WOMEN AND LAW AN ASSESSMENT : Indira Jaising

INTRODUCTION
The Indian Constitution, adopted in 1950, at a time when fundamental rights were formally being guaranteed all
over the world to meet the demands of a post-Holocaust era was truly a child of the post Second World War period.
Naturally, like other sister documents, it was necessarily influenced by the United Nations Declaration of Human
Rights and contained the guarantee of fundamental rights. While the Supreme Court of India was a child of the
constitutional framework of a nascent Republic, it was also the heir to colonial British Indias federal court system.
Hence, it is important to understand the colonial heritage of our courts and legal system in order to truly assess the
relationship of law and legal institutions to the rights of women. The courts, especially the apex court followed the
constitutional scheme of Article 372, which saved
___________________________________
Director, Lawyers Collective, Womens Rights Initiative and Additional Solicitor General Government of India. The
author thanks Jhuma Sen for her research assistance.
372. Continuance in force of existing laws and their adaptation
(1)Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the
other provisions of this Constitution, all the laws in force in the territory of India immediately before the
commencement of this Constitution, all the laws in force in the territory of India immediately before the
commencement of this Constitution shall continue in force therein until altered or repealed or amended by a
competent Legislature or other competent authority
(2)For the purpose of bringing the provisions of any law in force in the territory of India into accord with the
provisions of this Constitution, the President may by order make such adaptations and modifications of such law,
whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from
such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any
such adaptation or modification shall not be questioned in any court of law
(3)Nothing in clause ( 2 ) shall be deemed
(a) to empower the President to make any adaptation or modification of any law after the expiration of three years
from the commencement of this Constitution; or
(b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted
or modified by the President under the said clause Explanation I The expression law in force in this article shall
include a law passed or made by a legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be
then in operation either at all or in particular areas Explanation II Any law passed or made by a legislature or other
competent authority in the territory of India which immediately before the commencement of this Constitution had
extra territorial effect as well as effect in the territory of India shall, subject to any such adaptations and

modifications as aforesaid, continue to have such extra territorial effect Explanation III Nothing in this article shall
be construed as pre-constitutional laws and was comfortable with the inherited jurisprudence of unmodified personal
laws and common laws. This meant that personal laws were preserved and recognized. Considering that personal
laws govern family, marriage, divorce and inheritance, women were trapped within religious frameworks for
determining their rights. These laws were often discriminatory only towards women. The debate on a secular
uniform civil code remains unresolved till today and is caught in the framework of minority/majority politics rather
than equality for women of all faiths and religions. This is largely due to an increasing communalized polity, which
targets vulnerable and minority communities making it difficult to have a focused debate on non-discrimination
based on sex. On the other hand as a post-Second World War Nation-State the Constitution sought to make citizens
out of the subjects of a colony of the Empire. Equality, which was hitherto politically and legally not attainable
during the colonial period, was incorporated into the written constitution. Women therefore found themselves
holding the empty shell of equality while being governed by unequal laws.
COMMITTEE ON THE STATUS OF WOMEN IN INDIA (CSWI) AND THE FIRST REPORT
Twenty-five years down as a young republic, the year 1975 stood out as a turning point for women in the country. It
is an irony of fate that this was also the year in which the late Mrs. Indira Gandhi, the then Prime Minister declared
the Emergency suspending all fundamental rights, In 1976, in recognition of the International Year of Women,
the Equal Remuneration Act was passed giving to women the right of equal pay for equal work.
It was in the year 1975 that the first status of women report authored by a Committee on the Status of Women in
India (hereinafter CSWI)was submitted prepared under the Chair of Dr Phulrenu Guha and editorial guidance of
Vina Mazumdar in the previous year. The report was submitted to the Minister for Education and Social Welfare,
Government of India on 1st January 1975, an important year, the same heralding the first ever United
Nations International Womens Year in 1975. The terms of reference of the Committee had, among other things,
the mandate to examine the constitutional, legal and administrative provisions that had a bearing on the social status
of women, their education and employment and to assess the impact of these provisions during the last two decades
on the status of the women in the country. The Committee recorded that in spite of Constitutional and legal equality,
womens status in every sphere of life had remained unequal with persistent disparities and although many laws had
passed to remove these disabilities, they have had little impact. The Committee had therefore recommended the
constitution of statutory, autonomous Commission at the Centre and the State with the mandated objective of
collecting information regarding all trends in social organization which affect the rights of women and an evaluation
of the existing politics, programmes and laws that have a bearing on the status of women. It also recommended in
concrete terms, the eradication of polygamy in Muslim personal law, the enforcement of provision against bigamy
under the Hindu Marriage Act, to make offences under the Child Marriage Restraint Act cognizable and
appointment of special officers, compulsory registration of marriages as recommended by the United Nations,
amendment of the Dowry Prohibition Act 1961, improvement of laws of divorce including addition of cruelty and
desertion as grounds of divorce in the Hindu Marriage Act, changes in personal laws relating to inheritance,
particularly to bring legislative measures to cover Christian women of Kerala under the Indian Succession Act as a
step to unify the law. It also recommended womens rights to matrimonial property and establishment of Family
Courts among other things. Looking back at the Report of the Committee, one can but marvel at the farsightedness
of its membersfor in the almost four decades that followed, many of its recommendations have been accepted,
much of its suggested routes have been followed. Yet, a lot more needs to be done.
THE TRAJECTORY OF LAW MAKING AND GENDER

The history of law making is often also in a sense the history of a country. Laws are not made on an empty state but
are structured within a given constitutional, social and legal universe. This universe is in turn shaped and molded by
social movements, which articulate the hopes and aspirations of the people. Hence as this section demonstrates,
changes in law have followed social reform movements or have been made to respond to the felt needs of women.
Law making related to women may, for the sake of convenience be divided into two phasespre 1975 and post
1975 and three categories, family law, violence against women in the public and private sphere and social and
economic rights. These categories are broadly the early years ending in 1975, the post emergency years and the
phase of liberalization of the economy.
First PhaseFamily Laws
Codification of Hindu Laws
In the Nehruvian phase, the focus of law making as far as it concerned rights of women largely centered on the
question of codifying and revising Hindu personal laws, a process that had started under the British rule. The Hindu
Code Bills were passed in the form of four lawsthe Hindu Marriage Act, 1955, the Hindu Succession Act, 1956,
the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956. These laws
sought to regulate the family life of Hindus and made substantive and important changes in the status of women.
Under uncodified Hindu laws, marriage was declared an indissoluble union between a man and a woman.
Codification introduced grounds for divorce making it possible for the woman as much as the man to seek divorce.
Daughters and widows were granted succession rights not only in the self-acquired property of the Hindu male but
also in their share of the coparcenary property.
It was also around this time that the Special Marriage Act, 1954 came into existence that enabled inter-religious and
inter-caste marriages to take place and hence must be viewed as a significant reform measure. It was the only law
that permitted divorce by mutual consent at that time. Marriage laws relating to Christians, Muslims and Parsis
remained pre-constitutional laws although they were amended from time to time. It is however important to note
here that while the Indian state was willing to codify Hindu laws, a similar process was not undertaken for
Christians, Muslims and Parsis. In this, the Indian state strictly followed the policy of noninterference adopted by
the British i.e. the demand for reform of personal laws must arise from within the community. It was the declared
policy of the Indian state that although Article 44 of the Directive Principles of State Policy (hereinafter DPSP)
directed that the state shall endeavor to move towards the Uniform Civil Code but the code would not be formulated
except on the demand of the concerned community. The problem however has been that there is no way of
ascertaining the views of the community. Demands made by the womens movement from time to time have been
ignored and religious heads have become the main spokesperson of the community who have fought long and bitter
battle to keep the Shariauntouched.
While the marriage laws addressed issues of formation and dissolution of marriage, they did not address the issue of
economic rights of women within marriage and this remains an unfinished task till today.
Child Marriage
Other laws regarding marriage were also amended during this period. The Child Marriage Restraint Act, 1929 was
amended during this period, first in 1949 and later in 1978, to raise the age limit for marriage for male and female
persons. This Act was to be later repealed and reenacted as the Prohibition of Child Marriage Act, 2006 to make
marriage under the age of 18 voidable and gave powers to court to prevent child marriages.
Dowry

The Dowry Prohibition Act originally introduced in 1959 and later reintroduced in 1961 was a child of this period. It
was enacted with a specific objective, as outlined in the PreambleAn Act to prohibit the giving or taking of
dowry. This Act was also later amended in1984 and 1986 along with the amendments in the Criminal laws. This
category of laws and legislative changes therefore span the years before the Constitution was framed and the period
immediately following the coming into force of the Constitution.
Medical Termination of Pregnancy
An early entrant into law making was the Medical Termination of Pregnancy Act 1971. It is generally admitted that
the Act was intended to facilitate family planning and limit the size of the family rather than permitting a liberal
right to abortion. It nevertheless has had the unintended benefit of easy access to safe abortions when needed.
Maternity Benefit Act
It may also be noted that during this period the Maternity Benefit Act was enacted in 1971, which dealt with the
issue of maternity benefit to working women in the private sector. The law governing maternity benefit in the public
sector is governed by the central and state government rules and regulations. Much later, in 1999, these rules also
included paternity leave to employees. The Central Government in 1999, by notification under Central Civil
Services (Leave) Rule 551 (A) made provisions for paternity leave for a male Central Government employee
(including an apprentice and probationer) with less than two surviving children for a period of 15 days to take care
of his wife and new born child, before or within 6 months from the date of delivery of child.
The evaluation of this periods law making leads to the conclusion that laws were primarily concerned with women
in the private domain and even this limited concern did not extend to an uncompromising reform of personal laws.
While the right to claim a divorce could have a major liberating influence on women, given that no post divorce
property division were put in place it failed to have any impact but rather became a tool for oppression. While
succession rights for daughters and widows could empower them, they were rarely claimed by female relatives
against the male relatives and remains only on paper.
Second Phase: Post Emergency Law Making, Violence against Women
The second phase coincides with the lifting of the traumatic Emergency of 1975 when fundamental rights were
suspended. After the Emergency was lifted in 1977, the focus shifted to the restoration of civil liberties. There was a
heightened awareness of the role of law in protecting the rights of all citizens. There was a flourishing of democratic
movements in which all sections of society including women played a part.
Mathura and Rape Laws
It was also during this period that the judgment of the Supreme Court in the Mathura case was delivered. Two
policemen within the premises of a police station raped Mathura, a 16-year-old tribal girl. The sessions court
acquitted the policemen on the ground that since Mathura had eloped with her boyfriend, she was habituated to
sexual intercourse and hence could not be raped. The court went an extra step to hold that Mathura was of loose
morals and that the sexual intercourse was with her consent as her body showed no visible marks of resistance. The
high court reversed the judgment. The Supreme Court however set aside the conviction by the high court and held
that since Mathura had not raised any alarm and since she did not carry any visible marks of injury, the she must
have consented to sexual intercourse. The judgment led to a massive protest by womens groups, focusing attention
on the role of the court on womens issues. These major mobilizations across the country led to the amendments in
the law relating to rape. The legislature stepped in and amended rape laws in a very substantive way. The 1983

Criminal Law Amendment Bill was passed. Section 114 A of the Indian Evidence Act was added as presumption as
to absence of consent in certain prosecution for rape and sought to undo the presumption that if there was no signs
of resistance, the woman must be deemed to have consented to the sexual intercourse. It was a major attempt and a
significant one to redefine consent and restore to women the rights to be free from sexual violence. Here we see
one of the first attempts to undo patriarchal bias operating against women in the matter of rape.
Amendment to Dowry Laws: Introduction of 498A
Fuelled by the spirit of an activist post Emergency days, and distraught by the impunity at play in cases of bride
burning, womens movements across the country, especially by the mothers of burnt brides sought to bring changes
to dowry and penal laws. Satya Rani Chadha, who lost her daughter in the face of demand for dowry, campaigned
tirelessly with Saheli and other womens organizations at the doors of the Supreme Court demanding to know why
the police had registered the death of burnt brides as accident and not as murder. The relentless campaigns by the
mothers of burnt brides in dowry and other womens organizations finally culminated in the creation of Section 498A in the Indian Penal Code in 1984, to safeguard the rights of daughters in law against cruelty within marriage by
their husbands and parents in law. This was one of the most critical amendments to penal laws and was the first
attempt to criminalize violence within matrimonial home. The Dowry Prohibition (Amendment) Act 1984 and later
1986 were also introduced vide criminal law amendments in 1983 and 1986. These two laws made dowry death a
separate offence and it was not to be treated under Section 302 (murder) or under Section 306 (abetment to suicide).
Section 304-B was introduced in the Indian Penal Code recognizing dowry death.
There has been an on-going debate whether a death of a woman in the matrimonial home must be considered a
murder under Section 302 or whether it needs to be judged separately as a dowry death. The advantage of dealing
with it separately is that the law gives recognition to a form of violence against women, namely violence associated
with dowry and create necessary grounds for presumption to facilitate proof and conviction.
Commission of Sati Prevention Act
The notorious case of Roop Kanwar, a Rajput woman who committed Sati in 1987 led the Legislature to wake up to
social realities and enabled it to pass the Commission of Sati Prevention Act, 1987, which sought to prevent
voluntary or forced commission of Sati and the glorification of the same. This exemplifies a law made to serve a
social function of preventing violence against women.
Age of Valid Marriage: Amendment to Child Marriage Act
In 1978, due to amendments in the Child Marriage Restraint Act, age of valid marriage underwent a change from 18
to 21 in case of boys and 15 to 18 in case of girls uniformly in Hindu Marriage Act, 1955, and Christian Marriage
laws. The age for valid marriage was changed for Parsis in the year 1988 and brought at par with the Hindu marriage
laws and Christian marriage laws. Also, it was around the same time, in 1976, divorce by mutual consent was
introduced in the Hindu Marriage Act, 1955. The same provision was already retained in the Special Marriage Act,
1954 from its very inception. Rape in marriage continues to be no offense.
Changes in Definition of Rape: Non-Penetrative Assault and the Issue of Consent
Notwithstanding the above-mentioned laws and legislations violence against women continues unabated and several
issues remained not addressed by existing legislations. Of particular concern is the inadequacy of the definition of
rape in the Indian Penal Code, which focuses only on penetration. A reported case of sexual abuse of a young
daughter by her father led to the filing of the petition in the Supreme Court by an NGO, Sakshi in the year 1997
points out that because the definition of rape was limited to penetrative assault, men who assaulted children went
unpunished or received very minor punishment. The subsequent Law Commission Report (172nd Law Commission

Report), recommended the widening of the definition of rape to include non-penetrative assault. The
recommendation was not accepted until 2012 when Criminal Law Amendment Bill was drafted. The bill has been
cleared by the Cabinet but not yet been enacted. The Bill is gender neutral and any person can complain of sexual
assault against another. It also raises the age of consent to sexual intercourse from 16 to 18. Womens groups have
been opposing gender neutrality of the law as it will enable victimization of women against whom complaints of
sexual assault can be brought. It will reintroduce the issue of consent through the back door. Gender-neutral laws
can only work in a structurally equal society and after dismantling the structural inequality rooted in patriarchy.
Raising the age of consent from 16 to 18 would criminalize a substantial section of the population that is of sexually
empowered age. This also brings alive the possibility of increased parental control over their children in matters
relating to choice especially in inter caste marriages. It is unfortunate that simultaneously the Protection of Children
from Sexual Offences Act, 2011 has come into force defining child as a person below 18 years of age and which
criminalizes sexual assault on a child below 18 years of age regardless whether consent was given. Empirical data
shows that parents invoke section 355 (kidnapping) of the Indian Penal Code only when a woman elopes with a man
of a different caste or when they perceive their honour to be violated. Given that a woman is biologically and
sexually active at 16 and above, criminalizing consensual sexual activity will only be used to resist inter caste
marriages.
Trafficking in Women
This phase also saw amendments on to the laws on trafficking in women, which were first codified in 1956 in the
form of the All India Suppression of Immoral Traffic Act, 1956. Although this law did not criminalize voluntary
sexual work, it criminalized activities associated with sex work, including street walking. Much later, in the year
1986, this legislation was renamed as Immoral Traffic (Prevention) Act of 1986. Although it underwent a change in
nomenclature much of its provisions remained the same. The purpose of the legislation was to limit and eventually
abolish sex work by gradually criminalizing different aspects of it. The Act defines trafficking to mean the act of
recruiting, transporting, harbouring or receiving a person for the purpose of prostitution by means of threat or use
of force or coercion, abduction, fraud, deception or by means of abusing ones power or a position of vulnerability.
Giving or receiving of payments of benefits to achieve the consent of such person having control over another
person was defined within the ambit of trafficking. Prostitution is defined as:
(f) prostitution means the sexual exploitation or abuse of persons for commercial purposes or for consideration in
money or in any other kind, and the expression prostitute shall be construed accordingly;
Since there is no definition of what constituted sexual exploitation or abuse of persons for commercial purpose, the
definition of trafficking becomes meaningless. Consequently there have been very few convictions for trafficking.
Rather the Act has been used to victimize women in sex work rather than punish traffickers. An amendment bill was
introduced in the year 2006 pursuant to campaigning by sex workers demanding better conditions of living and
decriminalizing of activities relating to sex work but the bill has not yet been passed. Much of the debate on sex
work rest on the demands that sex workers must have civil rights like any other person such as the right to send their
children to school, to civic amenities, to vote, to have access to means of finance, the right to healthcare and to be
free form violence. The successful self organizing of sex workers of Sonagachi has shown the way for their
autonomy and self determination of sex workers and could become a model way for organizing and dealing with the
rights of sex workers.
Indecent Representation of Women (Prohibition) Act
Another legislation during this period was the Indecent Representation of Women (Prohibition) Act, 1986. What
constitutes indecent is also not defined precisely. So far the police consider only pornographic materials as
indecent. A case decided by the Bombay High court requires mention here. The film Pati Parameshwar which

portrayed a wife accepting violence from her husband as being normal was challenged on the ground that it violates
the guidelines under the Act and amounted to indecent portrayal of women. Under the guidelines, portraying
women in positions of servility was defined as indecent. These guidelines were successfully used and the court
held that the portrayal of women accepting rape and violence by her husband as being legitimate did violate the
guidelines. This case remains an isolated success. Much advertising that we see today can be characterized as
indecent for portraying women in positions of servility.
Given the growth of 247 television channels, there is a need to regulate the media particularly on the portrayal of
women as sex objects.
Third Phase: Liberalization and Economic and Social Rights
Workplace Issues: Sexual Harassment at the Workplace
The 90s saw the liberalization of Indian economy. Policy priorities of the state changed to meet the demands of a
privatized and liberalized economy. Workplace issues came to the forefront. The famed Vishakha case dealt with the
issue of sexual harassment as a denial of the right to work. The PIL was filed in the court with the objective of
finding a suitable method for the realization of gender equality in the workplace. The mandate was to make the
workplace more accessible to women. The court stated that sexual harassment would mean a denial of the womans
right to freedom to practice any profession, occupation, trade or business under Article 19 (1) (g) of the constitution.
In the absence of a statutory law on sexual harassment, the court considered international documents and covenants
particularly the Committee on the Elimination of Discrimination Against Women (hereinafter CEDAW) and put
in place a guideline to tackle sexual harassment at workplace. However, the judgment did not articulate lateral
application of fundamental rights and hence was a guarantee against the state and not necessarily the private sector.
Earlier this year, the Protection of Women from Sexual Harassment Bill 2012 finally received the approval of the
Lok Sabha. It covers women in the public and private sector and domestic workers. The Bill is welcome on multiple
levels, yet needs thoughtful reconsideration of certain parts, which are potent grounds for denying justice to the
woman complainant. One of these grounds is a clause in the bill, which serves to punish the complainant if her
complaint is found to be false or malicious. One wonders why this special treatment to the complainant in the
pretext of safeguarding the rights of the defendant when no other statute provides such ground for complaints. One
can only conclude that the backlash to the womens movement with men crying misuse has led to this provision,
dangerous enough to undo the advantage gained by the law.
Unorganised Sectors Social Security Act, 2008
It is not surprising that the third phase has seen many new developments relating to labour. The demands of a
liberalized, privatized and globalized economy had led to more and more workers being pushed from the formal
sector to the informal sector with no security of employment. Contract labour was encouraged over permanent
employment. The Unorganised Sectors Social Security Act in 2008 spearheaded by SEWA (Self Employed
Womens Association) was passed with the promise of bringing social security through welfare schemes such as
pension and health. The schemes have not been framed so far. Other developments have been demands by domestic
workers for regulating conditions of work. Some states have now notified minimum wages for domestic work.
Import of technology, Reproductive Rights
Along with the question of womens sexuality, reproductive rights have come to dominate the gender and law praxis
in the last few decades. The Pre Natal Diagnostic Techniques Act 1994, was brought into force to stop the decline in
the adverse sex ratio of women. However the legislation has not improved the sex ratio for women. This partly
resulted in a demand that doctors who conduct abortion should be strictly regulated and the Medical Termination

of Pregnancy Act needs to be revisited. The easy availability of technology namely an ultrasound made it possible
for doctors and professionals to see sex selective abortion as an opportunity for financial gain. The deadly
combination of patriarchy with advances in technology have made it possible to selectively abort the female fetus
and has entrenched discrimination against women. On the other hand, an uninformed objection to abortion of
female fetus can lead to a claim for a complete ban on abortion. Informed decision making must be based on the
right to health of the mother and child.
In the realm of reproductive rights in the last phase, another landmark bill is the Assisted Reproductive Technology
(Regulation) Bill 2008, yet not passed, to govern surrogacy in India. In view of the fact that the country has become
the growing surrogacy capital in the world, the bill seeks to regulate surrogacy procedure in India. The bill is yet to
pass and is still not a law in force in India.
Political Representation
1992 is an important year for the rights of women, quite like 1975 was. In 1992, the Constitution of India was
amended by the 73rdConstitutional Amendment Act by Parliament to ensure that one-third of the total seats for
women in all elected offices in local bodies whether in rural areas or urban areas. In 2009, the Union Cabinet
approved 50% reservation for women in Panchayat Raj Institutions. Some states like Andhra Pradesh, Jharkhand,
Chhattisgarh, Kerala, Madhya Pradesh, Himachal Pradesh, Maharashtra, Tripura, Rajasthan, Orissa, Bihar and
Uttarakhand have already implemented 50% reservation in elected posts. However, other states are yet to sanction it.
The long-term plan of the 73rd Amendment was to extend reservation of 33% seats for women to the Parliament and
State Legislatures as well. The108th Constitutional Amendment suggested 33% reservation of seats in lower house of
the Parliament as well as all state legislative assemblies. The Upper House of the Parliament passed the Bill in 2010
though it is still awaiting the vote of the Lok Sabha. The Bill having been passed by the Rajya Sabha will not lapse
with the dissolution of Parliament.
Due Diligence: Mechanisms to Implement Laws
In the third phase significant development in laws addressing human rights and gender justice was the establishment
of a machinery to speak to these issues. The 90s saw the establishment of implementation mechanisms for womens
laws and policies and broadly human rights laws and policies across the country. In January 1992, the National
Commission for Women (hereinafter NCW or Commission) was set up as a statutory body under the National
Commission for Womens Act 1990. Its mandate was to review constitutional and legal safeguards for women,
recommend remedial legislative measures, facilitate redressal of grievances and advice the government on policy
matters relating to women. It is worthwhile to recollect that the Committee on the Status of Women in India had
recommended the establishment of the Commission two decades before it was set up to establish a National
Commission for Women to fulfill surveillance function, to act as a redressal of grievances mechanism and to hasten
socio-economic development of women as a constituency. The Commission was vested with the power of a civil
court. However, the current system of nomination of Chair and Member of NCW is destructive of the autonomy of
the institution. Over the years, there has been gradual erosion in the credibility of the institution and it urgently
requires institutional reforms. The Act also set up State Womens Commission in the states to work on similar issues
in the state level.
This decade also sought the passage of the Protection of Human Act in 1993 under which the National Human
Rights Commission was set up with the set mandate to enquire into violations of human rights or the negligence in
prevention of such violation by a public servant among other things. Recently, with the passage of the National
Commission for the Protection of Child Rights Act, 2005 the National Commission for the Protection of Child
Rights (hereinafter the NCPCR) was set up in March 2007. The NCPCR had the mandate to ensure that all laws,

policies, programmes and administrative perspectives are in consonance with the child rights perspective as evinced
through the Indian Constitution as well as the United Nations Convention on the Rights of the Child.
Due diligence was required to international standards. In this it is important to mention how Indias signing and
ratifying CEDAW has had a far-reaching effect on the law making procedure in India especially in which it related
to legislating on domestic violence. While the PWDVA was the product of domestic violence activism of the 90s,
the CEDAW was ratified in 1993 owing to an intensification of the demand for signing the treaty. The CEDAW in
its general recommendation XII (1989) had recommended that state parties should act to protect women from
violence especially that are taking place within family. This intensified the campaign for PWDVA and was largely
responsible for getting the law in place.
TOWARDS A NEW STRUCTURE OF GOVERNANCE
As this paper has shown, it is not possible to talk about law reform without talking about the contribution of the
womens movement and the movements for social change. Each movement in turn inspired others. Campaigns for
right to information, right to work and right to food have taken place simultaneously with womens rights
campaigns. . The movement to get the Right to Information Act, 2005 in place began with mass demonstrations and
campaigns for public accountability by the Mazdoor Kisaan Shakti Sangathan (MKSS) that consisted of a large
participation by women. The most groundbreaking of laws in the last decade, the National Rural Employment
Guarantee Act, guaranteeing 100 days job guarantee at a statutory minimum wage have seen a massive engagement
of women in the campaigning stage. It is little wonder that the women have been the largest beneficiaries of the
legislation as has been documented by reports. In 2001, the PUCL filed an application in the apex court on the right
to food, which formally launched the right to food campaign. The National Food Security Act, known as the Right to
Food Bill was drafted which proposed to make available food for every family. The Act called for a broader reform
of public distribution system. The bill, for the first time makes woman the head of the family and mandates cash
entitlements to thema path breaking legislation no doubt. It also addresses the issue of malnutrition of children
making cash entitlements for women to enable that adequate nutrition is provided to the children and anemia is
prevented. It is also in this period that impunity in the private sphere for women was broken decisively by the
passing of the PWDVA 2005. These laws redefine domestic violence to include physical, emotional and mental,
sexual violence and gives to women the right to reside in the shared household.
Elsewhere I have pointed out that women were least protected in their matrimonial home. This law recognizes their
rightful place in their home. These laws together have the potential to change the structure of governance, a
precondition for the empowerment of women.
Looking into the future
While tracking the history of law making, it is important to understand that law is made not just by Parliament but
also by courts and sometimes on the streets with our feet. As time goes by, issues of concern to society also change.
Issues of sexuality have dominated debates in the last ten years. Section 377 of the Indian Penal Code has been
successfully challenged. In 2009, the Delhi High Court in Naz Foundation read down section 377 of the Indian
Penal Code which had criminalized consensual sexual intercourse between adults of same sex as unnatural offense
and held that such act would not amount to a penal offense. At the same time it retained the section in view of the
fact that the said provision nevertheless protects the boy child from sexual assault. The case has been argued in the

Supreme Court and is awaiting a final judgment. It must also be stated that now, with the enactment of the Child
Sexual Offence Act, there is no need for the retention of section 377, since the new law protects a minor from sexual
assault. It is time for an archaic law like 377 to go and although there have been several promises by the legislature
that the same should be deleted, it has not taken its logical course yet. It must also be stated that this amendment
must take place at a time when the state is increasingly moving away from the binary understanding of gender as
man and woman and have sought to address the gender identity of a transgender person as other. Recently the
Central Government through administrative action has allowed for inclusion of other in passports and voters cards
thereby acknowledging the gender of the transgender person as other. This is a very heartening step no doubt.
Transgender issues have taken center stage with Pinky Pramanik being prosecuted for rape. There is on the other
hand a growing acceptance of gender and sexualities other than the male-female or heterosexual binary. Transgender
person are contesting local elections successfully and as reiterated earlier, passports now permit the mention of
other as an option to denote sex of the person moving away from the male-female binary. The High Court of
Madras recently employed a transgender person, marking the first social recognition and hopefully more will follow.
Technology has made obscenity an issue that has disproportionately impacted women. Surrogacy will become a
major legal issue for women and their rights. The concerns of marginalized women will also take center stage; the
rights of domestic workers will surely be legislated upon shortly. While dealing with old challenges we have
accepted new ones in our stride.
An overview of the laws of the last six decades goes on to show that a trajectory that was mapped by the CSWI in
1974 have been followed by the womens movement. Issues like equal pay for equal work, guidelines for sexual
harassment at the workplace have been put in place. Hindu Marriage laws have been reformed, child marriage have
been protected yet rape within marriage still remains legal. There have been several landmark amendments to laws
of inheritance including the enactment in 2005 of the amendment to the Hindu Succession Actmaking women
coparceners in ancestral property yet the regime to a right to matrimonial property has not arrived. Family courts
have been set up, dowry laws have been strengthened, grounds to seek divorce have been widened and more
importantly violence within home has been addressed by amending the penal laws as well as getting a civil law in
place. However in this regard in the sphere of personal laws, the courts have kept intact impunity in the private
sphere while addressing the symptoms of impunity manifested as violence against women. In the home and the
family, no legislation concerning personal laws has ever been struck down by the courts. The court has shifted the
burden on the legislature as the appropriate forum to bring equality amongst sexes in family. This circumvention of
the constitutional question of gender justice is omnipresent in all religions and faiths. While in the post
constitutional period, the Hindu personal laws were sought to be reformed, the pace that it followed was slow. While
courts were reluctant to address the issue of constitutionalizing personal laws, the legislature was not much proactive
either. The post constitutional era has hence necessitated that womens movements seek to reform personal laws and
take it up on their agenda. There is a need for a law guaranteeing equality based on sex. Rape within marriage need
to be outlawed and no amendment to criminal laws in the last six decades has ever taken it into account. Women are
severely under represented in public institutions and public offices and sustained campaign on this need to ensue.
We have only traveled half the distance mapped by the CSWI Report in 1974 and we need to travel more.