Gender Inclusivity in Indian Laws

In India, discrimination has been one of the most challenging problems which the country has been trying to eradicate for a very long time. Discrimination based on gender was and is a major issue which the country faces and it also has left a mark on the laws of the countries. Although, the country works in the direction of establishing gender-inclusive laws and no doubt has achieved significant success, but still, some areas lack equality in the laws concerning the gender of the people. The article will give an idea about how the country lacks gender inclusivity in some laws and what are how this problem can be reduced or even eradicated.

Introduction

“Gender inclusion” is a term that is not so different from Gender equality. It means that all the opportunities, rights, services are available to all people despite the gender they belong to. The term works on removing the concept of discrimination from society by creating equality among people.

Gender Inclusivity in Indian Laws

The Constitution of India has provided various laws that strive to develop gender quality by bridging the gap between the male and the female.

Article 14[1] of the Constitution states-

 Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth

Article 15[2] of the Constitution states-

Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition concerning

(a) access to shops, public restaurants, hotels, and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.

Here the clause 3 of Article 15 gives the right to the state to develop laws for the benefit of women so that the gender gap can be reduced in areas where it is dominant.

Article 39(a)[3] of the Constitution states that-

“The citizens, men and women equally, have the right to an adequate means to livelihood”

Article 39(d)[4] of the Constitution states that-         

“There is equal pay for equal work for both men and women”

Considering the above laws, it portrays people that the problem of gender inequality is being well handled by the Government of India. But, this does not show us the full picture.

How Gender Inequality is Still Present in India

The difference between the two genders is still visible if we consider a holistic view. There are many laws still, which are discriminatory to either the males or the females of the country. No one can claim that one gender is completely being discriminated against.

Laws which favor men over women

Section 15[5] of the Hindu Succession Act

The section states that

(1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband

(b) secondly, upon the heirs of the husband

(c) thirdly, upon the mother and father

(d) fourthly, upon the heirs of the father

(e) lastly, upon the heirs of the mother

Here, if a woman dies without having sons, daughters, or her husband i.e. according to clause (b), the property would devolve upon the heirs of the husband.

This interpretation of the law puts women at to disadvantage because her property would go to heirs of her husband who may or may not have a healthy relationship with her.

Section 6[6] of the Hindu Minority and Guardianship Act

The Section states that

Natural guardians of a Hindu minor.-

“The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in the joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother”

Here, the father is considered as a natural guardian of the child even though the custody of the child goes to the mother.

Right to the marital property after divorce

After divorce, the woman is not entitled to the property bought in the husband’s name during their marriage. She is only entitled to maintenance.

Laws that favor women over men

Rape (Section 375)[7]

“Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.”

The law in itself is not wrong, but the issue is that it builds up a stereotype that a woman will always be a victim of the rape and the male will only be the offender. There are rape crimes that involve a male being a victim. Sometimes a male is sexually assaulted by women or even by other males. The following issue is not considered rape and there is no concrete law made in this regard.

Cruelty against women (Section 498A)[8]

Section 498A of IPC states that-

“Husband or relative of husband of a woman subjecting her to cruelty.—

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is intending to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”

Similarly, in this case, the only victim which is mentioned is the wife and the offender is either the husband or his relatives. It is portrayed that the cruelty in a household is only done against women which shows that the husband and his family have a dominant role to play in the house. It does not give any such remedy to a husband against cruelty from his wife which is, in fact, something that happens in many families.

Also, in these offenses, the husband is treated as guilty until proven innocent due to which many women put up false allegations which tend to destroy the lives of males as it is presumed that they have committed a crime.

Laws regarding outrage of a women’s modesty[9]  

Section 354 of IPC states that-

“Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

There are only laws regarding the outrage of women’s modesty but not regarding the outrage of men’s modesty. This also puts up a view that only women can be a victim to the outrage of modesty and men cannot.

What All Can Government Do To Provide Gender Inclusivity in Indian Laws?

The first and the foremost thing that the government needs to do is to keep both male and female under a similar bracket while making laws. Some of the laws give a hint of the patriarchy which has been present in the society and which people are trying to get rid of so that equality could be maintained. Also, there are some laws which are made by presuming that the women of females can only be victim and aggrieved in such laws and not the offenders. If the laws are made on such presumptions and stereotypes, then it would be difficult to establish gender inclusivity in the laws. Our constitution defines equality as not merely equal rights to everyone but is says “equality among equals” which means that the laws should be made equal where both men and women are equal. There are some laws which are to be made only for women like “The Maternity Benefit Act, 1961”. We cannot question equality in such laws.

Another major thing that will make gender inclusivity in-laws easier to do is to educate people to respect all genders. People should try to respect other genders just like the gender they belong to and try to uplift each other where ever necessary.

Conclusion

Establishing gender inclusivity in a country like India is no doubt a very challenging task due to its history with patriarchy and other discriminatory laws that were present in the course of history. Still, many steps have been taken by the government in the direction of the equality of all genders. If the government works hard considering the issues more objectively and sincerely, India can surely take giant leaps in the direction of Gender Inclusivity in its laws.

FAQ’s

  1. Are gender equality and inclusivity the same?
  2. Are all specific gender laws discriminatory?
  3. Do only women suffer discrimination in-laws?

References

  1. The Constitution of India
  2. The Indian Penal Code
  3. The Hindu Succession Act
  4. The Hindu Minority and Guardianship Act
  5. The Hindu Marriage Act
  6. Textbook on Indian Penal Code by K.D Gaur
  7. Textbook “Introduction to the Constitution of India” by D.D Basu

  • [1] Article 14, The Constitution of India https://indiankanoon.org/doc/367586/
  • [2] Article 15, The Constitution of India https://indiankanoon.org/doc/609295/
  • [3] Article 39a, The Constitution of India, https://indiankanoon.org/doc/1331994/
  • [4] Article 39d, The Constitution of India, https://indiankanoon.org/doc/608806/
  • [5] Section 15, Hindu Succession Act, 1956, https://indiankanoon.org/doc/1202482/
  • [6] Section 6, Hindu Minority and Guardianship Act, 1956, https://indiankanoon.org/doc/1755046/
  • [7] Section 375, Indian Penal Code, https://indiankanoon.org/doc/623254/
  • [8] Section 498A, Indian Penal Code, https://indiankanoon.org/doc/538436/
  • [9] Section 354, Indian Penal Code, https://indiankanoon.org/doc/203036/

Leave a Reply

Your email address will not be published. Required fields are marked *