Gender related laws in India
18th Dec, 2019
In Hyderabad, a 25 year old woman veterinarian was raped and murdered recently. Violence against women continues to be rampant in India.
- Types of crimes against women: In 2017, according to NCRB report, majority of cases under crimes against women out of the total IPC crimes against women were registered under ‘Cruelty by Husband or His Relatives’ (33.2%), followed by ‘Assault on Women with Intent to Outrage her Modesty’ (27.3%), ‘Kidnapping & Abduction of Women’ (21%) and ‘Rape’ (10.3%).
- Accused is no stranger: Rape by known persons constitutes a large percentage of all the cases reported. The accused are often reported to be friends, online friends, employers, neighbours, were friends, partners or separated husbands of the victims.
- Domestic violence: According to a National Family and Health Survey in 2005, total lifetime prevalence of domestic violence was 33.5% and 8.5% for sexual violence among women aged 15–49.
- Extent of effect: A 2014 study in The Lancet report 8.5% prevalence of sexual violence in the country affects 27.5 million women in India, given India's large population. A survey carried out by the Thomson Reuters Foundation ranked India as the most dangerous country in the world for women.
- Conviction rates: Conviction rate for rape cases in India was 44.3%in 1973 and 37.7% in 1983. It was 26.9% in 2009, and 32.2% in 2017. In metropolitan cities it was 27.2%.
- Most unsafe places: NCRB data reveals that Uttar Pradesh, Maharashtra, West Bengal (in this order) is the most unsafe states for women in India, with the maximum number of crime against women.
- Delhi: Delhi is often called out for being unsafe for women. According to Delhi Police, in 2018, five women were raped and eight were molested everyday on an average.
Constitutional Provisions for protection of women
- Article 14: The Constitution of India guarantees the “right to equality” to women and prohibits unreasonable discrimination between persons.
- Air India v. Nargesh Meerza case: The Supreme Court struck down regulations of Air India and Indian Airlines that provided than an airhostess would retire on attaining the age of 35 years, or on the first pregnancy, whichever was earlier.
- Article 15(1): This article prohibits the state from discriminating on the basis of religion; race, case, sex, or place of birth. Article 15(3) allows the state to make special provisions for women and children.
- Article 16: It provides equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
- C.B. Muthamma v. Union of India case: The Supreme Court held that provision of service rules requiring a female employee to obtain permission of the government in writing before getting married, and denying her the right to be promoted on the ground of her being married, was discriminatory.
- Article 39 (a): Urges the state to provide equal right to adequate means of livelihood to men and women. Article39 (d) warrants equal pay for equal work for both men and women.
- Article 42: In pursuance of Article 42, the Maternity Benefit Act was passed in 1961.
- Article 44: Requires the state to secure for the citizens a uniform civil code throughout the territory of India.
- Article 51 A (e): States that it is the duty of the citizens to renounce practices that are derogatory to the dignity of women.
- Constitutional guarantees for participation in local government:
- Article 243-D(3): One-third of total number of seats to be filled by direct election in every Panchayat shall be reserved for women.
- Article 243-D(4): One-third of total number of offices of chairpersons in the Panchayats at each level shall be reserved for women
- Article 243-T(3): One-third of total number of seats to be filled by direct election in every Municipality shall be reserved for women
- Article 243-T(4): Offices of chairpersons in Municipalities shall be reserved for women in such manner as the State Legislature may provide.
Legal provisions for protection of women
- Protection of Women from Domestic Violence Act (2005) is a comprehensive legislation. It also covers women who have been/are in a relationship with the abuser and are subjected to violence of any kind—physical, sexual, mental, verbal or emotional.
- Immoral Traffic (Prevention) Act (1956) prevents trafficking in women and girls for the purpose of prostitution as an organised means of living.
- Indecent Representation of Women (Prohibition) Act (1986) prohibits indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner.
- Commission of Sati (Prevention) Act (1987) provides for more effective prevention of the commission of sati and its glorification on women.
- Dowry Prohibition Act (1961) prohibits the giving or taking of dowry at or before or any time after the marriage from women.
- Maternity Benefit Act (1961) protects the employment of women during the time of her maternity and entitles her of a 'maternity benefit' – i.e. full paid absence from work – to take care for her child.
- Medical Termination of Pregnancy Act (1971) provides for the termination of certain pregnancies by registered medical practitioners on humanitarian and medical grounds.
- Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994) prohibits sex selection and prevents the misuse of pre-natal diagnostic techniques for sex determination leading to female foeticide.
- Equal Remuneration Act (1976) provides for payment of equal remuneration to both men and women workers for same work or work of a similar nature.
- Dissolution of Muslim Marriages Act (1939) grants a Muslim wife the right to seek the dissolution of her marriage.
- Muslim Women (Protection of Rights on Marriage) Act (1986) protects the rights of Muslim women who have been divorced by or have obtained divorce from their husbands. It makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
- Family Courts Act (1984) provides for establishment of Family Courts for speedy settlement of family disputes.
- Indian Penal Code (1860) contains provisions to protect Indian women from dowry death, rape, kidnapping, cruelty and other offences.
- Code of Criminal Procedure (1973) has safeguards for women like obligation of a person to maintain his wife, arrest of woman by female police and so on.
- Indian Christian Marriage Act (1872) contain provisions relating to marriage and divorce among the Christian community.
- Legal Services Authorities Act (1987) provides for free legal services to Indian women.
- Hindu Marriage Act (1955) introduced monogamy and allowed divorce on certain specified grounds. It provided equal rights to Indian man and woman in respect of marriage and divorce.
- Hindu Succession Act (1956) recognizes the right of women to inherit parental property equally with men.
- Minimum Wages Act (1948) does not allow discrimination between male and female workers or different minimum wages for them.
- Mines Act (1952) and Factories Act (1948) prohibits the employment of women between 7 P.M. to 6 A.M. in mines and factories and provides for their safety and welfare.
- National Commission for Women Act (1990) provides for the establishment of a National Commission for Women to study and monitor all matters relating to the constitutional and legal rights and safeguards of women.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal). Act (2013) provides protection to women from sexual harassment at all workplaces both in public and private sector, whether organised or unorganized.
- The Vishaka Guidelines were a set of procedural guidelines for use in India in cases of sexual harassment. They were promulgated by the Indian Supreme Court in 1997 and were superseded in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
- The Prohibition of Child Marriage Act, 2006 This act defines child marriage as a marriage where the groom or the bride are underage, that is, the bride is under 18 years of age or the boy is younger than 21 years.
- Special Marriage Act, 1954 provides a special form of marriage in certain cases, provide for registration of certain marriages and, to provide for divorce. When people from different faiths and caste chose to get married they do it under the Special Marriage Act.
- Indian Divorce Act, 1969 The Indian Divorce Act allows the dissolution of marriage, mutual consent, nullity of marriage, judicial separation and restitution of conjugal rights.
New legal provisions evolved to suit the changing nature of crimes
- Information and Technology Act (2008)
- The Protection of Children from Sexual Offences Act (2012)
- Child Labour (Prohibition and Regulation) Amendment Act (2016)
- Decriminalization of Gay Sex (Section 377-2018)
- Criminal Law (Amendment) Act (Death penalty for raping a minor- 2018).
India is also party numerous international human rights instruments in this regard;
- International Covenant on Civil and Political Rights, Economic, Social and Cultural Rights
- Convention on the Elimination of All Forms of Discrimination against Women
- International Convention on the Elimination of All Forms of Racial Discrimination
- Convention on the Rights of the Child
- Convention on the Rights of Persons with Disabilities