The Constitution of India, 1950 expressly guarantees the right to equality under Article 14 which in turn assures ‘equality before the law’ to people. This phrase, ‘equality before the law’, has not had an easy journey through our constitutional history.
Rukmini Lakshmipathi, a reformist and a freedom fighter, advocated for the need for socio-economic equality for women to be safeguarded in the Constitution. Many reformists from that time recognized that without adequate socio-economic protections, constitutionally guaranteed fundamental rights are nothing but hollow promises. Our Constitution assures a few crucial rights to women in the realm of access to public spaces and equal treatment.
However, it limits itself from recognizing wider protections required to foster true gender equality. If constitutions are the foundation for all laws in a country, it may be worthwhile to ask – what is the legal and constitutional conception of a woman in India? Constitutional litigation on women’s rights in India displays a fragmented idea of how to adequately ‘protect’ women and achieve gender equality. Legal developments on women’s rights are often contradictory and bewildering. What we see is that our normative constitutional understanding of gender equality is often guided by multiple, and sometimes oppositional forces. The resulting narrow inclusion of gender-based justice in the Constitution may be evidenced through the development of law in two branches – family law and criminal law. It was only in 2005 that the Hindu Succession Act, 1956 was amended to correct one such glaring injustice – the non-recognition of daughters as equal coparceners in family property. The denial of such rights for more than five decades significantly impacted women’s economic security in an inter-generational manner.
Before the Supreme Court of India in the case of Vineeta Sharma v. Rakesh Sharma, family members contested the daughter’s claim to equal coparcenary rights on the ground that the father passed away before the enactment of the 2005 amendment. Despite positive changes in the law, this case demonstrates the extent to which women face barriers to accessing inheritance rights due to societal and familial pushback. Often, women succumb to such barriers as they are not in a position to bear the expenses required to secure their rightful claims.
The problem of gender equality is steeper in the case of women from marginalized groups. Dalit and Adivasi women are marginalised on account of their gender and caste-based locations. What we need is an intersectional understanding of fundamental rights to secure dignity and liberty for women from marginalised groups. National Federation of Dalit Women has been fighting for the effective implementation of the Prevention of Atrocities Act, 1987 which imposes criminal liability for practices of untouchability.
They have also demanded reservations for Dalit women in public employment. They are essentially seeking an intersectional understanding of discrimination in constitutional law. This highlights that despite the existence of laws and affirmative action programmes that are constitutionally sanctioned, the promises of equality, liberty, and dignity for Dalit and Adivasi women are yet to be realized.
Legislative refusal to criminalize marital rape and secure bodily autonomy for married women in the country sustains the colonial patriarchal idea that women are the property of their husbands. If the Constitution guarantees women the right to life, equality and liberty, it begs the question – does this right not include a woman’s right to say ‘no’ to her husband?
The Bharatiya Nyaya Sanhita (BNS) was introduced in 2023 to decolonise penal law. However, this new law continues to allow and protect a husband’s exercise of sexual dominion over the wife. If the aim of the BNS was to indeed decolonise penal law, recognising colonial patriarchal structures that do not treat women as human beings would be a good place to begin.
The ongoing constitutional litigation on marital rape brings a significant question to the forefront – what is the state truly invested in? Is the Indian state content with sacrificing women’s bodily autonomy at the altar of protecting cultural values and maintaining stable families? Moreover, how ‘stable’ is a family where such violence is inflicted? Constitutionally validating the marital rape exception in the BNS will not merely be a missed opportunity for the state to rectify a historical wrong, but it would signal that women are not equal. This discussion stands testimony to the foresight of Rukmini Lakshmipati and other reformers who attempted to bring nuance to the discussion on ‘equality before the law’.
The rightful socio-political outrage over the RG Kar rape case in West Bengal has resulted in knee-jerk legislative reactions from several state governments. This new wave of anti-rape laws including the Aparajita Anti-Rape Bill (West Bengal) begs the question – is violence against women also a result of the silences in the constitutional text and jurisprudence? As several women’s rights activists have pointed out for some time now, such knee-jerk reactions make it harder for women to access the criminal justice system. Typically, when well-intentioned police officers inflate charges in FIRs so that the case against the accused is ‘stronger’, prosecuting the perpetrator is more difficult as the evidence does not stand up in court. Women’s access to criminal justice is already hampered by economic, familial and reputation-based concerns. Laws that take an extreme carceral stance don’t make matters better.
As we mark another Republic Day, what we observe is the conditional, fragmented, and languid pace of recognising women’s right to equality in Indian constitutional jurisprudence. The gap between the right and the reality in laws, policies, and social attitudes requires the courts to recognise that the current state of constitutional jurisprudence treats the rights of women in a piecemeal manner. It is the need of the hour that we introspect and act in a holistic manner rather than appeal to rhetoric.
DISCLAIMER: The views expressed are solely of the author and ETLegalWorld does not necessarily subscribe to them. ETLegalWorld will not be responsible for any damage caused to any person or organization directly or indirectly.
