Women, familial ideology and the constitution- challenging equality rights By Brenda Crossman and Ratna Kapur This

essay looks at the concepts of equality and gender difference and how they are imagined in Indian constitutional law, the judicial approaches used to deal with sex discrimination and the challenges faced by feminists who engage with law in India. Ill begin by explaining these concepts and then move on to particular laws and cases which deal with them. Article 14, 15 and 16 all deal with equality in one way or the other and they also include equality of sex. Article 14 of the constitution of India guarantees equality before the law. ( 14.
Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)

Article 15 prohibits discrimination on the basis of race, caste, religion, sex or place of birth And theres also Article 16 for the equality of opportunity. There are different theoretical frameworks within which equality can be looked: 1. Formal vs. substantive equality Formal equality is based on the principle of equal treatment for all those who are same. In India this is based on the similarly situated test, which means that individuals who are similarly situated are entitled to be treated similarly and vice versa. This would require the court to define relevant groups or classes and then subsequently decide how they can be treated. Substantive equality is different from the formal in significant ways: Its focus lies not on equal treatment by law but on the impact of law. Its object is the elimination of the inequality of disadvantaged groups And it takes into account the different social, educational, economic backgrounds of people, on the basis of which it seeks to eliminate inequality through positive measures.

For example- with respect to disability, the formal approach will mean that because disabled people are different, they do not have to be treated equally, but within a substantive model the focus would be on whether their

treatment in law contributed in their historic disadvantage. In the latter case the idea of different is embraced in the concept of equality.

2. Gender difference The competing models of equality lead one to look at how a model of equality approaches gender difference in law.

There are three approaches- Protectionist, sameness and corrective Protective: This approach is based on the assumption that not only are women different from men, but they are weaker and in need of protection. Differential treatment may be justified as protective and therefore permissible for the benefit of women. Equal treatment/ sameness approach: Women are understood to be the same as men and therefore to be treated equally, withstanding certain natural difference which in the words of S Jahwari are to be treated as normally irrelevant in law.

Corrective: In this approach women are understood as a historically disadvantaged group and therefore in need of compensatory treatment. Gender difference in this approach is seen as relevant and in need of recognition by law. Rules of differential treatment can be upheld if they are made so as to improve the situation of women. Some of the crucial issues stemming from these are as to whether legislation can afford to be gender neutral in an unequal society. Is legislation that claims to be so, actually neutral or is it a reflection of male standards and values. And from the other perspective does the corrective approach actually serve to improve the situation? Or does it perpetuate existing categories of inequality. This kind of a conflict is very apparent in the debates surrounding the Mandal commission as well. And lastly, this sort of polarization of equality and difference or the either/or framework of looking at things has also been critiqued. Joan Scott argues that this binary pair needs to be deconstructed by looking at the power relations involved in the opposition. Martha Minow argues that difference is only meaningful as a comparison, and there is an assumed point of reference.

Within law, this becomes important when one tries to look at agency in a particular legal procedure. A lot of times laws are challenged in the due course of some personal agenda and they dont necessarily have a political motive. One needs to look at the grounds on which a law is being challenged. Even though the court may rule in favour of a legislation that is beneficial to women, the grounds on which it does so may be very sexist. Power as legitimacy- how certain groups claim this, where does agency lie, motivation behind person Now Ill discuss these debates and how they figure in cases with respect to laws on Divorce, Adultery, Maintenance and the restitution of conjugal rights. Divorce: Section 10 of the Divorce Act (1869) husband may divorce for adultery alone but wife for adultery coupled with cruelty, rape, bigamy, desertion, incest This has been challenged for violating article 14 and 15 of the constitution, several times. In the Dwaraka bai v professor N. Mathews case (1953) the courts view was that, this difference in treatment should be upheld because a husband may commit adultery somewhere but he does not bear a child or have to make it a legitimate child and his wife is not bound to maintain that child, but if it happens the other way around, and his wife commits adultery, the husband will have to accept and maintain that child. In 1983 in another case, the high court considered this section open to constitutional challenge. The courts view in response to the previous statement given by the court in the dwaraka bai case was that because discrimination between husband and wife is being made only on the ground of sex it is a violation of article 15.

It is argued that these judgments are located within a discourse of formal equality. Women are seen as different from men and therefore do not qualify for equal treatment. And it ignored the ways in which the difference between men and women has been socially constructed to make it impossible to imagine men as caregivers, capable of maintaining a child. Law tends to operate within the dominant familial ideology in society. The ideology works here to naturalise a particular kind of relationship between a man and woman.

Adultery The adultery makes only adultery commited by a man an offence

Only the husband of the adultress can prosecute the man who she committed adultery with. (The wife of that man cannot prosecute him)

This too has been challenged in different cases:

To the contention that, it is a violation of article 14 and 15, the court responded that differential treatment was based not on sex but on the social position of women in India. And in another case, when the section was challenged for not taking into account situations where the husband had sexual relations with an unmarried women, the courts view was that its commonly accepted that it is the man who is the seducer and not the woman.

So, here one can see that there is a positive measure being taken, it is at the same time protectionist. At one level there is an obvious benefit to women, but at the same time one is assuming that women are necessarily the victim and are passive while men are the aggressors.

Also, the law is also dated because it looks at adultery as a violation of a husbands property rights over his wife and their child as heir to his property. And it stands at a disjunct with existing property laws, since women are now free to hold and inherit property.

The problem lies in the way these differences that are indeed very real in the lives of men and women, are given a natural aura and not socially grounded.

Restitution of conjugal rights Section 9 of the Hindu marriage act has been challenged as unconstitutional and a violation of Article 14. In the sareeta v venkata subbaiah case, the court notes that although at the face of it the right to conjugal restitution didnt discriminate between husband and wife because it is equally available to both, it is in fact unconstitutional because- (quote pg 82)

In this one the hand one can see that the court moves beyond a formal to a substantive equality approach and recognises the impact of child rearing on women. But at the same time it presents the social differences between men and women as inevitable because of the biological difference of reproduction. 4

Case of rakamabai in Maharashtra Maintenance

The maintenance provisions of several laws have been challenged. Section 36 of the Special Marriage act that grants alimony to a wife, has been challenged as a violation of Article 15. The court holds that this is not a violation of Article 15 because it is not only on the ground of sex but its also because the wife has no independent income to support herself. The court thereby separates economic dependency within the family from sex. This approach has been criticized for drawing an artificial line between sex and socially constructed gender differences. It requires that economic dependency be seen as something other than difference based on sex. A substantive approach in contrast would look at whether the rule contributes to disadvantage for women and a corrective approach would try to compensate women for past disadvantage.

The familial ideology therefore may not work against womens immediate interests but may in the short run protect it. How does social context enter into the domain of law. Gender is not coterminous with biology. Fits in with CLS because its talking about the relevance of the social context. A good example of this is free speech and the laws on censorship. To conclude, even though there are problems and dilemmas in the equality rights discourse within the domain of law, they do not suggest that feminist engagement with the law should be abandoned, instead it should continually strive to recognise the complexity and contradictions within law. Free speech and censorship. How does law relate to the constitution. In favour of substantive law but looking at the dilemmas within the smbit of substantive legislation. What does it do for identity, for the sedimentation of difference.

Law constantly being made through amendments to the constitution, building in substantive equality. Strategic use of particular argument, the problem lies in the enactment of the law Law has own conception of life and violation to that life.