All of these
accomplishments show that feminism exists in India and is actively striving to
better society and remove gender inequity. In our country, feminist
jurisprudence has grown at its own pace.
However, certain loopholes must be addressed, as well as some gaps
between the authorities and the terrible. The gender wage gap persists, various
legislative standards need to be altered, women's safety is no longer
guaranteed, and the promotion of rape culture in media, including songs,
movies, and jokes, must cease. The feminist movement in India also needs
greater backing.
Misuse of
Feministic laws in India
Excessive legislation is not always beneficial. It frequently leads to
the misuse of laws. In India, rules designed to safeguard women are being
misused, which has become a contentious topic. The government enacted various
regulations to protect women from discrimination and sexual harassment in
society. However, due to one-sided safety rules for women, bogus charges
against men are increasing at an alarming rate.
For many years, women were the most underprivileged element of society,
but they are now offered the same possibilities as males. Even the Indian
Constitution permits the government to establish specific provisions for women
under Article 15(3). As a result, if some laws are enacted to protect women's
rights, legislation enforcing men's rights must also be enacted. So that if any
false claims are made against a guy, he might seek legal recourse. Men are now
deemed the most suffering sector of society as a result of women-centric
regulations. The politicians should recognize that while women are deemed
weaker than men, this does not mean that men do not need protection. Society
requires rules to safeguard all individuals from any form of abuse or inequity.
There are numerous laws that were once enacted to protect women's rights
in society, and these laws were drafted with Article 15(3) of the Indian
Constitution in mind, which allows the Parliament to make special provisions
for the protection of women, but many women are now abusing the same laws. The
very foundation of those laws has crumbled. The following laws are being
misused:
1. The Domestic Violence Act is a civil
law adopted in 2005 to provide relief to the aggrieved party (a woman under the
act). This Act was primarily established to safeguard women from abuse
perpetrated during their marriage by their husbands or in-laws. The statute was
even successful in giving justice to many married women. However, as time went,
many women utilized this Act to target their in-laws, filing bogus Domestic
Violence claims against their husbands and families.
Women began bringing bogus claims as a result of extramarital
affairs or in order to gain their husband's possessions. It is true that these
rules are vital for women's safety because some women endure domestic abuse and
cruelty in their matrimonial homes, but we cannot overlook the fact that some
women force innocent males to face a variety of problems in society. The bogus
cases affect their reputation in society, and some men have even lost their
jobs as a result of these false charges.
2. Section 498-A, Indian Penal Code: The
term "cruelty"[21] is defined under Section 498-A of the Indian Penal Code, and the wife is
protected from any sort of cruelty against her husband or the husband's
relatives. This clause was included to the IPC to help women deal with the
threat of dowry deaths. This section exclusively addresses cures for wives, not
husbands. The introduction of this section was necessary because a substantial
proportion of married women faced abuse in their marital homes.
However, many women no longer use this section for their own
safety, but rather to exact revenge on their spouses, collect money from their
husbands, or simply to make their in-laws suffer. The women leveled bogus
claims against their spouses. When the cross-investigation was conducted to
determine the legitimacy of this section, it was discovered that the number of
acquittals exceeded the number of convictions.
The misuse of Section 498-A undermines its genuine
legitimacy. The part should not only be handy for women, but it should also
include the phrase "men" because, while it is currently just women
who face cruelty in their marital homes, the number of husbands encountering
cruelty has increased more than that of wives.
3. Rape is specified in Section 375 of
the Indian Penal Code.[22] The term "rape" literally means "forceful seizure."
It is engaging in sexual intercourse with a lady without her consent or by
assault. It is a much-needed provision to preserve women's dignity, but it does
not allow women to make false charges of rape against males. Not every woman,
but a significant number of women fabricate false charges about men in order to
harm a man's reputation or take money from them.
Furthermore, Section 375 of the IPC can be considered
gender-biased because sexual violence can affect men, transgender people, and
women alike. The accused of rape should be given an equal opportunity to be
heard, and the court should conduct many tests before passing judgment in such
sensitive instances, as it is a question of men's entire lives and reputation.
As stated above in the case of Vishnu Tiwari vs. the State of Uttar Pradesh,
Vishnu Tiwari was accused of rape and condemned to prison, but he was judged
"not guilty" after approximately 17 years.
There are additional legislation, such as the Sexual
Harassment Act, which try to make the workplace safer for women. Many women
have had conflicts with their coworkers or supervisors in the workplace. As
time progressed, the women utilized this conduct against males, filing fake
molestation accusations against them, harming their reputations and careers.
The Hindu Adoption and Maintenance Act allowed divorced wives to seek
maintenance and alimony from their husbands. Many women divorced their husbands
simply to get alimony.
In this case, the court noted that the petitioner (the wife) received
sufficient money from the fixed deposit receipt, but she failed to provide it
in evidence and claimed that she has no source of income. The court charged her
under Section 195 read with Section 340 of the CrPC. The court in this case
believed that laws favoring women are frequently manipulated by them by giving
false proof, and thus the wife's petition was dismissed.[24]
In this case, Arnesh Kumar's wife accused her mother-in-law and
father-in-law of asking her for a dowry of Rs 8 lac and other items such as a
Maruti car and an air conditioner, and she also accused her husband of siding
with his parents when she informed him of their dowry demand. She also claims
she was told to leave her marital house if the dowry demands were not paid. The
accused rejects all of these claims and requests anticipatory bail, which is
denied both the High Court and the Sessions Court. Then Arnish Kumar files a
Special Leave Petition in the Supreme Court.
The Honourable Supreme Court ruled in this case that police officers
should use caution while conducting arrests in cases where the sentence is less
than seven years in jail, and that they should follow the broad standards
established by the Supreme Court. These instructions inform the police on
whether an arrest is required under Section 41 of the CrPC or not. The Supreme
Court further stated that the judicial magistrate should study the report
presented by the police officer. This Supreme Court ruling was also backed by a
number of activists fighting for men's rights.
This case can be considered one of the most important cases to
demonstrate how women abuse the laws designed to protect them. In this case,
Vishnu Tiwari was accused of rape and sentenced to prison in 2001 after being
found guilty of rape; however, after approximately 17 years, when the matter
came before the Allahabad High Court, they found the charges against him to be
false and acquitted him.
In this instance, the court ruled that women's rights statutes were
enacted to protect women from abuse. However, they abuse these laws by dragging
her husband's distant relatives into the picture.
So, in this instance, the Court ruled that if a woman is subjected to
violence by her husband or in-laws, the complaint should be launched against
them alone, rather than the accused's entire family.
In this instance, the court issued several directives to reduce the
misuse of Section 498-A of the IPC. The court orders the formation of a welfare
committee in each district, consisting of paralegal volunteers, social workers,
and officers' spouses. Whenever the police authorities received a complaint
under section 498-A, it was the job of the welfare committee members to
investigate the problem and create a report for such cases, which they would then
send to the authorities. The completed report must be given to the judicial
magistrate, who will then express his views on such matters.
Landmark
Cases of Gender Biasness
1. Nergesh Meerza v State of Bombay, AIR
1951 SC 233 (1951)- It was one of the earliest major cases in Indian equality
law involving sex discrimination. The Nergesh Meerza[29] case was a major decision by the Indian Supreme Court in 1980 that
declared illegal a clause of the Indian Constitution that excused women from
military duty, declaring that the provision violated the constitutional promise
of equal protection.
The Court ruled that excluding women from military service
based solely on gender was a form of discrimination and so could not be
lawfully justified. This decision created a precedent for the Court to follow
in other instances concerning gender discrimination. The decision also
established a broad principle of equality before the law in India, which has
been applied in future instances concerning discrimination based on gender, religion,
caste, and other factors.
2. Vishaka and Others v. State of
Rajasthan (1997)[30]- This case was a historic decision by the Supreme Court of India, which
recognized sexual harassment as a breach of a woman's fundamental right to
equality under the Indian Constitution. The lawsuit was filed in response to a
gang rape of a social worker in Rajasthan, and the court issued rules to
prevent and address workplace sexual harassment.
3. Mary Roy v. State of Kerala (1986)[31]- In this case, the Kerala High Court decided that Kerala's Christian
personal law denied equal rights to women. Mary Roy v. State of Kerala (1986)
was a landmark case that called into question the Travancore Succession Act's
gender-biased inheritance regulations, which applied to Syrian Christian women
in Kerala. The legislation specified that only men were eligible to inherit
ancestral property, while women were only entitled to a small share of it.
Mary Roy, a Syrian Christian lady, challenged the ordinance,
claiming that it violated her fundamental right to equality under the Indian
Constitution. The Kerala High Court found in favor of Mary Roy, finding that
the Travancore Succession Act discriminated against women and infringed their
constitutional right to equality. The court ruled that Syrian Christian women
in Kerala have the same right to inherit family property as men, and that the
Travancore Succession Act must be amended appropriately.
4. Shayara Bano v. Union of India (2017)[32]- This lawsuit was about the practice of triple talaq, a type of instant
divorce performed by Muslim men in India. The Supreme Court of India found the
practice unlawful and discriminatory against women, and it overturned the
provision that permitted Muslim men to divorce their wives simply by reciting
"talaq" three times.
Conclusion
Feminist analysis of legislation
reveals both the potential and limitations of legal frameworks in achieving
gender equality. Here are some key takeaways:
1. Progress achieved: Legislative
advancements have outlawed discriminatory practices, provided protections
against violence, and expanded women's rights.
2. Need for ongoing critique:
Legislation can reinforce patriarchal structures if not crafted carefully. Laws
should be reviewed for unintended consequences and potential to
disproportionately burden marginalized women.
3. Focus on social change: Effective
legislation goes hand-in-hand with social transformation. Feminist movements
play a crucial role in raising awareness, demanding enforcement, and pushing
for cultural shifts that dismantle gender inequities.
Looking forward, a feminist approach
to lawmaking should:
1. Center diverse experiences: Recognize
the ways sexism intersects with race, class, and other identities. Legislation
should address the needs of all women.
2. Promote economic justice: Address issues
like unequal pay, lack of childcare options, and limited access to economic
resources.
3. Shift focus from protection to
empowerment: Laws should not just protect women from harm, but also create
opportunities for them to thrive.
The fight for gender equality is an
ongoing process. Feminist engagement with legislation is crucial to ensure laws
are effective tools for creating a just and equitable society. By continuously
evaluating and improving the legislative response, we can move closer to a
future where women have equal rights, opportunities, and protection under the
law.
Article Information
FEMINISTIC APPROACH: THE LEGISLATIVE RESPONSE & PROTECTION
Authors: SANJANA DWIVEDI, DR. MONICA KHAROLA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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