Millennium Post

How equal are women?

A gender-neutral legal framework will be pivotal in gradually transforming regressive social and moral norms constricting women

The recent #MeToo movement brought to light the various shackles that still hold women down: social, cultural, and legal. Sexual Harassment at Workplace Act, 2013 seeks to protect women from sexual harassment, and so do several other Acts and provisions. These laws do provide legal recourse to the aggrieved women, but does that really suffice? The innumerable instances of sexual harassment that have been exposed on social media in the recent months are just a symptom of the real problem. The real problem being how our law views women in general? After 158 years, adultery has been decriminalised in India. But its remnants in the other laws still remains a criminal offence. The Supreme Court struck down Section 497 of the Indian Penal Code terming it unconstitutional. This was a historic move towards recognising equal rights for both men and women in the eyes of law. But does that mean that all the other laws view women as citizens equal to men, with equal rights and responsibilities?

Back in 1860 when the IPC was framed, a woman's position in society was extremely dismal. Accordingly, these laws are reflective of the women's subservient social position that existed back then. The entire penal code treats the female as the man's subordinate, a person with neither an independent identity nor an agency over her own body. The IPC specifically, was framed over a 150 years ago and reflects how men perceived women's social position at that time. Men believed a woman to be naïve and her will prone to manipulation. No wonder Section 497 was based on the premise that she can be tricked into indulging in adultery. This raises a more pressing question that if the law itself does not treat all its citizens equally, then who will?

Another such law that raises questions is the Section 498 of the IPC, which is not very different from Section 497, in the manner it treats women. For the purpose of simplification, let me illustrate this law with an example. Say a man A owns a car, and another man B comes and 'takes away' the car and 'detains' it, who would be punishable, the car or man B? It does not take much rational sense to guess the answer. Man B (thief) would obviously be punishable, and not the car (inanimate object and property of man A). At the same time, the car being the property of man A, cannot be held guilty. Now replace the man A, man B and the car with the husband, the other man and the woman married to man A, respectively. That is Section 498 for you. The law prescribes a criminal penalty for a man who is found guilty of enticing, taking away or detaining a married woman away from her husband or someone else entrusted with her care on his behalf with the intent of having sexual relations with her. Not just that, only the other man is punishable, while the woman is assumed to be innocent. That is how Section 498 views a married woman. Highly sexist and discriminatory, it treats the husband as an independent entity, and his wife as his property, with no will of her own.

The provision says, "whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man…." Such nomenclature is clearly indicative of how the woman is viewed as a subordinate to her husband and in need of being taken care of. It is outrageous to see her being treated as an entity without a mind of her own. Someone who is susceptible to being manipulated and enticed away from her husband, indeed a passive participant in the process. The law simply assumes that the only reason a woman would go with another man would be through enticement or manipulation. Plausibly enough, the statement upheld by the Supreme Court for striking down Section 497 can be applied to Section 498 as well, "the provision (Section 497) really creates a dent in the individual independent identity of women". The Section does not recognise that a woman has the right to take a rational decision and exercise complete agency over her own body. This law is unconstitutional in the sense that it directly infringes a woman's basic fundamental rights. Framed in the colonial times, the law still treats this form of adultery a criminal offence. Whether adultery is right or wrong is a matter of perspective. Some people may think it to be a horrendous act, while some others might feel that it is a completely acceptable act of self-interest and satisfaction. What may be socially and morally acceptable is, therefore, a matter of subjectivity and changes with the changing times. There is no premise for considering these norms while framing laws and prescribing criminal penalties. This calls for a need to relook at Section 498, and perhaps other such laws through a gender-neutral lens, and without being premising them on socio-cultural and moral norms.

In the 21st century, women are breaking glass ceilings and working tirelessly to catapult themselves forward in every sphere. They must be supported by a strong statutory backing. A gender-neutral legal framework can play a pivotal role in gradually transforming regressive social and moral norms about women. It is high time we take steps to protect the sexual rights of women. One significant step would be to recognise the fact that either partner in a relationship, that is, the husband or the wife may choose to indulge in adultery. To recognise that adultery is a consensual act between two persons. And to recognise that it is not a criminal act but rather a breach of trust between the husband and the wife, where the only remedy for the aggrieved should be filing for a divorce.

(The author is Young Professional, Economic Advisory Council to Prime Minister, NITI Aayog. The views expressed are strictly personal)

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