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The struggle for women’s rights and laws protecting women was an integral part of the women’s movement for social change, especially during its first decade. Law was recognised as an important institution that maintains, modifies or mitigates discrimination. Therefore it was considered crucial to seek to influence this domain.
Women and Legal Reform
The main strategy employed by the women’s groups along with other social
action groups, (like legal aid cells and consumer groups) when the movement
was very young was to press for formal rights of women. This was done by
lobbying the legislature to introduce new laws or amend existing ones.
The approach was largely premised on a liberal understanding that an individual
gets her rights from the State. The objective was to bring about changes
that would affect not just a single ‘case’ but women as a community. Women’s
groups also saw the law as an instrument of transformation. The legal campaigns
had usually arisen out of unjust and biased judgements or inaction on the
part of the police and the judiciary in instances of crimes against women.
These have included rape, significantly custodial rape, dowry, sexual harassment
and “eve-teasing” at the workplace and public places, domestic violence,
restitution of conjugal rights, bigamy, desertion, property and maintenance
rights and child custody. This activism has exposed the collusion of law,
police, the medical system and the family in subjugating and denying women
justice.
Editors: Amita Dhanda and Archana Parashar
To usher in a just legal order and to enhance gender sensitisation it is necessary that the gender dimension is not localised to a few special branches of law. This volume of collected essays addresses gender in the context of the constitution, criminal law and procedure, labour, consumer protection, forestry and international law. With these are essays on the legal institutions of education, lawyering and adjudication.
The progress of law reform, its content and ideological dilemmas, have been assayed. Gender being socially defined, essays on Kulin widowhood, psychiatric labelling and commodification of the woman explore the interface between law and society.
The book will be useful for law students, women studies units, women’s organizations and judges and lawyers. The students of other social sciences like political science, history, sociology would also find the book interesting and useful. It is strongly recommended for all those women and men who are committed to justice and as a consequence to the upliftment of women.
-Contributors—
Upendra Baxi, Neeru Chadha, Amita Dhanda, Nandita Haksar, Alice Jacob,
Malavika Karlekar, Ved Kumari, Anthony Lester, Vina Mazumdar, S. Muralidhar,
Archana Prashar, K.N. Chandrasekharan Pillai, Usha Ramanathan, D.N.Saraf,
S.P. Sathe, J.N. Saxena, Chhatrapati Singh, B. Sivaramayya.
Edition 1999.
Source: Email posting from Centre for Women’s Development Studies CWDS
LIBRARY cwds@ndb.vsnl.net.in
Women’s groups have also asserted that women’s rights are a human rights issue and have demanded changes so as to make law more sensitive to the economic and cultural realities of women’s lives.
As a result of these efforts some new laws favourable to women have been enacted and some old laws, tightened. However, the end results frequently disappoint – either the laws are watered-down or there is little political will to implement the new laws. Legal reforms, therefore, though seen as necessary, are not sufficient to ensure gender justice. For example the judicial processes, practice and legal interpretation, despite marginal changes, are still grossly insensitive during trials concerning crimes against women.
Many feminists are developing a sharper and more fundamental critique of the legal system that is based not only on patriarchal constructs but also on an archaic British jurisprudence. They have questioned the relevance of this legal system to the lives of large sections of women and the poor in the country. Another reality is the yawning gap between the law-makers and those that they make the law for.(1) Law makers depend on their own background, moral codes, etc. and make laws relevant to their problems.
Many also question the wisdom of continually appealing to the State for more legal intervention that would not only unnecessarily draw all aspects of life and living within the myopic framework of law but also further arm the State with more power, which is not particularly protective of its people.
Women’s Rights as Human Rights: The Debate
Women’s activism at the national and local levels led them to speak in terms “rights”. Women realised that the human rights framework was valuable as it makes the State accountable and responsible for promoting and defending women’s rights. This approach of positing women’s rights as human rights upheld the principle of universality of human rights. Therefore this emerged as a major point in the global agenda and the presence of women from various parts of the world at the UN Human Rights Conference in Vienna in June 1993 heralded that women had entered the formal human rights domain. The two gender-specific mechanisms that are in place at the UN level are the Commission on the Status of Women (CSW) and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The basic idea was to strengthen women’s human rights and to integrate them into the mainstream human rights bodies
This framework, though has some serious limitations. At one level the criticism is that the monitoring and implementation procedures are woefully lacking and that the importance granted to “national and regional particularities and historical, cultural and religious backgrounds”(2) leaves it too open to interpretation that may be unfavourable to women. The CEDAW and CSW are considered too ghettoised to be effective within the UN system. For women’s rights advocates the task ahead is to work the human rights system to women’s advantage. At another level the criticism is that the human rights paradigm places too much emphasis on the nation state as the target for action. This devalues the fact that many battles are fought at the level of civil society; the “statist” orientation of human rights law also makes it difficult to bring in issues that arise from international power imbalances. Many post-colonial feminists have also argued that the concept of human-rights has been very western-oriented. So it has yet to take into consideration culture specificity as well to broaden the scope of human rights to include economic and social rights. Corinne Kumar asks “This understanding (of human rights) had its ideological and political moorings embedded in the specific historical context of the culture of the west: what qualified it to be termed ‘universal’?”(3) The rights of a groups of people are as important as those of individuals, many assert. The need of the hour therefore is to deal with these issues in a comprehensive manner – to recognise and uphold diversity while enjoying certain standards of human life and dignity particularly when it comes to women.
Women in Prisons
Many civil liberties activists have pointed out that the judicial system
is not equitable in that it is weighed against the poor and in favour of
those who can buy their ‘convictability’ out of the system.
Those working on penal reforms have also demonstrated that women undertrails and those convicted were subject to many forms of not just discrimination, but of neglect, torture and abuse. Their life after their term in jail too is often precarious - they frequently lose access to their home, jobs, families and other support systems. The general condition of women prisoners too has come in for scrutiny. (4) The government itself in the report of the National Expert Committee on Women Prisoners 1986-87 (Chairperson Justice V. R. Krishna Iyer) quite unequivocally reveals the presence of custodial bias.
Responding to the conditions that women prisoners find themselves in, many groups (for example Prayas in Bombay and Janodaya in Bangalore) started working with women undertrails and prisoners. They began by mainly providing them with legal aid, liasing with the prison administrative set-up and working for their rehabilitation. They have moved on to press for their rights as citizens and human-beings. Children of women in prisons are also distinguished as a category that need help. Some of them also worked to shape into the strategy and programme of action formulated by the National Commission on Women that focused on reformation and rehabilitation of women prisoners.
The following laws were passed during colonial rule:
Bengal Sati Regulation XVIII 1829
Sati was legally abolished. Burning of widows was checked. Raja Ram
Mohan Roy reinterpreted the Vedas and Shastras, motivated public opinion
in its favour and continued fighting the appeals and petitions from the
orthodox Hindus against abolition of Sati
Widow Re-marriage Act 1856
This Act declared the legal validity of widow remarriage and laid specific
circumstances for its validity. But very few re-marriages were solemnised.
Indian Penal Code, 1860 (34 of 1860)
It provided for punishment for various offences against women like
abduction, rape, adultery, bigamy, cruelty, cheating against women, etc.
The Converts Marriage Dissolution Act, 1866
This Act provides for dissolution of a marriage where one of the parties
has deserted or been repudiated by the other on grounds of conversion to
Christianity
Indian Divorce Act, 1869 (4 of 1869)
It provided for divorce by the wife or husband under certain specific
circumstances. It applied to Christians (Roman Catholics, Church of North
India and of South India).
Female Infanticide Prevention Act 1870
It made registration of every birth and death with the municipalities
compulsory
The Married Women’s Property Act, 1872-1974
Women could own the movable property awarded to women by her husband
or parents through the practice of Streedhan. This was enlarged by the
passage of the Married Women’s Property Act, 1974, thereby widening the
scope of streedhan “to include earnings by a woman and the money she acquired
through her artistic and literary skills.”
Special Marriage Act, 1872
Inter-caste marriage was legalised.
Indian Christian Marriage Act introduced in 1872.
Principally to “consolidate and amend the law relating to the solemnisation
in India of the marriages of Christians.”
Age of Consent Bill, 1891 (not passed)
Child marriage was highly prevalent. This act was intended to raise
the age of marriage to 15 for girls and 18 for boys.
Hindu Succession Disability Removal Act, 1928.
It was provided that no Hindu should be deprived of succession or from
the rights of property of joint family on the grounds of disease, disability
etc. unless he is “insane or an idiot” by birth.
Child Marriage Restraint Act, 1929
Age of Consent Bill, 1891 was not passed. However in 1929 the Child
Marriage Restraint Act was passed inter alia. It was popularly known
as the Sharada Act. This was later amended in 1976.
The Hindu Women’s Right to Property Act, 1938
Brought about reforms relating to the ownership rights of Hindu women.
The Dissolution of Muslim Marriages Act (DMMA),1939
Laid down the comprehensive right to divorce and the grounds under
which it could be obtained.
The Hindu Married Women’s Separate Maintenance Act, 1946
Women were entitled to maintenance and to live separate from their
husbands under certain circumstances.
The Hindu Marriage Disabilities Removal Act, 1947
This Act, ensured that marriage between the same Gotras and Sapindas
received legal validity. In this, an attempt was also made to check polygamy.
Special Marriage Act, 1954
The aim of the Special Marriage Act was to provide for special marriages
and divorce i.e. for inter-community marriages and others who opt to marry
under this law rather than any of the personal laws. This Act was passed
for the first time in 1872. But the Act of 1954 is wider than that in scope.
The Hindu Marriage Act, 1955
This Act applies to all members of the Hindu Community. The chief aim
of this Act was to amend Hindu marriage and to codify it. After the passing
of this Act, all the Acts passed previously whether by the centre or the
states were replaced. Now the rules relating to marriage could recieve
legal validity through this Act.
Judicial Separation Act, 1955
This Act lays down the conditions for Judicial separation.
Indian Divorce Act, 1956
This Act also provides for divorce and the conditions for it.
Hindu Succession Act, 1956
According to this Act, all persons are considered to have equal rights
in the property irrespective of their sex, age or status. Earlier, widows
were not given the rights to property but this Act conferred those rights
which their husbands possessed. According to this Act, the daughter is
also given an equal right to inheritance.
Hindu Adoption and Maintenance Act, 1956
According to this Act, the husband has to take the consent of the wife
while adopting a son or daughter. The issueless widow also got the right
to adopt.
Hindu Minority and Guardianship Act, 1956
The Act prescribes certain provisions in connection with guardianship,
like that the son will remain under the guardianship of the mother up to
the age of five years. The father shall be considered the legal guardian
after such time. In the case of unmarried daughters and illegitimate
sons the right of guardianship will rest with the mother and upon her death
such right shall be passed on to the father. The right of guardianship
of the married daughter rests with her husband.
Suppression of Immoral Traffic in Women and Girls Act, 1956
This Act, amended twice in 1978 and 1986, prohibits trafficking in
women and girls for purposes of prostitution as means of livelihood. Amended
to Immoral Traffic in Persons (Prevention) Act (PITA) in 1986, it intends
to abolish organised prostitution gradually by criminalising pimps, landlords,
brothel-keepers and traffickers. PITA also takes a more serious view of
prostitution of minors.
The Dowry Prohibition Act, 1961
All demands for dowry could be punished. The law tried to take an “educative
perspective” (i.e. to make people aware of the issue). Dowry Prohibition
(Amendement) Act 1984 focused on dowry-related violence
The Medical Termination of Pregnancy Act, 1971
This Act lays out when it is legal for married and unmarried women
to undergo a medical termination of pregnancy or what is known as abortions.
The Act vests power in registered medical practitioners to determine whether
the woman is having an abortion for legitimate reasons like risk to her
health (mental and physical), that the pregnancy is a result of rape or
failure of contraceptive devices.
Sec.125-128 Criminal Procedure Code (CrPC), 1973:
This is a secular law under which a woman belonging to any religion
may apply to court for maintenance for self and children. The object of
the provision is to prevent destitution and hence the procedure followed
by the court prior to passing the order is summary in nature, and is more
expeditious than under other statues. However, the disadvantage is that
a ceiling of Rs. 500 per person per month has been set. Divorced Muslim
women are now prevented from claiming maintenance under CrPC, by virtue
of Muslim Women’s Act, 1986
Child Marriage Restraint Act, 1976
This was passed in 1929, popularly known as the Sharada Act. This was
later amended in 1976. It raised the age of marriage for girls from 15
to 18 years and for boys from 18 to 21 years.
The Rape Law 1983
This is not a comprehensive law but exists in pieces within the Indian
Penal code (IPC), the Code of Criminal Procedure (CCP) and the Indian Evidence
Act (IEA). The Criminal Law (Amendment Act) 1983 amends these “pieces”
(all of which had remained intact since their formulation) wherever they
relate to rape. The changes recognised that people in official positions
can easily rape and it shifted the onus of proof to the man, in case he
is a public servant. In many other ways the changes were nominal. The law
remains insensitive, with little support for rape victims and their struggle
for justice.
Dowry Prohibition (Amendment) Act, 1984
Sought to make the 1961 law more stringent. The definition of dowry
was enlarged and allowed others to intervene on behalf of the victim. However,
it made both the giver and taker of dowry guilty, so very few cases are
filed under this Act. Also there are several loopholes in the definition
of dowry and proving that a demand was made for it.
For “Dowry Deaths” three different Acts had to be amended to allow for investigation into unnatural deaths of women that occur within seven years of marriage and that a relative or police can move against the offender.
The Family Courts Act, 1984
This Act was passed because many family disputes are not dealt with
swiftly under the normal courts, which are clogged by an overload of civil
and criminal disputes. Thus the parties to a family dispute spend a large
part of their life resolving these disputes in courts. To remedy the situation,
family courts were established in all places with a population above one
million, under this Act, “to promote conciliation and resolution of disputes
in the first stage, and if not then that they should be resolved speedily.”
The Muslim Women (Protection Of Rights On Divorce) Act, 1986
This Act followed the Shah Bano case. The custom of triple talaq was
found to be violative of women’s basic rights. This Act lays out the payment
to the woman of her mehr (or dower) and to arrange for her maintenance
post the divorce
The Indecent Representation of Women (Prohibition) Act 1986.
This Act was passed in addition to the criminal provisions for obscenity
which already existed. It was felt that that the increase in indecent depiction
of women in media, posters, advertisements etc. demanded a separate law.
Indecent representation of women was defined to mean anything that depicted
the woman or her body in a manner that is derogatory, degrading or is likely
to corrupt public morality or morals.
The Commission of Sati (Prevention) Act, 1987
This act is not meant only to ensure that sati is not carried out,
but also to prevent the glorification of sati. Even those who help the
woman to commit sati are punished under the Act, and even to shut down
temples that have existed for twenty years is possible, if any ceremony
that helps in glorifying sati take place.
The National Commission Of Women, 1990
This Act is meant for the constitution of the National Commission of
Women which would consist of the Chair Person and five other members nominated
by the government. The NCW has the power to set up committees for investigating
and dealing with special issues.
The Protection Of Human Rights Act, 1993
This Act is indirectly relevant because it aims to protect human rights
by the setting up of the National Human Rights Commission which is often
used to address issues related to women and for investigation in certain
of specific cases.
Indian Divorce Amendment Bill 2000
Seeks to make changes in Laws relating to Christian divorce laws. It
says that adultery is not an essential condition for divorce. It also allows
either spouse to get a divorce citing cruelty, conversion and desertion.
Both can also get divorced by mutual consent. The critics of this Bill point to the fact that the Christian community was not consulted about this. Feminists also argue that it is yet to move away from being a power struggle between State and Church into areas of women’s concerns and rights.
The Pre-Natal Diagnostic Techniques (Regulation And Prevention Of Misuse)
Act, 1994
This Act is meant to prevent female foeticide. It makes it illegal
for a doctor to carry out the pre-natal tests except under special circumstances,
like when a woman who is above 35 years of age has miscarried before and
other such dangerous factors. It is not allowed under this Act to communicate
to the woman the sex of the child in any manner whatsoever.
Vishaka Judgement 1997
This judgement lays down specific guidelines that shall be treated
as law, till statute is made with regard to rules for dealing with sexual
harassment in the work-place. This is a landmark judgement that has helped
deal with several instances of sexual harassment. The guidelines are largely
borrowed from the Convention for the Elimination of Discrimination Against
Women.
Hindu Minority and Guardianship Act 1956 reinterpreted in1999 by the
Supreme Court judgement to say that the mother is also the natural guardian
of her minor children.
Labour Laws
Welfare Measures
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