Gender and Law: Complete Notes

About this subject

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Gender and Law is studied in six units, from what gender is and how the State has used it, to how stereotypes about women and men shape the reasoning of courts. Gender is not a subject only about women: it quietly decides who cooks at home, who gets the job, who is believed at the police station and who may marry whom.

Unit 1: Gender, Law and the State

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Sex and gender

Point	Sex	Gender
Refers to	The body: chromosomes, hormones and organs of reproduction	The roles, behaviour, expectations and value a society attaches to being a man or a woman
Comes from	The body	Society
Illustration	The doctor announces at birth, "it is a girl" or "it is a boy"	The girl gets a doll and is told to sit properly and help in the kitchen; the boy gets a toy car and is told that boys do not cry

• Ann Oakley (British sociologist) made the distinction popular in Sex, Gender and Society (1972).
• Simone de Beauvoir (French philosopher, 1949): "One is not born, but rather becomes, a woman." Womanhood, as society defines it, is largely taught and learnt, not simply handed over by nature.

Why the distinction matters for law

For centuries law treated social roles as facts of nature. Sigmund Freud wrote that "anatomy is destiny", and many legal systems acted on that belief: if a woman's body is made for childbirth, her place is the home, so she need not vote, own property or practise a profession. Once these roles are seen as made by society, it follows that society, and law, can change them.

Judith Butler: performativity

In Gender Trouble (1990), the American philosopher Judith Butler argued that gender is not something we are but something we do again and again. By repeatedly walking, dressing, speaking and sitting in ways society marks as masculine or feminine, we produce the appearance of a natural gender. She called this performativity. She also questioned whether even sex is purely natural, since sorting all bodies into two boxes is itself shaped by society.

Intersex and transgender persons: who decides gender?

The body itself shows that nature does not always come in two neat boxes.

• Intersex variations: chromosomes, hormones or reproductive organs that do not fit the typical definitions of male or female.
• Transgender persons: their sense of their own gender differs from the sex assigned at birth.

Who then decides a person's gender: the doctor reading the body, society reading behaviour, or the person, who knows who they are? This is the question of self-determination.

Self-Determination of Gender Identity

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Transgender Persons (Protection of Rights) Act, 2019

• In its original form, Section 4 gave a transgender person the right to be recognised as such and a right to self-perceived gender identity.
• The procedure did not fully follow NALSA: a person had to apply to the District Magistrate for a certificate of identity, and one seeking recognition as male or female had to produce a certificate of surgery from a medical officer. Critics said this brought the doctor back in.

Transgender Persons (Protection of Rights) Amendment Act, 2026

In force from 25 May 2026, it changed the law sharply.

• New definition of a transgender person, covering: persons with socio-cultural identities such as kinnar, hijra, aravani and jogta, and eunuchs; persons born with intersex variations; and persons forced to take on a transgender identity, for example through mutilation or a surgical or hormonal procedure.
• Proviso: the definition excludes persons with different sexual orientations and self-perceived sexual identities.
• The right to self-perceived gender identity was deleted.
• The District Magistrate issues a certificate after examining the recommendation of a medical board headed by a Chief Medical Officer or Deputy Chief Medical Officer.
• New serious offences: for example, kidnapping an adult and causing grievous hurt to force a transgender identity on that person is punishable with at least ten years of rigorous imprisonment.

Government's justification	Critics' objection
The old definition was too vague to identify those who truly face severe exclusion; benefits should not depend on personal choice or a claimed self-perceived identity.	A return from self-determination to medical gatekeeping, contrary to the NALSA case.

Petitions challenging the Amendment are pending; the Supreme Court issued notice in May 2026 but refused to stay the law.

Is Inequality Natural?

Why have almost all societies placed men above women? Evolutionary answers say men and women developed different bodies and abilities over thousands of years because men hunted and fought while women bore and nursed children; so male leadership and female care are natural, and law should respect them.

Three objections

1. The historical story is too simple: in many early societies women gathered much of the food and did heavy work.
2. A past difference does not make it right or permanent today. One cannot jump from what is to what ought to be; what is natural is not automatically just.
3. The claim of nature has repeatedly been used to justify hierarchy.

André Béteille

The Indian sociologist André Béteille showed how societies justify social inequality by presenting it as natural: upper castes claimed natural purity, colonial rulers natural racial superiority, and men claimed women were naturally weaker in reason. He built on Rousseau's distinction between the differences nature gives us and the inequalities society builds on top of them.

Histories of male power

• Friedrich Engels (1884): the subordination of women began with private property and a family designed to pass property to sons, "the world historical defeat of the female sex".
• Gerda Lerner, The Creation of Patriarchy: patriarchy had a beginning in history, so it can also have an end.

Courts and the argument from nature

Gender and the Responsibility of the State

Public and private spheres

Point	Public sphere	Private sphere
Covered	Politics, the market, the courts	The home and the family
The liberal State	Regulated it	Claimed to stay out
Belonged to	Men	Women were confined to it

Coverture

The common law expressed the division of spheres through the doctrine of coverture. The English jurist William Blackstone (eighteenth century) wrote that by marriage husband and wife are one person in law, and the very being or legal existence of the woman is suspended during the marriage. So a married woman could not own property in her own name, make a contract, or sue without her husband.

The myth of non-intervention

Frances Olsen (American scholar) called the State's non-intervention in the family a myth: the State already decides who may marry, who is a parent and what is a crime at home. Refusing to act against domestic violence is not neutral; it leaves power with the stronger party, usually the husband. Hence "the personal is political" (Unit 2).

Liberal neutrality

Liberals	Many feminists	Conservative critics
The State should stay neutral between different ideas of the good life.	Neutrality between unequal parties simply preserves the inequality.	Feminist demands have pushed the State too far into private life and weakened limited constitutional government.

The colonial State in India

It claimed not to interfere with Hindu and Muslim personal laws, yet under pressure from Indian reformers it passed:

• Bengal Sati Regulation, 1829: banned sati;
• Hindu Widows' Remarriage Act, 1856: allowed widows to remarry;
• Child Marriage Restraint Act, 1929: fixed a minimum age for marriage.

At the same time the Indian Penal Code, 1860 imported Victorian sexual morality: Section 377 punished carnal intercourse against the order of nature, and similar laws spread across the Empire, from India to the Caribbean. The colonial State both reformed and policed gender according to its own interests.

The man question

The American legal scholar Nancy Dowd argued for studying masculinities, the ideas society builds about what a real man is. They give power to men as a group but also hurt many men, such as those who do not fit the tough, earning, unemotional model, or men from disadvantaged castes and classes. Gender analysis is about the whole system that ranks people by gender, not only about women.

From Disability to Inclusion

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The right to practise law

International law

• UN Charter, 1945: reaffirmed faith in the equal rights of men and women.
• Universal Declaration of Human Rights, 1948, Article 1: all human beings are born free and equal in dignity and rights. An earlier draft said "all men"; the Indian delegate Hansa Mehta pressed for the change so that women were clearly included.

CEDAW, 1979

Equal rights on paper did not end discrimination in practice, so the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the "international bill of rights for women".

Article	Content
1	Discrimination: any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing women's human rights and freedoms in any field.
4	Temporary special measures to speed up real equality are not discrimination (supports affirmative action, Unit 5).
5	States must change social and cultural patterns of conduct to end prejudices based on the inferiority or superiority of either sex or on stereotyped roles (foundation of Unit 6).
16	Equality in marriage and family relations.

• India signed CEDAW in 1980 and ratified it in 1993, with declarations on Articles 5 and 16 that it would not interfere in the personal affairs of any community without its initiative and consent.
• India has not accepted the Optional Protocol, which would let individual women complain to the UN committee that monitors the Convention.
• General Recommendation 19 (1992) of that committee: gender-based violence is a form of discrimination, and a State may be responsible even for private acts of violence if it fails to act with due diligence to prevent, investigate and punish them. Due diligence breaks the old picture of a State that stays outside the home (Unit 3).

The Indian Constitution

Provision	Guarantee
Article 14	Equality before the law and equal protection of the laws
Article 15(1)	No State discrimination on grounds only of religion, race, caste, sex or place of birth
Article 15(3)	State may make special provisions for women and children
Article 16	Equality of opportunity in public employment; no discrimination on the ground of sex
Article 39 (Directive Principle)	Adequate means of livelihood for men and women equally; equal pay for equal work
Article 42 (Directive Principle)	Just and humane conditions of work and maternity relief
Article 51A(e) (Fundamental Duty)	Renounce practices derogatory to the dignity of women
Article 326	Adult suffrage: women got the vote with men, without a separate struggle after Independence

Political reservation

• 73rd and 74th Amendments (in force from 1993): not less than one third of seats in panchayats and municipalities reserved for women.
• Constitution (106th Amendment) Act, 2023 (Nari Shakti Vandan Adhiniyam): one third of seats in the Lok Sabha, State Legislative Assemblies and the Legislative Assembly of Delhi. Under Article 334A it begins only after the first census taken after the Amendment and a fresh delimitation based on it.
• In April 2026 a constitutional amendment bill seeking to change this trigger was defeated in the Lok Sabha, so the reservation has not yet begun to operate (Unit 5).

Inheritance

Under the Mitakshara school, only sons were coparceners, members who acquire a share in joint family property by birth. The Hindu Succession (Amendment) Act, 2005 made daughters coparceners by birth in the same way as sons.

Unit 2: Feminist Legal Theory and its Methods

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What feminist legal theory asks

Feminist legal theory asks: how does law create, support or challenge the unequal position of women and of sexual minorities? Feminists disagree about what equality means, whether women differ from men, whether the State is a friend or a threat, and what to do about sex, family and work. It is a family of arguments, not a single creed.

The waves of feminism

Historians often describe the feminist movement in waves.

First wave (mid-nineteenth to early twentieth century)

Fought for basic legal rights: the vote, property, education and entry into the professions.

• Mary Wollstonecraft, A Vindication of the Rights of Woman (1792): women seem inferior only because they are denied education.
• Seneca Falls Convention (United States, 1848): demanded equal rights, including the vote.
• John Stuart Mill, The Subjection of Women (1869).
• Vote: New Zealand first in national elections (1893); United States (1920); United Kingdom on equal terms with men (1928).

Second wave (from the 1960s)

Legal equality had been partly won, but women's lives had not changed much.

• Betty Friedan, The Feminine Mystique (1963): the quiet unhappiness of educated housewives.
• Simone de Beauvoir: woman is treated as the Other, defined only in relation to man.
• Carried feminism into the family, the workplace and the bedroom, and produced laws on equal pay, sexual harassment, abortion and domestic violence.

Third wave (from the 1990s)

Rejected the idea that all women share one experience; Rebecca Walker used the phrase "third wave" in 1992. Black, lesbian, poor and global South women argued that the second wave spoke mainly for white, middle class, heterosexual women. It stressed diversity, individual identity and intersectionality.

Fourth wave (from around 2012)

Works through the internet and social media. Best known example: the Me Too movement, started by activist Tarana Burke in 2006; the hashtag spread worldwide in October 2017 and reached India in 2018.

Limits of the wave image

• It tells mainly the Western story.
• It suggests each wave ended, when the questions overlap.
• It hides movements elsewhere; India's history does not fit neatly into it.

Equal Treatment Theory

Also called formal equality or liberal feminism: women are rational persons just like men, so law should treat men and women alike and remove every rule that treats them differently, following Aristotle's principle that likes should be treated alike. The theory won many early victories. In the United States, Ruth Bader Ginsburg, as a lawyer (later a US Supreme Court judge), built a litigation strategy around it.

In India, equal treatment is reflected in Article 14 and the rule that any classification must have a rational link with the object of the law.

Weakness: the male measure

To be treated equally, women must show they are the same as men, and the measure of sameness is always male. Pregnancy exposes this.

Equal treatment versus special treatment

Equal treatment side	Special treatment side
Any special rule for women, such as maternity leave, would bring back the old protective laws and stereotypes.	Ignoring real differences, such as pregnancy, keeps women unequal.

Cultural Feminism

Women are different from men, and the difference should be valued rather than erased.

Carol Gilligan (psychologist), In a Different Voice (1982): her Harvard colleague Lawrence Kohlberg had built a scale of moral development on which women often scored lower. Gilligan argued the scale was biased.

Ethic of care	Ethic of justice
Focused on relationships and responsibilities; the way many women reasoned, Gilligan found	Focused on abstract rights and rules; the only ethic Kohlberg's scale rewarded

Robin West (legal scholar):

Separation thesis	Connection thesis
Modern legal theory assumes human beings are separate individuals, each needing protection from others.	Through pregnancy and breastfeeding, women's lives are materially connected to other lives. A law built only on separation cannot see much of women's experience.

For law: rules that value care, such as paid parental leave, flexible work, recognition of unpaid work, and resolving disputes by mediation rather than combat.

Criticism: calling women naturally caring risks repeating the stereotype that kept women at home; and it assumes all women share one voice.

Dominance Theory

A form of radical feminism, led by the American lawyer Catharine MacKinnon. Sameness and difference both miss the point; the real issue is power. Men as a group dominate women as a group, and many observed differences are the result of that domination, not its cause.

Sexuality is at the centre of the hierarchy: rape, sexual harassment and pornography are not isolated wrongs by a few bad men but ways of keeping women as a group subordinate. In Sexual Harassment of Working Women (1979), MacKinnon argued that sexual harassment is sex discrimination. Her campaign against pornography (Unit 6) rests on the same theory.

Critics	Supporters
Sees women only as victims, ignoring their choices and desires; treats some women's experience as all women's; its reliance on criminal law and censorship can be turned by the State against women and sexual minorities.	It names a real structure of power that other theories hide.

Critical Race Feminism and Intersectionality

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Women of colour in the United States pointed out that the woman at the centre of mainstream feminist theory was usually white and middle class.

Caste

A Dalit woman may face violence an upper caste woman does not, and humiliation a Dalit man does not. Dalit feminist writers argued that the mainstream women's movement spoke mainly for upper caste, urban women. The historian Uma Chakravarti used the term Brahmanical patriarchy to show how caste purity and control over women's sexuality are tied together.

Queer and LGBTQIA+ Perspectives

LGBTQIA+ covers lesbian, gay, bisexual, transgender, queer, intersex and asexual persons, the plus covering other identities. Queer theory challenges two assumptions many feminists shared:

1. Heteronormativity: heterosexuality is normal and natural, everything else deviant. The poet Adrienne Rich (1980) called this compulsory heterosexuality, a social system that pushes women into relationships with men and makes lesbian lives invisible.
2. The gender binary: only two genders, fixed at birth (questioned by Judith Butler, Unit 1).

Queer theory sits uneasily with feminism: a frame focused on men's power over women cannot fully explain the oppression of gay men, transgender or non-binary persons, and may reinforce the binary. The legal scholar Janet Halley suggested taking a break from feminism to see what it misses. With co-authors she described governance feminism: feminist ideas, especially from dominance theory, that have entered State institutions, criminal law and international law and now exercise real power; feminists must take responsibility for its effects, for example on sex workers or accused persons. In India, queer perspectives shaped the long struggle against Section 377 (Unit 3).

Eco-Feminism

Eco-feminism links the domination of women with the domination of nature: one mindset treats both as resources to be controlled and used. Françoise d'Eaubonne coined the term in 1974.

Eco-feminism: Vandana Shiva, Staying Alive (1988)	Feminist environmentalism: Bina Agarwal (economist)
Western development models destroyed the feminine principle in nature and pushed aside rural women's knowledge. Example: the Chipko movement in the Himalaya, where village women hugged trees to stop felling; in March 1974 women of Reni village, led by Gaura Devi, stopped contractors from felling their forest.	Women are not closer to nature by an essential feminine quality. Poor rural women depend on forests, fuel and water because of the gendered division of labour and their lack of property. Focus on material realities such as women's land rights.

For law: how environmental damage and climate change fall more heavily on women, and why women's land rights matter.

Pragmatic Feminism

Less a theory than a way of solving problems. Pragmatists distrust grand theories with one answer for every situation, ask what actually helps real women here and now, and revise the answer when conditions change. Margaret Jane Radin described the double bind: sometimes every available choice harms women.

Post-Modern Feminism

Drawing on thinkers such as Michel Foucault, it questions any single truth about women: categories like man, woman, natural and normal are produced by language, knowledge and power. There is no one essential woman, and every claim to speak for all women hides someone's experience. Chandra Talpade Mohanty showed how Western feminist writing presented the "third world woman" as one helpless victim, ignoring differences and agency.

Powerful as criticism, the approach creates a practical problem: without a stable category of women, on whose behalf can feminists demand laws? Gayatri Chakravorty Spivak's answer is strategic essentialism: a group may use a shared identity for a political purpose, such as winning a law, knowing that the identity is neither fixed nor complete. So law reform can use the category of women without believing that all women are the same.

Comparing the Feminist Theories

Theory	Question about the night-shift law
Equal treatment	Invalid: men and women must be treated alike.
Cultural feminism	Should workplaces be redesigned for every worker with care duties, male or female?
Dominance theory	Does the law keep women economically dependent on men?
Intersectionality	Which women are hit hardest: perhaps poor, Dalit or migrant women?
Pragmatism	What safety measures would let women who want night work do it safely?
Post-modernism	Why does the law assume the woman is always the one in danger?

Theory	Thinkers
Equal treatment	Aristotle (likes alike), Ruth Bader Ginsburg
Cultural feminism	Carol Gilligan (ethic of care), Robin West (connection thesis)
Dominance theory	Catharine MacKinnon (hierarchy, not difference)
Intersectionality	Kimberle Crenshaw; Uma Chakravarti (Brahmanical patriarchy)
Queer perspectives	Adrienne Rich (compulsory heterosexuality), Janet Halley (governance feminism)
Eco-feminism	Françoise d'Eaubonne, Vandana Shiva; critic Bina Agarwal
Pragmatic feminism	Margaret Jane Radin (double bind)
Post-modern feminism	Chandra Talpade Mohanty; Gayatri Chakravorty Spivak (strategic essentialism)

Feminist Legal Methods

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Methods move from theory to practice. A method is a way of doing legal work: reading a statute, arguing a case or writing a judgment. Katharine Bartlett (1990) described three feminist legal methods.

Bartlett's term	Other writers' term
Asking the woman question	Unmasking patriarchy
Feminist practical reasoning	Contextual reasoning
Consciousness raising	Consciousness raising

1. Unmasking patriarchy

Patriarchy is a social system in which men hold the main power in the family, the economy and the State. Much of it hides inside neutral-looking rules, so this method asks the woman question: have women been left out of this rule? Does a neutral-looking rule actually harm women? If so, how can it be changed?

2. Contextual reasoning

Instead of picking a few abstract facts and applying a general rule, it looks at the whole situation: relationships, history and unequal power. It does not reject rules but applies them with attention to real lives. On consent to sex, for instance, a court should look at the woman's relationship with the accused, her fear and his power over her, not simply whether she physically resisted; the definition of consent in criminal law now reflects this (Unit 4).

3. Consciousness raising

It began in small women's groups in the 1960s, where women discovered that what each thought was a private problem was common to many; shared experience became knowledge about power. In law it works through testimonies, public hearings, protests and social media. Me Too is a form of it, and an open letter by four law teachers helped change India's rape law (Mathura case, below).

The Women's Movement in India

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Nineteenth century

• Male reformers: Raja Ram Mohan Roy against sati; Ishwar Chandra Vidyasagar for widow remarriage.
• Savitribai Phule, with Jyotirao Phule, opened a school for girls in Pune in 1848.
• Pandita Ramabai worked for widows and wrote about the condition of high caste Hindu women.
• Tarabai Shinde (1882) wrote a sharp comparison of men and women, attacking her society's double standards.

Rewriting history

A.S. Altekar (1938) described a golden Vedic age of high status for women followed by a long decline. Uma Chakravarti challenged this: it looked only at upper caste women, served a nationalist wish for a glorious past, and ignored how caste, class and the State shaped relations between men and women.

From articulation to accommodation (Neera Desai)

The sociologist Neera Desai described the Indian women's movement as moving from articulation to accommodation.

Before Independence: articulation	After Independence: accommodation
Women's organisations such as the All India Women's Conference (founded 1927) worked inside the national movement and social reform agenda, articulating women's demands within those causes.	Many believed the Constitution had settled the question of equality.

In December 1974 the Committee on the Status of Women in India submitted Towards Equality. It showed the sex ratio had fallen from 972 women per 1,000 men in 1901 to 930 in 1971, and that most women remained poor and outside political power, shaking the belief that equality had been achieved. From the late 1970s an autonomous women's movement articulated its own demands, independent of political parties.

Four campaigns that shaped the law

1. Rape by men in power: the Mathura case.
2. Dowry deaths: women's groups showed that many so-called kitchen accidents were murders, leading to Section 498A of the Indian Penal Code (1983) and the offence of dowry death (1986).
3. Maintenance of divorced Muslim women: the debate after the Shah Bano judgment of 1985 (Unit 3).
4. Sexual harassment: the gang rape of Bhanwari Devi in Rajasthan in 1992 led to the Vishaka guidelines (Unit 5).

After December 2012

The gang rape and murder of a young woman in Delhi in December 2012 brought huge protests. A committee headed by Justice J.S. Verma reported within about a month, and the Criminal Law Amendment Act, 2013 widened the definition of rape, defined consent, and created new offences such as stalking, voyeurism and acid attack. These offences continue in the B.N.S., 2023, which replaced the Indian Penal Code from 1 July 2024.

Constitutional Values and Law-Making

Fifteen women sat in the Constituent Assembly, among them Hansa Mehta, Rajkumari Amrit Kaur, Durgabai Deshmukh and Dakshayani Velayudhan, the only Dalit woman member. They helped secure a Constitution that promises equality without distinction of sex.

B.R. Ambedkar, as Law Minister, piloted the Hindu Code Bill to give Hindu women rights in marriage, divorce and inheritance. Facing fierce opposition, he resigned from the Cabinet in 1951, citing the stalling of the Bill as one of his reasons. It was later enacted in parts, including the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956.

Feminist thought in law-making

• National Commission for Women: set up in 1992 under a law of 1990.
• Protection of Women from Domestic Violence Act, 2005: the result of years of work by women's groups and lawyers.
• Sexual Harassment of Women at Workplace Act, 2013: grew out of the Vishaka guidelines.

Feminists also debate whether relying on criminal law is always wise, a question that recurs throughout the subject.

Unit Three: Marriage and the Family

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Why the family matters in law

The slogan "the personal is political" (Unit Two) is tested most inside marriage and the family. States long treated the family as a private kingdom the law should not enter, yet what happens inside it decides whether a woman can study, work, vote freely, or even stay alive.

International law now recognises the State's positive obligations inside the home. Under the due diligence standard (Unit One), the State must prevent, investigate and punish violence even when a husband or a relative commits it.

Marriage as a Gendered Institution

Heterosexuality and unequal age in the statutes

• Section 5, Hindu Marriage Act, 1955: a marriage may be solemnised between any two Hindus if certain conditions are met. The conditions speak of a bridegroom who has completed 21 years and a bride who has completed 18 years.
• Section 4, Special Marriage Act, 1954 (marriage across religions): similarly speaks of "the male" and "the female".

Heterosexuality is thus written into the very conditions of a valid marriage. The higher age for the man reflects an old assumption that the husband is the mature provider and the wife the younger dependant. A bill to raise women's marriage age to 21 was introduced in Parliament in 2021 but lapsed in 2024 without being passed.

A woman's choice of partner

Families often resist a woman's own choice of partner; the law must protect it.

Adultery: the wife as property

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Marriage law also treated the wife as belonging to her husband (coverture, Unit One). Its clearest Indian survival was the crime of adultery under Section 497 IPC:

• it punished a man who had sexual intercourse with another man's wife without the consent or connivance of that man;
• the wife could not be punished, even as an abettor;
• she could not prosecute her own husband for adultery;
• only the woman's husband could complain.

Adultery remains a ground for divorce but is no longer a crime, and the B.N.S. does not contain it. In 2023 the Court clarified that the judgment does not stop the armed forces from taking disciplinary action for such conduct under their own laws.

Is Marriage Inherently Heterosexual?

John Finnis (natural law)	Andrew Koppelman (American scholar)
Marriage is a distinct good: a lifelong union of a man and a woman, oriented to having and raising children, and expressed in sexual acts of the reproductive kind.	If marriage is about reproduction, why does the law allow infertile and elderly couples to marry?
Same-sex unions, whatever their value as friendships, cannot be marriages.	The natural law account cannot explain those marriages, so it cannot justify excluding same-sex couples.

From Koushal to Navtej: Section 377

Before marriage, the first battle was against criminalisation. Section 377 IPC punished "carnal intercourse against the order of nature" and was used to harass and blackmail gay men, transgender persons and others.

Reasons in Navtej:

1. Article 14: the section was manifestly arbitrary.
2. Article 15: discrimination based on sexual orientation is discrimination on the ground of sex, because it rests on stereotypes about how men and women should behave (Justice D.Y. Chandrachud).
3. Article 21: sexual orientation is part of privacy, dignity and autonomy.
4. Constitutional morality, not social morality, must guide the Court.

Position under the B.N.S.

The B.N.S., in force from 1 July 2024, has no provision like Section 377. The colonial offence is gone, but a gap remains:

• rape under Section 63 B.N.S. protects only women, so a forced sexual act against an adult man is not rape under the new law;
• the only specific offence for sexual abuse of a transgender person, in the Transgender Persons Act, carries a much lighter punishment.

Supriyo and the Limits of Recognition

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Unanimous points

1. The Constitution does not recognise an unqualified fundamental right to marry.
2. The Court cannot strike down the Special Marriage Act or read words into it to include same-sex couples; the choice belongs to Parliament.
3. Queer persons have the right to choose a partner and live together without harassment, and the State must protect them.
4. A transgender person in a heterosexual relationship, for example a transgender man and a woman, can marry under the existing marriage laws.

The 3:2 split

Issue	Majority: Justice S. Ravindra Bhat, Justice Hima Kohli, Justice P.S. Narasimha	Minority: Chief Justice D.Y. Chandrachud, Justice S.K. Kaul
Civil union	The Constitution does not require the State to recognise a civil union of queer couples; the Court cannot create such a status.	Would have recognised the right of queer couples to enter into a union.
Joint adoption	Upheld the rule barring unmarried couples, and so queer couples, from adopting jointly.	Would have struck it down.

After the judgment

• The Court recorded the government's promise of a committee under the Cabinet Secretary to examine practical entitlements of queer couples: ration cards, joint bank accounts, nominations, medical decisions. It was set up in April 2024.
• Review petitions were dismissed in January 2025.

Limited recognition by High Courts

In May 2025 a Madras High Court bench of Justice G.R. Swaminathan and Justice V. Lakshminarayanan freed a young woman whom her family had confined because of her relationship with another woman. The Court said that marriage is not the only way to found a family, and accepted the idea of a chosen family.

The Virilocal Family and the Matrimonial Home

Legal effects: the woman is often treated as a guest in her parents' house and an outsider in her husband's, and usually owns nothing in either. When violence begins she has nowhere to go, and her labour in the husband's household is taken for granted. Courts have sometimes reinforced this structure.

Restitution of Conjugal Rights

Section 9, Hindu Marriage Act: if one spouse withdraws from the society of the other without reasonable excuse, the court may order the spouse to return. Other marriage laws have similar remedies. It sounds neutral, but husbands use it far more often, sometimes to counter the wife's maintenance claim.

A fresh challenge relying on the 2017 privacy judgment has been pending before the Supreme Court since 2019.

Domestic Violence Act and the Shared Household

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The Protection of Women from Domestic Violence Act, 2005 is the most important civil law on violence in the home. Earlier, a woman could file a criminal complaint or seek divorce, but many wanted neither prison for the husband nor the end of the marriage; they wanted the violence to stop, and a roof over their heads. The Act gives civil remedies through a Magistrate.

So the Act protects wives, and also mothers, sisters, daughters, widows and women in live-in relationships.

Domestic violence (Section 3) covers physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. Economic abuse includes depriving a woman of money or resources she is entitled to, and disposing of her property.

Reliefs: protection orders (Section 18), residence orders (Section 19), monetary relief (Section 20), custody orders and compensation. Breach of a protection order is itself an offence (Section 31).

The respondent

Section 2(q) defined the respondent as an "adult male person", so a woman could not proceed against her mother-in-law or sister-in-law alone.

The shared household

Section 17 gives every woman in a domestic relationship the right to reside in the shared household, whether or not she has any right, title or interest in it. What if the house belongs to her mother-in-law?

Point	S.R. Batra (2006)	Satish Chander Ahuja (2020)
Shared household	House of the husband (owned or rented) or joint family house of which he is a member	House where the woman lived in a domestic relationship
In-laws' house	Excluded	Included

A relationship in the nature of marriage

Live-in relationships under the Uttarakhand Uniform Civil Code

In force since 27 January 2025, it requires live-in couples to register, punishes failure to do so, and allows a woman deserted by her live-in partner to claim maintenance. Supporters see protection for women; critics see an intrusion into private choices. It has been challenged in the Uttarakhand High Court.

Families Beyond Blood and Adoption

The law imagines families built on blood, marriage or adoption. Many real families differ: step-families, foster families, single parents, unmarried couples, queer families, and the guru and chela households of the hijra community. These are neither consanguineous (based on blood) nor based on adoption.

Other rules still assume the traditional family. The adoption regulations of 2022 let a single woman adopt a child of any gender but bar a single man from adopting a girl, and let a couple adopt only after at least two years of a stable marital relationship, which excludes unmarried and queer couples.

Guardianship

Section 6, Hindu Minority and Guardianship Act, 1956: the natural guardian of a minor is the father, and after him, the mother. Feminist litigation changed this.

Violence in the Home and the Criminal Law

▶ Watch this part of the lecture (1:11:32)

In 1983, after the campaign against dowry deaths, Parliament added Section 498A to the IPC, punishing a husband or his relative who subjects a woman to cruelty. Cruelty meant:

1. wilful conduct likely to drive the woman to suicide, or to cause grave injury or danger to her life, limb or health, mental or physical; or
2. harassment to force her or her relatives to meet an unlawful demand for property, such as dowry.

In 1986 Parliament added dowry death: the death of a woman by burns, bodily injury or otherwise than in normal circumstances within seven years of marriage, where she was subjected to cruelty for dowry soon before her death.

Subject	Earlier law	Present provision
Cruelty by husband or relative	Section 498A IPC (1983)	Section 85 B.N.S.: up to three years and fine
Definition of cruelty	Section 498A IPC	Section 86 B.N.S., same words
Dowry death	Added to the IPC in 1986	Section 80 B.N.S.: at least seven years, extendable to life
Presumption: abetment of a married woman's suicide	Earlier evidence law	Section 117 B.S.A.
Presumption: dowry death	Earlier evidence law	Section 118 B.S.A.

The Subversion of Criminal Law

Soon after Section 498A was enacted, a narrative of misuse grew.

Policymakers and the feminist response

• Justice Malimath Committee on criminal justice reforms (2003): supported relaxing the rigour of the offence.
• Legislators carried the offence into the B.N.S. unchanged, but kept the marital rape exception (Unit Four).
• Feminist lawyers call these steps the subversion of criminal law by courts and policymakers. Senior advocate Indira Jaising argued after Arnesh Kumar that the law shows concern for women after they are dead, in dowry death cases, but treats living women who complain with suspicion; low conviction rates reflect poor investigation and prosecution, not false cases.
• Law Commission, 243rd Report (2012), a middle view: misuse, whose extent no empirical study had established, is not by itself a ground to abolish the section or take away its teeth. It recommended making the offence compoundable with the court's permission, so that genuine settlements can be recorded.

Mandatory arrest and carceral feminism

In the United States many feminists supported mandatory arrest and no-drop prosecution: the police must arrest, and the prosecutor must continue the case even if the victim wants to withdraw. Claire Houston traced how feminist legal theory shaped these policies.

Supporters	Critics
Protect women too afraid to act; declare domestic violence a public wrong.	Take away the woman's own choice; may increase danger when the man returns; fall most heavily on poor and minority communities.

Breakdown of Marriage

▶ Watch this part of the lecture (1:18:08)

• Section 13, Hindu Marriage Act: divorce on fault grounds such as cruelty, adultery, desertion for two years, or conversion.
• Section 13B (added 1976): divorce by mutual consent after living separately for a year; a six-month waiting period follows, which the Supreme Court has held can be waived in suitable cases.

Irretrievable breakdown is not a ground in the Act. The Law Commission recommended it in 1978 and 2009; a bill containing it passed the Rajya Sabha in 2013 but lapsed.

Feminists are divided on easier divorce. It frees women from abusive marriages without long fights. But many Indian women are economically dependent; if the husband can leave easily and the wife has no share in property built during the marriage, divorce can push her into poverty. So feminist lawyers argue that easier divorce must come with a fair share in matrimonial property. Indian law generally does not recognise such a share, except in Goa, whose family law, inherited from the Portuguese period, treats most property of the spouses as common. The lapsed bill had proposed a share for the wife in the husband's property.

Maintenance after Divorce

The Shah Bano story shows the tension between gender justice and religious personal law.

Triple Talaq

The Muslim Women (Protection of Rights on Marriage) Act, 2019 declares triple talaq void and illegal; makes pronouncing it an offence punishable with up to three years' imprisonment and fine; and entitles the wife to a subsistence allowance and custody of her minor children. Supporters say punishment is a needed deterrent. Critics ask why an act the Supreme Court had already made legally void should be a crime, and how a husband in prison will pay maintenance. The Act's validity has been challenged before the Supreme Court.

Stridhan and the Family Courts

The Family Courts Act, 1984 created special courts meant to be informal and quick, with a duty to attempt settlement. Feminist lawyers such as Flavia Agnes criticise them for pressing women towards reconciliation and compromise, sometimes at the cost of their safety and rights.

Applying the Law: An Illustration

Unit 4: Privacy and Autonomy of the Body

▶ Watch this part of the lecture (1:25:08)

Who owns a woman's body? The law has not always said that she does: the family decided whom a daughter would marry, the husband claimed a right to sex with his wife, the State decided whether a woman could end a pregnancy, and doctors decided whether a woman was a "real woman" for sport.

The foundation: the privacy judgment

The feminist critique: privacy's double edge

Feminists such as Catharine MacKinnon warned that privacy has often been a shield hiding the husband's violence behind the closed door of the home. The Puttaswamy opinion addressed this:

• privacy must not be used as a cover to conceal and assert patriarchal mindsets;
• yet women have an inviolable interest in privacy, which protects them against State programmes such as forced sterilisation;
• the challenge is to let the State take violence against women in the home seriously while protecting women's own privacy and autonomy.

Reproductive Rights

The Medical Termination of Pregnancy Act, 1971

Substantially amended in 2021. The Act does not give a woman a right to abortion on request; it protects doctors who terminate a pregnancy when its conditions are met.

Stage of pregnancy	Conditions
Up to 20 weeks	Opinion of one registered medical practitioner.
20 to 24 weeks	Two doctors must agree, and only for special categories in the rules: survivors of rape or incest, minors, women whose marital status changed during the pregnancy, women with disabilities, and foetal malformation.
After 24 weeks	Only for substantial foetal abnormalities diagnosed by a medical board.
At any time	To save the woman's life.

Grounds: continuing the pregnancy would risk the woman's life or cause grave injury to her physical or mental health, or there is a substantial risk of serious abnormality in the child.

Explanation (contraceptive failure): where a pregnancy results from the failure of a contraceptive used by any woman or her partner, the anguish may be presumed to injure her mental health. Before 2021, it spoke only of a married woman and her husband.

Feminist critique: the design keeps the doctor, not the woman, at the centre; she must persuade the doctor, and sometimes a board or a court. Still, the Supreme Court has read the Act in the light of autonomy.

Sex Selection, Sterilisation and Surrogacy

Sex selection

The Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 prohibits sex selection, because son preference has produced a skewed sex ratio. Feminists support this goal but warn that the fight against sex selection must not become a campaign against abortion itself, which would harm all women.

Sterilisation and State control

During the Emergency (1975 to 1977), men and women were subjected to forced sterilisation. Later, the burden of family planning shifted almost entirely to women.

Surrogacy

The Surrogacy (Regulation) Act, 2021 bans commercial surrogacy and allows only altruistic surrogacy. It is open only to:

• a married Indian couple, the woman aged 23 to 50 and the man 26 to 55; and
• an Indian widow or divorcee aged 35 to 45.

Never-married single women, single men and queer couples are excluded. Radin's double bind (Unit 2) returns: the ban protects poor women from exploitation, but denies them an income and limits who may form a family.

Medical Tests and Sex Testing in Sport

Some tests invade the body in the name of verifying sex or character; sport is the clearest example. Women's events exist because, after male puberty, male bodies have on average large advantages in strength and speed, so sports bodies have long tried to decide who counts as female. Humiliating physical inspections gave way to chromosome tests, abandoned in the 1990s as unreliable and degrading; suspicion-based testing continued. The Indian runner Shanthi Soundarajan was stripped of her silver medal from the 2006 Asian Games after such a test.

The Dutee Chand and Semenya cases

In 2011, the International Association of Athletics Federations (now World Athletics) adopted hyperandrogenism regulations barring women with naturally high testosterone from the women's category unless they lowered it by medical treatment. Dutee Chand, an Indian sprinter, was barred and challenged the rules before the Court of Arbitration for Sport, a tribunal in Switzerland that decides sports disputes.

New rules in 2018 covered women with differences of sex development (conditions in which the development of chromosomes, gonads or anatomy is atypical): in events from 400 metres to one mile, they had to reduce testosterone below a fixed level to compete as women. The South African champion Caster Semenya challenged them.

Forum	Outcome
Swiss Federal Supreme Court	Dismissed her appeal.
European Court of Human Rights, Chamber (July 2023)	By four votes to three, Switzerland violated her rights, including the ban on discrimination.
European Court of Human Rights, Grand Chamber (July 2025)	Only a violation of her right to a fair hearing, as the Swiss court had not examined her case rigorously enough. Her discrimination and privacy complaints were outside Switzerland's jurisdiction, since she is South African and World Athletics is based in Monaco.

Stricter rules since then:

• 2023: World Athletics extended testosterone limits to all events and excluded transgender women who have gone through male puberty from the female category.
• 2025: World Athletics introduced a one-time test for the SRY gene (a Y-chromosome gene that triggers male development) for all athletes in the female category.
• March 2026: the International Olympic Committee adopted a policy limiting the female category to biological females, verified by a one-time SRY screening, from the Los Angeles Games of 2028 onwards.

For eligibility rules	Against sex testing
The female category exists to give women fair and safe competition; clear eligibility rules protect the great majority of female athletes.	The tests invade privacy and bodily integrity, force healthy women into medical treatment, and have fallen most often on women from the global South (Dutee Chand, Shanthi Soundarajan, Semenya) whose bodies did not fit a narrow idea of femininity.

Virginity Tests and the Two-Finger Test

▶ Watch this part of the lecture (1:37:45)

For decades, doctors examining rape survivors in India performed the two-finger test, inserting fingers into the vagina to comment on its laxity and so on whether the woman was habituated to sex. The test has no scientific value, humiliates the survivor again, and invites the stereotype that a sexually active woman cannot be raped.

The Health Ministry's guidelines of 2014 banned the test, yet it continued.

Evidence and medical examination

• Section 48, B.S.A.: in prosecutions for rape and related offences, where consent is in issue, evidence of the victim's character or previous sexual experience is not relevant to consent.
• Cross-examination on her general immoral character or previous sexual experience is forbidden.
• Section 184, B.N.S.S.: a survivor may be medically examined only with her consent or that of a person competent to consent on her behalf.

Consent in Intimate Relationships

Consent between intimate partners is one of the most contested topics in Gender and Law.

This definition came from the 2013 reform and reflects feminist contextual reasoning: silence or submission is not consent.

Presumed consent in marriage: Hale's doctrine

In seventeenth-century England, Sir Matthew Hale wrote that a husband cannot be guilty of raping his wife, because by marriage she has given herself to him, a consent she cannot withdraw. English law followed this for centuries.

The marital rape exception

▶ Watch this part of the lecture (1:41:24)

Indian law took a different path. Exception 2 to Section 375 of the Indian Penal Code: sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

• Exception 2 to Section 63, B.N.S.: sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18, is not rape.
• Section 67, B.N.S.: a husband who has sexual intercourse with his wife without her consent while she is living separately is punishable with two to seven years' imprisonment.

The pending challenge

Justice Rajiv Shakdher (unconstitutional)	Justice C. Hari Shankar (valid)
It denies married women equal protection and treats their consent as irrelevant.	Marriage creates a legitimate expectation of sexual relations, and Parliament may treat marital relations differently.

Appeals from these cases are pending before a bench of three judges led by Chief Justice Surya Kant, which heard the Union government in September 2026. The government argues that the question belongs to Parliament, and that other remedies, such as the cruelty offence and the Domestic Violence Act, already protect wives. The exception remains law for now.

The debate

For removing the exception	For retaining it
1. It violates equality: a wife's consent counts for less than any other woman's.	Criminal law should not enter the marital bedroom.
2. It violates her bodily autonomy and dignity under Article 21, as recognised in the privacy judgment.	False complaints are possible.
3. It rests on Hale's fiction that marriage is permanent consent, rejected by most democracies.	Proof would be difficult.
4. The Justice Verma Committee recommended its removal in 2013.	Other civil and criminal remedies exist.

Feminists reply that the same arguments were once made about all domestic violence.

Consent outside marriage

Consent obtained by a promise to marry

False promise	Breach of promise
The man never intended to keep his promise, and the woman agreed only because of it: her consent was obtained by misconception.	The man genuinely meant to marry her and later failed to do so: a breach of promise, not rape.

Section 69, B.N.S. creates a separate offence: sexual intercourse obtained by deceitful means, or by a promise to marry made without any intention of fulfilling it, where the act does not amount to rape. Punishment may extend to ten years' imprisonment. Deceitful means include a false promise of employment or promotion, and marrying after suppressing one's identity.

• Supporters: it protects women deceived into sexual relationships.
• Critics: it treats women as unable to take their own decisions, and may be misused against consensual relationships across religions or castes.

Prostitution and Sex Work

▶ Watch this part of the lecture (1:46:27)

Feminist debate is perhaps sharper here than anywhere else.

The Immoral Traffic (Prevention) Act, 1956

• Originally the Suppression of Immoral Traffic in Women and Girls Act, enacted to give effect to the international convention on trafficking and prostitution that India signed in 1950.
• Defines prostitution as the sexual exploitation or abuse of persons for commercial purposes.
• Punishes keeping a brothel, living on the earnings of another's prostitution, procuring or detaining persons for prostitution, prostitution in or near public places, and soliciting.
• Allows rescue and detention of women in protective homes.

B.N.S.: Section 143 punishes trafficking (recruiting, transporting or harbouring a person for exploitation by threats, force, fraud or abuse of power); Section 144 punishes anyone who knowingly engages a trafficked person for sexual exploitation.

Models of regulation

Model	Approach	Examples
Criminalisation	Criminalises everyone involved.	—
Abolitionism	Sale of sex itself not punished; brothels, pimping and soliciting punished.	India broadly
Nordic model	Selling decriminalised, buying criminalised; the buyer is the source of harm.	Sweden (first, 1999), Norway, Canada, France, Ireland
Decriminalisation or legal regulation	Sex work decriminalised or regulated.	New Zealand (decriminalised 2003); Netherlands and Germany (regulate)

The feminist debate

Dominance feminists (e.g. Catharine MacKinnon)	Sex worker organisations and many other feminists
Prostitution is sexual exploitation and violence against women, rooted in poverty and male demand.	Sex work is work.
Support the Nordic model: it punishes the buyer and treats the woman as a victim.	Criminal laws, raids and forced rescue push sex workers into danger, expose them to police abuse and ignore their choices; they seek labour rights, health services and freedom from harassment.

• The Durbar Mahila Samanwaya Committee in Sonagachi, Kolkata, has organised sex workers for health and rights.
• Dancers at the Lusty Lady club in San Francisco formed a trade union in the 1990s and later ran the club as a workers' cooperative, using labour law for rights in the sex industry.
• Critics of the Nordic model say punishing buyers still pushes the trade underground and makes sellers less safe.

Unit 5: Discrimination in Employment

▶ Watch this part of the lecture (1:51:11)

Autonomy depends on an income of one's own. Gender discrimination works at every stage of employment: it can block entry, limit promotion, create a hostile workplace, punish women for having children, and refuse to count women's work at home.

Unequal access to work

• Official labour surveys show that women's labour force participation has risen recently but remains far below men's; much of the rise is in self-employment and unpaid work in family enterprises, not regular salaried jobs.
• Representation at the top is thinner still. The eighteenth Lok Sabha (elected 2024) began with 74 women among 543 members.
• Only a handful of women have been Supreme Court judges, beginning with Justice Fathima Beevi in 1989. No woman has yet been Chief Justice of India; Justice B.V. Nagarathna is in line to be the first, in 2027.

Discriminatory Service Rules

Struck down	Upheld
Termination on the first pregnancy.	The bar on marriage within four years of joining.
The Managing Director's unguided power to grant or refuse extensions (arbitrary).	Different terms for air hostesses and flight pursers, held to be separate classes, so not discrimination only on the ground of sex.

Equal Pay and Night Work

Article 39(d) asks for equal pay for equal work for men and women; the Equal Remuneration Act, 1976 gave it effect.

• Section 3, Code on Wages, 2019 (since 21 November 2025): forbids gender discrimination in wages for the same or similar work, and in recruitment.
• Occupational Safety, Health and Working Conditions Code, 2020: women may work in all establishments and all types of work, including at night (before 6 a.m. and after 7 p.m.), but only with their consent and with safeguards for their safety, far from the protective laws of Muller v. Oregon.

Permanent Commission in the Armed Forces

▶ Watch this part of the lecture (1:57:31)

Women were admitted as short service commission officers, for a limited term, but denied permanent commission, which gives a full career and pension.

Direct discrimination	Indirect discrimination
Openly treats a person worse because of sex.	A neutral rule with an unequal effect.
Example: the pregnancy rule for air hostesses.	Example: an evaluation standard that ignores women's denied opportunities.

Sexuality and Gender Identity at Work

Gay, lesbian, bisexual and transgender workers face refusal to hire, harassment and dismissal. After Navtej (Unit 3), sexual orientation cannot be treated as criminal, and two judges said discrimination based on it is sex discrimination under Article 15. Under the Transgender Persons Act, 2019, Section 3 forbids unfair treatment in employment, and Section 9 says no establishment shall discriminate against a transgender person in any matter relating to employment, including recruitment and promotion.

Affirmative Action

Article 16, on public employment, has no clause about women. Can the State reserve government jobs for women?

Political and corporate reservation

• The 73rd and 74th Amendments reserved at least one-third of seats in panchayats and municipalities, and of panchayat chairperson posts, for women; many States have raised this to one-half.
• Economists Raghabendra Chattopadhyay and Esther Duflo found that villages with women heads invested more in public goods women had asked for, such as drinking water. Critics point to proxy leadership, where a husband runs the office in his wife's name.
• The one-third reservation for women in the Lok Sabha and State Assemblies (2023, Unit 1) begins only after a fresh census and delimitation. It includes seats for Scheduled Caste and Scheduled Tribe women but no separate quota for Other Backward Class women, which critics call a gap in intersectional thinking.
• Under the Companies Act, 2013 and its rules, every listed company and certain large public companies must have at least one woman director.

Critics of reservation for women	Supporters
It compromises merit.	Merit itself is shaped by unequal opportunity.
It may benefit mainly elite women.	CEDAW, Article 4, treats temporary special measures as tools for real equality.
It can create tokens rather than leaders.	A critical mass of women changes institutions in a way a few tokens cannot.

Sexual Harassment at the Workplace

▶ Watch this part of the lecture (2:04:35)

Sexual harassment at the workplace is one of the most important topics in Gender and Law. Feminists argue that it is about power, not desire: it makes women feel unsafe, drives them out of jobs and keeps them from promotions.

Bhanwari Devi, a saathin (village-level worker in a Rajasthan government women's development programme), tried in 1992 to stop a child marriage in her village and in revenge was gang raped by dominant-caste men. The trial court acquitted the accused, a widely criticised result. Women's groups had already approached the Supreme Court, arguing that working women had no protection against sexual violence at work.

The POSH Act, 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) came into force on 9 December 2013.

• Sexual harassment includes unwelcome physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature; also an implied or explicit promise of better treatment, threat of worse treatment, or hostile or humiliating work environment connected with such conduct.
• Workplace is wide: any place visited in the course of employment, including employer-provided transport, and even a home where a domestic worker is employed.
• Time limit: complaint usually within three months, extendable by another three.
• Conciliation may be attempted if the woman asks, but money cannot be the basis of settlement; otherwise the inquiry must finish within 90 days.
• A false or malicious complaint can be punished, but mere failure to prove a complaint is not a ground for punishment.
• An employer who fails to comply faces a fine of up to ₹50,000.

Internal Committee	Local Committee
Every employer with ten or more workers must constitute an Internal Complaints Committee (the "Internal Committee").	Constituted by the District Officer.
Headed by a senior woman employee; at least half women; one external member from an organisation committed to women's causes.	For smaller workplaces, domestic workers, and complaints against the employer himself.

Me Too (2018): many women spoke publicly about harassment from years earlier, often outside formal time limits.

Maternity Benefits and Leave for Parenthood

▶ Watch this part of the lecture (2:10:03)

Article 42 directs the State to make provision for maternity relief. The Maternity Benefit Act, 1961, as amended in 2017, gave women workers:

• 26 weeks of paid maternity leave for the first two children, and 12 weeks for a third or later child;
• 12 weeks to a woman adopting a child below three months, and to a commissioning mother in surrogacy;
• work from home where the nature of work permits;
• a creche in establishments with 50 or more employees.

The maternity–paternity disparity

Mothers	Fathers
Six months of paid leave.	Most private-sector fathers have no statutory paternity leave; Central Government employees get 15 days.
Women Central Government employees may take child care leave.	Single male parents in Central Government service may also take child care leave.

Feminist scholars see two problems: (1) the law tells society that caring for a baby is the mother's job alone; (2) since the employer often bears the whole cost of maternity leave, some employers avoid hiring young women. Lakshmi Lingam and Vaidehi Yelamanchili note that maternity benefits reach mainly women in formal jobs, while most Indian women work in the informal sector; for them, the National Food Security Act, 2013 promises a maternity benefit of at least ₹6,000 through a government scheme.

Reform proposals: shared parental leave, including leave reserved for fathers that is lost if not taken; and public funding of maternity benefits, so employers have no reason to avoid women. Menstrual leave is granted by some States and employers; supporters see it as recognising a real need, others fear it will revive the stereotype of women as less capable workers. The Supreme Court has treated it as a policy matter for governments.

Counting Women's Unpaid Work

Much of the work that keeps society running (cooking, cleaning, fetching water, caring for children, the sick and the elderly) is done by women at home without pay, and economists and national accounts have traditionally treated it as outside the economy. New Zealand politician Marilyn Waring, in If Women Counted, showed that standard measures of national income ignore unpaid household work, so a woman who works all day at home is recorded as producing nothing.

Time Use Survey	Women (minutes a day)	Men (minutes a day)
2019	About 299	97
2024	About 289	88

The figures are for those doing unpaid domestic work for their households: women spend more than three times as long as men.

In the Abdul Samad case (Unit 3), Justice Nagarathna urged husbands to share financial resources with homemaker wives.

How to recognise unpaid work: some feminists demand wages for housework from the State; others fear this would fix women more firmly in the home. Many prefer three steps: counting unpaid work in national statistics, giving homemakers a share in matrimonial property, and sharing care work between men and women.

Unit 6: Gender Stereotypes – What Stereotypes Do

▶ Watch this part of the lecture (2:17:08)

When the State, police or courts act on them, stereotypes become decisions about liberty, jobs, custody and justice.

• Article 5 of CEDAW (see Unit 1) requires States to change social and cultural patterns based on stereotyped roles for men and women.
• Stereotypes hurt men too: beliefs that men cannot be victims of sexual violence, or that fathers are not real carers, shaped gaps in rape law and parental leave.

Handbook on Combating Gender Stereotypes (August 2023)

Released by the Supreme Court for judges and lawyers; it suggests neutral alternatives to stereotyped words.

Stereotyped term	Suggested alternative
Eve teasing (makes harassment sound playful)	Street sexual harassment
Housewife	Homemaker
Prostitute	Sex worker
Chaste woman / fallen woman	Woman
Provocative clothing	Clothing

It also explains why assumptions such as "a woman who does not cry or resist cannot have been raped" are false.

The Ideal Victim

▶ Watch this part of the lecture (2:18:57)

Nils Christie's ideal victim

Society most readily grants full victim status where:

1. the victim is weak;
2. she is doing something respectable;
3. she is in a place where she cannot be blamed for being;
4. the offender is big and bad;
5. the offender is unknown to her;
6. she is able to make her case heard.

The ideal rape victim

Popularly imagined as a young, chaste woman attacked by a stranger in a dark lane, who fights back and is injured. Real victims are measured against this ideal and found wanting.

Imagined ideal	Reality of most rapes
Attacker is a stranger	Committed by men the woman knows
Victim is injured	Often no visible injury
Victim fights back	Many survivors freeze rather than fight

Critical race scholars such as Lisa Long add that the ideal victim is imagined along lines of race; in India, of caste and class, so an Adivasi or Dalit woman, or a sex worker, is less readily believed.

How the law now answers these assumptions

• Absence of physical resistance is not consent.
• The survivor's past sexual history is irrelevant to consent.
• In aggravated cases (e.g. rape by a police officer in a police station), Section 120 of the B.S.A. creates a presumption: once intercourse is proved and the woman tells the court she did not consent, the court presumes she did not consent.

Stereotypes move to sentencing

Mrinal Satish found that, once barred at the guilt stage, stereotypes moved to sentencing: the victim's marital status, virginity, resistance and relationship with the offender came to affect the rapist's sentence.

The Reasonable Man

▶ Watch this part of the lecture (2:24:43)

The common law measures conduct against an imaginary sensible person, "the man on the Clapham omnibus" (an ordinary London commuter), who decides negligence, reasonableness of fear, and provocation. Feminists ask: who is this reasonable man, and whose experience does he reflect?

Provocation

Exception 1 to Section 101 of the B.N.S. (carrying over the old law): culpable homicide is not murder if the offender, deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation.

Note "same class of society": Bernard Brown criticised colonial courts for applying an English ordinary man to very different cultures; Indian law adjusted the test to the accused's community.

A defence built around male anger

• An English judgment of 1707 held a husband who kills a man caught in adultery with his wife guilty only of manslaughter, calling adultery "the highest invasion of property".
• Sudden loss of control fits a man's quick rage, not a woman who, after years of beatings, kills her abuser while he sleeps because she could never win a fair fight.

In 2009 English law replaced provocation with a loss of control defence that no longer requires the loss to be sudden.

Feminist division: Katherine O'Donovan and others warn that "battered woman syndrome" evidence can portray the woman as psychologically damaged, not as a reasonable person facing real danger. The aim is a standard of reasonableness that includes women's experience, not a special excuse for weak women.

Reasonable man, woman or person?

Standard	Use / argument	Comment
Reasonable woman	Some US courts, in sexual harassment cases: conduct many men see as harmless may threaten women	Critics: a separate standard may suggest women are more fragile
Reasonable person	Later used by the US Supreme Court, judged from the position of the person concerned	Indian law increasingly speaks in neutral terms

Dworkin, MacKinnon and the Anti-Pornography Movement

• Andrea Dworkin, Pornography: Men Possessing Women (1981): pornography is not just offensive material but a central practice of male dominance.
• Catharine MacKinnon: pornography is not merely speech about women but a practice that subordinates them, in its making and its effects.

The Minneapolis model law (1983)

Drafted by Dworkin and MacKinnon as a civil rights law, not an obscenity law about morality.

• Definition: the graphic sexually explicit subordination of women through pictures or words, with further features such as presenting women as enjoying pain or humiliation.
• Remedy: damages for women harmed, e.g. by coercion into performing in it, having it forced on them, assault caused by a specific work, or trafficking in it.
• Passed twice by the Minneapolis city council but vetoed by the mayor; Indianapolis enacted a version in 1984.

The feminist "sex wars"

Anti-pornography feminists	Anti-censorship feminists (e.g. Feminist Anti-Censorship Taskforce)
Pornography harms women as a class	Censorship laws are usually enforced against women and sexual minorities
The law must respond	Women have their own sexual agency; the State is not a reliable ally in matters of sex

Both sides call themselves feminist; the debate continues, especially over online content. In Butterfly Politics, MacKinnon argued that small, well-placed legal changes can produce large social effects, like a butterfly's wing-flap.

Obscenity Law in India

▶ Watch this part of the lecture (2:32:43)

• Article 19(1)(a) guarantees freedom of speech and expression; Article 19(2) permits reasonable restrictions in the interests of decency or morality.
• Section 294 of the B.N.S.: sale or public display of obscene material, now including electronic content.
• Section 296 of the B.N.S.: obscene acts and songs in public places.
• Information Technology Act, 2000: publishing obscene or sexually explicit material electronically.

From Hicklin to community standards

Point	Hicklin test (Ranjit D. Udeshi)	Community standards test (Aveek Sarkar)
Question	Does it tend to deprave and corrupt those whose minds are open to immoral influences?	Is it obscene by contemporary community standards?
Viewpoint	The most vulnerable reader	The average person
Scope	Could condemn a whole book for a few passages	The work as a whole and in its context

Context matters

Indecent Representation of Women

Indecent Representation of Women (Prohibition) Act, 1986

• Prohibited in advertisements, books, pamphlets, photographs and other material.
• Exceptions: works of art, science, literature and religion.
• Punishment for a first conviction: up to two years.

Feminist views are mixed: it recognises that images can degrade women, but its public-morality language is vague, it treats women mainly as objects of protection, and it is rarely enforced. A 2012 bill extending it to digital media has not become law.

Newer offences on image-based abuse

• Voyeurism (watching or capturing images of a woman in a private act): Section 77 of the B.N.S.
• Stalking: Section 78 of the B.N.S.
• Information Technology Act: capturing or publishing images of a person's private areas without consent.

Performing Arts

The language of protecting women's dignity can also be used to control them.

The Devadasi system

Under this system girls were dedicated to temples, where many became dancers and musicians and some were sexually exploited. After campaigns by reformers such as Dr. Muthulakshmi Reddy, the Madras Devadasis Prevention of Dedication Act, 1947 banned it, followed by Karnataka (1982) and Andhra Pradesh (1988). Historians debate whether reform freed these women or also erased their art and livelihood.

Dance bars of Maharashtra

In 2005 Maharashtra banned dances in bars and restaurants (exempting hotels of three stars or more), defending the ban as protecting women's dignity.

Film certification

Gautam Bhatia, borrowing a phrase of the European Court of Human Rights, argues that free speech must protect even ideas that "offend, shock or disturb".

Applying the Unit: An Illustration

Quick revision

▶ Watch this part of the lecture (2:40:19)

• The subject runs from the difference between sex and gender to the stereotypes that shape the reasoning of courts.
• Ask the woman question: look behind every neutral rule for its real effect on women and sexual minorities.
• Name the provision and the current law – including the new criminal codes and the labour codes – and support it with the leading case.
• Distinguish similar ideas clearly, with an example: formal vs substantive equality; direct vs indirect discrimination; the Nordic model vs decriminalisation.