Legal Analysis on Indian Legal System
The word “Patriarchy” literally means the rule of father or the ‘patriarch’ and originally it was used to describe specific type of ‘male-dominant’ family. Recently, it is used more generally to refer to the dominant of male and to the power relationship by women is kept subordinate in number of ways.
Julliet Mitchell, a feminist psychologist, uses the word patriarchy to refer the kinship systems in which men exchange women and to the symbolic power that father exercise within these psychologist of women.
Sylvia Walbi, in her book “Theorising Patriarchy”, called it as the system of social and structure and practice of male dominate, oppress, exploit women.
2. Men’s Control
There are several part of men’s control over patriarchal system, namely:
- Women’s productive or labour power;
- Women’s reproduction;
- Women’s sexuality;
- Women’s mobility;
- Property and others.
Meanwhile, these are the various institutions controlled by men, as following:
- The legal system;
- The economic system and its institution;
- The political system and its institution;
- Educational institution and knowledge system.
To analyze the origin of patriarchy, we can categorize from three different perspectives, as following:
- Engel’s explanation: He believed that women’s subordination began with the development of private property, when “the word historical defeat of the female sex” took place.
- The Radical Feminist: Patriarchy preceded private property and they believe that the original and basic contradiction is between the sexes and not between economic classes.
- The Socialist Position: Patriarchy is related to the economic system, to the relations of production, but it is not causally related. In fact, there are many other factor which influence patriarchy, such as ideology.
B. Empowerment of Women
Besides for protecting women from discrimination, law can empower women through various ways by equipping the right and power as so to enable to fight against male hegemony. Apart from the Constitution which provides for the gender equality and also to lessen the gap between two sexes, law can create empowerment through other ways. There are as follow:
- Empowerment through conferment of substantive rights or power;
- Empowerment through institutional infrastructure;
- Supporting, stimulating and monitoring the attitudinal and values change in society.
1. Empowerment through Conferment of Substantive
There are four methods of empowerment through conferment of substantive of rights or power on person to be empowered:
- By creating Penal Sanctions against certain types of behaviour that violate the dignity and liberty of women, such as in Indian Law section 376 on IPC for custodial rape and section 498-A for harassment and cruelty against women.
- By creating proprietary entitlement for women such as giving them a share on matrimonial property or giving them a right to work and an equal wage.
- By providing preferential treatment for women or providing compensatory discrimination in their favour by reserving jobs and seats in local self governing institution.
- By facilitating the exercise of liberty or freedom for such person.
2. Empowerment through Institutional Infrastructure
All disadvantaged section of society suffers from the lack of access to institution of grievance redressal. Therefore, one of the most important strategies to empowerment women is to facilitate access to grievance redressal and rights enforcing institution. For instance several measures from the Indian experiences as following:
- Family Court Act, 1984 was passed and provide an establishment of family court in the view of conciliation and securing the settlement of dispute relating to marriage and family affair.
- Another form of grievance redressal was set up by the National Commission for Women Act, 1990.
- Public Interest Litigation (PIL) is another device of grievance redressal through access to justice on the part of disadvantage section is facilitated.
3. Supporting, Stimulating and Monitoring the Attitudinal and Value Changes in Society
The movement to change public opinion and societal attitudes and values can at the most catalyze by law. But such change cannot come merely through legal prescriptions.
Presently, India has realized that they need a new movement for such change. It should aim to promoting humanism and respect to individual and liberty. The law can help by protecting the freedom of those people who crusade for the change and by firmly preventing those who try to subvert. Gender justice will be an important item on this agenda.
C. Judicial Response relating to Gender Justice in India
1. Legal Instrument
a. International Law
Before we discuss about the national legal instruments, it is better to know first about the international legal instruments which give guarantee and protection for women. There are in the following:
- Universal Declaration of Human Rights, 1948;
- Convention on the Political Rights of Women, 1953;
- Convention of the Elimination on of All Forms of Discrimination against Women (CEDAW), 1979;
- Optional Protocol to the CEDAW, 1999.
b. Constitutional Guarantees
Indian Constitution has provided so many provisions to give guarantees and safeguard for women and also in order to raise the dignity and strengthening the empowerment of women. Those articles are:
- Preamble: It contains the goal of equal status and opportunity for all citizen, either man or women;
- Article 14: It gives guarantee on equality before the law and equal protection of law;
- Article 15(1) and (2): Forbids discrimination on the ground of sex by the State;
- Article 15(3): State can provide special provision for women;
- Article 16(2): No citizen can be discriminated on the ground of sex for any employment under the State;
- Article 23: Prohibits traffic in human being;
- Article 29(2): This article gives guarantee for undiscriminating of the sex in educational institution;
- Article 39: Direct the State to secure equal pay to equal work for both men and women;
- Article 40: The Directive Principle of State Policy;
- Article 51A (e): It shall be the duty for all Indian citizens to protect and give a respect to the dignity of women.
c. Acts and Programme
There are also many acts and programme that support and favour on the interest of women to get a higher position and bigger opportunity and empowerment, such as:
- The Domestic Violence Act, 2005;
- The Hindu Succession Act;
- The Improvement of Nikah Nama Act, 2006;
- The Maternity Act;
- Gender Budgeting Programme;
- National Policy of Empowerment of Women Programme;
- Indian Penal Code with amendment and revision, i.e. Article 376, 374 and 498.
2. Landmark Cases
Several landmark cases which has been become jurisprudence in Indian legal system are:
- C.B. Muthamma v. Indian Foreign Services (IFS): The rules of IFS requiring a women officer to obtain a permission of the government for getting married were struck down by the Court as being violative of the fundamental right to gender equality.
- Air India v. Nargesh Mirza UOI: Service rule made by Air India International were challenge as being gender discriminatory. The Court struck down the rules on the ground of violative of equality.
- S. Vishnu v. India: The Court validated Section 497 of IPC which deals with adultery and held that it was not discrimination by not making woman complainant or accused. Through court said that if legislature may would the legislation with contemporary situation.
3. Other Problematic Provisions
Even though there has been empowerment in many institutions and provisions in Indian legal system, but there still exist other problematic provisions, such as:
- Divorce Act, 1864;
- Adultery in Section of 497 IPC;
- Restitution of Conjugal Rights on Section 9 of the Hindu Marriage Act;
- Maintenance in Section 36 of the Special Marriage Act.
- S.P. Sathe, Towards Gender Justice, Chapter I, II and III, 1993.
- Kamla Bashin, What is Patriarchy, 1993.
- Kamla Bashin, The Origin of Patriarchy: Some Explanations, 1993.
- Brenda Cossman and Ratna Kapoor, Subversive Sites: Feminist Engagement with Law in India, Chapter. I, 1996.
- Ratna Kapoor and Brenda Cossman, Women, Equality and the Constitution: Through the Looking Gass of Feminism, National Law School Journal, 1993.
- Uma Ckakravorty, Conceptualizing Brahmanical Patriarchy in Early India: Gender, Class and State, Economic and Political Weekly, April 3, 1993.