“To awaken the people, it is women who must be awakened. Once she is on the move, the family moves, the village moves, the nation moves.” – Pandit Jawaharlal Nehru

Our constitution guarantees the right to equality and the right not to be discriminated against on the basis of sex. However, gender discrimination has its roots in the Indian society since ancient times.

Salient issues which have been discussed by the Constitution Bench of the Supreme Court in recent years:

Supreme Court has been playing an extremely positive role in examining the laws which have become archaic several of which are provisions of the Indian Penal Code, 1860, including Section 376 which deals with rape, Section 377 which deals with sodomy and sexual relationship between homosexuals and Section 497 which deals with adultery.

Section 497:

• Section 497 penalizes any man who has illicit relations with the wife of another man without the consent or connivance of that man. This is an extremely gender biased provision and is violative of both. Article 14 and 15 of the Constitution Firstly, it treats a woman like the property of her husband. It is not an offence if such an act is done ‘with the consent or connivance’ of the husband. Secondly, the offence is said to be committed by the man having illicit relations with the wife of another man and the wife is not punishable even as an abettor as she is treated like a victim. Thirdly, if a man has relations outside the marriage, neither he nor the women with whom he has such relations can be prosecuted.
• The recommendations by the 42nd Law Report, 1971 and the Mali math Committee Report, 2003, to amend the definition to make it gender neutral, have failed to materialize. It has come to light recently in Joseph Shive v. UOI, wherein a petition challenging the constitutional validity of this provision was filed in the Supreme Court of India. The bench observed that in this provision the concept of gender neutrality is absent and it creates a dent on the individual identity of a woman when the emphasis is laid on the consent or connivance of the husband and the time has come when the society must realise that a woman is equal to a man in every field and this provision, on the face of it, appears to be archaic.
• However, emplacing on the moral sanctity of marriage in India, the stand of the Centre has been that Section 497 supports and safeguards the institution of marriage.
• The supreme court judgement has struck down Section 497 of IPC overturning the 3 previous rulings which had stated that the adultery law was constitutional.

Section 497:

What did the Supreme Court say?

• The judges called Section 497 archaic and said that it violated Articles 14 and 21 of the IPC
• The justices said, “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.”
• The bench said that Section 497 was ‘unconstitutional’ as it violated the right to equality and there was no reason to continue this anymore
• However, the Supreme Court held that adultery will remain a ground for divorce
• Justice DY Chandrachud said that Section 497 destroys and deprives women of dignity
• “Women must be treated with equality with men. Any discrimination shall invite wrath of Constitution. A woman can’t be asked to think the way society desires,” said CJI Misra for himself and J Khanwilkar
• CJI Misra added that the husband is not the master of the wife

Issue of Triple Talaq:

• The very question whether it was indeed a part of the Muslim Personal Law the subject-matter before the Courts. Instant Triple is an age-old practice among the Sunni Muslims, most prominently the Hanafi sect, under which a Muslim man can unilaterally and irrevocably divorce his wife by pronouncing the word ‘talaq’ three times in one sitting.
• Over the years, this provision had been misused by Muslim men to the detriment of the Muslim women, wherein a husband divorced his wife through a text message, or over the phone. Prior to this, a talaq pronounced under compulsion or in jest was held to be valid and effective. The only condition necessary for a valid divorce was that the husband is a major and of sound mind at that time. It need not even be addressed to the wife and it took effect the moment it came to her knowledge.
• High Court had observed that a talaq pronounced without reasonable cause and without being preceded by attempts of reconciliation by two arbiters would not lead to a valid divorce. Similar were the observations of the Supreme Court of India in Shamim Ara v. State of U.P. and Ors. Thus, even a Triple Talaq could not be without contemplation and without any pause or room for introspection. Many Muslim majority countries, including Pakistan, have abolished this practice.
• Finally, in 2017 the constitutional validity of Instant Triple Talaq came before the Supreme Court of India in the case Shayara Bano v. Union of India & Ors. [(2017) 9 SCC 1] By a 3:2 majority, it was held to be unconstitutional, arbitrary and violative of Article 14      

Right to Property:

The amendment to the Hindu Succession Act, 1956 gave women the right to a share in the joint family property of both, the parents and the in-laws. Prior to this, women had a right to a limited estate. The ouster of women from right to inherent and own property, if they married outside the community, is present under tribal law as well as under various religious laws. Under the Chotanagpur Tenancy Act, 1908, women who married outside the community, were said to have “lost their right to parental property”.

Right to Religious Identity:

Under the Parsi Laws, a Parsi women who marry outside their community are said to have lost their religious identity. The children of a Parsi man married outside the community, can become a Parsi. However, the children of a Parsi woman married outside the community cannot become a Parsi. A Parsi woman married outside the community is not allowed her parents ‘Tower of Silence and attend her parents’ funeral rituals. This was challenged by a Parsi woman, Goolrukh Gupta in the Gujarat High Court, wherein the Court upheld the decision to debar a Parsi woman from performing religious practices by observing that in all religions, whether Christianity, Parsi, or Judaism, the religious identity of a woman shall merge into that of her husband. When this ruling was challenged in the Supreme Court of India, the Parsi Trust went against its age-old tradition and stated that it would allow her to visit the ‘Tower of Silence’ to attend her parents’ funeral rituals.

Physical Molestation:

Since the incidents of rape in India have gone up exponentially, the Courts as well as the legislature have stepped in with various amendments. Prior to 2013, the definition of ‘rape’ under Section 375 of the Indian Penal Code, 1860 was a narrow one, including only sexual intercourse within its ambit. It was only after the infamous Nirbhaya gang-rape case that the Criminal Law (Amendment) Act, 2013 (Anti-Rape Bill) was passed under which the definition was enlarge to include acts like penetration, insertion of objects, etc. In 2018, the Supreme Court of India upheld the death sentence of four out of six accused persons in that case. One of the accused persons was a juvenile and despite being the most brutal, he was released after three years only because he was a few months short of 18 years of age. Subsequent to this incident, the Juvenile Justice (Care and Protection of Children) Act, 2015 was passed which provided that a juvenile, 16 years or older, who commits a heinous offence (offence punishable with imprisonment of seven years or more) will be tried as an adult, the Criminal Law (Amendment) Ordinance, 2018 was approved by the President, under which the quantum of punishment for rape was increased, especially in case of a girl under 16 years of age. A noticeable peculiarity is that the definition of rape, even after the amendment, does not recognise ‘marital rape’ as ‘rape, unless the wife is under 15 years of rage. The stand taken against criminalizing it is that it would lead to degradation of the institution of marriage in our society.

Common Civil Code:

• A Uniform Civil Code which governs the personal matters of all the citizens irrespective of their religion is the linchpin of true secularism. There is a need for such a code as various personal laws prevalent in India discriminate against women and have a long way to move towards promoting gender parity.
• According to Article 14, every citizen is subject to the same set of laws, criminal and civil, the only exception being personal laws. With the increase in the number of women approaching the Courts to protect their fundamental rights, the Law Commission has been asked to probe into the possibility of implementation of the Uniform Civil Code in India whereby men and the women will be put at par in relation to personal laws. Article 44 (Directive Principle of State Policy) of the Constitution of India articulates a provision for the Uniform Civil Code. It states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
• Uniform Civil Code is not devoid of the difficulties, especially in a country like India where there is tremendous cultural diversity across various religions, castes, etc. It may be perceived as an encroachment on the guaranteed right to religious freedom. No matter how progressive, no such decision can be forced on the people without their acceptance.
• Thus, over the years, the need for reform has been recognized in India and the Supreme Court of India has been playing a constructive role in reshaping laws which have a long way to move towards achieving an equal status for woman in the society.