- There can be no discrimination in general on the ground of sex,
- Special provision in the case of women and children are permissible.
a) Drafting the Constitution of India
- Several laws have been enacted to protect the rights of women. And yet the sex ratio in India is on the decline!
- Many laws and provisions do not reflect the spirit of Feminism. In an extensive ana 2014 UN Report found several aspects lacking in our laws. The report finds the Hindu Succession Act 1956 to contain provisions that favour the husband’s family. According to the report the implementation of the Dowry Prohibition Act 1961 has been weak and how the courts have interpreted the definition of “dowry” narrowly. Read a summary of the report as published by digital news outlet, Quartz India.
- Some laws and provisions that would further the cause of Feminism are waiting to be enacted
- Criminalizing Marital Rape – By not considering marital rape as an offence, today we are condoning domestic violence.
- Women’s Political Participation Act – We know from about the lack of women in our law making bodies and yet this law is waiting to be passed.
- Decriminalizing homosexuality – Feminism propagates equality for all and hence stands against the discrimination of the members of the LGBTQ community
- Amending the Medical Termination Of Pregnancy Act, 1971 – The conditions under which an abortion can be carried out are too rigid. Women must have more rights over their body.
Section 497, Indian Penal Code, 1860 makes adultery (sexual intercourse not amounting to rape) in marriage a crime with punishment up to 5 years of imprisonment or with fine or both.
- It suffers from constitutional vices because it is tilted in favour of the women for the following reasons:
- A woman cannot be punished under the section for adultery and neither does she have the right to prosecute her own husband for adultery. Only the aggrieved husband has the right to prosecute the accused husband.
- Adultery with a married woman is a punishable offense and not that with an unmarried woman
- If a woman commits adultery with the consent or owing to the connivance of her husband, then it is not considered a criminal offense at all. This reduces the woman to be the ‘property of her husband’
- The woman who commits adultery is not considered an abettor and is not liable to punishment under the section.
Sec 497 of the IPC must be amended to reflect gender equality. In view of the fact that adultery is not a threat to society, there have also been recommendations that the section needs to be decriminalized.
5. Patriarchy has not spared our justice system:
- Judgements: Forcing Husband To Get Separated From His Parents, Amounts To ’Cruelty’ – this is a SC judgement. There are several others like these. But if our judges are primarily men who have been socially conditioned to believe in certain norms of our society, we can’t really blame them.
- Legal Language: Social activist Avantika Tiwari highlights the patriarchal tone in the language of the law in her spirited article commenting on the provisions of Section 354 and 509 of the Indian Penal Code. Section 354 deals with “criminal assault of women to outrage women’s modesty”, and Section 509 speaks of punishing an individual /individuals for using a “word, gesture or act intended to insult the modesty of a woman.” What this means is…