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Indian Constitution

By Avani Bansal

(With RSS pushing the wall, with installment of Bharat Mata statue at RSS office, in Bareilly, UP, as latest as yesterday, it is now anyone’s guess, what a Bharat Mata holding a saffron flag is meant to depict – Hindu Nationalism – an idea that works for the RSS and BJP but an idea that is simply against the idea of the Constitution and the idea of India that emanates from it. So we need to think deeply of what we mean by ‘Bharat Mata’)

The Constitution of India doesn’t provide for a gender for ‘Bharat’. The very first Article of the Indian Constitution states that ‘India, that is Bharat, shall be a Union of States’ (Article 1). So why not let ‘Bharat’, just be ‘Bharat’, one which as per the Preamble – we, the people of India (‘all’ the people of India), have given to ‘ourselves’? Why add the suffix ‘Mata’, and does this add any value to our understanding or how we relate to our Nation?

Now this idea of seeing one’s nation either as a patriarchal or a matriachal figure is not uncommon and varies from country to country and time to time. Why is Germany – a father figure, requiring a male pronoun and why is United Kingdom – a ‘she’, is difficult to answer with some solid logic except by looking into the culture and political/historical milieu of every nation, and ofcourse some history. While gender neutral terms do exist – ‘homeland’ or ‘ancient land’, there are also some countries who don’t use any of these suffixes, oddly referred to as ‘orphans’ (vehemently oppose that term!), here :

https://www.mcislanguages.com/fatherland-vs-motherland-what-is-the-gender-of-your-country/

(Map from here)

How India came to be called ‘Bharat Mata is an interesting story in itself. But before coming to that – why does this question matter?

I will argue that merely using the word ‘Mata’ without thinking of deeper questions, does us a disservice. Here’s how :

First, the logic that ours is a land where women are worshipped as Goddesses has done precious little in actually increasing the collective respect that we accord to women in our society and in our country. As the title of the movie ‘Matrabhoomi – a nation without women’ shows on every possible gender matrix, India’s performance is worth hanging one’s head in shame. With the increasing crime rate against women, scant attention on women’s reproductive health, education of school girls, women’s safety and most importantly women’s represenation in public offices including politics, shows that women are far from being ‘worshipped’ in India. As in ‘Pratima Visarjan’, the famous painting by Gaganendranath Tagore, we think of women, like Goddesses, on specified days and then go on to submerge them in the rivers and in our active memories, making peace with everyday injustice against those most close to us.

https://commons.wikimedia.org/wiki/File:Pratima_Visarjan_by_Gaganendranath_Tagore.png

Secondly, this particular form of love for ‘mother’ has been well adorned and subjected to poetry, literature, essays, books amongst others, not just in India but around the world. In India, a mother’s love has reached the epitome of love’s expression with mothers cooking for their sons, until they can no longer cook and ‘mamma’s boy’ being taken as a badge of honour than showing lack of independence. The close familial ties in India means that the expression ‘mata’ or ‘mother’ can be naturally extended to the nation-state, with seemingly little or no objection from anyone and common rejoice in the emotional warcry of ‘living and dying for mother and motherland’. But here’s the challenge.

While we exalt the love of the mother, why do we have such trouble accepting ‘Bharat’ as just a woman – and by the same analogy, her in different roles – of a lover, a sexual being, a single woman, amongst others? What, for instance, explains the controversy around M.F. Hussain’s famous painting the ‘Bharat Mata’?

https://www.skyshot.in/post/7-greatest-indian-painters-of-all-time

Thirdly, if the idea of India is all inclusive, as per our Constitution, then exalting ‘Bharat’ as a Mother may in some way exclude people belonging to other religions who may not see the concept of nation tied to that of a mother or a father.

But then, if Jews have a fatherland, Russians have a motherland, why can’t we have a motherland? Because, we have never aped anyone. India is an experiment – one to design a unique solutions to all of its unique problems. Differences existed even when our Constitution was being drafted, with members belonging to extreme right and left wing, including moderates, trying to shape the India of their dreams. But it is the idea, as prescribed in the Indian Constitution, that won the day, and for our purposes has to be the milestone, from where Indian history, relevant for our purpose begins. So if our idea of Secularism comes with the Constitution, that of Gender Equality and where necessary of Gender Neutrality or Non-Discrimination, too comes from the Constitution. By linear logic, if we believe in the Indian Constitution as our guiding principle, then we need to rethink the idea of the ‘Bharat Mata’.

Finally, by calling Bharat ‘Bharat Mata’, we somehow think we have done what needs to be done for the women in the country. In other words, the rhetoric around the word ‘Mata’, and the trait of being satisfied with symbolism means that we think precious little about doing something tangible and significant to improve the lot of women. Not just that, the larger communicable disease of paying lip service deadens our collective spirit and the need to do engage in deeper questioning of both – the systemic and individual discrimination that we witness everyday.

Recently, on a field trip on Mendha Lekha village in Mahrashtra, which is a village with largely tribal population, popularly known for their collective form of decision making with the village motto – ‘In Delhi and Mumbai, we have our Government but in our village, we are the Government’, the headman of the village remarked – “For us, those who consider ourselves as guardians of the forests, engaging in any type of agriculture was like using the plough on the stomach of our motherland!”.

(Picture of Mendha Lekha’s slogan : From Author’s Diary)

Ofcourse, this attitude has softened over the years and they do engage in agriculture now, but they still have that awareness around what it could mean to do or not to do to one’s ‘motherland’. This may be an extreme example. But let’s think of more everyday ones – those sprinkled all around us. How are we okay with sexist jokes, wife jokes, sexist words for which there is no male equivalent (‘rakhel’ or ‘keep’ for instance), sexist songs which reduce women to objects – which we defend in the name of entertainment, sexist advertisements which we defend in the name of commercialisation; sexist behaviour such as non transfer of equal property to women inspite of there being a clear law for it – in the name of culture? How are we okay when we don’t see women in public spaces – not in garden, in sports ground, out of homes after evening hours? How are we okay with deafening silence of women in our private spaces, where women hardly have space to express their opinion? How are we okay when someone we knows character assasinates another woman in a powerful position, just because it is easy to drag her down by talking of her character?

And no, it’s not just about men discriminating against women, but women discriminating against their own gender too. And why identify ‘Bharat’ with a gender at all – isn’t there space for those who have fluid gender too? Don’t we also see discrimination against men in our society? Don’t we have societies in India, which are women centric, sometimes leading to reverse discrimination against men?

So it boils down to this. Where does our need for identifying our nation with a gender come from. I will argue, that assuming the best, even if the intent of its origin is well placed, there exists no purpose beyond empty slogans, repeated ad nauseum to keep the collective energy high in all political gatherings, and now increasingly to suit vested political agendas.

Whether it is BJP’s – Bharat Mata Ki Jai or Congress’s Sevadal’s – Bolo Bharat Mata Ki, Jai, Jai, Jai – everytime we sing out this slogan, we need to pause, and ponder – are we doing enough for women, are we doing enough for all humans, for all living beings around it? Any politics which is based on ‘humanism’, cannot stop at the slogan of women, it has to constantly work tirelessly towards emanicipation of women.

While cultural expression of ‘motherland’ definitely got a boost in popular imagination with movies such as ‘Mother-India’, the political expression of it is worthy of taking note.

Interestingly, the image of Bharat Mata that is used by the RSS and BJP to depict a Hindu Goddess, was born out of angst against the Britishers’ Divide & Rule Policy implemented first through the Partition of Bengal – mainly Hindu West from the majority Muslim East.

Abanindranath Tagore, decided to use Art to reclaim Indian heritage, painted – ‘Bharat Mata’, drawing upon the Japanese painter – Okakura Kakuzo.

(Image of Abanindranath Tagore’s first depiction of Bharat Mata)

This painting of Bharat Mata, was not to depict her as some Hindu Goddess, what one may perceive and RSS will have us believe looking at her saffron robe but as a pastoral deity holding ‘the four gifts of the motherland’: a white cloth, a book, a sheaf of paddy, and prayer beads; representing clothing, learning, food, and spiritual salvation. These symbols of Indian motherhood, which held emotive substance for Hindus and Muslims alike, are key to Tagore’s aim of conceptualising a ‘spiritual’ identity for his people, in direct contrast with the perceived ‘materialism’ of Europe.’

https://thecultural.me/abanindranath-tagores-bharat-mata-and-its-role-in-fostering-indian-identity-200413

Then came Bankimchandra Chattopadhyaya’s ‘Anand Math’ which celebrated India as a motherland -as a goddess, thereby taking this idea deeper into the imaginations of the masses. But while both Tagore and Chattopadhyaya’s idea of Bharat Mata came from a nationalistic fervour, it was the RSS which added the ‘Hindu Goddess’ tint to it. With RSS pushing the wall, with installment of Bharat Mata statue at RSS office, in Bareilly, UP, as latest as yesterday, it is now anyone’s guess, what a Bharat Mata holding a saffron flag is meant to depict – Hindu Nationalism – an idea that works for the RSS and BJP but an idea that is simply against the idea of the Constitution and the idea of India that emanates from it.

(RSS’s Picture of Bharat Mata)

Therefore it’s important to remember that those who championed the idea of Bharat Mata earlier, did so, because its origins were in ‘inclusive nationalism’ – that stresses on the emotions of seeing and treating one’s nation as a motherland, according women the highest respect in words and in action, and definitely a mother – who is a mother for all – a mother who doesn’t discriminate between her Hindu daughter and Muslim daugther.

One illustration of this is in Nehru ji’s own words who asked the people he met – “Who is this Bharat Mata, whose victory you wish?”, and then explaining that said “the mountains and rivers, forests and fields are of course dear to everyone” but what counted ultimately “is the people of India…”.

RSS, is now reversing this very idea of India and also that of Bharat Mata. While exalting Bharat Mata and installing her statute in different RSS offices, they are striking at the root of its origins – a Bharat for all, where all are treated with a mother’s love. As a people, we need to see RSS’s way of appropriating symbols and using them to serve their own political agendas, which is in sharp contrast with what that symbol originally represented – with the spirit of the Indian Constitution.

So everytime we use the expression ‘Bharat Mata’ now, we need to rethink and think deeper. We need to install Constitution in the hearts of the people, and make ‘the people’ realise that it us who are ‘Bharat Mata’. Bharat, thy name is enough.

Victory to the People, who have given this Constitution to ourselves. Yes, yes, we are the Bharat! And what we need, for a statute loving country that we are, unwilling to compromise on the politics of symbolism, which may have some purpose is a – Constitution in every square and circle of our country.

Avani Bansal is an Advocate and a Member of the Congress Party (Twitter @bansalavani). 

This article was first published on The Wire

https://m.thewire.in/article/women/bharat-mata-india-women-respect-safety-discrimination/amp

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by Mahak Singhal

What are the laws in India if a foreigner marries an Indian? Does that entitle him to claim permanent residence in India or even a passport? 

Special Marriage Act, 1954, [“SMA”] and Foreign Marriage Act, 1969, [“FMA”] govern the foreign marriages in India. Therefore, the client can register the marriage in either one of them. 

Indian Laws

Since the legal age for marriage in India for girls is 18 years and for boys, 21 years, the same rule extends to marriage with a foreign national, even though their country’s domestic law may prescribe a higher or lower age for marriage.

According to SMA and FMA there exists a 30-day notice requirement to be given in India if one partner is permanently and the other partner is temporarily residing in India. 

Section 5 of FMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the First Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has so resided.

Section 5 of SMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given. 

Procedure

The parties have to provide a notice to the Marriage Officer of the district in which at least one of the parties has resided for a period of not less than thirty days. 

The form provided in the second schedule of the Special Marriage Act is to be provided as the notice.

  1. The notice will be published by the marriage officer by affixing it to the place in his office and will keep the original copy of the notice in the Marriage Notice Book. (Sec 6 of SMA)
  2. If a person has an objection to the marriage, he/she is allowed to raise the objection within 30 days from the date of publication of notice by the marriage registrar. (Sec 7 of SMA)
  3. During the court marriage, a declaration is to be signed by the parties along with three witnesses declaring that the parties are doing the marriage with their free consent. (Sec 11 of SMA)
  4. The marriage can be solemnized at any place at a reasonable distance in the Marriage Officer’s district. However, it will not be considered valid unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-“I, (A), take the (B), to be my lawful wife (or husband)”. (Sec 12 of SMA)
  5. After the marriage is solemnized, the Marriage Officer will enter a certificate in a book that is kept by him, called the Marriage certificate Book and the certificate is to be signed by the parties to the marriage and the three witnesses. The certificate is deemed conclusive evidence of marriage being valid in India. (Sec 13 of SMA)
  6. The whole process of registration of marriage has to be completed within 3 months from the date of the notice was served. (Sec 14 of SMA) WHEREAS the time period is 6 months if the marriage is registered under FMA (Sec 16 of FMA). Otherwise, new notice will have to be submitted after the lapse of time.

Citizenship

The Court observed that any person who is married to a citizen of India and has resided in India for the past seven years can make an application for citizenship by registration. Section 5 of the Citizenship Act, 1955 deals with citizenship by registration which allows the central government to register someone as a citizen of India.

Citizenship of India by registration can be acquired by- 

  1. A person who is married to a citizen of India and is ordinarily resident of India for seven years before making an application for registration; or 
  2. A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.

Alternate – Overseas Citizen of India Cardholder [“OCI Cardholder”]

https://ociservices.gov.in

https://www.mha.gov.in/sites/default/files/OCIBrochure_23072021.pdf

If an Indian citizen or OCI Cardholder has a spouse of foreign origin then that foreign origin spouse can apply for registering as OCI Cardholder (under section 7A of the Citizenship Act, 1955), if the marriage has lasted for two or more years. 

Benefits of having an OCI Card –

  1. Grants the permanent residency in India.
  2. A person will not lose his/her citizenship of their home country. 
  3. Multiple entry lifelong visa for visiting India for any purpose.
  4. Exemption from registration with Foreigners Regional Registration Officer (FRRO) or Foreigners Registration Officer (FRO) for any length of stay in India. 
  5. Registered Overseas Citizen of India Cardholder shall be treated at par with Non-Resident-Indians in the matter of inter-country adoption of Indian children. 

https://www.mea.gov.in/images/pdf/oci-faq.pdf

Point 40 in this link states that an Indian Passport cannot be issued to an OCI Cardholder. It is only issued to a citizen of India.

Documents Required for a Marriage under the Act from the Parties:

  1. The notice signed by both parties. 
  2. Receipt of fees paid along with the notice. 
  3. Date of birth proof of both the parties.
  4. Residential address proof. 
  5. Affidavit – one each from both the bride and groom. 
  6. A statement affirming that the parties are not related to each other under the prohibited degree of relationships.

Additional Or Alternative Documents Required Only From Foreigners:

  1. Proof of residency and address in India. 
  2. A valid passport
  3. Original birth certificate
  4. Visa
  5. Certificate of single status
  6. Letters of no objection through the home country’s embassy regarding the free consent of the parties
  7. Death certificate or divorce papers, if required by the parties
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By Dheeraj Diwakar

“I measure the progress of a community by the degree of progress which the women have achieved.”

  • Dr. B.R. Ambedkar

Introduction

In 2004, Columbia University released a list of the world’s best top 100 scholars, and the list was topped by Dr. B.R. Ambedkar. He made enormous efforts to make sure that society follows a path of Liberty, Equality, and Fraternity. The same can be witnessed from his various writings and speeches.

The concept of caste is so deep-rooted in Indian society that whenever the name of Dr. Ambedkar comes up, the first image of him is that of a messiah of Dalits. But what a lot of people don’t know about Dr. Ambedkar is his fight for women’s empowerment and his pursuit of gender equality in all dimensions of national and private life. This short piece aims to highlight some of the main achievements and endeavours of Dr. Ambedkar for women’s equality in India 

Ambedkar And Women’s Rights In Pre-Independence Era

Dr. Ambedkar was aware of the miserable conditions of women. He believed that women are the worst sufferers of the oppressive, caste-based, and rigid hierarchical social system. His main effort was to liberate Indian women from various social and religious ties and provide access to necessities which they were deprived of i.e., Education and Inheritance rights. He regarded education as the only tool for the emancipation of women. On 20 July 1942, while addressing the second All India Depressed classes women’s conference he said, “I shall tell you a few things which I think you should bear in mind. Learn to be clean; keep free from all vices. Give education to your children. Instill ambition in them. Inculcate in their minds that they are destined to be great. Remove from them all inferiority complexes.

Ambedkar’s approach towards women was completely different from other social reformers i.e. Mahatma Gandhi, Jyotiba Phule, Ishwar Chandra Vidyasagar who tried to reform without questioning the social hierarchical order. 

In the early days of 1928, a women’s conference was established in Bombay with Ramabai (Ambedkar’s Wife) as its President. About 500 women participated in Kalram Temple’s entry Satyagraha at Nasik in 1930. The number swelled up to 3000 women participating in the historic Mahad Satyagraha. He believed that family planning measures for women should be taken. In 1942, while serving as a labor minister of the executive council of governor-general he introduced a Maternity Benefit Bill. The bill aimed to provide maternity leave to women workers. In his journals i.e. Mooknayak and Bahiskrit Bharat, he made sure that the issues related to women get an equal place in it. 

Hindu Code Bill

Hindu Code Bill is one of the most important initiatives made by Dr. Ambedkar to improve the miserable condition of women. Being the first Law Minister of independent India on February 24th, 1949, he took an initiative and introduced the draft of the Hindu Code Bill in the Constituent Assembly. The bill aimed to release women from various social bondages created by the Hindu social order. The proposed legislation seeks to provide women with the Right to property and other legal rights which were prohibited by the Manu law. The Bill aimed to put men and women in equal places in terms of legal status. He argued that the ideals enshrined in the Bill have their origins in the Indian Constitution which promotes equality. The Bill was first delayed by the parliamentarians and was later rejected leading to Ambedkar giving his resignation from the post of Law Minister. 

He introduced four Acts that were also incorporated in the Hindu Code Bill. The acts improved the conditions of women and strengthened their position. The list of Acts along with important provisions for women are as follows:

Hindu Marriage Act 1955: Section 5 of the Act increases the legal age of marriage for girls to 18 years. Section 17 of the Act provides punishment for bigamy. Provisions related to alimony and permanent maintenance have been provided in Section 25 of the act. 

Hindu Succession Act 1956: Section 8 of the Act empowers the widow to adopt Son or Daughter. Section 14 ensures that the property of women will be her absolute property. Further, section 15 of the act makes sure that there would be a uniform succession to the property of a Hindu Female who dies intestate. 

The Adoption and Maintenance Act 1956: Under Section 8 of this act, widows are empowered to adopt children. Earlier under Hindu law, they were not entitled to do so. Before this act came into force, daughters could not be adopted. Section 9 of the act makes it compulsory that the wife shall be consulted while carrying on any adoption. 

The Hindu Minority and Guardianship Act 1956: Section 6(a) ensures that in case of custody if the child has not completed the age of five then the custody lies with the mother. Under 6(b), if the child has been born out of an illegitimate relationship, then the first natural guardian would be mother and then father. The act also empowers the mother to change a guardian of a child who has been appointed by the father. 

Constitutional Provisions

Dr. Ambedkar worked as a Chairman of the Drafting Committee and is regarded as the Father of the Indian Constitution. In many of his speeches in the Constituent assembly, he debated for equal rights for women. His approach towards women’s rights played a significant role in ensuring that Women’s rights find a special place in the Indian Constitution. Some of the important constitutional provisions protecting women’s rights are,

Article 14: This article ensures equality for all citizens irrespective of Gender, Caste, Creed, Religion, and race. 

Article 15: This article prohibits discrimination on the grounds of Religion, Gender, Caste, Creed, and Race. 

Article 16: This article says that there shall be an equality of opportunity in Public Employment. 

Article 23: This article prohibits Human Trafficking and Bonded Labour. 

These were some important provisions related to women. Apart from them, many other articles protect the rights of women i.e. Article 39(a) and (d), Article 42, Article 51A(e), Article 243D(3), Article 243T(3), and Article 243T(4). 

Conclusion

Even in the 21st Century, the issue of gender inequality still finds its deep roots in Indian society. The condition was more critical in the pre-independence era and the early parts of post-independence. It was Dr. Ambedkar and some other handful of social reformers who came forward to lessen the plight of age-old sufferers i.e., Women. Interestingly, when the Hindu Code Bill was to be introduced by Ambedkar, numerous women opposed the Bill. The efforts made by Ambedkar with regards to Women’s equality haven’t been much recognized or if recognized get faded because of the title he carries i.e., Liberator of Dalits. 

Author: Dheeraj Diwakar

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By Neha Bhupathiraju

Case: Kush Kalra v. Union of India

Bench: Justice Kishan Kaul and Justice Hrishikesh Roy

The Supreme Court removed the bar for women to appear before the NDA exam scheduled on September 5. The Court passed an interim order in Kush Kalra v. Union of India pending before the Court since earlier this year, and pointed out that the admission into the Army would however be subject to the decision in the petition. 

This petition was filed on the grounds of violation of fundamental rights protected by Articles 14, 15 and 16 by denying women an opportunity to be eligible for the National Defence Academy. The only ground for the ineligibility is the sex of the applicant without any reasonable justification. 

Justices Kishan Kaul and Hrishikesh Roy slammed the Army for its decision to exclude women from the exam, despite the Court’s ruling in Babita Puniya last year, which allowed women to be eligible for Permanent Commission just like their male counterparts. Justice Kaul pointed out “Why are you continuing in this direction? Even after Justice Chandrachud’s judgment expanding the horizons and extending Permanent Commission in the Army to women? This is unfounded now! We are finding it absurd!….Will the Army only act when a judicial order is passed? Not otherwise? We will do that if that is what you want! This has been my impression right from the High Court that till a judgment is passed, the Army doesn’t believe in doing anything voluntarily!’

When ASG Aishwarya Bhati appearing for the Government submitted that it is a policy decision, the Court said “The policy decision is based on gender discrimination. We direct the Respondents to take a constructive view of the matter in view of judgment of this court (Babita Puniya)”. The Court also expressed discontentment for compelling judicial intervention time and again. 

Babita Puniya i.e The Permanent Commission Case

In 2008, the Ministry of Defence authorized Permanent Commissions (PCs) for women but only in selective and prospective cases, which was not the case for their male colleagues. In a verdict dated 2010, the Delhi High Court allowed PCs to women on par with men, which was challenged in the Supreme Court. The submissions made by the Government at the Apex Court were based on deeply sexist notions. It argued “…to take into account the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care.” 

Justice Chandrachud noted that, “Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas”.

While the judgement allowed women to be equally eligible for PCs, financial incentives, pension etc, the reality post the verdict is disappointing. Data revealed that only 45% were commissioned out of eligible 75% – whereas 90%  male officers were commissioned. Further, women are subjected to blanket policies unlike their male counterparts. Women, including those above 40, must pass the The SHAPE-1 category demand, passing the Battle Physical Efficiency Test (BPET), and undertaking an AE (Adequately Exercised) tenure for a minimum of two years. When Challenged before the Supreme Court, the Army contended that women are seeking special treatment and it will threaten the nation’s security. ‘This raises pertinent questions — are all men who have PCs but are not currently in SHAPE-1 category undermining the nation’s security? It is worth debating how or to what extent women would undermine national security, considering they are still not allowed to take up combat roles.

All hope however is not lost. There is a massive shift in the way these institutions perceive women. Women’s entry into the armed forces began in 1992, and it has evolved since. The judiciary appears to be a beacon of hope in this case.

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Author: Sayan Dasgupta

Where there exists a property, inheritance of the same shall always be a pertinent question. An heir is a person who is entitled to receive intestate deceased’s property under the laws in intestacy. Succession can follow only after death of a person. There are two forms of succession – [i] testamentary succession (by will), and [ii] intestate succession (in absence of will). A will is a declaration or a legal instrument which governs the inheritance on occasion of death to the person the deceased desired. In lack of a testament, the devolution of property is governed by the Hindu Succession Act, 1956 for Hindus, Sharia law for Muslims and The Indian Successions Act, 1925 for persons outside the scope of the preceding laws. 

The inception of Hindu Succession Act, 1956, in the nascent independent India of 7 years was, and still is entrenched in cis-normativity. Its preamble observes that it governs and codifies succession of property of an intestate Hindu. Use of terms like “male” and “female” gives a nod to acknowledging genital and chromosomal composition and not self-determined gender identity. It wasn’t until recently that daughters were incorporated under Section 6 of the Act to be legal heirs along with sons of the deceased by way of Hindu Succession (Amendment) Act, 2005. 

The Sharia law can be harkened to the Holy Quran, Sunna, Ijma, and Qiyas. The Islamic jurisprudence provides an elaborate scheme of devolution of property amongst the successors, and other issues of maintenance. However, the grand narrative essentially reduces to antagonistic behaviour and indifference towards queer persons. Particular mandates forbid crossdressing and sodomy biting away from sexual and gender autonomy.   

Additionally, Part V of The Indian Successions Act, 1925 provides a consolidated guide to devolution of intestate succession. The legislation, even though secular, is not gender neutral. The legislation has explicit masculine notions by the way or pronoun “he”. It provides primacy to biological composition, and lineal parentage; something that is seldom seen in the trans community. 

None of the governing laws provide any template for property devolution in trans communities. It discounts the factum that, for centuries, trans, intersex and gender queer/non-binary persons have been disenfranchised and driven away by families. NHRC in a study, first of its kind detailed that only 2% of trans persons stay with their parents while the rest are deprived from participating in any form of economic activity or compelled to take low-income adverse jobs causing a societal gender discrimination merging into many domains of the State. 

The trans, intersex, and gender queer persons abandoned find home alternatively in a chosen ‘family’ and are initiated into the hijra or aravani community by the senior member/designated mother of the structure – the Guru. The Guru takes the responsibility of the structure and “chelas” and provides emotional support, financial clout and social standing. The Guru ties the house and provides parental guidance to the chelas. This adopted system has been nomenclatured as the Guru-chela pratha/parampara.

The proposition of devolution of property in such a customary practice was contemplated by a single judge bench of Himachal Pradesh High Court in the case of Sweety v. General Public. The appeal arose from a trial court judgement which held succession of intestate deceased trans person, Rajia alia Ratni Nani would be via Hindu Succession Act, 1956  on a prima facie assumption by the name that the deceased was a Hindu. Their Guru averred that she was the only successor of the property left behind since once initiated in the hijra community, the guru is the only person related to the chela, ergo the entitlement. The HC considered the issue of mode of succession of property of a kinnar in absence of a profession of religion. Sweety, the guru of the deceased led documentary evidence that she was the guru; such as, presence of guru’s name in the deceased’s ration card and bank account. The Court signified displeasure and reversed the judgement of the HC holding that succession would occur as per the customs of the guru-chela parampara and held Sweety to be the legal heir of the deceased. While the judgement was laudatory and took cognizance of the NALSA judgement, it had some serious shortcomings and major lacunae. 

The first issue is the lack of gender sensitivity in the judgement. One consistency that is noted throughout the judgement is use of the word “eunuch”. There is no reasoning as to why that terminology is used. A eunuch is a castrated male who have historically been a part of the hijra community amongst many others. There was no evidence led on behalf of the deceased and their guru that they were, in fact, castrated. This actively demonstrates the Court’s lack of clarity as to whether it was referring to the deceased’s gender identity or a biological condition, ergo making derogatory assumptions. What had been positively averred was that the deceased and their guru were intersex persons. The Court’s lack of acknowledging gender identities is emblematic of its gender insensitivity and the progress required to be made. 

The second issue is that the Court decided the succession of property of an intestate transgender in absence of religion. The glaring concerns the devolution in case of known religion. The Court in the matter had not indulged much into finding the religion of the deceased person. This necessity was further diluted by lack of any response to the notice. The principal argument made by the appellant was that once initiated into the kinner/hijra community, all ties to the external society is severed thereby waiving any religion. Furthermore, there was no evidence led to provide any sort of religious conversion or an initiation ritual. Therefore, it becomes unclear as to why the Court adopted the customary practices guru-chela parampara. Where arguments could be made in favour of such position to preserve indigenous practices of trans, intersex and gender queer practices, there is an obvious intersection with right to religion envisaged in the Constitution. 

 Adoption of one custom and renunciation of previous custom has not been considered as a question of law by the Courts of India. However, such an issue was considered by the Supreme Court of Nigeria in the case of Adeniyi Oluwo & Ors v. Olabowale Oluwo & Ors where the Court considered whether a person could renounce certain personal law and custom and adopt another and held:

“It follows therefore that by virtue of his change, his personal law changed to the Benin Customary Law; distribution of his estate on intestacy must necessarily be governed by Benin Customary Law. He married Benin women who had children for him; he carried on various business activities in and around Benin City. The change of his status endowed him with the rights and privileges of a Bini indigene and his change in status accords with Benin Customary Law”

This essentially meant that there can be a change of personal customary law by acculturation or assimilation. If the same standards are to be followed for devolution of property of intestate trans, intersex, and gender queer persons, the standard of evidence would be too high given the lack of resources, disenfranchisement and involuntary seclusion/ostracization. However, the burden would still need to be met as to renunciation of religion and ceremonious initiation into the community. Further, it must also be shown whether assimilation into the kinner/hijra community would automatically lead to loss of religion. Further, there are many literatures to support the claim of guru-chela relationship being exploitative, abusive and is contemplated as a form of bonded labour. Thusly, the customary practice isn’t a tenable for the long term. 

Need for Gender-Neutral Language in Property Law

Lockean conception of property provides that property is an extension of self. This ipso facto provides a rationale that gender is an important variable in property governance. The property law, as explored above is highly cis and heteronormative. It is submitted that most legislations are entrenched in colonial ideations or predate independence itself. This often has resulted in predominant usage of masculine pronouns and predisposition resulting in disenfranchisement of other gender identities. This usage of gendered generics is a categorical medium of casual sexism; as has been proven by several empirical researches

There have been several vedic references to the ‘third sex’ which includes a wide spectrum of genders and sexualities providing them with shelter, protection, amenities, provisions of sustenance and incorporation into the dharma. There is no reason that the present legislation must be read in a heteronormative lens excluding many. It was laudably noted by the Madras HC in Sushma v. Police Commissioner of Chennai that the LGBTQIA+ community spend majority of their lives adjusting to a social morality and “have to turn themselves inside out to suit our notions of social morality and tradition”. 

This judgment while allotting rights to the trans appellant missed an opportunity of answering issues of a broader ambit, i.e., what happens to the property of a transgender whose religion is known. It can be submitted that incorporation and merging of the trans and gender queer community in Hinduism is emblematic of the fact dharmic tradition and gender have always been intertwined. There are several temples with patron deities for the hijra communities and temples with trans priestesses

In Shivani Bhat v. State NCT of Delhi, the Delhi High Court declared that “Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals.” It is time these words are effectuated into creating a safer and inclusive legislation and interpretation with a queer lens. 

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Mani Chander

In India, one of the most significant reasons why women continue to be marginalised at the workplace is because often they have little to no knowledge of the legal protections available to them under various legislations. While a fairly comprehensive legal framework dedicated towards uplifting women exists, both women and those employing them continue to be oblivious. How then can we expect laws, no matter how sound, to be effective if they remain largely unknown to those who seek to benefit from them? The answer is we cannot. Legal awareness and exclusion of women in the workplace are inversely related, and it is therefore imperative to simplify the laws and make them a little less daunting for our readers.

Here are some laws both working women and men as well as employers must know:

The framers of the Constitution of India accorded special protections to women. While Article 15 of the Constitution prohibits discrimination on the basis of sex, Article 16 guarantees all citizens the right to equality of opportunity in relation to matters of public employment or appointment to any office under the State. The Directive Principles of State policy, though not justiciable, also cast a moral duty upon the State to make endeavours to minimize inequalities in income among individuals and promote equal pay for equal work for both men and women. The most significant of these constitutional provisions, however, is Article 15(3) which enables the State to take affirmative action and enact special laws for protection and upliftment of women. It is through this provision that over the years, various laws have been enacted to accord special safeguards to women.

Let us first consider the Shops and Establishments Act which specifically regulates conditions of service in shops and establishments (except factories) employing ten or more workers. Each state has its own shops and establishments law, however, some underlying features have been adopted by most states. For example, this law specifically prohibits establishments from discriminating against women in matters of recruitment, training, transfer or promotions. It also categorically stipulates that women employees shall not be required or allowed to work in an establishment for more than 48 hours per week and shall only work between 6:00 A.M. to 9:00 P.M. However, an employer may engage women to work during night shifts if the appropriate State Government is satisfied that adequate provisions of shelter, rest rooms, ladies toilets, night crèches, and transportation exist. 

Similarly, with a view to prevent unfair exploitation of women employed in factories, the Factories Act, 1948 prescribes specific standards with regards to safety, welfare and working hours for women. The Act protects women from being employed in dangerous operations as well as working with machinery, whether in motion or otherwise. To safeguard women against the dangers of lifting heavy weights, the Act also authorizes appropriate Governments to prescribe the maximum permissible load that may be lifted by women. Moreover, the Act prohibits night shifts for women, and includes provisions for separate toilets and crèche facilities. Similar enabling provisions have also been incorporated under the Beedi and Cigar Workers (Conditions of Employment) Act, 1966; Mines Act, 1952; Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; and Plantation Labour Act, 1951.

As many employers continue to view women’s pregnancy as a liability, the importance of the Maternity Benefits Act, 1961 must be emphasised. This Act applies to factories, mines, plantations, shops and other establishments. It regulates the employment of women during the period of childbirth, and provides benefits such as paid maternity leave for upto 26 weeks. The Act has a broad scope as it also provides 12 weeks of maternity leave to women who adopt a child below 3 months of age as well as to commissioning mothers (biological mothers who use their ovum to create an embryo implanted in another woman). However, the Act is still not broad enough as it fails to include a large number of women in the unorganised sector – such as farmers, contractual and casual workers. Other commendable features of the Act include provisions for crèche facilities in every establishment with 50 or more employees, paid leave in case of a miscarriage or any illness due to pregnancy, and the option to work from home even after the period of maternity leave.

Another significant legislation is the Code on Wages, 2019 which received Presidential assent on August 8, 2019. This Code consolidates four national level labour laws on wages – the Equal Remuneration Act, 1976, Minimum Wages Act, 1948, Payment of Wages Act, 1936 and Payment of Bonus Act, 1965. It does away with Section 16 of the Equal Remuneration Act, 1976 which allowed the government to justify a difference in pay of men and women workers, simply by claiming that it was based on a factor other than gender. The Code is a big leap forward as it includes wage earners and applies not only to women, but also to LGBTQI. It prohibits gender discrimination in matters related to wages and recruitment of employees for the “same work or work of similar nature”. 

To enhance women’s participation in leadership roles, the legislature has also made it mandatory under the Companies Act, 2013, for all listed companies to have at least one woman director on their board of directors. This requirement has to be fulfilled within six months of the date of incorporation.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is another progressive legislation which allows women to report incidents of sexual harassment at work and seek timely redressal. This Act has a wide ambit as it includes contractual workers, temporary workers, volunteers as well as interns. It defines the workplace as not just the traditional office space as most people would understand it, but also includes any extension of the workplace, such as conferences, travel and even work from home. However, as progressive as the law may be, it is far from achieving its intended purpose. A survey by the Observer Research Foundation and World Economic Forum conducted in 2018 indicated that 84% of the companies surveyed were unaware of this law.

Granted that our laws may not be perfect, and a critical review of each of these legislations would call for a multiple-page analysis, yet they provide necessary armour to women to fight their daily workplace battles. Sometimes ignorance is not bliss, and this is one such scenario. A lot can be achieved if women and men are conscious of the laws even as they stand today. In the years to come, one can hope that we will witness more progressive policy declarations and legislative reforms – paternity leaves, period leaves and reservation for women in Parliament are already part of the ongoing public discourse. 

* Views are personal. This piece is the third in the series “Bridge the Gap” presented by The Womb. The author of the series is a Delhi based practicing lawyer who holds a special interest in gender justice. She is also admitted to the New York State Bar and holds a Master’s degree from the University of Virginia School of Law, United States.

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The Womb is an e-platform to bring together a community of people who are passionate about women rights and gender justice. It hopes to create space for women issues in the media which are oft neglected and mostly negative. For our boys and girls to grow up in a world where everyone has equal opportunity irrespective of gender, it is important to create this space for women issues and women stories, to offset the patriarchal tilt in our mainstream media and society.

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