INTRODUCTION
Patriarchy is a system of society or government in which men hold the power and women are largely excluded from it. These powers may include political leadership, moral authority, social privilege, and control of property. We encounter patriarchy every day, everywhere. It is rooted not only in our social and cultural customs, but also in our thought processes and in the very laws and institutions that are meant to ensure justice. The laws, according to the Constitution, may have been made with utmost care and responsibility, but the stories of women wronged by the patriarchal system tell us the ground reality of these laws. This blog seeks to explore how patriarchy interacts with Indian law—sometimes challenged, often reinforced—and what it means for true gender justice.
PATRIARCHY: A LEGAL-SOCIAL CONCEPT
Patriarchy is a social setting in which the male members of society hold the power and positions of authority, while their female counterparts are supposed to follow them. Dominated by men, a patriarchal society is largely biased and discriminatory towards women. Historically, laws have been made in patriarchal societies with reference to men and their needs, neglecting the needs and concerns of women. While India has made some major advancements in favor of women in cases like Vishaka and Ors v. State of Rajasthan and Ors (1997)[1], Mohd Ahmed Khan v. Shah Bano Begum & Ors (1985)[2], The Secretary, Ministry of Defence v. Babita Puniya and Others (2020)[3], etc., patriarchal bias can still be seen permeating the legal discourse.
CONSTITUTIONAL GUARANTEES V/S GROUND REALITY
The Indian Constitution contains various articles and sections to combat gender discrimination, but the gap between the formulation and implementation of laws remains vast.
- Article 14[4] Guarantees equality before the law.
- Article 15[5] Prohibits discrimination on the basis of sex.
- Article 21[6] Guarantees the right to life and personal liberty.
Despite the presence of these Articles, the ground reality of women screams discrimination. For instance, while women have the right to work and earn equal pay, the gender pay gap continues to persist; representation of women in political and judicial offices remains disproportionately low; access to justice is hindered by social stigma, lack of awareness, and financial dependence.
Thus, while the Constitution sets a progressive tone, its implementation often falters under the weight of patriarchal norms.
LAWS THAT REFLECT PATRIARCHY
1. Marital Rape Exception
Section 375 of the Indian Penal Code (IPC),1860[7], which broadly deals with rape, gives an exception to forced sexual intercourse by a man to his wife (above 18 years of age). This law strips a married woman of her bodily autonomy, thus reinforcing male sexual entitlement. While this exception has been updated in the Bhartiya Nyaya Sanhita (BNS)[8] To exclude women living separately from their husbands, it still doesn’t shed its patriarchal nature.
2. Inheritance Rights
Women, historically, have not enjoyed equal inheritance rights as men. The necessity to produce a male heir has been widely recognised in our society. While the Hindu Succession
(Amendment) Act, 2005[9] Correcting this notion to some extent, the lack of implementation of this law, especially in rural areas, still raises questions. Moreover, the law only provides aid to daughters of the Hindu religion. The women of other religions still lack the right to acquire their ancestral properties. 3. Workplace Laws
While laws like the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013,[10] have been made to protect women from harassment at the workplace, their lack of implementation is still an issue. The fear of being fired by the employer and the shame of coming out and speaking up pose difficulties for women, especially in workplaces that do not have Internal Complaints Committees. Moreover, the lack of women in leadership roles also limits the law’s effectiveness in creating safe and equitable workplaces.
LAWS THAT CHALLENGE PATRIARCHY
1. Vishakha v/s State of Rajasthan[11]
This case was the first landmark case to deal with sexual harassment of women in the workplace. Further, it was through this case that the Vishakha guidelines were formulated, which further went on to be the guidelines for the POSH Act.[12] As well. This was a progressive judgment that helped women feel at ease in their workplaces.
- Mohd Ahmed Khan v/s Shah Bano Begum[13]
This case dealt with the maintenance rights of Muslim women after divorce. It answered the question of whether or not Muslim women will be covered by Section 125 of the CrPC.[14] (Section 106 of BNSS)[15], even though the Muslims have their own rules on marriage, divorce, maintenance, etc. In this landmark judgement, it was ruled that the Muslim women’s right to maintenance under Section 125 cannot be snatched away due to the presence of Muslim personal laws.
3. The Secretary, Ministry of Defence v/s Babita Puniya[16]
This landmark judgement gave women officers in the armed forces the eligibility to hold command posts. This case gave empowerment not only to the women serving in the armed forces but also to the young girls aspiring to serve their nation by joining the army in the future.
It provided momentum to the movement of achieving gender equality and equal opportunity for women in the armed forces.
INTERSECTIONALITY: WOMEN AT THE MARGINS
Side by side with patriarchy exist other social and cultural discriminations against women.
Discrimination against women based on caste, creed, and religion is also prevalent in our society. Dalit women, for example, become victims of caste-based violence in addition to gender-based oppression. Muslim women face oppression in the name of religious texts. More often than not, Indian law fails to eradicate these difficulties for women due to their overlapping nature with the law.
THE WAY FORWARD
The eradication of patriarchy cannot be achieved by merely implementing legislative changes. The mindset of the people in our society also needs to change. Patriarchy can only be won over when people start recognising the rights of women. The following steps need to be taken as initial efforts towards dismantling patriarchy and achieving an equal and respectful society for women:
- Criminalising marital rape: We need to understand that the very first step of achieving equality is giving married women autonomy over their bodies and not treating them as the property of their husbands.
- Better implementation of gender-sensitive laws: The gap between the laws on paper and their poor implementation needs to be filled. Without proper implementation, these laws are nothing but writing on a piece of paper that serves no purpose.
- Promote women’s representation: It is necessary for women to step up and take leadership responsibilities in various fields like politics, judiciary, corporate sector, police, army, etc.
- Make legal aid accessible: Merely making laws isn’t adequate if a victim can’t reach the laws. Legal aid must be made accessible in order to help everyone, irrespective of their social or financial condition.
CONCLUSION
“I measure the progress of a community by the degree of progress which women have achieved.”
These words by Dr. BR Ambedkar represent the thoughts that have gone into writing this blog. Our society cannot prosper until its women are given equal opportunity to prosper. Although the law is blind, it must open its eyes to gender bias and patriarchy, and aim to address and eradicate them as soon as possible.
Author(s) Name: Shatakshi Sharma (DSNLU, Visakhapatnam)
References:
[1] Vishakha & Ors v State of Rajasthan & Ors (1997) 6 SCC 241
[2] Mohd Ahmed Khan v Shah Bano Begum 1985 AIR 945, 1985 SCR (3) 844
[3] The Secretary, Ministry of Defence v Babita Puniya & Ors AIR 2020 SUPREME COURT 1000
[4] The Constitution of India, Art 14
[5] The Constitution of India, Art 15
[6] The Constitution of India, Art 16
[7] Indian Penal Code 1860, s375
[8] Bharatiya Nyaya Sanhita 2023, s63
[9] Hindu Succession (Amendment) Act 2005
[10] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013
[11] Vishakha & Ors v State of Rajasthan & Ors (1997) 6 SCC 241
[12] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013
[13] Mohd Ahmed Khan v Shah Bano Begum 1985 AIR 945, 1985 SCR (3) 844
[14] Code of Criminal Procedure 1973, s125
[15] Bharatiya Nagarik Suraksha Sanhita 2023, s106
[16] The Secretary, Ministry of Defence v Babita Puniya & Ors AIR 2020 SUPREME COURT 1000
