Women and Law

Change is something that has always remained constant in the of in our society. From getting equal rights in the Vedic age to deterioration in the medieval era because of the various invasions. The introduction of purdah and to again trying to return them the same prestige and honor in the present.

It has been an uneven graph, which is now positively rising. Due to the introduction of various new laws, opportunities, and actions taken by the government.

In our country, our land is always portrayed as a mother, with a lion and our national flag, showing the strength of a woman. She represents nationalist struggle to protect our nation. A woman is always depicted as a person who nurtures, cares for everybody and also does work outside her home. Women in India have been represented by various features and roles. Like Sita from Ramayana depicting femininity, patience, love, and devotion towards her husband. Rani Laxmi Bai depicting bravery, courage, and love for the nation But is it really the case with the women?  

STATUS OF WOMEN DURING MEDIEVAL INDIA

The medieval period began from the 6th century and lasted till the 16th century. The medieval age saw many invasions in the country be it Mughals, Afghans, Turks, etc. this not only brought new emperors but also many new customs, to the country. Be it purdah system, sati, jawhar, etc.

According to them, the UPA candidate’s reasoning as to why the social custom emerged – to protect women from aggressor’s eye- also doesn’t fully explain the causes leading to the emergence of purdah. They say that the purdah was also a status symbol of the higher classes of medieval India.”

It can be explained as during the invasions women were treated as gifts of war and molested and ill-treated. To protect them from such atrocities the rulers tried to protect their kingdom, its people and the queens from the eyes of such invaders, leading to the more frequent practice of purdah.

During the British Era there were many steps taken to elevate the position of women be it by encouraging widow remarriage, Indian Penal Code came into being. Courts were set up in Calcutta, Madras, and Bombay to establish and order.

Legal Status of Women in India: From Past to Present
Abolition of Sati

ABOLITION OF SATI SYSTEM

In the early 19th century, the British East India Company, in the process of extending its rule to most of India, initially tolerated the practice; William Carey, a Christian evangelist, noted 438 incidences within a 30-mile (48-km) radius of the capital Calcutta, in 1803, despite its ban within Calcutta. Between 1815 and 1818, the number of incidents of sati in Bengal doubled from 378 to 839.

Opposition to the practice of sati by Christian evangelists, such as Carey, and Hindu reformers such as Ram Mohan Roy, ultimately led the Governor-General of India Lord William Bentinck to enact the Bengal Sati Regulation, 1829, declaring the practice of burning or burying alive of Hindu widows to be punishable by the criminal courts. These were followed up with other legislation, countering what the British perceived to be interrelated issues involving violence against Hindu women, including: Hindu Widows’ Remarriage Act, 1856, Female Infanticide Prevention Act, 1870, and Age of Consent Act, 1891.

WOMEN AFTER INDEPENDENCE OF INDIA

India received its independence on 15th August 1947. India got its independence when the whole nation joined hands against the British, be it children, youth or women.

Swami Vivekananda once said, “ It is impossible to think about the welfare of the world unless the condition of women is improved.” Society before independence always tried to degrade and subjugate the women. Therefore, the makers of our constitution included Dicey’s Rule Of Law, as a fundamental right, which granted the right of to the citizens and equal protection.

It would be wrong to say that there were no laws about protection of women, before independence as the Indian Penal Code came into being in 1860.

Consider as an example for thorough study,

The first time ‘rape’ was mentioned in our legal structure was when the was written in 1860. Section 375 to Section 376E of the Indian Penal Code refers to ‘sexual offenses’. It defined rape as sex without consent, with consent but under the fear of death or with consent but under false pretenses. also defined ‘statutory rape’ as sex with a woman under the age of 16. It makes no mention of rape as a crime against a male.

The 1860 version of the IPC also ignored sex without consent between a husband and wife also known as Marital Rape, a clause that is missing from our anti-rape laws even today. The punishment for gang rape and repeat offenders was harsher. All in all, the minimum punishment for rape was as lenient as two years in prison (the same as perjury) and the worst-case scenario was a life sentence.

1983: The Criminal Law (Second Amendment)

On March 26, 1972, a young Adivasi girl named Mathura was raped by two policemen while in custody. Her family lodged a complaint against the two policemen and the trial went all the way to the Supreme Court. The policemen were acquitted because Mathura was apparently ‘habituated to sexual intercourse’, they could prove that she was sexually active but not that she had been raped.

The Supreme Court Justices even said that Mathura had raised no alarm, there were no visible marks of injury or struggle and because she was used to sex, she might have incited the cops to have intercourse with her. This verdict resulted in outrage across the country. Lawyers observed that instead of relying on hard evidence, the Court has let the cultural taboo of pre-marital sex influence its decision. They said that ‘submission’ during the rape had been misunderstood for ‘consent’ just because of this taboo.

Women’s groups held protests and marches, demanding a change in the law. This change came in 1983 to Section 114 (A) of the Indian Evidence Act. Until this point, rapes by public servants had completely been ignored by our legal system. But with this case, a new category of rape called ‘Custodial Rape’ was introduced to include rapes of women while in custody of public servants. While so far the woman had to prove that the sex was not consensual, this amendment said that a court should presume a woman who says she did not consent is telling the truth.

This made the idea of ‘consent’ an integral part of rape. Also, it was this amendment that banned the publication of victims’ identity and prohibited the ‘character assassination’ of rape victims in court. It’s thanks to this amendment that rape victims now have pseudonyms like ‘’.

2002: Amendment To Indian Evidence Act

Even though the 1983 Amendment prohibited ‘character assassination’, it wasn’t defined to include the cross-examination of a rape victim. This was pointed out in a PIL filed by an NGO named Sakshi. They pointed out that women didn’t feel comfortable about reporting rape because “the intention of the defense in rape trials had become to humiliate and degrade the sexual integrity and personal space of the victim” rather than to treat them as someone who had undergone mental and physical trauma and someone who needed to be protected.

Taking note of this, the Supreme Court asked the Law Commission to review our rape laws and recommend changes. They found that Section 155 (4) of the Indian Evidence Act 2002, the defense lawyer could discredit a rape victim’s testimony by proving that she was of ‘immoral character’.  This scenario included questioning her about past sexual acts. They identified that it was this specific clause that deterred rape victims from filing a case.

So, this clause was amended in 2002. After this amendment, the cross-examination of a rape victim was prohibited.

2012: Protection of Children From Sexual Offences (POSCO) Act

Statistics indicated that India saw a 336% increase in child rape cases from 2001 to 2011. The National Crime Record Bureau statistics state that 48,338 child rape cases were recorded during this period. This alarming trend led to the need for a ‘special legal procedure’ for child victims of sexual offenses. So far, the only mention of sexual offences against children was the ‘statutory rape’ clause mentioned in the IPC that criminalized sexual intercourse with a girl below the age of 16, regardless of consent.

However, the process of trying such a case was no different from a case that involved someone over 16. The resultant POSCO Act understood the special situations in which a child could be assaulted. For example, recognizing that the perpetrator might be someone close to the child or his/her guardian, the Act made the police in charge of protecting the child during the investigative process.

The Act said that cases of child sexual abuse should be fast-tracked within a year and that reporting such cases should be mandatory. That way, it’s the legal duty of anyone who knows of the offense to report it. Another big loophole was that it did not specifically mention crimes against male-children. This loophole was rectified in 2012 with POSCO or the Protection of Children From Sexual Offences Act. The new Act was gender-neutral and recognized other forms of penetration apart from vaginal penetration. The Act also included the abetment of child sexual abuse as an offence and included non-penetrative assault, sexual harassment and child pornography.

Legal Status of Women in India: From Past to Present

2013: Criminal Law (Amendment) Act

The Nirbhaya case was a turning point for anti-rape laws in India – now it wasn’t just a violent crime issue but it was also a women’s rights issue. This forced the legal system of India to reconsider the existing laws and led to the realization that many other crimes that were specifically against women like stalking, acid attacks, and voyeurism were missing from our legal framework.

The government wanted to amend the existing laws to cover ALL crimes against women and make punishments as harsh as possible. This led to the 2013 Criminal Law Amendment. Under this change, new offenses such as stalking, acid attacks, and voyeurism were added into the definition of rape. Even the threat of rape is now a crime. The minimum sentence was changed from seven years to 10 years.

In cases that led to the death of the victim or the victim being in a vegetative state, the minimum sentence was increased to 20 years. This was the first time the vegetative state was included since the landmark Aruna Shanbaug case.

2018: Criminal Law (Amendment) Ordinance

THE RAPE CASE:

This case led to national outrage, especially because it was against a child, but also because it took place in a temple and was perpetrated by a priest. It quickly became politicized along the Hindu-Muslim lines. All this against the backdrop of political upheaval as the PDP and BJP alliance broke in Jammu & Kashmir, the state in which this crime took place.

The pressure on the government to legally address this crime led to an almost immediate policy change with this Ordinance only 3 months after the incident. This change was mainly made to POSCO since it was against a child. It made rape of a child below age 16 punishable by a minimum of 20 years imprisonment but provided for the death penalty for the rape of anyone below age 12.

While the death penalty for rape has long been demanded, this is the first time, where it has actually been introduced. It also altered the fast-track clause from a year to 6 months, so that such cases would find justice without being colored by politics. Since this Amendment was an Ordinance, it still needs to be discussed in the Parliament in order to become an Act.

One of the more recent and revolutionary decisions were the Sabrimala Case where women were finally given equal status and equal rights to enter and pray in The Ayyappa temple after 1991. In the past, women devotees of menstruating age were not permitted to worship here, this ban being said to be out of respect to the celibate nature of the deity in this temple. In September 2018, a judgement of the Supreme Court of India ruled that all pilgrims regardless of gender, including women in the menstruating age group, should be allowed entrance to Sabarimala. The Constitution bench of the Supreme Court held that any exception placed on women because of biological differences violates the Constitution – that the ban violates the right to equality under Article 14, and freedom of religion under Article 25.

The majority of people question the privileges granted to women under article 14,15, 16 of Indian constitution, they question that many women misuse the privileges given to them in cases of rape, molestation, domestic violence, and every other sphere.

These articles have helped the country grow by trying to give the same status women enjoyed during the Vedic ages and give women an opportunity to develop in the patriarchal society. There is discrimination in schools, colleges, workplaces where males population always argue that females get advantages over males.

It is a true fact that nowadays some of the women have started to misuse the powers but that doesn’t mean that we question these special rights given to them.

CONCLUSION

When the society started to evolve, both men and women were considered to work equally in hunting or gathering food, but as the evolution continued and they had children because of which women stopped going for hunting and stayed at home to properly nurture her children and men went out for hunting. Unfortunately, this tradition passed on from generation to generation and people assumed that men had the strength to work outside home and women being inferior, stayed at home to care and nurture their children. Thus interpretation played a vital role in the changing position of society but now it is developing at a high rate and the women have started to evolve and it is nearly impossible to suppress them this time.

Women have always been a debatable topic among people but there is an inclination in the power and prestige of women after independence.


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