Criminal Law is one of the foremost crucial branches of law because it directly impacts day-to-day human behavior. It’s a branch of law that manifests the connection between the State and its citizens. Since time out of mind, societies around the world have observed a prescribed code of conduct. The Indian Penal code 1860 (IPC) occupies a predominant place amongst the laws designed as agencies of group action. IPC enlists and defines offenses and specifies their respective punishments. The Code of Criminal Procedure 1973 (CrPC) establishes the machinery for implementation of the IPC and lays down the procedure to be followed while, inter alia, taking cognizance of the offenses committed, conducting investigation and arrest, trial procedure, execution of sentences, prevention of offenses and providing compensation to the victim. The Indian Evidence Act 1872 (IEA) further elaborates on the principles of taking evidence so as to prove the guilt or innocence of an alleged offender.
The concept of equality, however, requires equity. The history of social development is additionally history of inequality. German philosopher and socialist Engels in his classical writing “Origin of the Family, personal property and therefore the State” states that, “Woman was the primary person that tasted bondage. The lady was a slave before slavery existed”. The feminist struggle for equal rights has been paved through legislation, be it the Suffragette movement and therefore the right to vote, to employment rights, property rights, rights governing divorce and marriage to child-care and medicine – legislation supported equal rights affects the very values of society, impacting not just the way we vote, but the way we work, live and performance as a family, the way we access education, healthcare, and justice.
In India, the constitutionally guaranteed equality for ladies is usually contradictory to the tough societal reality of the land and its cultural norms. The struggle for women’s equality began in India within the 20th century, during the struggle for Independence. within the fight against British, western-educated leaders like B.R.Ambedkar, Gandhi, Raja Ram Mohan Roy, and Savitribai Phule encouraged women to step far away from their homes and hearths and enter the general public sphere within the fight for Independence. Indian values, nationalism, and cultural heritage were glorified through the symbolism of ‘Mother India’. Perhaps for the primary time in India, the thought that a lady is a component of the larger Indian tapestry as a legal citizen took root. The inclusion of the feminine citizen into the general public sphere necessitated citizenship rights and changes within the law like the proper to education, inheritance rights, the abolition of sati, and polygamy also as an allowance for the widow- remarriage.
While a struggle for nationalism changed the legal landscape of women’s rights through the colonial era, the post-colonial era in India has been marked by sweeping changes like globalization, neoliberal policies, and therefore the leaps and bounds in technological development. This has expanded women’s participation within the public sphere. More Indian women than ever are engaged in business enterprises, international platforms, multi-national careers like advertising and fashion, and have better opportunities due to the free movement of products, capital, and ideas. Ideas that question the very nature of laws. Has our system maintained with social change? Does our constitution have provisions for equality or equity? Do rights guarantee justice? Is citizenship gendered? the subsequent article gives a quick overview of the present spate of women-centric legal reform in India and concludes with a discussion on its socio-cultural impact on the very fabric of Indian citizenship.
Judicial protection for Women’s Rights
The nation-wide outrage over the brutal gang rape and subsequent death of Jyoti Singh in the national capital was the thrust behind the promulgation of the criminal law (Amendment) Act, 2013 (“Criminal Law Amendment Act”). The legal code Amendment Act, 2013 that came into force on February 3, 2013, amended also as inserted new sections within the Indian penal code with reference to sexual offenses. a number of the new offenses recognized by the criminal law Amendment Act are acid attacks, voyeurism, stalking, intentional disrobing of girls, and harassment.
In 2013, India adopted its first legislation specifically addressing the problem of workplace sexual harassment; the harassment of girls at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) enacted by the Ministry of girls and Child Development, India. Harassment at the workplace is another kind of gender discrimination that violates a woman’s fundamental right guaranteed under Articles 14, 15 and 21 of the Constitution of India. The Act had been enacted with the target of preventing and protecting women against workplace harassment (which include the creation of a hostile work environment) and to deal with complaints of harassment.
2017 witnessed the bold amendment to the Maternity Benefit Act, 1961 (“Maternity Act”). The Maternity Amendment extends paid maternity leave for ladies employees with not more than two surviving children, from the initial twelve (12) weeks to twenty-six (26) weeks. A maximum of eight (8) weeks are often taken before the expected delivery date and therefore the remaining after childbirth. Women expecting their third child were also given the proper to require twelve (12) weeks of paid maternity leave—six (6) weeks before childbirth and 6 after.
The Maternity Amendment provided for mothers adopting a baby below three months aged, or “commissioning mothers” to require twelve (12) weeks of maternity leave from the date of receiving the kid. The Maternity Amendment enables mothers to figure from home after completing twenty-six (26) weeks of leave subject to their work profiles and therefore the employer’s consent. The Maternity Amendment also mandates establishments employing 50 or more employees to possess a crèche which is required to possess prescribed facilities and amenities. Women employees have a right to go to the crèche fourfold each day, including during their rest interval.
Decriminalizing of Adultery
On September 27, 2018, a five-judge bench of the Supreme Court of India (“Supreme Court”) struck down another colonial-era law, Section 497 of the Indian legal code that prescribed a prison period of maximum 5 years for adultery.
Unlike India’s statutory offense laws, which are linked with the consent of the females, the 158-year-old adultery law didn’t consider the woman’s will. Though women couldn’t be punished under the availability, a husband could prosecute the one that had sexual relations alongside his wife, albeit the wife was a voluntary participant within the act.
Last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law. He argued that it discriminated against men by only holding them liable for extra-marital relationships while treating women like objects. All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional. The Court however clarified that adultery are getting to be a ground for divorce.
Dipak Misra, the then CJI said that”It’s time to say that (a) husband is not the master of (his) wife. Women should be treated with equality in conjunction with men”.Justice R F Nariman who wrote a separate judgment to concur with the judgments of judge Dipak Misra and Justice Khanwilkar stated that Section 497 was an archaic provision that had lost its rationale. “He stated that, Ancient notion of man being the perpetrator and woman being a victim of adultery does not hold good”.
Justice Chandrachud in his separate but opinion said that Section 497 was destructive to woman’s dignity and also emphasized that “Respect for sexual autonomy must be emphasized”.”Section 497 perpetrates subordinate nature of woman during a marriage”, were his concluding remarks. Justice Indu Malhotra noted in her judgment that Section institutionalized discrimination.
This was the second colonial-era law struck down by the Supreme Court after it struck down the 157-year-old law which criminalized gay sex in India.
The Supreme Court on September 28, 2019, delivered one among the foremost keenly awaited judgment within the Sabrimala case. By a 4:1 majority, the Supreme Court permitted entry of girls of all age groups to the Sabrimala temple. The lone woman within the bench, Justice Indu Malhotra, dissented. Then judge Dipak Misra, Justice R F Nariman, Justice AM Khanwilkar and Justice DY Chandrachud constituted the bulk.
The judgment was delivered during a 2006 PIL filed by Indian Young Lawyers Association challenging the centuries-old tradition of Sabrimala Temple banning entry of girls of menstruating age inside the temple.
“Woman isn’t lesser or inferior to man. Patriarchy of faith can’t be permitted to trump over faith. Biological or physiological reasons can’t be accepted in freedom for the faith“, said judge Dipak Misra while reading out portions of the judgment written out for himself and Justice AM Khanwilkar.
Justice Chandrachud in his separate but opinion held that the thought behind the ban was that presence of girls will disturb celibacy, which was placing the burden of men’s celibacy on women. This stigmatizes and stereotypes women, he analyzed.
Justice R F Nariman held that the customs and usages of Sabarimala temple must yield to the elemental right of girls to worship within the temple.
Misuse of women centric laws
On the front of it, the law appears to be a miraculous medicine for people in abusive or violent relationships. However, a careful analysis reveals that under the ploy of “women and kids welfare”, this law is yet one more misguided plan to legislation to grant women legal supremacy over men and to make a society where men are bereft of their rights.
There are 3 basic problems with this law –
It is overwhelmingly gendered biased in favor of girls,
The potential for misuse is astounding
The definition of violence is just too expansive.
The fact is that it’s been comprehensively proven in numerous studies that ladies are not any less abusive than men in intimate relationships. it gives enormous legal powers to women while withholding protection to male victims is virtually the same as the systematic legal victimization of men. Within the western world, the violence laws are gender neutral and supply protection to the victims, both men and ladies. The very fact that the Indian version explicitly prohibits any male victim to hunt relief under this law defies all logic and is beyond comprehension.
The second drawback of this law is that it bends itself to such easy misuse that ladies will find it hard to resist the temptation to “teach a lesson” to their male relatives and can file frivolous false cases. An identical trend is already being observed within the case of anti-dowry law (498a), which is being misused to such an extent that the Supreme Court has termed “Legal Terrorism”.
It is the widespread misandry within the society which makes one overlook the plight of men. While there’s the outrage over the crimes against women, crimes against men aren’t adequately addressed. The opposition to section 66A also received attention only after two women were arrested, while two male employees of Air India, who spent 12 days in custody months before, were relegated to a sub-text within the ambit of the general public discourse on this subject.
Until we see all crimes as crimes, regardless of the gender of a victim, we’ll be fooling ourselves to think we are making our nation safer for anyone.
Subsequent to the year 2013 that witnessed the promulgation of the criminal law Amendment Act and therefore the POSH Act, there are several other changes in the law that are for the welfare, security, and advantage of women also like the aim to eliminate gender-based discrimination, one among the basics of the Constitution of India. As we’ve seen the Supreme Court, has taken several initiatives and in some cases issued directions to the govt also, but it’s the sensible implementation of those laws that are required to make sure equality of girls.
There are many difficulties that a lot of Indian women face, which include poverty, female feticide, harassment, lack of education, job skill training. India still ranks 108th among 149 countries within the World Economic Forum’s (WEF) Global Gender Gap Index, 2018. tons got to be done to make sure that Indian women have equal rights and that we see an India defined by inclusive citizenship instead of exclusive but it should be also taken under consideration that some reforms also are required to prevent the misuse of women-centric laws.