Saturday, January 21, 2017

The legal rights of Hindu women

Village elders under a tree, Rajasthan, 2016
We all know that Hindu society is patriarchal for the most part. Is gender inequality among Hindus only a cultural/social phenomenon? Or does it have a legal basis? What legal rights do Hindu women have? Are they considered equal to men in the eyes of the law? What are the roots of the women's rights movement in India?

As a Hindu woman, I thought I should try and figure out who my friends and foes are. Who or what has helped the cause of Hindu women, and who has hindered it?

First, let us look at religion. If we examine Hindu scriptural law, there is no single uniform code. Influenced by many shastras and commentaries, the law has traditionally been applied by village councils as per local customs. Thus, there is significant variation in women's rights across the country, based on specifics of caste and class. Most of the time, these customs are not pro-women, although they often offer quick justice and practical solutions based on easily understood cultural norms. When women operate within these norms, but face injustice or denial of rights, the village council or panchayat offers a quick and very useful method of redressal. But the norms themselves are quite misogynistic.
William Bentinck, who abolished sati
It was the British who began the process of codification of Hindu law in the 19th century, starting with Bengal, Bihar and Orissa. As part of this process, some local customs, which the British found reprehensible, were declared illegal. For example, sati was banned, and widow remarriage was allowed. This was the first step in giving all Hindu women, irrespective of caste or class, some rights under British law.

The late 19th century saw the beginnings of the Hindu women's rights movement in India. The early campaigners were men, armed with English education, who fought orthodox Hindu society to obtain more rights for women. They were eventually joined by some trail blazing women, who heralded a brave departure from social norms. Women's rights organisations began asking for a comprehensive code of Hindu laws rather than piecemeal legislation. They had mixed results; because the British were slow to make major changes after the Mutiny of 1857.

The independence movement in the late 1800's and early 1900's slowed down the progress of women's rights. The freedom fighters resisted any British interventions to 'modernize' the Indian family. In 1891, when the British introduced an act to increase the age of consent for marriage, there were big protests.

Sarojini Naidu, leading Salt Satyagraha, 1930, after the arrest of Gandhi.
First woman president of the Congress
Things changed under the leadership of Mahatma Gandhi, who believed in greater rights for Indian women. Although he propounded a rather idealized view of Hindu women, glorifying self-sacrifice, it propelled many Hindu women to come out of their homes and join the Indian freedom struggle in the first half of the 1900's.

The British, meanwhile, continued the process of legal reform. In 1937, the Hindu Women's Rights to Property Act was passed, giving widows rights of inheritance in a joint family. A Hindu Law committee was appointed in 1941, to look further into the rights of daughters. The committee, led by the constitutional scholar B. N. Rau, toured a number of cities throughout India in 1945, and interviewed many people and caste associations. In 1947, India got independence from the British. Mahatma Gandhi was assassinated in January 1948. With support from Nehru and Ambedkar, a Hindu Code Bill was introduced to the new Constituent Assembly on April 9, 1948.

Strong protests erupted from many quarters. Religious organisations such as the Hindu Mahasabha said it was 'suicidal folly' (because the new code bill banned polygamy). They believed that the whole race of Hindus would be destroyed, since there were no equivalent restrictions on polygamous Muslims. The pontiffs of leading religious sects said that giving rights to women would break the effective functioning of the Hindu joint-family, and was against the principles of Hindu dharma.

Here are some photos of protests which took place in Delhi in 1949. The protestors were against giving Hindu women inheritance rights, rights to divorce, etc. Since those were simpler days, without huge security issues; here we can see how the public have easy access to the Parliament House! People can be seen climbing the walls, or just hanging around. No doubt, some brought their own packed meals and made a picnic out of it.

After these major protests, the Bill lapsed and went into hibernation. In 1952, the Congress party swept the polls with a huge majority. This gave Jawaharlal Nehru the political strength to implement his vision. As a result of the untiring efforts of Nehru and Ambedkar, four separate acts came into being:
  1. Hindu Marriage Act of 1955 - this allowed inter-caste marriages, introduced monogamy and created provisions for the dissolution of marriage 
  2. Hindu Succession Act of 1956 - this act gave women absolute ownership of inherited property (previously they could only enjoy the property without ownership during their lifetime).
  3. Hindu Minority and Guardianship Act of 1956 - gave the mother guardianship rights if the father neglected the child; and also allowed mothers the rights to be guardians of illegitimate chilren
  4. Hindu Adoptions and Maintenance act of 1956 - allowed women to claim one-third of the joint income of her husband and herself in case of divorce
Despite many limitations, these Acts together were a great victory for gender rights of Hindu women.

The Constitution of India, which came into effect in 1950, guarantees to all Indian women the following:
- equality (Article 14)
- no discrimination by the State (Article 15(1)
- equality of opportunity (Article 16)
- equal pay for equal work (Article 39(d)

In addition, via Article 15 (3), the Constitution allows special provisions to be made by the State in favour of women and children. It renounces practices derogatory to the dignity of women via Article 51(A) (e), and also allows for provisions to be made by the State for securing just and humane conditions of work and for maternity relief. (Article 42).

Since 1956, several landmark judgments have been passed by the Congress government, each one bringing a little more improvement in the legal rights of Hindu women. Several laws have come into effect:
  • Dowry Prohibition Act 1961 - prohibits demanding, giving and taking of dowry.
  • Medical Termination of Pregnancy Act 1971 - allows termination of pregnancy by a licensed practitioner under specific circumstances (rape, danger to mother's life or health, contraceptive failure, etc) 
  • National Commission for Women Act 1990 - a body to review the constitutional and legal safeguards for women, recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women.
  • Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1999 - to stop female foeticides and arrest the declining sex ratio in India
  • Protection of Women from Domestic Violence Act 2005 - defines domestic violence and provides protection against physical, emotional/verbal, sexual, and economic abuse
  • Sexual Harassment of Women at Work Place (Prevention, Prohibition & Redressal) Act 2013 - defines sexual harassment at the work place and creates a mechanism for redressal of complaint
Compared to just a few decades ago, there is huge progress. But there's is still a long way to go in this journey. The current government has been talking about implementing a uniform civil code. This is more an attempt to bring Muslims under the ambit of a civil code, rather than any attempt to further strengthen the rights of Hindu women. The attitudes of right-wing Hindu organisations (which form the major support base for the current government) continue to be parochial and misogynistic.

Black and White Photographs taken during the anti-Hindu Code Bill demonstrations outside the Council House, New Delhi on Dec. 12, 1949. Source: