The article is an introduction to the Indian laws which are exclusively related to women. They can be broadly divided into various categories based on the specific domain of their impact. These laws along with several others together are instrumental in women empowerment in the Indian context.
All over the world throughout history women constituting almost half of the total human population was subject to exploitations and unfair treatment. They were so ingrained into the social mindset and system was that a serious rethinking or recognition of this particular issue never gained public attention until the 19th century when the mobilization of women happened on a large scale.
They demanded a number of rights which were enjoyed by their male counterparts starting from the right to vote, have a property and most notable the right to vote as ensconced in the ‘suffragette movement’.
They stressed the need for complimentary legal reforms for potential social transformation. These movements highlighted the unjust treatment that was meted out to women who were in most cases treated as many levels lower, below men.
The case of India
The status of women in India was a subject of several lows and highs. It is said during the ancient period women had enjoyed positions of power and were held in high esteems. However, as time passed by the status of the women began to be deteriorated.
This process seems to have enjoyed a continuous and exponential journey as Indian society involved so that the systematic subjugation proceeded without any setbacks so much so that by the time of the British raj, the Indian society became one of the most hostile regions where women to live. The factors and practices that contributed to this situation include strong patriarchy; the dowry system, female infanticide, practice of sati and child marriage etc.
Fast forward to post-independent modern India the problems plaguing female welfare in India seems only to have compounded, issues such as malnourishment, female feticides, unequal pay, hostile work environment, skewed sex ratio and female literacy and educational achievement rate etc have been added to the earlier cohort of problems. This is besides the ever-present problem of recurring instances of rape, kidnapping, sexual harassments etc that appear on the media almost on an everyday basis.
As it was the case with several other issues the legislative attempts to tackle this problem have developed on a case by case basis. They often emerged as reactions to specific events and instances and almost on all cases where quick damage control legislations. And as was the case with several other issues most of these responses stayed in paper due to sloppy implementation or lack of initiative and proper follow up measures.
The laws and protective measures devised to safeguard women rights in India can be divided into three broad categories; constitutional provisions, legal measures and institutional arrangements. In this article, we will concentrate on the legal category of safeguards developed to ensure the protection of women rights.
Legislations during the Colonial Period
The aspect of legislation during British rule is significant not just because it was them who imposed a political unity in India but also they were the first rulers to take concrete steps to push forward for the betterment of women.
The first issue that caught the reformative eyes of the colonial law was the inhuman practice of female infanticide that was prevalent throughout the length and breadth of India.
They begin with outlawing of infanticide by the Bengal regulation XXI of 1795 and Regulation IV of 1802 and subsequently the Act VIII of 1870.
Invariantly the colonial administrators then turned their attention towards tackling the issue of Sati, the practice of ‘widow burning’. The colonial predecessors of the British; the Portuguese, the French and the Dutch had respectively outlawed this brutal tradition and the British were to follow their stead. The first British attempt in this regard was to ban the practice in the city of Calcutta in the year.
As a result of a long drawn out reform campaign which took place under the leadership of Rajaram Mohan Roy, Lord William Bentick proclaimed the practice as a crime of culpable homicide punishable with fine or imprisonment or both its legal expression was to be found in the ‘Sati Regulating Act ‘ of 1829.
Another major female-centric issue that witnessed reform during the British period was Widow –Remarriage. Through the Widow Remarriage Act of 1856, the state extended legal support and recognition to the issue which was considered taboo.
Similarly, the Child Marriage Restraints Act prevented the marriage of girls below the age of 15. And to ensure equity in property distribution ‘Hindu widow’s Right’ to property was enacted in the year 1937which made it possible for the widows to claim a share of the property of their deceased husband.
The Indian legal scenario with respect to issues relating to women has developed and evolved as a response to the challenges which emerged as a result of changing social scenarios. The crimes against women in independent India has seemed to have accelerated in recent time.
And the incidents of exploitations both sexual and otherwise which occur on a daily basis bear witness to the monstrous proportion of this problem whose roots stay deep in the deeply ingrained patriarchal mindset and the inefficiency which has come to characterize the law and order enforcement system.
Several special laws had been framed to deal with individual and specific issues that are in most cases unique to the Indian social landscape. These laws could be categorized on the basis of the specialized areas of their impact and are as follows; Laws
- Against exploitation
- For ensuring Social equality
- Those guaranteeing economic equity
Laws Against Exploitation
Legislations in this category are those which tackle mostly criminal offences against women. Some of them are also intended to prevent women from being subjected to unfair restrictions which are forcefully imposed in the name of social norms and traditions.
The Prohibition of Child Marriage Act,2006
The tradition of child marriage had been rooted in the Indian social psyche for so long that the many efforts directed at its eradication that had been taken since the colonial times didn’t make any significant impact. The problem is especially prevalent in some of the most backward regions of the country.
Marriage at an early age without attaining sexual or emotional maturity stifles the normal development of children. And most often it results in the withdrawal of children especially the girl child from attending school or take away her opportunity to pursue an independent life.
According to international research even now a figure not less than 47% of girls are married before the age of 18.
And it is in this context that we have to understand the significance of the Prohibition Child Marriage Act which came into force in the year 2007. The Act held that marriage between a bride who is below the age of 18 and that of the groom who is below the age of 21, illegal. It also mandates to take action against those who are found guilty of abetting and facilitating such a union including the parents.
- Dowry Prohibition Act,1961
Dowry Prohibition Act outlawed the practice of giving or taking dowry to the bride or bridegroom or their family. The practice is so integrated into the marriage customs of the subcontinent and unpleasant events related to this custom is a common occurrence.
There were instances of the bride being subjected to brutal harassment, mistreatment and physical abuse which even had led to the murder of the bride. The prevalent occurrences of bride burning in a certain part of the country underline the gravity of the situation. Thus the Dowry Prohibition Act was formulated as a legal deterrent to the practice of dowry –giving or taking.
Nevertheless, the practice continues unabated to this day.
Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal)Act,2013
The Act aims to secure the safety of women at workplace. According to the Act, the definition of sexual harassment includes; the use of sexually explicit language, subtle touches and sexual innuendoes and invasion of the private space by a male colleague without respecting the reasonable limits of proximity. The Act was passed by the Lok Sabha on 3 September 2012 and received presidential assent on 23 April 2013.
Indecent representation of Women (Prevention )Act,1986.
The Indecent Representation of Women (Prevention) Act aims to prohibit vulgar and inappropriate depiction of women in a various medium such as advertisements or in publications, writings, paintings, figures or in any other manner.
Medical Termination of Pregnancy Act,1971
The Act came into effect in the year 1972, it was envisaged as a legal framework and facilitator for those intending to avail the CAC services(Comprehensive Abortion care). The Medical Termination of Pregnancy Act legalises abortion for a gestation period of up to 20 weeks, in cases of risk of life to the pregnant women, or when the child to be born has a high probability to suffer from deformities of mental or physical kind or when the pregnancy is caused by rape or it was a caused due to failure of contraceptives used by a married husband and wife.
The Act was amended in 1975 and subsequently in 2002 which aims to reduce the occurrence of illegal abortion by listing out the acceptable grounds for which it could be reasonably permitted.
Legislations to ensure Social Equality for Women
The next group of laws that were designed especially concerning women was to correct the entrenched inequalities that were woven into the Indian social framework for so long so that reforms became a tough task. Thus there was an elaborately set socially constructed handbook of do’s and dont’s which tightly monitored the Indian women’s social life and deprived her of exercising in dependent agency even in matters that fit the exclusively personal domain. These are;
Special Marriages Act
The diverse country that India is with its large population belonging to equally voluminous and numerous caste, religion, ethnicity etc. It is possible for adult individuals to select their own partners according to their free will.
However, due to the strict endogamy and other restrictory practices followed by families the intending individuals may not be able to marry by conventional methods hence the significance Special Marriage Act which provides a chance to intending adults to marry through a special procedure and provides recognition to such marriages. It also allows for divorce for such alliances based on special marriages.
Indian Divorce Act,1969
Indian Dissolution Act provides a legal framework for the dissolution of marriage based on mutual consent it also has provisions relating to the nullity of marriage, judicial separation and restitution of marriage.
The Act necessitates the establishment of family courts to hear divorce cases and decide on matters.
Legislations for ensuring Economic Equality for women
Women suffer from several disadvantages in having full participation in the economy which are mainly a result of their unequal status socially. The following laws are formulated keeping in view of the special needs that women have so that they are carefully taken care of and do not act as a deterrent for their active participation in the economy.
Maternity Benefit Act
This Act was devised as regulatory supervision that monitors the employment conditions of women. It states that a women employee who has worked in an organisation of at least 80 days during the 12 months preceding the date of expected delivery is entitled to receive maternity benefits which include maternity leave, nursing breaks, medical allowances etc.
Equal Remuneration Act of 1976
This Act is an attempt to ensure equal pay to root out gender discrimination in workplaces. The law is in conjunction with the concept of equal pay for equal work.
Other Laws devised for protecting and promoting women rights include the National Commission for Women Act of 1990. This Act was instrumental in establishing the statutory body of the National Commission for Women in the year 1992.
NCW ‘s involvement has proved decisive in several cases of national importance to positively resolve those cases and to ensure the welfare of women. The NCW represents the rights of women in India and acts as a unified voice for women all over the country.
- Women and Law in India, Flavia Agnes, Sudhir Chandra, Monmayee Basu, Oxford University Press,2016 edition