Gender-based laws: a double-edged sword
It is time to remove from the law all privileges and disadvantages that are based on gender
With violence decreasing and the knowledge economy growing, society is making progress towards gender equality. But there’s a long way to go, and the law plays an important role in shaping the way women are viewed. Unfortunately, our laws are not the most liberal. The Supreme Court’s notice to the government regarding Section 497 of the Indian Penal Code (IPC), relating to adultery laws, has brought dated assumptions about gender to light.
The three-judge bench was responding to a writ petition challenging the fact that the law allows the husband to initiate criminal proceedings only against his wife’s lover. It does not punish his wife, since it presumes that only a man can seduce a woman into a sexual act, and that it is the husband who has suffered due to the sexual relationship of his wife, carried out without his consent. At the same time, the wife is not protected from similar behaviour committed by her husband.
The problem with this law, aside from the fact that it criminalizes adultery, is that it treats men and women differently. It perpetuates the notion that women are somehow naive, gullible, and lack the agency a man possesses. This caricature can be seen in other laws too. For example, the law criminalizes consensual sex between minors as rape committed by the boy; women are legally entitled to maintenance from their father until they get married, while boys are only allowed this until they are 18; if a woman dies without a will, the Hindu inheritance laws put the rights of her husband’s heirs above those of her parents; women cannot be jailed for not filing their income tax; and marital rape is considered an oxymoron.
It cannot be denied that most women’s freedoms in this country are trampled on in the name of security. Women can’t be certain of their safety while stepping out alone in the dark, travelling far away from home is discouraged, public transport is unsafe, and male-dominated jobs invite predatory behaviour. These are serious constraints on a good life, and they are caused by one major issue—the state’s failure to provide security.
It is the state’s fundamental duty to protect the life and property of citizens from physical injury. In the absence of adequate policing and a slow judiciary, women are exposed to threats from the physically stronger gender, and it is the men in their family and friends who end up providing security. This establishes the subordination of women to men in other domains of life—whether it is to fathers, brothers or husbands.
In the light of its failure to provide security, the state has resorted to protecting the interests of women through ad hoc provisions that are counterproductive. Take the recent legislation mandating paid maternity leave of 26 weeks and crèche facility in companies hiring more than 50 employees. The law intends to benefit working women, but the second-order effects of the piece of legislation will likely be that firms will hire fewer women, and pay those they hire less salary to compensate for the maternity benefits. The law furthers several stereotypes as well—that all women want to have babies, that all women want 26 weeks of paid leave, that it is only the woman’s job to take care of the newborn. Even if some or most women want those things, firms cannot know who those women are in advance, so “marriageable-age” women will continue to be discriminated against.
The domestic violence and dowry laws are meant to check ill-treatment of women. But the law undercuts due process, and puts the husband and his family in jail in response to a written letter from the wife accusing them of assault. This is similar to the situation in US colleges, where students have been expelled after allegations of sexual misconduct, using the lowest possible burden of proof, a “preponderance of evidence”—often described as just over a 50% likelihood of guilt.
Instead of being a progressive agent, the state has used the law to perpetuate cultural practices. Take the divorce law, for example. If relationships are abusive, it should be easy for the parties to leave them. But till as recently as September 2017, the Hindu Marriage Act, which defines marriage as a religious sacrament instead of a contract, required that even couples seeking divorce through mutual consent demonstrate that they had tried to work on their marriage, and wait for at least six months after they had first filed for divorce. Now, it is conditional upon events that have transpired before the appeal.
There is, however, still no provision for divorce on grounds of ‘irretrievable breakdown of marriage’—a standard practice in other countries. Despite this, the rising divorce rates are a good thing as they indicate that women are increasingly able to walk out of bad marriages.
In a civilized society, physical strength should not determine your options in life. In the West, more social progress on gender equality has been made because women are relatively freer to live independent lives. The process is likely to be no different in India.
At the same time, it is clear that gender-based laws are like a double-edged sword. Sometimes, the conservatives wield it to preserve our culture, at other times, progressives take positive discrimination too far. Maybe it’s time to shelve the tool, and remove from the law all privileges and disadvantages that are based on gender.
Should our laws be gender-neutral? Tell us at email@example.com
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