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Gender and Legislation

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The discourse on Gender and legislation is significant, because of the antithetical nature of both. The mainstream is often guided by 'male-stream' laws. This paper with all its limitation, focus on the nature of women based laws in Indian context.
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  Gender and Legislation Gender is a matter of culture; it refers to the social classification into ‘masculine’ and ‘feminine’. Our social consciousness has also embedded the concepts of masculinity and femininity, so gender is an important discourse which we cannot ignore. Since legislation is one of the most important instruments of government in organizing society and protecting citizens, the discourse on gender and legislation has got significance. The debates in parliament reveal a great deal about gender relations. When we look into the debates on women reservation bill, we can see that popular perception is influenced not only by patriarchy, but also by misogyny. For example Sharad Yadav’s much reviled comment, derisively referring to “short -haired women” ( par-kati mahilaen ) who would overrun Parliament (Menon, 2009). But opposition to this bill cannot be totally characterized as anti-women, since there is a question of upper caste women vs OBC men. Such sentiments better depict in the words of OBC representative, Nithish Kumar, ‘’we would not allow the social composition of the social composition (of this house) that has been achieved after a long struggle to be changed from backdoor’’  (Randall, 2006, p. 67) In the 2005 debate over amending the Hindu Succession Act to give daughters equal right to property with sons, MPs from the Samajwadi Party protested, arguing it would create ‘ashanti’ (disquiet) at home, pit brother against sister and so on (jagori, 2009, p. 16). So is the psychology of our political class!! The analysis offered by the legal system is not proportional to the woman’s experience and in essentiality is male dominated and gender biased; that all analysis of a given situation which demands legal and state intervention weighs heavily towards the male experience and fails to address the women’s question. If we  look into the question of surrogacy debates, it conceptualizes women as a ‘natural body’, as the object of a c ontractual relationship (Menon, 2012, p. 192). In case of medical termination of pregnancy act (1971) feminist like Nivedita Menon argues that ‘it was not the concern for women, but the motive of population control’ that acted as the rationale behind MTP Act (Menon, 2012, p. 204). The ineffectiveness of law should also be discussed, in case of dowry law Srimati Basu argues that the Dowry Prohibition Act (amended in 1984) is ineffective because it can do little to address the social mechanisms through which dowry flourishes, and can come into play only if a complaint is filed (Menon, 2012). The fact that both giver and taker of dowry are held equally culpable is an inbuilt disincentive to report demands for dowry. Feminist legal analysis has helped to explore the rules and practices that are discriminatory in their impact.   Nandita Haskar examined the way in which law has reflected patriarchal oppression. She not only pointed out the laws that continue to discriminate against women, but further connected these laws, and judicial interpretations of these laws, to patriarchal social relations in which women have been oppressed (Ahuja, 2010, p. 8). Even the debates on uniform civil code hardly touched the question of gender justice. This debate often revolved around communal politics and was rarely surfaced in public discourse as a feminist issue. In the case of Shah Bano Judgment, it was viewed as ‘anti - Muslim’ rather than ‘pro - women’ . Personal laws have become the primary site of a constitutional and structural opposition between the fundamental rights of minorities (to religion) and of women, and always this opposition was settled in favour of religion. We have enough examples of sexist courtrooms, fuelled by patriarchal understandings on issues. The 1983 judgement of Gujrat High Court states that ‘’corroborative evidence for a charge of rape w as not necessary in general and that a women’s  complaint of rape should be taken on its own merit’’  (Menon, 2012, p. 116). The judgement looks like progressive, but its  justification is totally anti-women. ‘’Indian societ y unlike the permissive west is tradition bound and a woman was unlikely to make a false accusation of rape, as she would be reluctant to admit any incident likely to reflect on her chastity had occurred.’’  (Menon, 2012, p. 117) This implied that, western women are more capable of making false accusations. This is detrimental to the woman's identity. On the 9th of February 2008, Chief Justice of Karnataka, Cyriac Joseph and State Human Rights Commission Chairperson Justice S. R. Nayak remarked that ‘’immodest dressing was the cause of increasing crimes against women ‘’  (Menon, 2008). Such irresponsible responses are self-explanatory on the psyche of our honourable judges. Section 377 of our constitution penalizes sexual activity ‘against the order of nature’. This prescription of heteronormativity 1  is a way to punish a greater threat to social order. There by dissolving LGBT rights. Section 375 IPC, recognizes only penetration of vagina by the penis as rape. All other forms of sexual assault are considered as lesser crimes, deserving a smaller quantum of punishment. Thus penetration by objects or in the case of very young girls, by a finger, does not constitute rape (Menon, 2012, p. 114). According to Nivedita Menon, section 375 IPC is a way to protect patrilineal descent and property systems. The implications of section 377 IPC and section 375 IPC can be read together with Flavia Agnes  remark on rape laws. 1  Heteronormativity refers to the overwhelming power of the assumption that heterosexuality is natural and normal, and is the norm to be emulated.  ‘’Rape laws are based on the same old notion of chastity, virginity, premium on marriage and the fear of female sexuality’  (Menon, 2012) ’.  According to Catherine A. Mackinnon , ‘neutrality of law treats and affects men and women differentially as it is based on male norms, male experience and male dominance, to the total exclusion of women’s experience from the   “male - stream” law, and thus law has contributed to women’s oppression’  (Ahuja, 2010, p. 4). If the principles of justice are not to apply directly to institutions such as courts and constitutions, legislatures and laws, then one might well ask what is the point of having them at all? -   Ashique Ali T 9/11/2014, New Delhi   BA (H) Political Science Ramjas College University of Delhi Works Cited Ahuja, N., 2010. www.academia.edu. [Online] Available at: https://www.academia.edu/1562885/The_Need_to_Understand_the_Womans_Question_and_its_Implication_on_Women_in_Patriarchal_Society [Accessed 9 09 2014].  jagori, 2009. [Online] Available at: http://jagori.org/wp-content/uploads/2009/07/dowry_infopack.pdf [Accessed 10 9 2014]. Menon, N., 2008.  Judging Women. [Online] Available at: http://kafila.org/2008/02/20/judging-women/ [Accessed 9 12 2014].
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