How Our Legal System is Silently Promoting a Patriarchal Society

There can be no quarrel with the proposition that laws need to be gender neutral. What is even more basic is that the law of the land should not to promote prejudice and gender bias. Undisputedly, some laws have been enacted to grant protection to women, give them the opportunity to lead safer lives and to promote equality – such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

However, one finds that our laws continue to support some archaic provisions which, in fact, promote discrimination and bias against women. That our legislations have not sufficiently addressed the lacunae is unfortunate but not surprising given that it took our lawmakers more than six decades since Independence to recognise genders beyond the binary.

It is both appalling and surprising that almost five decades after its enactment, the primary law of our land governing the procedure of criminal trials, the Code of Criminal Procedure, 1973 (CrPC), continues to nest discriminatory provisions which promote patriarchal notions. Section 64 of the CrPC states that when a person on whom summons are to be served is not found, a duplicate of the summons may be left with an adult male member of the family. Section 98 is a substantive provision which states that a district magistrate has the power to compel the restoration of an abducted female child to her husband or parent. Section 129(2) states that an executive magistrate may require the assistance of any male person in dispersal of an unlawful assembly or an assembly of five or more persons likely to cause disturbance.

The following emerges from a reading of these provisions:

a) That a female is not a whole person by herself;

b) That she is not a person who can be entrusted with responsibility; and

c) That she is incapable of providing physical assistance.

These provisions offend the dignity of a woman’s being and are discriminatory on their face by supporting or promoting the belief – albeit an incorrect one – that men are better suited compared to women (or non-binary genders) to undertake certain tasks and retain some degree of ownership over women. These beliefs are without basis, abominable and should not be a part of our law. It cannot be denied that women are equally capable and equipped to take on responsibilities and undertake tasks which men can. None of the provisions referred above relate to any tasks that may be said to be quintessentially “male” or that need to be reserved for the male gender.

Also read: Why Hasn’t There Ever Been a Woman Chief Justice of India?

If these provisions are challenged before courts, it is highly unlikely that they will withstand judicial scrutiny. However, in a republic such as ours, it is the duty of the parliament to bring about change in societal values and not necessarily wait for aggravating circumstances. Without getting into whether these provisions ought to have found a place in the CrPC in the first place, it is undeniable that they do not represent the current social mindset. The law – evolving as it is – needs to be updated to adapt to changing times.

Instead of waiting for the day when the judiciary is presented with the opportunity to scrutinise these provisions and spend its limited and precious time on hearing lengthy arguments of counsel which could be followed by equally lengthy judgments, the parliament needs to step up the task. It is the parliament representing the will of the citizens (read male citizens) which enacted the CrPC and it is incumbent on it to set right the wrongs contained therein.

Apart from the provisions referred above, we find that there are certain practices followed before the judiciary which also silently and likely unintentionally promote patriarchy. Under Article 225 of the constitution, high courts can make rules governing practices and procedures to be followed by them and subordinate courts. These rules pertain to a variety of subjects including affidavits. Simply put, an affidavit is a sworn document which attests to the truth of the statements contained in any document being filed before a court.

Naturally, being a sacrosanct document, an affidavit should sufficiently identify its executor. Therefore, most affidavits’ opening lines, if the affiant is a man, reads, ‘I, XYZ, son of ABC…’ On the other hand if the affiant is a woman, the affidavit opens with, ‘I, XYZ, daughter of ABC…’ and in case of a married woman, with, ‘I, XYZ, wife of PQR…’ Unfortunately, much attention is not paid to this by the lawyers as well as affiants and the same practice is typically followed everywhere.

In fact, the Delhi High Court Rules, 1966 (in Rule 9(ii) under Chapter XII) and the Allahabad High Court Rules, 1952 (in Rule 9 under Chapter IV) have detailed rules with respect to affidavits including their form and content, and require the affiant to state their father’s name as one of the particulars of identification. However, it goes without saying that one’s identity need not necessarily be linked to one’s father and this is not a parameter which is required for identification – even the application for a passport does not now require the father’s name albeit under limited circumstances. Other particulars, such as one’s address, the number of a government document such as PAN card number or Aadhaar number or passport number, or one’s mother’s name, are all particulars which may be used instead.

Unwittingly, lawyers along with courts have contributed to robbing a woman of her person by failing to recognise her independent existence and insisting that her existence be linked to that of a male family member. Having said that, even men are required to state their father’s name, which practice also should be done away with. In any case, discriminatory rules and practices like these ought to be discontinued as they only serve the purpose of perpetrating inequality and imbalance in society.

It is therefore incumbent on the judiciary and the bar to, along with espousing lofty principles of equality and anti-discrimination, ensure that the same are adopted by them in practice.

These are only small steps towards ensuring that the female and non-binary genders are recognised in law as independent persons and their existence is not excluded, trivialised or linked to a male. Eliminating inequalities, increasing inclusiveness, and demolishing patriarchy requires immediate action, active participation, and conscious effort on the part of lawmakers, adjudicators and more direct participants of the system like lawyers.

And there is no better time to begin than now.

Payal Chandra and Rhythm Buaria are advocates practicing before courts and tribunals in Delhi. You can find them on Instagram @payalchandra and @rhythmbuaria.

Featured image credit: Pariplab Chakraborty