Women's Movement's Engagement with the Law: Existing Contradictions and Emerging Challenges

Women’s Movement’s Engagement with the Law: Existing Contradictions and Emerging Challenges 20-21 March 2006 Conference Room No. 2, India International Centre, 40 Max Mueller Marg Lodi Estate, New Delhi 110003 A Concept Note Through over a century long history, the women’s movement in India has been engaged with law as an instrument to negotiate women’s rights. To a great extent this strategy has been successful in shaping public consciousness and bringing women’s issues on to the national agenda. In the post independence era, pressure brought upon successive governments has compelled them to acknowledge inequalities and address these through laws and policies. Using the space made available by the constitutional guarantee, the movement has pushed for amendments in laws in an attempt to bridge the gap between formal and substantive equality and to enable women to exercise their rights. At the same time, it has sought to pressurize the state to formulate policies that have a significant positive impact on women’s status. Over the past few years, we have seen how this process has had an impact on law making, particularly in the present context when a slew of changes in existing laws for women as well as new laws are on the anvil.1 The struggle for rights and justice for women using law as an instrument of change however has not been easy as the social, economic and political structures in which law and the legal system exist, maintain and reinforce inequalities. Further, differentiation between women based on regions as well as religious, class and caste- based hierarchies, and women’s location in unequal and oppressive conditions has received less attention than it deserves. Such divisions and inequalities persist despite and in contradiction with constitutional provisions of equality, social justice and secularism. Over and above such inherent contradictions, shifts and changes in the socio-political context have been adding to the complexity of both the debate as well as the struggle for women’s rights. For example in relatively recent times, the growth of fundamentalism and its politicization of the debate on personal laws systematically cramped the space for expanding the debate on crucial aspects of gender justice. And the struggle for women’s rights has become increasingly intertwined with the struggle for developing India’s secular-democratic polity where men and women from different communities may enjoy the right to adhere to their diverse practices while upholding the rights of women within the framework of the Indian Constitution. Similarly, advancing neo-liberal policies, with its agenda of rollbacks in the labour law regime and introduction of several new areas of vulnerability for women, have compelled the opening of new areas of concern regarding law and social policy, particularly in relation to women workers. In fact, several current features of exploitation, oppression, and forms of violence against women that have acquired new prominence, have brought into 1 For instance Protection of Domestic Violence Act Amendments made to the Hindu Succession Act, Discussions again being initiated on Sexual Harassment Bill, Sexual Assault Bill, Amendments suggested to Law against dowry by the NCW, Compulsory Registration of Marriage Bill Amendment to Child Marriage Act and several others being discussed and debated. 1 focus social dimensions and practices (both new and old) that coexist uneasily with constitutional provisions, the laws, and their way of implementation. Within this broad context, we have gained over twenty years of concrete operational experience of the changes in dowry related laws that followed the anti-dowry movement of the early eighties. Where significant advances have been made in the area of recovery of dowry when breakdown of marriage takes place and in criminal prosecution of dowry deaths, the institution of dowry has patently remained untouched, and in fact spread. This foregrounds the need for review of the flaws in the law and its implementation, as well as the larger social processes that have led to the growth of this institution. The experience of laws related to violence and crimes against women and their implementation has also been mixed. Generally seen as a ‘soft crime,’ despite continuous increase in the scale and form of violence inflicted on women both within the domain of family as well as outside it, an ambivalence in the law towards such violence, is reflected in failure to provide any remedy to the victim. Experience reveals that major problems exist with regard to interpretation and implementation of even existing laws. Gross violation of law and procedure, visible at all stages starting from the registering the case to decision in the courts, remain a problem requiring immediate attention. Further, we have seen how sexual violence may stem from class, caste, or community conflicts as reflected in Gujarat in 2002 or in extreme forms by agencies of the state as an act of instilling terror on those seen as ‘insurgents, as depicted in Manorama’s case. The use of law in support of vested groups and retrogressive ideology was most recently illustrated in Operation Majnu in Meerut, here purportedly with the objective of making cities safer for women. In the background of such experiences, there is obviously need for a more comprehensive and nuanced review of underlying conceptions as well as procedures, forms and methods of implementation of the laws that are brought into operation in cases of and in the name of violence against women. The issue of women’s work and work- place equality gained momentum in the 70s and found reflection in the Equal Remuneration Act which brought equal pay for equal work into the realm of labour law. Since then however, a crisscross of currents unleashed by seismic changes in economic policies and process of development have come to dominate the debate on labour related laws. On the one hand, standard assumptions of existing labour laws and established labour rights are being undercut and threatened, with issues of both equality and humanity in labour practices being increasingly left to determine by the wills of market forces rather than principles of social justice in law. On the other, popular demands for protection of growing unemployment, insecurity of livelihoods and forms of harassment at work place are also forcing themselves into the domain of legal rights and the law. With the roll back in crucial areas of worker’s rights in the name of labour law in line with neo-liberal economic reforms is part of former trend, the recently enacted National Rural Employment Guarantee Act and the proposed Bill on the Sexual Harassment are examples of the latter. In context of momentous changes taking place in the world of work and its regulatory mechanisms, the need for the women’s movement to reflect on and clarify its perspectives on the issues, premises and direction of changes in labour law has acquired new urgency. In view of the stress on the institution of the family and increasing domestic violence, the issue of maintenance comes up with greater force. At one level, the maintenance law under CrPC (purportedly to protect women from destitution and `vagrancy’), still remain inadequate and poorly reinforced. At another level, civil law judgements advancing formal notions of equality now allow husbands to seek alimony from the wives, opening up new arena of 2 debate. In relation to matters related to inheritance, recent steps to amend the Hindu Succession law (giving daughters equal coparcenery rights as of sons in a Hindu joint family’s property) have yet to be appropriately contextualized in the changing socio- economic scenario. For example, women’s access (or rather lack of it) to land and their rights and control over it remain fundamental issues to be addressed if we wish to achieve economic advance and change in the social status of women. These all are the areas where there is a need for the movement to draw together its experiences and work out perspectives for future advances. Among other important new areas that have emerged in recent times are the social effects on women of a range of new technologies that are now being brought. Declining sex ratio is one of the significant fall outs of such unethical, commercial and illegal uses technology that need to be addressed in holistic manner. Affect of growing nexus between commercial forces and technological advancements can be felt through indicators declining sex ratio. Fuelled by politics on population, this has impinged on women’s situation in larger socio-political context and has been shaped in a manner when law alone is not adequate to address it. The above discussion indicates, it is perhaps an appropriate time for us to reflect on how far we have been able to advance women’s rights in the sphere of law, to review the effects of past successes and failures in this area and take forward the movement’s perspective towards incorporating the emerging areas of concerns. In general, it is still true that in many crucial areas the formal legal system as well as traditional modes of delivery of justice have both failed to address the existing ground realities and women’s experiences of discrimination, oppression and exclusion. Advances may be seen or anticipated in the number of new laws that have been and are being enacted in the amendments made to existing laws and in several significant Draft Bills proposed by the present government, which are pending before the Parliament. At the same time, despite such progresses in law making several elements of retrogression can also be seen working their ways into the process involved in conception, applicability and implementation. It is in such a context that the CWDS proposes to organize a seminar on Women’s Movement’s Engagement with the Law: Existing Contradictions and Emerging Challenges at New Delhi on the 20th and 21st of March, 2006.

Load more