As law-abiding citizens, we always believe that laws are meant to protect people from discrimination in any form. However, what happens when a law in itself is discriminatory? Across countries, there are several laws that explicitly discriminate based on sex. What do women do if the law goes against them? As citizens should we raise our voices and hold the government accountable and push them to re-look such laws?
Two such Indian laws have been highlighted in a recent advocacy report called ‘Words and Deeds: Holding Governments Accountable in the Beijing+ Review Process,’ by Equality Now. Namely, the Hindu Minority and Guardianship Act, 1956 which declares the father as the natural guardian of a Hindu minor and Indian Penal Code 1860, as amended by the Criminal Law (Amendment) Act No. 13 of 2013, which still doesn’t accept Sexual intercourse or sexual acts by a man with his own wife, [the wife not being under fifteen years of age,] as rape. To understand the implications of such laws, why it is important to have gender equality in law and how a change in laws can lead to social change, SheThePeople spoke with Equality Now’s Divya Srinivasan.
What is the report talking about?
Every five years, since 1995, Equality Now releases a report which is essentially a sampling of laws around the world, which still discriminate against women based on sex. List laws which are explicitly discriminatory against women in the text of the law itself are listed in the report. In 1995, 189 governments came together to support women at the Fourth World Conference on Women in Beijing. They agreed on a comprehensive roadmap known as the Beijing Platform for Action to advance women’s and girls’ rights and achieve equality for women. One of the main points in the roadmap was to remove all sex-based discrimination within the law itself because they recognised to have gender equality in the society, we need to have gender equality in the law also.
Which laws are the most discriminatory the world over?
The laws in marital status like child marriage laws, the laws around polygamy, personal status laws which govern a woman and her ability to travel and guardianship over children, whether they can make decisions on their own in their life or require formal male guardianship, laws around economic status which is whether women have equal right to own property or to transfer property and to inherit their parent’s property. The laws on violence against women and the ways in which there are discriminatory probations in law.
To have gender equality in the society, we need to have gender equality in the law also.
What does The Hindu Minority and Guardianship Act, 1956 says?
The law upholds father as the natural guardians of a Hindu, minor and after him comes the mother. This means the father is considered the natural guardian of a child, with respect to all legal decisions over a child’s life or even if you need to sign a document on behalf of the child the mother can’t do it by herself.
There have been some cases which have been taken to court because a mother has done some investment on behalf of the child and the bank has refused the papers saying that the father has not signed. The actual implication is that the mother is not able to make her decisions on her own especially when she is dealing with the government or official institutions.
Given the socio-cultural context of India, how can we ensure that we can enforce a law against marital rape? How can we bring such large-scale changes to the social fabric?
It’s not going to be easy. Even if it is a stranger, it is most difficult to report a rape case. One of the most common myths in rape cases is everybody thinks most women are raped by strangers whereas, in fact, in most cases it is done by someone who is known to the survivor. So when you are reporting against your own husband, even if the law changes, it is going to be difficult in terms of the backlash that the woman is going to get from her community, neighbours, family, etc, And also with the police and judicial attitude in terms of actually getting them to file the complaint seriously, it is a long road ahead. But we can’t even start with all those social changes until and unless the law changes. So, the change in the law is the first barrier that we need to overcome then we need to look at everything else.
Is criminalising triple talaq a historic development in Indian law?
In the last 20 years, a lot of laws have become less discriminatory towards women. But one area where we haven’t seen much change is family law. These are laws which govern marriage, divorce or a woman’s relation with her family. That’s the part which is hardest to change because all across the world they are very interlinked with religion, therefore, the reason always given is that it was a religious or a cultural issue. The triple talaq is a great achievement in this regard as it is a change in an area which is very difficult to change.
We can’t even start with all those social changes until and unless the law changes. So, the change in the law is the first barrier that we need to overcome then we need to look at everything else.
In a country like India, how difficult is it to build a consensus about discriminatory practices?
It’s hard to bring consensus across society as a whole, but that’s what we are sort of moving towards when we agree on a constitution and fundamental rights, one of them being gender equality. Gender equality is a fundamental right and you can’t take it away because there is a religious or a cultural factor that shouldn’t be an excuse.
The nine-judge bench which is looking at the review of the Sabrimala case is an example of how religious or cultural factors are in conflict with the law. Law needs to lead society, so sometimes changes in the law can bring about changes in the societal mindset, even though that might take time but the law can be a tool which helps bring consensus.
Can gender-based atrocities be agnostic of ethnicity and culture?
India has signed on International Human Rights Law, specifically on the convention of elimination of all forms of gender-based atrocities against women where all the countries have agreed that they will live up to certain international human rights standards, including legal equality for women. These principles do trump individual cultural concerns because they have agreed that gender equality is thoroughly important.
Law needs to lead society, so sometimes changes in the law can bring about changes in the societal mindset, even though that might time but the law can be a tool which helps bring consensus.
What are the areas of concern regarding gender equality in India that need prioritising?
Sexual violence laws in India generally after the 2013 amendment to criminal law are pretty good, but one major hole that is left is marital rape.
There needs to be a relooking at family and personal laws like guardianship provision under the Hindu minority and guardianship act and restitution of conjugal rights which is under both the Hindu Marriage Act and the Special Marriage Act. Muslim women have been fighting to get personal family laws codified because right now it’s not even written down which makes it even more difficult to get justice on issues like polygamy.
Regarding sexual violence the concern is not about the law itself, but about how it is implemented the difficulties the survivors are facing in trying to access justice in the system. In the cases which have got media attention, the files are being concluded and people are being convicted but in most cases across the system, it is very difficult to get justice especially if the survivor is from one of our socially excluded communities.
The way forward
For each of the laws identified in the report, there is an action which has been up on the organization’s website. A sample letter has been provided that people can use to write to the government of that particular country. Using that as a tool, we are trying to mobilize people and asking them to write to the governments to change the law. Along with that we are doing advocacy with the government itself.