'Complete legal equality for women in all spheres will be made a practical reality, especially by removing discriminatory legislation and by enacting new legislation that gives women, for instance, equal rights of ownership of assets like houses and land.' This is a quote from the national common minimum programme. Ensuring legal equality for women is more than a matter of statutory law reform. Since enacting the law is one matter, enforcement is another. Also, within law reform, there are Central statutes, state-level statutes and administrative law or subordinate legislation. Gender discrimination is so endemic that it cuts through all three strands. One should mention that equality before the law is meaningless as a statutory notion unless it is backed up by speedy dispute resolution. It should also be noted that the agenda is broader than ensuring equal rights in ownership of assets like houses and land. The NCMP merely cites that as an illustration. The agenda of complete legal equality is more comprehensive.
On the statutory law reform part and sticking to Central statutes, there are around 1,500 of these. All of these need to be examined from a gender neutrality point of view. A few examples will illustrate the point.
The Married Women's Property Act of 1874 was important then, because it ensured rights to married women. But surely, it has now been overtaken by subsequent legislation. This is especially true because of Section 2 of the 1874 enactment, which states, 'But nothing herein contained applies to any married woman who at the time of marriage professed the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion, or whose husband, at the time of such marriage, professed any of those religions. And the State Government may from time to time, by order, either retrospectively from the passing of this Act or prospectively, exempt from the operation of all or any of the provisions of this Act the members of any race, sect or tribe, or part of a race, sect or tribe, to whom it may consider it impossible or inexpedient to apply such provisions.' Why should we still retain this'
The Banaras Hindu University Act of 1915 gives the University powers 'to hold examinations and to grant and confer degrees and other academic distinctions to and on persons who ' being women, shall have pursued a course of private study and shall have passed the examinations of the University under conditions laid down in the Ordinances.' Is this relevant' The Aligarh Muslim University Act of 1920 has similar provisions. It has powers 'to hold examinations and to grant and confer degrees and other academic distinctions to and on persons who ' ' being women, shall have pursued a course of private study.' Indeed, the Delhi University Act of 1922 confers the University powers 'to hold examinations and to grant to, and confer degrees and other academic distinctions on, persons who ' ' are non-collegiate women students residing within the territorial jurisdiction of the University.'
Section 12 of the Air Force Act of 1950 still states, 'No female shall be eligible for enrolment or employment in the Air Force, except in such corps, department, branch or other body forming part of, or attached to any portion of, the Air Force as the Central Government may, by notification, specify in this behalf: Provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the Air Force or any branch thereof in which females are eligible for enrolment or employment.' Section 9(2) of the Navy Act of 1957 states, 'No woman shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except in such department, branch or other body forming part thereof or attached thereto and subject to such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf.'
Consider Section 497 of the Indian Penal Code of 1860, a section on adultery. 'Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.' Notice that the crime of adultery is committed against the husband of the wife. Because the wife is the husband's property.
These instances drive home the point that the entire corpus of Central statutes needs to be examined from the gender neutrality point of view. This is a mammoth exercise. In April 2002, a task force on women and children, set up by the ministry of human resource development, submitted its report on gender discrimination. This had a limited canvas and focussed on 23 statutes, listed below. There is inherent subjectivity in this identification. While there can't be any complaints about the importance of the statutes included, an argument can legitimately be advanced that this identification is incomplete and other statutes have been ignored. For instance, there is an overwhelming emphasis on labour laws and perhaps a conscious decision to stay away from gender biases in property and personal laws, barring an addendum on land rights for women.
(1)Employees' State Insurance Act, 1948 (2) Maternity Benefit Act, 1961 (3) Factories Act, 1948 (4) Minimum Wages Act, 1948 (5) Bonded Labour System (Abolition) Act, 1976 (6) Legal Practitioners (Women) Act, 1923 (7) Maternity Benefit Act, 1961 (8) Child Labour (Prohibition and Regulation) Act, 1986 (9) Equal Remuneration Act, 1976 (10) Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (11) Cinematograph Act, 1952 (12) Contract Labour (Regulation and Abolition) Act, 1970 (13) Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (14) Payment of Wages Act, 1936 (15) Plantation Labour Act, 1951 (16) Workmen's Compensation Act, 1923 (17) Commission of Sati (Prevention) Act, 1987 (18) Indecent Representation of Women (Prohibition) Act, 1986 (19) Family Courts Act, 1984 (20) Indian Penal Code, 1860 (21) Code of Criminal Procedure, 1973 (22) Immoral Traffic (Prevention) Act, 1956 (23) Dowry Prohibition Act, 1961
In contrast, the National Commission for Women has also undertaken a similar exercise and suggested amendments to the Medical Termination of Pregnancy Act, 1971, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act of 1994, the Child Marriage Restraint Act of 1929, the Guardians and Wards Act of 1890, the Indian Succession Act of 1925, the Indian Evidence Act of 1872, the Hindu Succession Act of 1956, the Hindu Adoptions and Maintenance Act of 1956, the Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Foreign Marriage Act of 1969, the Muslim Personal Law (Shariat) Application Act of 1937, the Indian Divorce Act of 1869, the Married Women's Property Act of 1874, the Hindu Minority and Guardianship Act of 1956, the Juvenile Justice Act of 1986 (now repealed), the Family Courts Act of 1984, the Commission for Women Act of 1990, the Commission of Sati (Prevention) Act of 1987, the Indecent Representation of Women (Prohibition) Act of 1986, the Immoral Traffic (Prevention) Act of 1956, the Employees' State Insurance Act of 1948, the Minimum Wages Act of 1948, the Factories Act of 1948, the Bonded Labour System (Abolition) Act of 1976, the Equal Remuneration Act of 1976, the Maternity Benefit Act of 1961, the Legal Practitioners (Women) Act of 1923 (now repealed), the Contract Labour (Regulation and Abolition) Act of 1970, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act of 1979, the Indian Penal Code of 1860 and the Code of Criminal Procedure of 1973. I will take up these issues in subsequent columns.