- Hamsini Hariharan
Gender: Here Comes the Womanifesto!
This article first appeared in Pragati on 26 March 2019 and can be accessed here.
This section of the Pragati Manifesto outlines how to make life better for women. To start with, strike down some horrendous laws.
The Indian Government fails its women every single day. This is not a surprising fact – social failure is compounded by government failure. There are serious problems with regards to women’s safety, health, education, jobs and political representation. More often than not, government intervention takes a patronising stance and hurts the very women it seeks to empower. (Take last year’s maternity benefits bill for example.)
This misogyny is not only apparent in the minds of policymakers but also in our policies and in our laws. Any government that comes to power should begin by striking down these draconian and misogynist laws.
One: The Immoral Trafficking (Prevention) Act, 1986
This Act is ambiguous in its definition of terms such as prostitution and sexual exploitation, and it has ignored the agency of women, and the question of consent. Instead it calls to punish the client and the victim (by sending her to a corrective facility). This has effectively driven prostitution underground creating a black market. Thus, the women that the law seeks to protect do not have legal recourse. It must be abolished.
Two: Section 375 (Exception 2) of the Indian Penal Code
The exception in the rape laws of our country reads:
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
This is possibly the most regressive law that exists in our country. It ignores the agency and consent of the woman, even if she is married. While marital rape is grounds for divorce in India, it is only part of cruelty on the behalf of the husband. Similarly, if a couple is separated and then the husband rapes the woman, then he could be sentenced to two years in prison – a more lenient sentence than for other kinds of rape.
Three: Section 376 A of the Indian Penal Code
The punishment for repeat offenders of rape is life imprisonment or the death penalty. The punishment for rape of minors under the age of 12 is also death. While the latter may seem like a deterrent for would-be sexual offenders, what it does is incentivize them to kill their victims to minimize the risk of being caught. It also deters victims from speaking out, particularly when the perpetrator is a man they are acquainted with. (It has also been reported that 90% of rapesare by men known to the victims.)
Four: The Hindu Minority and Guardianship Act, 1956
Sections 6 and 7 of this Act grant natural guardianship to the father alone. Only if he is dead or “unfit” or has taken vanaprastha does a woman get guardianship over her child. According to this law, women are the natural guardians of illegitimate children, but not of legitimate children. The law is particularly regressive because it does not consider a woman as an equal partner in a marriage and grants her a lesser position because of it. The section since 1999 (after the Githa Hariharan vs Reserve Bank of India) is being interpreted such that in the absence of the father (if not his death), the mother gets guardianship. But this interpretation still does not take away from the fact that the law considers women unequal and unfit to care for children or make decisions for them.
The law only gets more problematic: Under Section 6(c) the guardian of a minor girl is her husband. By granting the guardianship to the husband of a minor girl, the Act legitimizes child marriage.
Five: Hindu Succession Act, 1956
Leave aside that this act actually defines people as “full blood”, “half blood” and “uterine blood” depending on who the father is. If a Hindu woman dies without heirs, Section 15 allows precedence for her husband’s family to take over her property rather than her own parents. This law is particularly problematic because it marks the line of succession in Hindus (when without a will) as passing through men, effectively codifying patriarchy.
Also, sons of intestates (people who died without wills) can unilaterally block division of property on sale by living in it, regardless of their marital status, so that daughters would inherit nothing until they vacated. Daughters, on the other hand can stay on in the house only if they are unmarried.
Other religions are not exempt from this. Under the Indian Succession Act (which Christians and Parsis follow), if a man dies without a will, only half his property goes to his wife – the rest has to go back to his family. Also, a non-Parsi woman who marries a Parsi man cannot inherit his property.
Six: Hindu Marriage Act, 1956
Section 23: According to this section, the Court will try its best to reconcile the two people. But what business does the law have about conciliation between two people who no longer want to be in a relationship? It’s no wonder that India has one of the lowest rates of divorce in the world.
Section 25 is problematic for a number of reasons. Women have argued that this law grants them a maintenance but not rights to joint property that they have contributed to. Considering that women are tasked with large amounts of unpaid labour, this discriminates against what they are due. According to Section 25 (3): “If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock…” This section deals with permanent alimony and maintenance but for some reason, continues to place an importance on their sexual relations outside the marriage. With the adultery clause being struck down last year, you would think that other laws dealing with marriage would also change but this is not case. Also note the language: A man’s chastity can never be in question whereas a woman’s always is.
As states have their own jurisdictions, this further complicates how laws discriminate against women. Here are a few examples:
The Family Law of Usage and Customs of Gentile Hindus of Goa: A Hindu man is allowed to be bigamous in Goa if his first wife does not have children by the age of 25 or a male child by the age of thirty. Polygamy is actually legitimized in the laws of Goa – what’s worse is that it cements the idea that a woman’s primary role in society is to rear children and has no value if she cannot bear them.
While the Hindu Succession Act is problematic for various reasons, it heightens the problems for land ownership since that falls under state laws rather than union laws. Particularly in North India, these tenurial laws stress on succession through the male lineage, which makes farming even more difficult for women who make up a whooping 80% of India’s agricultural workers. In Uttar Pradesh for example, “an unmarried daughter [is] to be an equal heir with her brother to the family property. A married daughter, however, cannot inherit family land.”
While Kashmir has its own Constitution, its succession laws are discriminatory and even more difficult to amend because of the politics around amending the Kashmiri Constitution. For example, Kashmiri women lose the right to hold property in the state of Jammu and Kashmir if they marry men who are from other states. This, of course, does not extend to the Kashmiri man.
Some of the laws enacted in the 1950s were considered to be ahead of their time because the basis of these laws were equal rights for women (a hitherto unheard of concept). But we have come a long way since the 1950s and our laws need to fall in with the times. The judiciary does pay lip service to the status of women and the need to end discrimination against them – unfortunately they do not often walk the walk. This line of thinking needs to go down all the way to the lowest courts, where the adjudicators (often men) have to reckon with their own biases.
This is because all personal laws discriminate against women. As Catherine A Mackinnon said,
To call law that is based on sex “personal” then becomes a way of saying that women—a group whose status is so decisively constructed as belonging to the arenas denominated personal—will have no recognized legal rights to equality.
Policymakers have to keep this in mind while drafting new laws, and strive to make them gender-neutral. They should start by cleaning up the misogynistic rot in our legal system. Only then do they have any legitimacy to fathom how women in India can lead fulfilling lives.