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THE GENDER BIAS IN GENDER-SPECIFIC LAWS OF INDIA

Author: Umang Kapoor

Advocate, Delhi High Court




ABSTRACT

The present essay titled as “The Gender Bias in Gender-specific laws of India '' is aimed at discussing and critically analysing the Gender-Bias laws existing in India and their benefits and scope of their improvement. It begins from the very basic need and source of Gender-Bias laws in a society and then proceeds to discuss various different gender-bias laws already existing in India. The essay also tries to analyse the biases in the laws and their positive or negative impacts or usages in society. It tries to check or evaluate the laws based on the contemporary social structure of India and suggests the improvements which can be made to the existing laws.


INTRODUCTION

Gender inequality has been a worldwide issue for ages. The history is filled with movements led in different parts of the world against gender discrimination. India is no different, gender discrimination has been in our society for generations for various reasons.

Gender discrimination is suppression and denial of any equal rights and opportunity based on gender. Since Independence Indian governments have made various gender-bias laws to curb gender discrimination in society.

The funny thing about the scenario of these gender bias-laws is that their existence itself measures how much the society naturally accepts and protects the rights of a certain gender, but sadly they are inversely proportional i.e. the more the laws, the lesser the natural acceptance and protection. The present Essay will overview various such Gender Bias laws existing in India and will critically analyse such laws, their benefits and impacts in society and finally, the requisite changes for improvement. This write-up will surely raise questions about whether the current scenario in India of Gender Bias laws is going in the right direction or does it need any major changes?


WHY GENDER-BIAS LAWS?

One may ask what creates a need for gender bias laws in a society, the answer is simple; the structure of society itself! In India, long-existing Indian cultures, practices, patriarchal systems, taboos and lack of social acceptances created that need.

Every gender should be treated equally in society. But it does not happen so. The very basis of gender-neutral rights in a country evolves from the concept of the government structure existing in that Country. Since India is a democratic country, its Constitution provides that every person of the country is entitled to equal rights. However, on the ground reality, it may sound cliché but for a country where female Goddesses are worshipped, neither the culture nor the Constitution has proven to be sufficient enough to entitle women of equal rights. Thenceforth, the State has tried to achieve it by legislating such gender-bias laws for the protection, empowerment of girls or women and the basic right to life and liberty to every woman of the country.


SOURCE OF GENDER-BIAS LAWS IN INDIA

We all know that in India many Gender Bias laws are in existence today. But the thing to be pondered on is what is the source of such laws? What empowers the legislatures to enact such laws? The answer is quite simple i.e. The Constitution of India, 1950. The Constitution empowers the State to enact such beneficial legislation for the protection, upliftment and empowerment of the woman in the society.

Article 14 of the Constitution ensures equality for every person, irrespective of gender, within the territory of India.

Article 15 prohibits discrimination against the citizen based on religion, race, caste, sex, place of birth, etc. Interestingly, Article 15(3) provides special power to the State for making any special provision for a woman and children. Therefore, the inclusion of such a clause gives the special power to the state to make all Gender Biased Laws for the empowerment and protection of women in society.

Article 16 relates to the equality of opportunity rights concerning public employment. It ensures that no citizen shall be discriminated based on caste, religion, descent, place of birth, sex or any of them for public employment. Therefore, such an article ensures that no woman is discriminated against and should be considered on an equal pedestal for public employment. The importance of this provision can be looked into the case of Muthamma v. Union of India [1], where the Apex Court struck down the discriminatory law by declaring that it was not mandatory for woman officers in IFS to seek government permission to get married.

The Constitution also provides various directive principles provided under Part IV of the Constitution like Article 38, 39 and 42 which require that the state should try to achieve real equality in society, equal pay for equal work to all workers and securing just and humane conditions for maternity relief.

Article 51-A under Part IV A of the Constitution also attempts to ensure a better and protective environment for the woman by introducing a fundamental duty on every citizen of a natural obligation to renounce practices derogatory to the dignity of the women.


DISCUSSION ON VARIOUS GENDER-BIAS LAWS

Over time many special laws have been enacted in India with the sole beneficial objectives for the targeted female gender. Some of the major laws have been dealt hereunder:


The Protection of Women from Domestic Violence Act, 2005

In 2005, the Act came as a blessing for the women suffering in violent or abusive domestic relationships. Its sole objective is the protection of women and children from any kind violence occurring in domestic relationships, including matters within the family and for matters connected therewith or incidental thereto. The gender biasness of the Act is reflected in the title itself. Moreover, section 2 (a) of the Act only considers women as the “aggrieved person” for the provisions of the act. The law surely has helped and improved many lives in society but, there are also such disturbing instances where women have used the act as means to wreak petty revenge.


Laws on Rape and Sexual Offences

The offences related to rape and sexual offences exist in the Indian Penal Code, 1860 since its inception. Though with time many amendments have been made to them to strengthen their effect and execution. The horrendous judgement of the Apex court in the Mathura custodial rape case[2]gave rise to the Criminal Law (Second Amendment) Act of 1983 where under Section 114A in the Indian Evidence Act of 1872 and Section 228A were added. Similarly, after the Nirbhaya case in Delhi, Parliament passed the Criminal Law (Amendment) Act of 2013 thereby providing offences related to acid attack, aggravated forms of sexual harassment under section 354A- 354D. It also increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause the death of the victim or leaves her in a vegetative state. The latest Criminal Law (Amendment) Act, 2018 tackles the issue of rape of minor girls in a stricter sense.

The pertinent thing to note in all provisions dealing with such offences of rape and sexual offences is that they are based on the premise