Author : Tanmay Dhiman
Year & Course : 5th Year & B.Com LLB(Hons.)
College : University Institute of Legal Studies, Punjab University, Chandigarh
Women have been treated as second class citizens since the institution of the concept of Society. The documented history highlights that during the ancient times, women were respected and treated the same as men, sometimes even higher. Particularly in India, according to the popular belief, there are many goddesses that are worshipped all year round. In fact, a girlchild in a Hindu household is often referred to as a devi (goddess, or incarnation of goddess). Not to give a religious undertone to this article, but the intention behind the mention is aimed towards the idea that: where females are considered incarnations of goddesses, they are always made to fend from the male characters in their lives, and their livelihood is constantly regulated and monitored. This interferes with the idea of freedom of life as a right and a duty, both. So, ultimately, the bigger question is that “what can be done to reduce women’s insecurity. The article discusses a few suggestions that can be implemented in this respect.
Women are the backbone of every society. However, their participation is often limited to the roles confined to them by the overwhelming patriarchal society. In India, women are treated as objects. It starts right at their birth, a girlchild is the prestige of the household. It suggests something charmingly valuable the girlchild is to a household. The respect of the family is contained with their girl(s). If anything happened to them, the family’s standing in the society would be tarnished.
Then there is the concept of possession in the larger part of the Indian society; making a girl to grow up under a dominating male figure-her father, who looks after her, and when she grows up to be a woman, is married, living in the shadow of another male figure-her husband, thereby transferring the possession and the responsibility of her livelihood and well-being.
Then, comes the part that stigmatises the very existence of women as individuals. That women are supposed to behave in a manner, dress in a manner, vacate and return to their premises within a given time, that does not stimulate the males around them in anyway. This is utterly problematic. All this in the name of their safety, from family members, to strangers.
Women safety is an incomplete term, and the whole narrative related to it is flawed. It is because the perpetrators who make women unsafe are never even mentioned. This cancellation has led to widespread stigma relating to women, where they are often subjected to morale policing, victim shaming and blaming, character-assassination amongst many others. We are always trying to safeguard our women, but never trying to make the surroundings safer for them.
Here are three potential suggestions, which can never be exhaustive, but definitely can become a starting point towards an overall establishment of an egalitarian society, at least in terms of gender:
- Sex sensitization
When a natural, humane norm becomes a taboo, it is definitely likely to cause disturbances in a society. Sex is normal body function. In fact, all the associated occurrences related to sex are certain developments in one’s boy.
Menstruation is severely tabooed in India, particularly in rural areas. It is again a physical occurrence that will subsist for a considerable part of a woman’s life, but is still looked at with disgust. Masturbation, which is however a personal activity, is also not openly talked about. India, a country with the highest population of adolescents and youngsters in the world, should be working towards addressing the controversial facets of sexual life.
Sex education has still not become a compulsory part of the curriculum at schools. Teachers are also hesitant to counsel and interact with the pupils about the topic of sex. Adolescent life is a curious life, and the answers to the questions asked at this age make a strong impression on the future personality of a person.
When people are not made comfortable with their own bodies, they tend to find answers through other’s bodies. This results in sexual crimes.
There is a need for a program for gender and sex sensitization in the country, starting at schools, developing towards colleges and workplaces. The participation of parents should also be made crucial, since at a tender age of a school child, their parents should be helping them understand the person of the opposite gender. Parents of boys should be rather be given more responsibility to participate in the development of the outlook towards girls and women.
Parents of girlchildren should be counselled to address the issues of menstruation, masturbation, sexual wellness, hygiene and report abuse without hesitation.
A recent development in this light came from the Gujarat High Court that proposed in the ongoing case of Nirjhari Mukul Sinha v. Union of India[i], to prohibit the social exclusion of women, based on their menstrual status, at all private and public places, including religious and educational places.[ii]
- Penalisation of Marital Rape
Unfortunately, education does not come with literacy alone. That is the reason why many rapes occur in the most highly educated households as well.
There is a long ongoing debate in the country, where the question of the matter is the penalisation of marital rape.
In India, the matters related to marriage are within the ambit of personal life. The bond of a husband and wife is solemnly sacred, as made by the rituals, particularly under Hindu marriages. However, this affords to misuse, since the State defers to intervene in matters related to marriage, other than divorce, domestic violence and dowry.
There are many cases reported, and several unreported owing to the taboo related to them, of rapes in a married household. While physical relations between spouses are only natural, the respect for consent shall always be afforded utmost adherence. To the misfortune, husbands often exercise their will on their wife’s choices, or threaten them to make relations against their will, or resort to domestic violence. Since, most of households where the wives are playing the role of “housewives” do not have much economic independence, nor the support from their maternal families, is why they have to survive with the abuse from their husbands.
Penalisation of marital rape is a move in good direction to save the women under the misery. However, other than cultural challenges, there are the challenges associated with the processing of an “offence” per se, as marital rape, since the evidences and witnesses are not easy to establish before a Court.
India remains one of only 36 countries in the world, those have not penalised Marital Rape, which is unfortunate[iii]. The silence and inaction of the Parliament and rather justifying the status quo in favour of marital rape, considering the numerous writs and complaints, and the judgments passed on these complaints suggest otherwise. Many ministers hold that penalising marital rape will destroy the institution of marriage in India, and also that it is against the India traditions.
In a very famous judgment of Independent Thought v. Union of India[iv], the Supreme Court stated that— “if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly cannot either”. A recent judgment from the Gujarat High Court also included a similar statement.
The non-penalisation of marital rape further creates legal challenges, since it infringes fundamental rights of married women as citizens. It particularly restricts Article 21 of the Constitution of India, guaranteeing right to life and personal liberty to all its citizens.
In the case of Suchita Srivastava v. Chandigarh Administration[v], the Supreme Court said— “the right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.”
Another interesting development in this regard was when in 2018, Congress MP Shashi Tharoor had moved a Private Bill in the Lok Sabha, titled the Women’s Sexual Reproductive and Menstrual Rights Bill, 2018. The Bill sought to penalise marital rape amongst other things, more of which are discussed in the next section.
Read the judgment of Justice K.S.Puttaswamy(Retd) vs Union Of India as well, at: https://indiankanoon.org/doc/127517806/
- Rationale over customs
India is a secular country. The State does not intervene in matters related to religion and culture. However, to certain degree, it is believed that sometimes religious norms, connotations, cultural usages and beliefs intervene in the free exercise of people’s rights. Social disparities are often portrayed as culture. Freedom is delimited in the name of religion. Social and caste divide is qualified as ancient customs. Sometimes the most bizarre instances are conveniently passed as traditions.
For example, menstruating women are not allowed to visit temples, or kitchens at home; western-clothed women are shamed and policed; honour killings; differentiation between male and female members in a family, and the confinement of their role etc.
This leads to a restricted development of women. It also hampers their mental well-being. Everyone deserves to live a free life, which is in fact guaranteed by the Constitution of India, but harsh societal reality of the land and its cultural norms are often in a place of contradiction to it.
However, there have been major developments in the judicial front to secure the supremacy of judicial rationality over customs.
In the case of Joseph Shine v. Union of India,[vi] Adultery under the Indian Penal Code was decriminalised and reduced to a ground for divorce. Adultery under Indian law, did not consider the will of the woman involved in adultery.
In the case of Sayara Bano v. Union of India, the Supreme Court bench held the “Triple Talaq” unconstitutional. Earlier, Muslim men could divorce their wives, by simply uttering the word “talaq” thrice to their wives. Taking the views of the Supreme Court in consideration, the Parliament has made a new Act called the Muslim Women (Protection of Rights on Marriage) Act, 2019 (popularly known as the Triple Talaq Act).
Another notable case is the Indian Young Lawyers Association vs. The State of Kerala[vii]
(The Sabrimala Temple Case). The five-judge bench of the Supreme Court held in favour of women by permitting the entry of women of all age groups to the Sabarimala temple, holding that ‘devotion cannot be subjected to gender discrimination’, which was otherwise restricted by the centuries-old tradition of Sabrimala Temple; banning entry of women of menstruating age inside the temple[viii].
“Woman is not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump over faith. Biological or physiological reasons cannot be accepted in freedom for faith”, said Chief Justice Dipak Misra. Justice held that “the idea behind the ban was that presence of women will disturb celibacy, and that was placing burden of men’s celibacy on women. This stigmatizes and stereotypes women”.
The Women’s Sexual Reproductive and Menstrual Rights Bill mentioned earlier also aimed to provide the choice of legal termination of pregnancy below 24 weeks to women, and provision of free sanitary napkins to girls at public schools.[ix] Unfortunately, the Bill has not converted into an Act yet due to some deficiencies.
According to a poll by Reuters, India has been ranked the most dangerous country out of the world’s 10 worst countries for women. But even legal recourse has not stopped eve teasing, sexual harassment, rape, and domestic violence against women, as part of their patriarchal bid to display the male superiority.[x]
There are steps being taken by the Government, however there is some reluctance to bring about the changes that are contradictory to “traditions” of the citizens. But legal recourse alone will not help. There is a need for a holistic social upliftment, where women are more self-dependent, comfortable and free in the truest sense towards their choices.
There are already laws and security programs that are either already in place or in the process to surface soon, that contribute to make the women more safe and secure. For example: Investigation Tracking System for Sexual Offences, a program launched by the Ministry of Home Affairs to monitor time-bound investigation in sexual assault cases; there are several Acts aimed to protect women’s stature in the society: Maternity Benefit Act,1861, The Equal Remuneration Act, 1976, Indecent Representation of Women (Prevention) Act,1986, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, etc.[xi] However, they have not been able to restrict the social stigmas attached to womanhood in India.
There is a wide culture of victim shaming and blaming, moral policing, character assassinations specifically targeted at women, especially those who fall victim to sexual offences. Police in India is also not appropriately sensitized in dealing with matters related to sexual crimes, and rampant corruption among the law enforcement is also to blame.
The factor of economic dependence of women, especially in rural and uneducated sectors, or amongst the women in the role of “housewives” is a major contributory of sexual offences, coming from within their households. The stigma related to “family honour” also results in underreporting of these offences.
[i] [R/Writ Petition (PIL) No. 38 of 2020]
[ii] Sparsh Upadhyay, ‘Breaking: Gujarat HC Proposes to Prohibit Social Exclusion of Women Based on Their Menstrual Status at All Private and Public Places, Including Religious and Educational’, 9th March, 2021. Accessed at: https://www.livelaw.in/top-stories/menstruation-gujarat-high-court-social-exclusion-of-women-menstruating-taboo-religious-educational-170915
[iii] Pallavi Prasad, ‘Why It’s Still Legal For Indian Men to Rape Their Wives’, 20th January, 2020. Accessed at: https://theswaddle.com/marital-rape-inda-decriminalized-crime/
[iv] [W.P. (Civil) No. 382 of 2013]
[v] [S.L.P. (Civil) No. 17985 of 2009]
[vi] 2018 SC SCC 1676
[vii] [W.P. (Civil) No. 373 OF 2006]
[viii] Ashima Obhan and Vrinda Patodia, ‘India: Women Centric Changes In Indian Law’, 5th April, 2019. Accessed at: https://www.mondaq.com/india/human-rights/795312/women-centric-changes-in-indian-law
[ix] Shemin Joy, Make marital rape a crime: Tharoor’s Bill in Parliament, 1st January,2019. Accessed at: https://www.deccanherald.com/national/make-marital-rape-a-crime-tharoors-bill-in-parliament-710844.html
[x] Apurva P, These Changes in Indian Law Aim to Improve Women’s Safety in India, 8th January, 2021. Accessed at: https://in.makers.yahoo.com/these-important-changes-in-the-law-ensures-womens-safety-in-india-030004148.html
[xi] Tanvi Dubey, Know your rights: 10 laws that protect women and their rights, 25th June, 2016. Accessed at: https://yourstory.com/2016/06/laws-that-protect-women-rights