Legal Scenario in Women Centric laws in India: Recent Amendments vs. Required Amendments-An Analysis

1.Introduction

Men and women are two halves of a whole. As is known to us, the Constitution of India provides equality to women and at the same time also makes provisions for empowering the State to implement procedures for positive discrimination in favour of women. The concept of gender equality has been expressly enshrined in our Constitution which may be seen through our Preamble, Fundamental Rights and Duties and also the Directive Principles of State Policy. India has also sanctioned numerous international conventions and human rights instruments committing to secure equal rights of women. Noteworthy amongst them is the ratification of the Convention on Elimination of all forms of Discrimination Against Women, 1993 (the CEDAW).

In today’s day, it is the most unfortunate truth that we currently reside in a country that has been called the rape capital of the world. India has been deemed as an anti-woman nation; a country that is not safe for women. A country that is dominated by the Hindu religion, where people worship more Goddesses than Gods, it is extremely horrific to see the state of a woman at present. The Hindu philosophy of ‘a soul is interpreted as being without gender’ has been diluted so much that today they have just become empty words. 

While it cannot be ignored that there have been several changes in the laws with respect to protection of women, which have over time witnessed significant changes for the better, be it from one of the oldest legislations like the Commission of Sati (Prevention) Act, 1987 to the most recent changes in the Criminal Law (Amendment) Act, 2018; a constant question that arises persistently and which needs to be addressed immediately is whether the laws in India claiming to be ‘women centric’ in today’s day are actually so or have they been unsuccessful in coping with the social changes that India has witnessed in the past decade. Thus, the current laws are of utmost importance and play a vital part in the manner in which women are viewed.
Regrettably, the Indian legal system has delayed in providing a safer nation for women and resultantly, we have now come to the point where the laws are being changed as a reaction to brutal incidents. Instead of being a country that is able to curb these offences we have become one of those that make changes as an after-thought.

An example of such an amendment that springs to mind instantaneously, as it is not one that could be forgotten easily, is the Criminal Law (Amendment) Act, 2013. The law which came into being after the ferociousness of the whole nation against the homicidal gang rape that took place in New Delhi. The seriousness of the requirement of an effective change in the Rape Laws came to be understood only after this dreadful incident. The subsequent Criminal Law (Amendment) Act, 2018 is also in existence as of today.

Another example is that of the legislation adopted to address the issue of sexual harassment in the workplace. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the POSH Act) enacted by the Ministry of Women and Child Development has been introduced in India only as recently as 2013 on the basis of the landmark case of Vishaka & Ors. vs. State of Rajasthan & Ors. , wherein guidelines and norms for the protection of women in the workplace were prescribed.  It is pertinent to note that while the said judgement was pronounced way back in 1997, it is only in 2013, nearly 16 years later that the POSH Act specifically came into existence addressing this issue. India, even though has been significantly advancing, nevertheless, even today an alarming delay exists between the occurrence of these dreadful instances and the legislations introduced to curb them. 

Furthermore, there have also been notable recent judicial pronouncements like that of Kantaru Rajeevaru vs. Indian Young Lawyers Association , famously known as the ‘Sabarimala Review’ and also that of Shayara Bano v Union of India , commonly known as the ‘Triple Talaq case’ which goes to show that the Indian legal system is constantly making changes in order to provide women with the rights that they deserve. Additionally, one may also note that these groundbreaking judgments have been not only in the sphere of Hindu laws but also caters to Muslim laws. 

For the sake of convenience, the Article will unfold and highlight this issue with respect to the women centric laws in the following order under the heads of: 
a) Major Amendments which will cover those changes that have been considered to have had a nation-wide impact. These shall include those deviations from the original law as seen under the major criminal laws , and 
b) Minor Amendments that will cover those changes made in the Hind Succession (Amendment) Act, 2005, Maternity Benefit Act, 1961 and Medical Termination of Pregnancy Act, 1971. While these may not have had a significant impact on the laws catering to women, nevertheless their existence cannot be ignored. 
c) Required Amendments which will cover certain grey areas where a change in the law needs to be brought in.
d) Suggestions which will structure the authors’ opinion on the changes that may be brought in for the proper implementation of the above-mentioned current laws.  

2.Recent Major Amendments 

2.1 The Criminal Law (Amendment) Act, 2013 and 2018
The nation-wide outrage over the brutal gang-rape and subsequent death of the 23-year-old, Jyoti Singh, (also known as ‘Nirbhaya’) in New Delhi was the driving force behind the passing of the Criminal Law (Amendment) Act, 2013 (the 2013 Act).

a.Background to the 2013 Act – ‘The Nirbhaya Case’
The case involved a gang rape and fatal assault, where the victim was beaten and raped in a private bus in which she was travelling with a male friend. The victim thereafter succumbed to her injuries and died. This led to huge public protests worldwide against the severe malfunction of the government in taking adequate punitive measures.

Barring one of the accused, the remaining five were sentenced to death penalty by the fast-track Court which was thereafter affirmed by the High Court as well as the Supreme Court. Furthermore, all the three review petitions filed by the accused persons were dismissed, the latest being the one filed by Akshay Kumar Singh on 18th of December, 2019. 

b.The Justice Verma Committee Report
On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.  This eventually led to the passing of the Criminal Law (Amendment) Act, 2013.

c.Amendments to the Criminal Laws 
The 2013 Act, brought about a sea-change in the law relating to rape and other offences against women. The Bill received Presidential assent on 2 April, 2013 and came into force from 3 February, 2013. It brought major changes in the Indian Penal Code, 1860 (the IPC), Code of Criminal Procedure, 1973(the Cr.P.C.) and the Indian Evidence Act, 1872 (the Evidence Act), which now have been retained under the new criminal laws of 2023 as well. This Provisions under the new law i.e., Bharatiya Nyaya Sanhita, 2023 include offences related to stalking; voyeurism; gang-rape; punishment for committing rape on a women in a persistent vegetative state etc. Similarly, the Bharatiya Nagarik Suraksha Sanhita, 2023 also has retained provisions with regard to identification of persons arrested; medical examination of victim of rape; cognizance of offence under S.221 in case of marital relationship etc. lastly, the Bharatiya Sakshya Adhiniyam, 2023 also retains provisions relating to evidence of character or previous sexual experience; presumption as to absence of consent in certain prosecution for rape.

The recent amendments brought about by both the 2013 Act and the 2018 Act and most of being them have been retained by the new Laws of 2023, have done a commendable job in bringing about major changes in the criminal law and filling up the gap that was subsisting all this while. It brought about new aspects like acid attacks, etc. and gave a wider interpretation to the definition of rape. 

Report of the Law Commission
The 84th Report of the Law Commission of India dealing with Rape and allied Offences came out in 1980.The report states that a woman who is raped undergoes two crises which are: the rape itself and the subsequent trial. Rape is considered to be the ‘ultimate violation of the self’.  It was in the wake of the inadequacy of the laws, that the Government had asked the Law Commission to make a special study of the law relating to rape.

The Commission, in its report, has considered the substantive law and also considered its earlier report (i.e. 42nd Report) on the IPC.  The Commission re-drafted S. 375 of the IPC defining rape and also added provisions, inter alia, relating to sexual intercourse with child wife, illicit intercourse of public servant with woman in his custody etc.

On the procedural stand, the Commission recommended changes with regard to the procedure for arrest of woman under the Cr.P.C. which requires an oral intimation for submission to custody or only a female can touch the person of the woman being arrested.  Further, the Report recommends that no woman shall be arrested between dawn and dusk, except for reasons to be recorded on that behalf.  The report also suggests that the interrogation of the female victim shall be done by the female Police Officer and mandatorily at the place of her residence. 

Regarding the medical examination of the victim, the Commission suggested the examination of the victim to be conducted by a registered medical practitioner and report of the examination was required to be forwarded to the investigating officer who shall forward it to the Magistrate as part of the documents mentioned in S.173(5) of the Cr.P.C/193 (BNSS).
The commission further suggested that in-camera proceedings must be held in trials for sexual offences and the publication of the name of the victim shall be made punishable under the IPC(Now BNS). 

Under the law of Evidence, the Commission suggested an insertion of a provision regarding presumption as to absence of consent in prosecutions for rape.  The Commission has also suggested that S. 155(4) requires modification as to exclude evidence of sexual relations with persons other than the accused.  The Commission suggested for insertion of S. 53 A which are now part of law being retained by the 2023 Act. 

A breakdown of the Report –   The recommendations of the Law Commission are well-accepted as can be seen from the law which was immediately in effect before the major amendment of 2013. The definition of rape is one such example which was enumerated as a law. The change in the Cr.P.C. with relation to the arrest of a woman still holds to be a good law. The suggestion with regard to restriction on publication of name of victims has also been accepted by the Parliament. Lastly, the changes under the evidence act, which were recommended by the Commission way back in 1980, were brought into effect by the Parliament ultimately in 2013. The 84th report is perhaps the most successful report of the Law Commission which made its way into the law books and guided the Courts and the society alike.

3. Recent Minor Amendments 

While there have been major amendments that have been considered significant in changing the framework of the Indian legal scenario and the manner in which the Indian judicial system is perceived at the same time, there have also been certain other changes in the laws catering to women which may not be as significant as the major amendments elucidated above, but are nonetheless, important. 

3.1 Sexual Harassment of Women at Workplace Act, 2013
The dearth of law in this field was first identified by the Supreme Court in the case of Vishaka vs. State of Rajasthan . In framing the Vishaka Guidelines, the Supreme Court relied on the CEDAW, which was signed and ratified by India. The guidelines framed by the Court were to have effect until a law has been enacted in this regard. 

Relevant provisions of the POSH Act
The POSH Act defines an ‘aggrieved woman’, as a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment.  Some other important definitions are as follows:
a.Employee – A person employed at a workplace for any work on regular or temporary basis, either directly or through an agent, with or without the knowledge of the principal employer, whether working for remuneration or not and whether the terms of the employment are express or implied. 
b.Internal Committee – It means an Internal Complaints Committee constituted under Section 4 of the Act. 
c.Sexual harassment – It includes any one or more of the following:

• i.Physical contact;
• ii.A demnd for sexual favours;
• iii.Making sexually coloured remarks;
• iv.Showing pornography. 

d.    Workplace – it includes:

• i.Any department, organisation etc., controlled directly or indirectly by the appropriate government;
• ii.Hospitals or nursing homes;
• iii.Any sports institute, stadium etc., whether residential or not used for training;
• iv.Any place visited by the employee during the course of employment. 

Internal complaints committee
The POSH Act requires an employer to set up an ‘internal committee’ at each office of an organization, employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment.  The Presiding officer of the committee shall be a woman employed at a senior level at the workplace from amongst the employees. There shall be at least 2 members from amongst the employees who are committed to the cause of women. The external member shall be from an NGO who is committed to the cause of women. It is also noted that not less than half the members of the committee shall be women.

The Local Complaints Committee
At the district level, the government is required to set up a ‘local committee’ to investigate and redress complaints of sexual harassment.  The Local committee shall consist of the Chairperson who shall be an eminent woman from the field of social work and committed to the cause of women. One of the local women is to be nominated from amongst the women working in the block/tehsil at the District level. There shall be two other members, one of whom shall be from an NGO and committed to the cause of women.

Complaints and Inquiry of sexual harassment
The aggrieved women may make a complaint to the committee within a period of three months from the date of the incident.  The POSH Act stipulates that the Internal Committee and Local Committee shall, while inquiring into a complaint of sexual harassment, have the same powers as vested in a Civil Court under the Code of Civil Procedure, 1908. The Internal Committee shall proceed to make an inquiry in accordance with the service rules applicable to the Respondent. 

Other relevant provisions of the POSH Act
The interim relief during the pendency of the inquiry provides, inter alia, for transfer of the aggrieved woman to any other workplace; grant leave to the aggrieved woman for a period of three months, etc. 

The contents of the complaint shall not be published or made known to the public in any manner. In case of a contravention of the provision of the said section, the person shall be liable for penalty in accordance with the provisions of the POSH Act.  Finally, an appeal under section 18 shall be preferred within a period of ninety days from the date of recommendations under Sections 13, 14 & 17 of the POSH Act. Undoubtedly, the guidelines and norms framed by the Hon'ble Supreme Court in Vishaka Judgment are fountainhead of the POSH Act. With the passage of time, it was felt that the guidelines are not sufficient to deal with the incidents of sexual harassment of women at workplaces and a strong piece of legislation is required and accordingly the POSH Act was enacted in 2013. 

Coparcenary literally means Joint inheritance of property. As per the Mitakshara law, the son acquires a right and interest in the family property on his birth. Consistent with this school of law, a son, grandson and a great grandson constitute a class of coparceners, based on their birth in the family. No female is a member of the coparcenary in Mitakshara law. 

The Hindu Succession Act came into force in 1956, however, the landmark amendment brought in the area of protection of women’s right to property was the Hindu Succession (Amendment) Act, 2005 (the HSA, 2005) whereby women were brought at par with men and were given equal property rights. Section 6 of the HSA, 2005 is the major provision which brought the change in the law and gave equal rights to women.  The same is summarized as follows:

Devolution of interest in coparcenary property 
From the date of commencement of the HSA, 2005 in a Hindu joint family governed by Mitakshara Law, the daughter of a co-parcener shall:

• a.By birth become a coparcener in her own right in the same manner as the son;
• b.Have the same rights in the coparcenary property;
• c.Be subject to the same liabilities in respect of the said coparcenary property as that of a son.

Further, no disposition or partition of property shall be affected by this section which had taken place before 20.12.2004. The property which is held by the female with incidents of coparcenary ownership shall be a property capable of being disposed of by her by testamentary disposition.

Furthermore, when a Hindu dies after the commencement of the HSA, 2005, his interest in the property shall devolve by testamentary or intestate succession and not by survivorship and the property shall be deemed to have been divided as if a partition had taken place. It identified the right of the women of Class I category to claim partition which was not possible previously until the male heirs chose to divide their respective shares.  Furthermore, the amendment enabled the widows, who re-married, to claim share in their deceased husband’s property. 

The significant change of making all daughters (including married ones) coparceners in joint family property has been of great importance for women, both economically and symbolically. Economically, it has enhanced women's security, by giving them birthrights in property that cannot be willed away by men. Also, as noted, women can become kartas of the property.

3.3 Medical Termination of Pregnancy Act, 1971
The very concept of termination of pregnancy raises a plethora of ethical, moral, social, legal and most importantly medical questions. Under such circumstances, an inevitable situation gets created where a choice has to be made between the rights of the unborn foetus and those of the mother itself and in cases of rather superior nature, the rights of the mother may presume importance 

The Medical Termination of Pregnancy Act, 1971 (the MTP Act) prior to the amendment specified in clear terms the time upto which a pregnancy could be terminated i.e. twenty weeks.  It further specified the indications which had to be met before a pregnancy could be terminated and in addition, mandated the practice of the termination to be conducted only by a qualified registered medical practitioner as defined under the MTP Act. 
Over time, as the number of abortion centres began snowballing, new problems kept cropping up and, in an attempt to deal with these rising problems, the MTP Act was amended and passed on December 18, 2002.  Essential features of the amendment included those made with regards to a "mentally ill person" that was to cover a wider variety of mental diseases and disorders in comparison to the word “lunatic” laid down in the MTP Act.  Further, in the Amended Act, the recognition of a place for carrying out the very act of medical termination of pregnancy was to be at a district level rather than the state capital and hence, any procedural delays would be significantly reduced. While in the MTP Act there was a dependence on the IPC to enforce discipline, in the Amended Act the punishment is incorporated in the Act itself. 

Another vital amendment that the MTP Act underwent was in the year 2014 when it was proposed that the MTP Bill should increase the upper limit of legal abortion from 20 to 24 weeks, thus broadening the scope to teach and tutor auxiliary nurse midwives (ANMs), nurses, and other unani practitioners to perform abortions at an early stage, however the bill never came into force and eventually lapsed. 

In 2017, once again there had been another amendment bill  introduced before the Rajya Sabha on 4th August, 2017. This new bill proposed to make changes in section 3(2)(b), where for the word 'twenty', the words 'twenty four' would be substituted. However, this Bill has not yet come into force till date.

3.4Maternity Benefit Act, 1961
The Maternity Benefit Act (the Maternity Act) is another Act that helps empower women and encourage them to pursue jobs and earn a living for themselves. Women are constantly living under the pressures of balancing both life at work and home. This is where the Maternity Act becomes a boon for new working mothers who have the chance to get back to their jobs after pregnancy. This law is a set of rules that exist in every organisation in order to protect the rights of female employees. These rights include those with regards to pay, compassion and certain privileges for the pregnant employee from the employer. The Maternity Act additionally includes certain educational rights available to female employees as part of their maternity benefits at the workplace. These maternity policy provisions differ from company to company. Some organizations may give work -from-home facilities to their women employees or even organize a day-care facility (creche) in their office premises for the purposes of encouraging women to pursue work without the pressure and guilt of leaving a new born back home.
As per the new Maternity Benefit (Amendment) Act, 2017 (the 2017 Act), maternity leave has been raised from a period of 12 weeks as provided in the Maternity Act to 26 weeks in the 2017 Act.  Further, the prenatal leave has also been extended from the earlier duration of 6 weeks to 8 weeks in the 2017 Act and additionally for a further duration of 18 weeks after the birth of the child. 

4.Judicial Approach 

The approach of the Judiciary in bringing about changes in the women centric laws has also received commendable applause and has helped in bringing the women at par with men in the society. In the recent past, several pronouncements of the Supreme Court of India have tried to bring this change and some of those landmark judgments include:

• a.Shayara Bano Vs. Union of India
• b.Joseph Shine v. Union of India
• c.Kantaru Rajeevaru Vs. Indian Young Lawyers’ Association &Ors. (Dealt separately at S. No. 5.2)
• a.Shayara Bano vs. Union of India 

The petitioner, Shayara Bano, approached the Supreme Court, for assailing the divorce pronounced by her husband, Rizwan Ahmad, on 10.10.2015. The aforesaid divorce was pronounced before two witnesses. The petitioner has sought a declaration, that the ‘Talaq-e-Biddat’ pronounced by her husband be declared as void ab initio. She contended that such a divorce under the Muslim Personal Law,  be declared as unconstitutional. Hence the issue before the court was to decide the Constitutional validity of “Triple Talaq”.

Majority View
The majority opinion was delivered by Justice Kurian Joseph separately for himself, and Nariman J. for himself and Lalit J. The summary of the findings are as follows:
Per Kurian Joseph J. – His Lordship found it difficult to agree that the practice of Triple Talaq had to be considered integral to the religious denomination in question and that the same is part of their personal law. Merely because a practice has continued for long, that by itself cannot make it valid even if it has been expressly declared to be impermissible. 

Per Nariman J. – Triple Talaq is manifestly arbitrary in the sense that a marital tie can be broken capriciously by a husband without any attempt to save it. This form of talaq is held to be violative of Article 14 of the Constitution of India. Thus, the 1937 Act must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.

Minority View
The Minority opinion was authored by Chief Justice Khehar for himself and Nazeer J. The summary of the main findings are as follows:

a.The Court held that the practice of ‘Talaq-e-Biddat’ was in continuance for more than 1400 years now and it has been conceded by all the Counsels to the fact that ‘Talaq-e-Biddat’ though bad in theology, was considered as good in law. 
b.The Court further held that the ‘Shariat’ law cannot be considered as a State enactment and its practices cannot be required to satisfy the fundamental rights, in terms of Article 13 of the Constitution.
c.The Practice of Talaq-e-Biddat could not be held to be unsustainable in law for reasons of it being contrary to public order, morality and health, as enumerated in Article 25(2). 

The Court thought fit to exercise its discretions to issue appropriate directions under Article 142 .  The Bench directed that till a suitable legislation was framed, the Muslim husbands were to be injuncted from resorting to the practice of ‘Talaq-e-Biddat’ effective for a period of six months. Further, if any legislative process commences before such a period, then the injunction would continue, till the same is enacted or else it shall cease to operate.  
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Parliament on June 21, 2019 which makes the declaration of Talaq, in all form, void and illegal. The Bill received the assent of the President on July 31, 2019. 

b.Joseph Shine v. Union of India 
This was another impactful judgment wherein, Section 497 of the IPC was struck down and held to be contrary to the vision of the Constitution. This was a unanimous decision of the Constitution Bench. 
The brief background of case is such that the validity of Section 497 came to be challenged by one Joseph Shine in 2017. A three-judge bench referred this matter to a Constitution Bench of five judges.  The Bench passed a concurring opinion striking down the section based on the following points of consideration-

I. Section 497 is outdated and unconstitutional.
It was opined by the Bench that the nature of Section 497 is such that it divests a woman of her independence and self-respect. It is almost like encroaching upon her right to life by accepting the idea that marriage means destabilizing true equality between man and woman. This section portrays the acceptance of a primitive and backward idea that women are not equal contributors to a marriage and do not have the capacity to make decisions on their own. Keeping in mind all of this, it can be easily said that this section is violative of Articles 14 and 15 and further violates Article 21 of the Constitution. Of India, 1950.

II. Section 497 cannot be considered to be a crime.
The Bench was further of the view that the very concept of adultery did not fit the definition of being a crime. An act committed that affects the entire society as a whole may be called a crime. However, adultery per se, was more of a personal issue between the husband and wife. There was no doubt that adultery could definitely be used as a ground for divorce and relief may be claimed under a civil wrongdoing. 

III. The wife cannot be considered to be the property of her husband.
Through this judgment the Bench aimed at getting away from the backward preconceived notion that a wife is and can be considered to be the ‘property’ of the husband. Rather, they should be given an equal opportunity to put forward their opinions.

IV. Section 497 is arbitrary.
The Bench held the section to be extremely arbitrary inasmuch as it confers an authorization on the husband to deal with his wife in a manner that he approves as he likes which is extremely unnecessary.

Views of the Bench
-Per CJI- On behalf of himself as well as for Khanwilkar J. He further said that this provision was against right to equality. The suppression of one gender over the other is evidently unconstitutional and this point was constantly reiterated.
-Per Chandrachud J. –His Lordship opined that the patriarchy and gender inequality was something that had to be struck down.
-Per Nariman J.-His Lordship was also in agreement with the CJI and Khanwilkar's J. judgment and termed the current law as archaic and invalid. He further emphasized on the fact that many other countries had moved away from criminalizing adultery as a criminal offence.
-Per Malhotra J.- Adultery could be a moral wrong but the question which still remains is whether the adultery can be termed as a criminal offence.  

5. Required Amendments-The Grey Areas

5.1Marital Rape
India is till date one of the few countries that exempts its men from committing the offence of rape where the victims are their wives. Even though the Indian legal system has seen impactful changes in its framework, marital rape is one such offence that till date has not received recognition as being an offence. 

The word ‘rape’ literally speaking, means the forcible seizure of a woman.   Under the IPC, rape has been defined under section 375 as an unlawful act of sexual intercourse between a man and a woman, ‘without’ the consent of the woman or against her will under any of the situations that have been clearly enlisted under the section.  Why this has become an area where change has become imperative is because while Section 375 defines the term rape and Section 376 provides for its punishment, the IPC has provided no safeguard or safety net to protect any married women becoming victims of rape at the hands of their husband. 
In its exception clause, the above-mentioned Section 375 states that sexual intercourse by a man with his wife, the same not being under the age is fifteen, shall not be considered to be an offence of rape.  Unfortunately, it is assumed that sexual intercourse will exist in a marital relationship and hence, any intercourse that occurs in a lawful marriage cannot be said to be rape. 

At the same time, it is also vital to note certain other legislations like the Protection of Women Against Domestic Violence Act, 2005 (the PWDV Act) that does hint at the existence of an offence of marital rape. Section 3 of the PWDV Act defines sexual abuse to consider life-threatening hurtful abuse that may be physically shown or proved. This definition at least takes into consideration that a woman may be a victim of rape, even though the offender may be her husband.

There is a loophole in the law that no one has pointed out, or aimed at rectifying even in today’s modern age. A dissonance can be seen where the law that does not allow a girl to get married before attaining the age of eighteen years, at the same time also does not convict a man who has sexual intercourse with his wife if she is above fifteen years of age. A girl under the age of sixteen years cannot be said to be in a position to give her consent for sexual intercourse under section 375 of the IPC but is allowed to have intercourse at that age if she is married. There is, thus, no cogency in the laws. 

It may be safe to say that the Indian laws have failed miserably in being able to provide adequate protection to women only on account of their marital status. The Justice Verma Committee Report, made with a progressive approach, can be seen pushing the lawmakers in a direction where changes are embraced.  There should be no reason to view sex without consent between married couples on a different footing from that which occurs between strangers.

A PIL  has been filed recently before the Delhi High Court wherein the constitutionality of the exception clause to Section 375 of the IPC has been challenged.  The Government of India has also filed an affidavit before the same Court stating that by such changes in law, it must also be ensured at the same time that marital rape does not become a convenient method of harassment of husbands by their wives. 

It is therefore extremely disappointing to see that the Government of India has come across as being extremely anti-women. Instead of viewing such changes with a positive attitude, the Government is rather of the notion that these changes would result in a lot of harassment to husbands at the hands of their wives. 

5.2 Kantaru Rajeevaru Vs. Indian Young Lawyers Association & Ors. 
The Supreme Court, by its judgment, by a 3:2 majority, decided to keep the review petitions filed against the 2018 Sabarimala Judgment  pending. The 2018 Judgment had lifted the restrictions on women of menstruating age from entering the Sabarimala temple in Kerala.

The majority decision – Authored by Gogoi J. for himself and Khanwilkar and Malhotra JJ., was peculiar in the sense that the court kept the issue in the main judgment alive without deciding the review petitions and referred the matter to a larger bench of 7 judges to decide certain pending cases before the Apex Court with the reason that these cases might, in all probability, involve the application of the Sabarimala judgment. The majority specifically referred to cases pertaining to the following issues: 

• a.Muslim women’s right to enter mosques;
• b.Parsi women’s right to enter the fire temple after having married a non-parsi;
• c.Practice of female genital mutilation among the Dawoodi Bohra community.

The minority view authored by Nariman J. for himself and Chandrachud J., however dismissed the review petitions on the basis that no grounds for review had been made and thereby there is no reason to find any error in the 2018 judgment. However, the Supreme Court has recently decided to further review its 2018 order by forming a 9-Judge’s bench and the Hon’ble Apex Court is yet to decide on the validity of the said order, which is to commence hearing form April, 2026.

5.3 Political participation of woman
Political participation is broadly defined as a process through which individual plays a role in political life of his society, has the opportunity to take part in deciding what the common goals of that society are and the best way of achieving these goals.

5.3.1 Legal Status of Political Participation of Indian Women 
After the enactment of the Constitution equality of status was granted to all women through various provisions which include Articles 14, 15, 16, 39(b) and 42. Further, the 73rd and the 74th Constitutional Amendments  being significant amendments have dealt with the reservation of seats to Panchayats and Municipalities under Articles 243D and 243T respectively providing for the reservation of 1/3rd seats as well as office of the chairperson in panchayats for women in the local government.

5.3.2 Statistics on women’s political participation 
An ECI report shows that there were only 10.87% women members in the Lok Sabha and around 9.54% in the Rajya Sabha in the year 2009. Further, the number of women ministers in various cabinets of the Government of India in 2009 was only 9. At the State level, average percentage of women in State Assemblies was 7.23%. The highest being 14% in Rajasthan and the lowest being 2.5 % in Goa.

5.3.3 Initiatives of Indian Government for Women’s Political Empowerment
The Women’s Reservation Bill, for 1/3rd reservation of all seats for women in the Lok Sabha and State Legislative Assemblies, was first introduced by the National Front Government in September, 1996 as the 81st Amendment Bill. It has been introduced thrice but was stalled each time with the lapse of the Lok Sabha. The UPA Government finally presented the Constitution (108th) Amendment Bill, 2008 in the Rajya Sabha which was passed on the 9th March 2010. However, the bill’s fate remains uncertain till date. 

6. Suggestions

6.1 The Criminal Law (Amendment)Act, 2013 & 2018
Both the amendment acts have brought a sea-change bringing concept such as acid attacks, stalking, voyeurism for the first time. Further, the definition of rape has been given a wider interpretation responding to demands from women’s group. 
However, the amendment acts are merely a tool to battle the violence against women. The government should come up with legislations which not only provide the substantive and procedural law but also the means to tackle them. A reform in the judicial infrastructure would include:

a.Building fast track women’s court;
b.Engagement of female public prosecutors in sexual assault cases;
c.Engaging Female doctors to examine victims of sexual offences;
d.Finally, modernizing the Police system (eg. Women Investigating officers in sexual offence cases)

Thus, some sort of solidarity has been achieved in fighting this violence against women’s safety, but as we all know, no law can be perfect and it has its loopholes. 

6.2 Sexual Harassment of Women at Workplace Act, 2013 
The Vishaka Judgment (Supra) is the fountainhead of the law under discussion. The POSH Act has had some positive sides like the “She-Box” which is an online tool for registering sexual harassment complaints; enhancement of the Vishaka guidelines propounded by the Court and wider publicity of the POSH Act has encouraged female employees to report any incident immediately. Nevertheless, with this positivity, there are also certain drawbacks which need to be noted and corrected:

a.There is vagueness pertaining to the definition of what exactly constitutes sexual harassment. This is a subjective experience. Hence, an explanation pertaining to the same must be incorporated.
b.The Act places main responsibility on the employer for such implementation and leaves the State out of the purview of responsibility.
c.Due to lack of witness protection, witnesses are not willing to come forward to support the women concerned. Thus, it is suggested that a protection mechanism be incorporated.

Thus, with the incorporation of these recommendations there is a hope that this act will improve the conditions of working women.

6.3Hindu Succession (Amendment) Act, 2005
The HSA, 2005 enhanced the women’s right to property. Women also have the right to make testamentary disposition. However, even then, there have been some lacunae spotted in the law:

a.The HSA, 2005 has made a daughter a coparcener by birth. A married female is still governed by the old law. Hence, family discomposure creeps in due to the unequal primacy assigned to different female members.
b.Under Section 15, when a female dies intestate and issueless, the property inherited by her from her father or husband devolves upon each respectively, or to her father’s or husband’s heirs respectively, leaving her at the status prior to 2005 amendment. 

Arming women with measures to repair a past of unquestioned discrimination, the HSA, 2005 has paved the path to a more secure future for women. However, the act needs to undergo changes so as to make the law more effective to give them their due rights.

6.4Political participation of women
The political participation of women has seen some light of the day when the 73rd and the 74th Constitutional Amendments were brought in. This has given some sort of political opening to the women in the country. However, this amendment has not been given proper implementation by the executive. Furthermore, the statistical figures prove that women are hardly given an importance at any level of the government, whether that be at the Central or State. The Women’s Reservation Bill is probably the panacea to all these ills. But it depends upon the ruling party to get the same passed and ultimately bring the law into effect so that the woman gets their due political rights which had been their dream since 1996 but the same hasn’t turned into a reality. Thus, the authors would suggest that all the solution lies in the passing and implementation of the Women’s Reservation Bill, in its true spirit and effect.

6.5Medical Termination of Pregnancy Act, 1971
While the MTP Act has made a variety of changes for the safe termination of pregnancy, with a view to provide for termination centers and certified practitioners conducting the termination of pregnancy, it is still the case that even after four decades of the legalization of abortion, underprivileged women in India till date do not have proper access to safe abortion amenities. Therefore, an amendment on paper is not enough and it is suggested that more rigorous implementation of the MTP Act be undertaken. Further, apart from the lack of implementation, there is also an absence of awareness amongst women regarding the various facilities available to them in this regard. Proper awareness campaigns providing information of safe termination of pregnancy amongst the illiterate is recommended.

6.6Maternity Benefit Act, 1961
The increase in the maternity leave provided for in the 2017 Act comes at the cost of opportunities for women. As employers are required to pay the full amount of wages during the maternity leave, causing loss to them, they resort to employing more men than women. A law aiming at reducing the discrimination in this regard in the workplace is recommended. Further, removing all ambiguities in the provisions of the 2017 Act would make for a law which instils confidence. For example, proper clarity with respect to the period upto which creche facilities may be availed by the working mother or even the number of nursing breaks available. Thus, while there may be a vision to allow for greater inclusion of women in the working sector, it is important for the law to ensure that it does not have an opposite effect.

6.7Marital Rape
It is important to understand that marital rape is an extreme violation of human rights and cannot be considered to be just an offence arising out of passion. Taking inspiration from laws of other countries, the exception clause of section 375 of the IPC should be amended in a manner so as to dissuade the very act of marital rape. It is highly recommended that another clause may be added to section 376 wherein as per the recommendations 172nd Law Commission Report, a punishment for marital rape may be prescribed in crystal clear terms. Additionally, marital rape should also be made a ground for divorce for a wife from her husband. While it may be possible that the same may fall under the head of ‘cruelty’, however, a clarified position on the same would be beneficial in the long run. 
The reason why marital rape has not till date been classified under the category of an offence is only because of the lack thereof of the knowledge regarding the same amongst women. This deficiency in awareness with respect to this issue can be attributed to the alarming illiteracy rates prevalent in the country. Giving a solid legal status to the offence of marital rape may be viewed as a step towards progressiveness which is moving in the direction of creating a society that aims at empowering its women and in turn leading to a country with decreased illiteracy rates amongst its females who are aware of their rights. 

Conclusion

The main aim of this article is to enlighten the readers and provide an understanding regarding women’s rights in India. While India is moving on its way to becoming a developed nation, unfortunately, even with constant amendments, women’s rights is one area that does not seem to gain importance amongst the lawmakers in India. The situation of an Indian woman is just going from bad to worse and unfortunately the legal system has also not been able to instil confidence in women-centric laws. It is known to all that women play an important role akin to their male counterparts for the development of the country and in spite of having such a vital role their state in the modern day is alarming. Achieving equality and doing away with this gender based discrimination are considered to be fundamental human rights and United Nation’s values. Coming back to the very first question with which this article began, ‘Whether the Indian legal system has successfully coped with these social changes?’, the unfortunate answer is that we have not. It cannot be denied that there have definitely been impactful and significant changes (both major and minor) to move towards a more gender-neutral nation, it is safe to say that it will be decades before which we can call India a pro-women country. Nevertheless, there is a need to start somewhere, and the Indian legal system has finally taken the plunge and completed the first step towards a nation that considers its men and women to be two equal halves of a whole.