Class 1 : 29th January, 2019 - Overview

Gender and law

I. Patriarchy -
● Men hold the power and women excluded from such a system - Narrative comes and
revolves around the man.
● Systematically subordinates, discriminates or is oppressive to women
● Carole Pateman - Twin principles that needs to be addressed
● Patriarchy is a concept, theory which comes into practise through various wheels -
❖ Misogyny - general prejudice or discrimination against the women - subset of
patriarchy and does not exist in vacuum - not merely hatred against women - but
hatred against women who are not subordinate, women of power and status…..
-Greek Origin - gynae - women - misein - to hate
❖ Sexism - In misogyny- there is an element of negativity - here it is not necessary
(in sexism) - belief that men are superior to women
❖ Misogyny and Sexism - relation
❏ Both drive patriarchy
❏ Misogyny is a larger circle, sexism is the smaller one - All sexism are not
misogyny - “Ladki ki tarah mat ro” - element of hate/ negativity absent.
❏ Misogyny - hatred or hostility for being women in a man’s world;- law
enforcement branch of patriarchy
Sexism is more subtle than misogyny
❏ Easier to throw out misogyny using law but sexism will take more time.
● Why study Gender and Law?
❖ Reasonable man - R v. Kiranjeet Ahluwalia - Man beat her wife up for fault in
dal- Burnt the man alive next day- Women advocate said - Grave and sudden
provocation defence should be allowed - used when you act in reflex - hence not
allowed- Court looked at concept of a reasonable man - women cannot hit him
the way a man does - Cooling off period read as boiling over period - sudden
cannot be just on basis of reflex- the term needs to be seen on a gendered
perspective (battered wife syndrome looked at)

Class 2 - 30th January, 2019 - Feminist Jurisprudence

Some Feminist Discourses -

● Origins -
Feminists when they were trying to address certain questions - there was a need to
theorize which gave rise to critical ideas - already existing ideas of equality, etc. seen.
(principal of CLS movement) - Women’s movement where people came together on
streets also influenced this - introduction of department for women studies in leading
Universities - attended by women in the evening after ‘chores’ were done with - reading
of such literature increased their enrolment for study of the law- realised the clear and
 horrific vacuum that exist in the law - ‘Man’s world’ - provisions were analysed. First
conference in 1978- another conference of Critical Legal Studies in 1983 - “CLS Session
on Feminism”- all women sat together accidently- women could feel the energy as a
group during the talks - started questioning what was happening- voice emerged - “Fem
Crits” - Women were actually put down for asking question - but the movement had
started - in the USA.
● Rise of Gender as a Movement - First Wave of Movement- upsurge of the idea- lot of
activities dedicated to this - starting and ending date - expired eventually - unlike the
second and the third wave. During the First Wave, unlike second and third - it wasn’t
called a wave as people did not know it was a movement - hence it was started to be
called a wave only after the second wave started. Second and third wave denoted as
wave as and when they happened.
❖ First Wave (1830-1900) - right to vote, property rights.
❖ Second Wave (1960s- 1980s) - “personal is political” - Catherine Mc Keinan-
equality at workplace, reproductive rights, sexuality, family, emergence of UN
bodies and CEDAW
❖ Third Wave - 1990s to 2008- Individualism and Diversity
● First wave - representation in the civil society - right to vote including right of a women to
contest elections- and to a limited extent about property rights - Property required to
contest elections - in order to achieve political rights
● Second Wave - different subject wise and at representational level - First wave only
involved the white - here other races involved - which led to various versions of the rights
being demanded - Why should the state interfere in a woman’s body? (personal matter) -
the Slogan “personal is political” came to the fore- laws on such personal matters - make
it to be included in the political matters.Subject matters- Reproductive rights
(contraception, childbirth, free access to reproductive healthcare, ……)
● Third Wave of Feminism - Additional Issues involved- Stereotypes, morality aspects, etc.
are being questioned-
● Post Modern Feminism (post 2012) - Cyber Bullying, Motion Pictures, Prostitution,
Surrogacy, etc. - Total Bodily Sexual Autonomy

Class 3 - 6th February, 2019 - Feminist Jurisprudence

● Feminists started to write their literature - Marry Wollostinecraft - Vindication of the rights
of a woman - two things discussed : Political social representation of women, material
owning (property)
● After studying law and other discipline, fundamental question of gender studies in law
came up - law’s contribution in constructing, maintaining, re-informing and perpetuating
patriarchy and ways to eradicate this patriarchy.
● Primary Concerns : In Gender and law studies, what cannot negate other domains of
‘Public-Private’, ‘Oppression faced by the women’ and “Sexism and Class’- gender
needs to be read with class - right to vote - middle and upper middle class only involved-
concerns of women of other social order left unanswered.
 ● Catherine Makeinan - For a women, Personal is Political as she is kept away from the
political sphere - role of law in perpetuating this dominance also needs to be seen.
● Look at law - Enquiries in Feminist Jurisprudence
❖ in what way and extent does it describe women’s subordination - Property laws
in case of inheritance by a woman.
❖ How - through which mechanism and why the state perpetuates such
dominance- State Intention seen.
❖ How to bring about a change in the position - radical feminists say entire thing
should be demolished, liberal feminists don’t want to demolish the entire system,
just make amends
● Questions while looking at the law
❖ Women’s experience in life
❖ Assumptions behind the provision
❖ Identify the mismatch - between experience and the assumptions - helps us see
how this perpetuates a discrimination
❖ What patriarchal interest would be served by such mismatch
❖ Proposed reforms - what are the reforms proposed, and to what extent such
reforms have/will help(ed)
❖ In an ideal world, what would her life look life - will the life be better or status quo
will be maintained, the future
❖ How do we get from question 5 to 6.
● Challenge of the law - Laws were drafted by man, for men, keeping men in mind.
● Dichotomy of Equality and difference - Mc Keenan - We can to get to equality but we
cannot forget fundamental differences between a man and a woman

Class 4 :
Women Movements in India
● Divergent Understandings of Patriarchal Oppression -
❖ Development of small intellectual groups of women and men and women both.
❖ Mass movements showing greater solidarity
❖ Groups with specific focused campaigns - focused issues
❖ Groups developing agenda - agenda to be labour welfare legislation, education,
etc. - groups used to set this and how we reform these areas
❖ Individual writing
● History has considered women on second front -
❖ History of Doing - Radha Kumar - history longer than the current second wave
feminism - Shakti Cult - formidable force in itself - did not come up as a reaction
to some institution - indigenous foundation - thus concept not western totally.
❖ Social Reform in Pre Independent India -
❏ Amar Jiban (Rassundari Debi) Writer - Deplorable state of women in
West Bengal - Towards end of every chapter, silent plea to join the
movement
 ❏ Pandita Ramabai - represented women in INC and worked towards
empowerment - wrote the book high caste Hindu - loud slogan for
opposing various policies
❏ As part of Freedom Struggle
● In India, connected with the western movement -
❖ Women’s India Association 1917 connected with British Women’s Movement -
agenda was same - right to vote - political representation for women
❖ National Council of women (1925) - inspired by International council for women
❖ All India Women Conference (1927) - got merged with Indian Women’s
association later
All of them were set up by foreigners - western influence was present.
● Years between 1880-1940 - India’s first wave of feminism - Features
❖ Champions for movement were men
❖ Causes picked up benefitted the upper women
❖ Most causes were supported by the British
❖ Earliest Legislation - Age of Consent Act, 1891 - marriage age increased from 7
for boys and 5 for girls
● Higher Nationalist Ideals did not support these issues as british already supported them -
the movements were hence not merged.
● Draft Hindu Code Bill - Public Life changes not accepted in Private Sphere.
● Women’s participation in the struggle of independence- Gandhi called for women for a
more inclusive movement
● Salt Satyagraha - More women participation than men
● During this time only, many women organisations came up - Desh Sevika Sangh, Nari
Satyagraha samiti,...... functioned even in smaller towns.
● The Dilemma - What is it that a women can do? Fight the imperial oppressor but also
have to question its own Brachmanical setup - in wake of the national movement the
Brahmanical order was not attended to well - The existing setups of the men was not
questioned till Britishers went out.
● Another problem was that the concept of feminism was considered anti national. It is not
indian and goes against existing traditions (Mitakshara for example)

Class 5 : 12th February, 2019

● Visions existed - Are we rejecting feminism as a western concept when we have other
foreign concepts that we have borrowed from the west?
● It isn’t as alien to Indian setup - Naari Shakti, etc
● Early Approach - Not all the existing setups were being questioned - But within the
system, there were asking for reforms - making of those laws which would protect them -
The system was not to be abolished by such laws.
● This principle found endorsement in many policies especially in the early days of the the
movement - There was some resistance then - later resistance increased.
First stage of resistance (Specially during drafting the Hindu Code Bill) - Roadblocks
❖ was restricted to urban areas as posters were in English
 ❖ Anti Men - Eg - Abolition of Mitakshara
❖ Will break the traditional edifice of the system - especially the institution of family
- which was very closely knit
❖ Lacked in mass reach
● Post Independence India - (1950-1965)
❖ With Constitution, a right regime started - Part III - Special rights to women and
children came into being - separate public discourse for women disappeared due
to assurance from the supreme law of the land
❖ Bad Political Position - Diversion of attention to other important issues of partition
and unrest.
❖ Newly Independent state - Poverty and unemployment - focus of not just India
but the whole world - Factory related legislation, labour related legislation - call
for equality undermined.
● 1970s - Peasant Movement and Student Movements
❖ 1972 - Gujarat Movement - Corruption and Accountability by a student
movements - later women's movement borrowed from this
❖ Chipko Movement - involved a lot of women - and access to public resources
(before this the discourse was restricted to private property) - now talk of equal
access to natural resources.
❖ The Shahada Agitation (1974) - Two Bhil women were raped by the landlords -
the whole community was affected - led by the women - influenced peasant
movements across the country - first one led by women and Bhil women went
door to door and asked the men to join them - Militant slogans, revolutionary
approach, call to join the Shramik Sangathan - now the movement isn’t restricted
to the urban areas - it has percolated down.
Outcome : Started as a movement for right for daily wages - by product were
three aspects - 1) family violence 2) Wife beating 3) Alcoholism - Not just public
rights claimed but also private life in their homes. Strategies for countering all
these were looked at.
❖ Later movements in Hyderabad, Gujarat
❖ SEWA in 1972 - Self Employed Women’s Association - Women’s trade union
movement - under Ila Bhat - addressed only those women who were in informal
sector - 3 point agenda - 1) TU movement for women in informal sector leading
to networking and art of collective bargaining - normal protest movements -
Police and contractors were to be handled - strategies for the same were to be
seen. 2) All such works (cleaning roads, in own fields or as landless labourers)
should be recognised - so that some labour rights be granted. 3) Development of
skills through training
❖ Nav Nirman Movement - Lok Niti (people’s policy) - gave a call for asking for
rights of women on basis of rule of law - democratic principles emphasis
❖ Progressive organisation of women, 1974
❖ Towards Equality Report, 1974 - could be translated into Three Parts
❏ Deplorable conditions of women at all level - At family, political representation,
access to education, all such spheres seen.
 ❏ Create working strategies or models to being about those structural changes that
are perpetuating such inequality
❏ To compile academic literature on the subject in terms of advocacy, research,
documentation, extension programmes, etc.
★ Women's Movement in India traces from this report
★ Other things that influenced the movement at International level - 1)
International decade of Women (1975-1985) - CEDAW 2) World
Conference of Women, 1975 - end of conference - a report called word
plan of action came into picture.
★ Parallely at national level : First National Committee on Status of Women
- at all national levels - called for towards equality report, 1974
★ Review : 2002 : Report on National Commission for Women in 2002 -
Towards Equality : The Unfinished Agenda, The Status of Women in India
: look at the unfinished agenda of the previous report.
● Later 1970s - Autonomous Women’s Movement - NGOs solely dealing with women
issues came up -All these NGOs different form the earlier setup - 1) demolished the
vertical order and established support groups/ agitational groups/ grassroot groups 2)
local self governance bodies 3) research and documentation centre 4) women wings of
the political parties. Various factors substantiated this
❖ Mathura Judgement
❖ Law Reforms especially in the Indian Evidence Act
Events led the women to realise that no political parties had understood the revolutionary nature
of the movement that went out throughout 1970s. Hence need to reform laws was felt
● 1980s
❖ Dowry Prohibition Act, 1961 was not helping hence a special provision s304-B
was inserted. - 1980s - Involvement of state in family matters/ homes increased
❖ Shah Bano - Muslim Women’s Act, 1986
❖ 1987 - 4th September - Roop Kawar - died on funeral fire of her husband - village
saw the whole thing - It was stated in the court that the women was ready to do
so but others said she was not - sparked a movement - led to two things- 1) Sati
(Prevention) Act, 1987 - Even glorification of Sati was an offence - on 13th day -
Chunri ceremony done by women to glorify the Sati - later also made a temple on
her name - Arrests took place after the incident - most of them acquitted later -
the legal intervention has led to abolishment of Sati
● Academic Wing of the Movement - in light of the Report - Women Studies Groups came
up - now under the aegis of NCW - separate department called women studies has
come up - they document the happenings, etc. venture into 6 important things
❖ Research
❖ Teaching
❖ Documentation
❖ Extension
❖ advocacy programmes
❖ Dissemination
● Women’s engagement with Law -Rights wing - creation for rights and the other is
Empowerment Wing - not seeking new rights but seeking empowerment through within
-valid bargaining power within the setup - Sexual Harassment of Women at Workplace,
Property rights and one more,

Class 6 : 13th February, 2019 - UNIT 2 - Women and the body - Legal Discourse

● Majorly Two parts to the deabte - rights to procreate/ reproductive rights and law relating
to pornography (Sexuality and woman’s body)
● Autonomy - right to make certain personal decisions without undue interference from
others
❖ Links the women’s movement to HR movement
❖ Closest to principle of liberty
❖ Connected closely with liberty, self determination (Rebecca - should be
introduced in the women’s life as a group right) and privacy
● Reproductive Autonomy/ Procreation Autonomy
● Autonomy - roots in idea of liberty - keeping aside all variables - leaving the person
alone - unless it affects the society / harms the society or its morals - Autonomy is also
an inalienable right and universal in character
● Procreation - different from adoption - by virtue of a gametic fusion, the person creates
its biological descendants.
● Why do we need a law if the right is so intrusive? Since when has the government
entered the domain of reproduction? Why is there a need to govern this behavior?
In earlier days when there was minimum technology - there was least governance - with
more technology, more governance was required - Eg: contraception - stalls birth - the
time when individuals started to plan this - governance came into being. Eg: Abortion -
pills and techniques called for governance - Idea of Intent came in - One could plan -
Governance came in.
● Autonomy discourse lies at the core of three level dimension of procreation, privacy and
state intervention. These three limit the notion of autonomy - Competing Rights emerge -
State Intervention
● Phase -I - Foundations - minimum protection - changed with coming of HR
❖ Initial ripples due to state intervention
❖ 19th Century - Minimum governance
❖ First kind of legislations dealt with - with whom could a women have coital
relationships with?
❖ Community morality - procreation without marriage and an offspring out of it
would be illegitimate
❖ Buck v. Bell (1927) - feeble minded lady and her mother lived in a government
shelter home- both of them were feeble minded - daughter was raped and she
did not know - abortion - state said no procreation for such sort of a family - lot of
costs for state - concept of sterilization - all feeble minded people will be
sterilised. Compulsory sterlization - Sterlisation is the technique - compulsory due
to state action.
 State said that petition is a genetic threat, there is a need for intervention -
concept of Eugenics came into picture.
US SC upheld the policy.
1927 - WW1, HR movements going on
❖ Skinner v. State of Oklahoma (1946) -Part of Phase 2 (used for distinction
here) US SC - Habitually doing sexual offences (Habitual offender)- Sterlise such
a person by force - this legislation was challenged - UN charter in place -ground
set for HR - case touches important areas of HR - right to have offspring -
Procreation seen from a rights angle - value of procreation deserves more than
mere passing protection - as it is linked with the constitutional notions of the state
- merits constitutional protection - legislation was struck down. - The act of
procreation is one of the basic civil rights of the man - needed for survival of the
man (fundamental in nature)
● Phase -II - Rise of Technology
❖ Contraception
❏ Easily available, free of cost
❏ Religious and social understanding - Marriage done for procreation -
replenish human race and do not stall birth - severe resistance - legal
resistance clearly visible - legislation banning the sale of contraception -
❏ Landmark ruling Griswold v. Connecticut -(1960s) contemporary
understanding sees this as starting point of reproductive rights discourse -
connected closely with privacy and non intervention - state cannot enter
into precincts of marital bedroom- State cannot breach something as
sacred - State to ensure that this Constitutional value of privacy is
ensured.
❏ Almost on same fact, another case Planned Parenthood of
Southeastern Pennsylvania v. Casey - Planning of family was an alien t
concept before this - Court read into the principle of privacy and linked it
with autonomy - involved intimate and personal choices -
dignity,autonomy - Fourteenth Amendment read into this.
❏ Constitutional vision for protection of procreational interest was the trend
❏ After UDHR, ICCPR and ICESCR came into being - govern several
aspects of human existence including right to marry and form a family of
their own choice. Right to found a family under Art 23 ICESCR - includes
right to procreate and even right to not procreate.
❏ Historic Ruling of Row v. Wade (1973) - Whether third trimester abortion
should be made legal or not - Lady wanted to terminate her pregnancy
and she was into her second trimester- Court says that we will not only
look into your right, but also there is something called fetal rights - there is
a conflicting interest. Unnaturally stopping birth - moral responsibility of
state to intervene and legislate. Remembered for 1) giving birth to debate
of pro choice v pro life - coined the slogan. Right of the foetus to survive v
right of women to end life. 2) Divided the pregnancy into three trimesters-
as an when you progress - state intervention is tightened/ increased. 3)
 Categoric shift to the understanding of concept of bodily autonomy. Bodily
autonomy has a limit to it.
Not allowed to abort.
● Phase III - The Feminist Agenda - Reproductive rights are those category of
rights which gives birth to women’s right movement as distinguished from other
rights being demanded by them. Three important events/ meetings - All three
locations known for gross women right violation - genital mutilation, sexual
violation of a women’s integrity, Beijing known for population
❖ Tehran (Iran) (1968)- Tehran Conference - looked at the meaning of
reproductive rights- no pointed understanding or substance laid down but
it said that it includes bundle of rights - penumbra of reproductive rights
talked about. Contribution - unanimously accepted idea that a women has
a right to procreate or not to procreate and the decision wrt the number
and spacing of children lies in the women’s domain including right to do
away with unwanted births, abortions, etc. Right to healthcare ( free and
accessible). Consent in terms of marriage also became important thereby
marital rapes also told to the police authorities.
In three years, In india, Medical Termination of Pregnancy Act, 1971
came into picture in India - seen as inspired from Tehran Conference.
The only problem was that the reproductive rights were still not defined -
still does not garner the areas of rights and duties. The voice of tehran
seen in various conferences.
❖ Cairo (1994) - two decades later - UN Conference on Population and
Development - not a CEDAW kind of conference - but a population centric
conference - rights of women to terminate the pregnancy were talked
about - all possible ways (under the garb of rights to women) to control
population.
Now, the dimension is not just physiological aspect of the women -
psychological, emotional and other well being of a women also seen -
Language is far more mature than Tehran.
[ Two approaches in Feminists here are using already existing literature
on autonomy, consent, etc….. And Absence of few things call for
presence of few things that the state should provide for ]
❖ Beijing

Class 7 : 20th February, 2019 -

● Phase IV : Non Coital Reproduction : In Vitro Fertilisation / Test Tube Baby

Technology - IN Britain for the first time in 1978 - inside a glass or inside a
container - received a lot of publicity - Loius Brown born under Dr. Stepto - In
 India also, In Bengal also a baby was born - Durga - born in a refrigerator by a
government doctor trying his own research - India didn’t take it well as it was not
a government sponsored project and also the fact that Indians did not take
keeping sperms and eggs in refrigerator well - 1986 - Government recognised
IVF baby Harsha was born.
❖ Potential so much that there can be multiple parentage - no father,
mother or even multiple fathers, mothers
❖ Genetics can be played with - colour of eyes, etc. can be decided.
● Differences in Technology - Type 1 (Abortion, Sterilization, Contraception) and
Type 2 (Non Coital/ Artificial)
❖ Type 1 - Anti Procreation. Type 2 - Propelling procreation or pro life.
❖ Type 1 - Inside the Body Type 2 - embryos stored outside the body -
women has to part away with her eggs - gametes not functioning in their
own body - once out of the body, three months later if you want to do
away with the baby, the right will lie with the surrogate mother.
❖ Type 1 - Procreational partners who are husband and wife involved -
generally within the marital regime. Marital Bedroom Type 2- Ask for
collaboration - opens up the idea of marital regime - Question of who will
be the parent comes into picture.
❖ Type 1 - Not an industry, almost freely available Type 2 - Has become an
industry in itself - when one cannot sell his kidney, how can one sell the
womb.
❖ Type 1- one women Type 2 - Competing interests of two women (what if
the surrogate mother later refuses and the real mother wants to have a
child)
❖ Type 1 - Technology - simple technique - does not require a lot of
intervention. Type 2- very precise and detailed - can decide the colours,
features, etc.
● Human Arrangement of Surrogacy - basically arrangement between biological
parent and other women - where the women agrees to gestate the egg in her
womb and then give the child back to the biological parents - exists in 2 varieties
- In India only one of it is approved -
❖ Surrogacy has two versions - Altruistic (done without any cost, by family)
and Commercial (ask for money, via advertisement or clinic).
❖ It can also be classified as traditional or full surrogacy - women will be the
wife of the man till the process takes place. Egg is hers, womb is here.
She is both gestational and Genetic mother. The other is Gestational
Surrogacy - Surrogate only gives her gestational services - Egg is not
hers (could be of biological mother or even anyone else) - Womb is hers.
Only womb is rented.
● Rights of a child -
❖ Who is the mother? Dichotomy in understanding of Genetic or
Gestational. Or Intentional mother - not her egg, not her womb - Intended
to have the child. Three mothers / Three Fathers.
● In re Baby M - 2 Husband and wife Couples (Sterns and Whiteheads) - Sterns
do not have a child due to wife’s chemotherapy - Whitehead is married and have
two children of their own - case of full surrogacy - the clause of the contract read
that she would relinquish all rights in favour of the Sterns. But during the process,
whitehead developed cold feet that she could not hand over the child - at birth,
she said that the baby was a clone of her other baby - ran away with the baby -
matter went to the court - whose child is it, what is the validity of the contract?
The court noted the following
❖ Whitehead being the biological mother shall have the visitation rights to
baby melissa. However, the parental rights are vested with the Sterns (it
is a one time arrangement)
❖ Court categorically noted that surrogacy contracts are invalid especially if
it has been done through a commercial arrangement.
● Baby Manjhi Yamada v. Union of India (2008) - only SC judgement with
division bench on commercial surrogacy - Japanese couple - Mr. and Ms.
Yamada - were not able to conceive - Surrogacy was not valid in Japan back
then - they looked online and found a clinic in Anand in Gujarat - supporting
international surrogacy arrangements - contract with the surrogate - genetic
materials given - eggs called from somewhere else - surrogate was a local
Gujarati women - Successful conception - money given to surrogate mother -
marital discord leading to divorce - the lady now refuses to have the baby- Baby
was born and no one was there to take care of her. Mr. Yamada’s mother came
down and took the rights of the child for some period. SC noted
❖ As a temporary/ one time arrangement, court granted passage of the
child from India to Japan with parental rights to grandmother and the
father. (Co parents) No rights of the women.
❖ Commercial surrogacy is prevalent in India though there is no legislation
in this regard. Misconstrued by many as court saying that it is legal -
which is not true.
❖ Gave birth to Assisted Reproductive Techniques Guidelines 2009
● Current Guidelines in India
❖ Only gestational surrogacy is permitted in India. Full surrogacy is totally
banned.
❖ Intentional parents shall be declared as the real parents for all practical
and legal purposes
❖ At Least one of the Intentional parents have to provide genetic
components.
❖ If they have a child already, either biological, surrogate or adoptive, they
are not entitled to another surrogate child.
❖ Surrogate has to be a married with at least one biological child living.
❖ If she is married with a husband alive, consent of surrogate husband is a
must.
 Class 8 : 26th February, 2019 :

● Earliest Legislation : IPC 1860

❖ Section 312-318- Miscarriage (Offences against human body)
❖ Three common characteristics - (a) dealt with miscarriage and not
abortion; (b) all of them are cognisable and non bailable - reflected the
seriousness of the act/ omission (c) gender neutral approach of the
section - if the women herself is involved, she would be treated at par with
the male/doctor/ any other person involved.
❖ Section 312- Causing Miscarriage - Explanation - She herself also does
not have the right to cause miscarriage. a) Limited type of miscarriage
permitted if it was for saving the life of the mother (happened before Roe
v Wade) b) If it is not for the purpose of saving the life of the mother, any
person causing miscarriage would be booked under this.
❖ Section 313 - Causing Miscarriage without the consent of the woman -
Additional or heavier penalty.
❖ Section 314 - If death of the woman is caused
❖ Section 315- If anything is done which prevents the live birth of the child
● Medical Termination of Pregnancy Act, 1971 (two years before Roe v Wade)
❖ S3 - when can a woman undergo procedure for termination of pregnancy
❖ The sector was largely unregulated
❖ A committee was established- Shah Committee - look at the scenario,
should there be a right? Should it be limited?
❖ Provisions drafted on the basis of this committee’s report
❖ Various issues of unwanted pregnancies seen - Compassionate and
Medical ground’s termination allowed.
❖ Medical - Methods of termination were really bad and ruthless - sharp,
uncleaned, poisoned - need for certified procedures came up.
❖ Compassionate - Unfair for 15 year old child to bear a child due to rape
❖ S3-
a) 3 trimesters - upto 12 weeks - had right to terminate the
pregnancy - foetal growth was not that much; 12-20 weeks
- problems do occur- discovered pregnancy late- needs to
undergo a procedure before getting a green signal to
terminate
❏ can be allowed if continuation of pregnancy is a
threat to life of the pregnant women / grave injury to
her physical or mental health.
❏ Substantial risk that to that child
❏ Caused due to rape/ incest
❏ Caused due to contraceptive failures (specific to
married women)
 b) Who can terminate this pregnancy - individual called RMP
- Registered Medical Practitioner - qualifications laid down
by the rules
c) Where can you get it terminated - Any government hospital
(they will have RMPs and access to abortion facilities),
private clinics certified by the Government
d) Whose opinion is important - Whether state is getting
involved (see as an evolution from starting principle of
autonomy) - consent procedure involved - if criterion is
met, consent of mother is required. She does not require
consent of no one else. If Minor, consent of guardian
required, who need not be parents (eg government home -
if taken to a government home after a rape) - Minor in not
just women below 18 - but also a lady with mental
retardation of a grave kind. <12 weeks, 1 RMPs consent
required. Between 12 to 20 weeks, 2 RMPs required.
Beyond 20 weeks, RMPs are not authorised.
e) Problems : What if she discovered the pregnancy very
late? What if the second RMP not available in the hospital
when she was tested? Hence it became pertinent to
amend it
f) 2014 version : addressed the limited number of RMPs -
expanded the scope to include AYUSH doctors -
Ayurveda, Siddha, Unani or Homeopathy; Increase the
gestation limit beyond 20 weeks as foetus still not
developed enough to live on its own in the world; use the
latest procedures, in the second trimesters - two RMPs
were required - now make it 1. Contraceptive failures
should not be limited to a married women.
● Meantime, Compulsory Sterilisation was brought in - Bacche 2 hi acche - Chota
Parivar Sukhi Parivar - Government funded this- Postal stamp on family planning
- all sterilization techniques were not freely available - incentives were also given
- Women sterilization is an invasive procedure.
● To propel this policy, acts were made - seen in BK Parathasarathi & Ors. V.
Government of AP & Ors. - Disqualification of persons holding an elected office
due to birth of an additional child - was upheld by the court - on the basis of it
being a social welfare policy.
● Endorsed later in SC in Javed and Others v. Haryana and Others. (2003) -
Talking of privacy is right but social welfare also important- even though harsh in
disqualifying the person but justified.
● To add on to the scheme of these things, a new technology came in - the
Ultrasound Technology - one can identify if it is a boy or a girl child - Report
published stating that there is a sudden drop in the sex ratio in Punjab and
Haryana - Sex Selective Abortion - required conception of PCPNDT Act - bans
 ultrasound revealing - and all such clinic where Ultrasound clinics present need
to be registered and monitored.
● Pre Conception Technology also came in - work in such a way that there is no
genetic abnormality - PC was added to PNDT due to this reason. Preconception
regulated / sex selection.
● CEHAT and Dr. Sahu George v UOI - better implementation of PCPNDT Act
● Latest version - purchase of Ultrasound Machine regulated - earlier anyone could
buy/ import
● Renewal of licenses and monitoring process

Class 9 :

Class 10 : 5th March, 2019 : Unit 3 : Codification of Personal Laws

● To see the trend, 4 cases could be seen

● All these cases established a pattern - laid down two important things - the position
became irreversible now as privy council laid it down - shreedhan property inherited from
father did not remain absolute anymore - different interpretations of the old and obscure
texts could not be followed.
● Two more cases need to be seen -
❖ Mussammat Thakoor Deylee v. Rai Baluk Ram (1886) - control which a
women can have over the property - dealt with parda nashin women - known in
the community to have a good business sense - had some property which she
wanted to give to her niece - the gift deed was executed and the property was
gifted - issue was - being a widow does she have the power/ capacity to dispose
off her own property? Court said - she is a major, she has all rights. Appeal - no
right to a widow over property whether ancestral or acquired. Right majorly
affected.
❖ Sheo Shankar v. Debi Sahai - Orginal Idea of Stridhan : She is the original
owner of such property and it would go to her stridhana heir - devolved through
the female line. Misinterpretation by the court - The property inherited by a
woman from her mother is not her stridhan and hence it will not devolve on her
daughter who is her stridhana heir, but upon her son

● Systematically, the concept has been misconstrued and black and white approach of the
court has led to peculiarities of the regions being ignored. Various customs were pro
women but courts ignored.
For example, Bombay had a different version of Mitakshara - gave women more access
and rights over property.
● Lot of conversions had happened - this conversion was mostly on gunpoint - on principle
they might be muslim, but they followed Hindu practises. Hindus were affected by court
rulings and the converts were also being affected. They followed Hindu practises and
 worshipped Hindu gods. To address this confusion, there were two cases. Two sisters
were the only heirs left behind. They said on us, the quranic law will apply which gives
them limited but certain rights. But the heirs of the deceased father say that on these
women, quranic law cannot apply as they practise the coparcenary system. The court
compared the Hindu and Muslim law - Muslim law gave certain rights over property and
Hindu law did not. Court said - a custom for females to take no share in the inheritance
is not unreasonable in the eyes of english law, for it accords in great part with the
universal custom as to the real estates where here are many male issues and with some
local customs mentions by Blackstone through which in certain manors females are
excluded in all cases. Even though where the court could have given a beneficial
representation, the courts did not.
● Dichotomy - Smriti law was distorted and it was even applied to communities that even
did not believe in it.
● Jain widows had a right to adopt a male so that property could continue in the same line.
The court said that this custom should be established on the 4 grounds - ancient,
continuous, etc. The court said it lacks legal validity as it lacked English standard . Being
an offshoot of Hinduism on the pretext that they do not agree with the brahmanical
structure, it is weird how HMA still considers Jains as hindus - as britishers could not
understand these nuances - ignored the local customs.
● Diversity was majorly ignored as they tried to impose a single framework of law - all
places governed under one scheme of law. Only two classes saved - agricultural
societies of Punjab and matrilineal societies of Malabar.
● 1850-1930 - series of cases which relegated the status of women - many kind of
customs were eliminated which were pro women

Religious Laws of Christians

● Queen Victorias Proclaimation did not make mention of the Christians but only said that
Hindus and Muslim laws would not be codified.
● The first law dealing with Marriage and divorce came in the Christians in India.
● For hindus and Muslims, hence there was a difference between state enactment and
personal laws.
● Christians entered into India in 3 distinct phases - absolutely disconnected with each
other-
❖ Phase 1 - St. Thomas when he came to Malabar and built a church - earliest
Christian church - had allegiance to orthodox Christian. Nothing much was done -
no spread of Christianity ( 1 Century AD)
❖ Phase 2 - 16th Century - Roman Catholic Faith. Goa, Vasai and Konkan.
❖ Phase 3 - A new version of Christianity - more enlightened - Protestantism-
conversions increased - by giving incentives or by pointing the weak nerves of
Hinduism and Islam - started at political level and later came down into personal
level. Done via acts
● Earliest codification for this -
❖ Caste Disabilities Removal Act (or the Freedom of Religion Act) - Once you
become Christian, you will still be entitled to your share in the HIndu property.
 After his death though, the family (hindu father) not entitled to the property. But if
the father dies, you will still have the right to the property. Still exists.
❖ Native Converts Marriage Dissolution Act, 1866- After conversion to Christianity,
earlier marriage with Hindu spouse stands dissolved - they will also not receive
the property of the convert if the spouse does not convert. Automatic dissolution
of marriage if the spouse does not convert. Does not exist anymore.
● Later on,
❖ Indian Divorce Act, 1869
❖ Indian Christian Marriage Act, 1872
❖ 1869 Law based on the legislation was the English Matrimonial Causes Act,
1857. This importing of principles led to 3 developments
❏ Introduction of RCR
❏ Concept of Nullity (null and void marriages)
❏ Marriage as an indissoluble union
❏ Adultery was the sole matrimonial offence.
❏ For women, it had to be coupled with cruelty, deserion, beastality or
incest.
● Subsequent enactments came. But 1869 did not see a change - as no nationalist leader
was there to represent the christian community - hence no reforms could take place.
Further, the parliament felt that it was the law of the masters and we should not interfere.
With the change in the english law, this law would evolve on its own. The situation was
like this as long as 2001.

Religious Laws of Parsi Community

● The commonality with the Christians - Queen’s proclamation - no prohibition of

codification - so they started applying principles of codiciation for Parsis.
● Parsis could not be converted as you are a born parsi - it is a race understanding - so no
conversion.
● What was going on - parsis requested 2 things - we would cooperate with the
administration but leave us to govern ourselves on our own - Parsis of the presidency
town specially Bombay and the Muffalsal area should have two different laws - they also
requested to retain their parsi panchayat system - all family matters to be resolved in the
panchayat in a jury form setup.
● But there was one important incident that charged the parsis to protect themselves - a
parsi property dispute - the English court applied the rule of primogeniture - eldest parsi
son to get the property - it shocked them as they did not recognise this english concept -
called for a law - leading to earliest legislation - Succession to Parees Immovable
Property Act, 1837
● Another way to curtail the intrusion from English Principles - Parsee Anjuman - joint
meeting was called - determined two areas on which they wanted immediate codification
- one was distribution in the case of intestacy and position of women. Two much
legislations were demanded.
● Last blow suffered by them in case of Ardesees Cursetjee v Phirozebai - The Supreme
Court of Bombay held that relief of RCR applies to Parsis.
● The demand led to 2 acts- Parsi Intestate Succession Act, 1865 and Parsi Marraige and
Divorce Act, 1865
❖ Marriage was dissouble contract
❖ Monogamy as a rule
❖ Adultery as a ground for divorce
❖ Panchayat systems maintained.
● Conversion for Parsee - Dinsha Petit v. Jamsetji Jeejebhoy (1909) - He wanted to
create a private trust for several activities. The court said that Parsis cannot be
converted to other religions and other people cannot convert to parsi religion. This
should be kept in mind when creating the trust - the dual requirement of race and
religion.
● Saklat v. Bella (1925) - Entry into the fire temple - court said that entry was possible
only when you satisfy the dual test of race and religion.

Class 11 : 12th March, 2019 :

● Saklat v Bella - Bella brought up by parsi in goa, adopted by him. Bella later married a
non parsi person. Children not allowed entry to fire temple as mother is parsi and father
is non parsi - should not be allowed. If there is any kind of a dilution happening at girl’s
side, presumed she no longer is a parsi. Defeated the gender neutral approach of parsis.
But still Parsis were least affected by codification. Most laws of theirs are progressive
except the fire temple entry.
● Further reforms were made - Rights of these various communities were majorly distorted
due to the british intervention.
❖ The english translation subverted the context. For example, muslim nikaah was
called a contract. They thought it was a contract because there was an in built
system of break up. They lost out the spiritual aspect of Islam. English
understanding of laws.
❖ Privy Council rulings led to universally applicable rules for all communities. Single
scale to measure all the differences.
❖ Some of the totally alien concepts were introduced in Hindu and Muslim laws.
Example being introduction of RCR.
● 1930s to 1950s - British promised that they would not intervene with personal laws but
they did intervene. This was also a cause of revival of the national struggle. Age of
Consent Bill came out - HIndu marriages now required consent. Sati had to go, widows,
education, etc. - they did try to ameliorate the condition but this was seen as an
intervention. Victorian Morality came into picture. A women’s right is seen from the
parameter of her leading an adulterous life - if she is chaste or unchaste. Uniform Civil
code would lead to introduction of british ideology.
● Caste also played a significant role. The lower caste played a lot of politics in the field of
child marriage - not all marriages led to consummation - the daughter was kept with
 them and only went to other house after a point of time (after Bauna) - British intervened
and said consent is important - Brahmanical order asked for separate laws and felt
offended with such intervention.
● Along with this, secular parallel scheme of legislation by Britishers - Indian Succession
Act -earlier for parsis only. Later anyone not governed by Hindu laws were put here.
(residuary sort of marriages) Special Marriage Act, 1872 (Brahmo Samaj called for it)
and Guardian and Wards Act, 1890 (hardly seen a change since then)
● Why are we talking about the Uniform Civil Code? - Uniform secular law on marriage
already present, secular law on succession also there and similarly for guardianship.
Then why do we need this law? The reason is that these secular laws are voluntary -
due to the scenario that time, it was not possible to bring all communities under one
head.
● In the meantime, during beginning of 20th century - 2-3 features came up
❖ Differences between communities
❖ Bengal partition
❖ Morley Minto reform - Hindu votes and Muslim votes - two distinct political
constituencies for Hindu and Muslim
❖ Nationalist movement had started

Basic Hindu Law provisions which are women centric

1. Hindu Women’s Right to Property Act, 1937
● Only Pre British Legislation taken in to consideration
● Hindu code had to be done, nationalist movement was going on and proposal
came from GV Deshmukh that in the hindu family law scenario, women are not
treated well. Concept of reversion (taken from British), surrendering of property,
concept of streedhan, in the Mitakshara sense, women excluded from JF
property, prohibition on rights over immovable property.
● He introduced this legislation. In the bill it was said, that the hindu widow shall
have absolute right over the property. There was a lot of resistance. But he
managed to achieve certain things. Coparcenary that existed - women could not
enter into the coparcenary. On death of the coparcener, the share would go to
surviving coparcener. Women did not have any role to play and used to only get
maintenance rights. This act created an obstruction to principle of survivorship.
Now the moment the coparcener dies, the widow will take the share of the
property. The share that was to go to his sons, it would first go to the widow as a
limited owner. She would enjoy the property for her life and then it would go back
to the survivors. At Least for limited period, she becomes the owner of the
property. She could stay there, rent it out, used it for farming and earn profit.
Even increased share on death of other coparcener after the death of her
husband, she was entitled to it. (Widow’s estate)

2. Succession Act, 1956

● Section 6, 14, 15
● Section 6 - devolution of interest in the coparcenary property - only hindu law has
two types of property - ancestral coparcenary property and separate property -
When a male Hindu (female narrator not there) dies after commencement of the
act, having at time of his death, interest in Mitakshara Property - property would
go to remaining survivors. If deceased has left him a female relative (as way of a
small proviso) who is a class 1 female hier, rule of survivorship will be obstructed
but rule of succession would apply. Explanation 1 - Notional Partition - presumed
just before he dies - law presumed he MUST have asked for partition - if there
are class 1 female hiers - otherwise unless stated by him - it is said he did not
ask for partition.
● Section 14 - Property of a female Hindu to be her absolute property - the
Streedhan discourse is cleared out by this provision - if she was holding the
property as a limited owner by way of 1937 Act - both movable and immovable
property acquired by a female hindu by whatever means (maintenance, gift, or
any other) - now she is the absolute owner - absolute estate. V Tulasamma v.
Sesha Reddy - Irrespective of mode of acquiring, now the property is absolute
property. Muthuswammy

Class 12 : 13th March, 2019

● Section 15 - Shame on our society after 70 years of independence -

❖ Title - General Rule of Succession for the female dying intestate - HIndu
law only law that provides scheme of succession on the basis of gender.
❖ The whole premise of the Act is that women are movable property
themselves. Men are not supposed to move.
❖ Married - leaving behind husband/ children - on death, they would get the
property first. Then to the heirs of the husband
❖ All kinds of property are covered under this.
❖ Only important rule is that in order of succession - people of above
category get more preference - first category if 2 people and second
category 20. Presence of 2 can disentitle the 20.
❖ First set of people entitled - no kids, the husband gets it; if no husband
during death, the kids gets it. If she dies with husband and children,
husband and children get it equally. In case of a void marriage, Property
does not go to the husband and the grand children as per section 16.
❖ Secondly upon the heirs of the husband - in the draft of the hindu code
bill, they were fifth category and second were parent and spouse - the
draft underwent a lot of change, the Hindu Code Bill was progressive but
did not see light of the day -
❏ However currently this provision disentitles women’s heirs and
parents to get such property
❏ Women can get property apart from husband from 4 sourced -
Father in Law, Grand Father in Law, Husband’s brother and
 husband’s step son. But she has to provide for all the other
relatively less important relations.
❏ In no scheme of succession laws do you find predominance to
marriage relations than to blood relations There is no law in the
world which does so.
❖ Section 15(1)(b) -
❖ Debrata Mandal v. State of West Bengal (2008)- there was a lady with
a land granted to her by way of a government lease- she married a
widower - from her previous marriage, her husband had a son - she made
a representation before the government that the son should not go to the
son - Yet after her death, the property went to the son despite her
express will. The court here said that it is unfortunate but the law is such
and has to be applied.
❖ Omprakash v. Radha Charan (2009) - girl of 15 married off to an aged
person. 3 months after the marriage, husband dies of snake bite. She
was considered the bad omen and kicked out of the house. Her parents
got her from there and made sure she completed her education. On her
death, she left behind a lot of property. The property went to her
deceased husband’s brother -SC said that they cannot legislate.
Unfortunate on how law was read (“we cannot legislate”) and how it was
implemented (Britishers gave us a lot of things - one of the principles is of
the Justice, equity and good conscience - so the court’s division bench
said they could not do anything)
❖ Thirdly, mother and father followed by heirs of father and then heirs of the
mother - heirs of the father - presume father is death - heirs would be
siblings, cousins. Heirs of mother would be uterine brother, uterine
siblings, children from previous marriage.
❖ Section 15 (2) - Narrower provision than section 15(1) - any property
inherited by a female Hindu from father or mother - talks about -
❏ Inherited property - if she gets property by way of gift, will, etc not
covered
❏ Inherits from mother or father
❏ Only to the children (or children of predeceased children) and not
to husband.
❏ Inherits from mother or father - say nanaji it goes to dadaji. It
should be heirs of mother and father “respectively”
❖ Part II of 15(2)
❏ Inherited Property only covered.
❏ Property received by heir or father in law
❏ Absence of any of the children
❏ Property would go to the heirs of the husband
❏ Confusion is that property inherited from father or husband…...
❖ Focus of 15(2) and how it is different from section 15(1) - property reverts
back to the original source.
 ❖ Problems with the section :
❏ Section 14 makes her an absolute owner of the property but
section 15 does not give her an exclusive line of succession.
❏ Mentality come out well in Dhanishta Kaltia v Ramakanta Kalita
(Guwahati HC) - Lady married to A1 and had a son - after his
demise - she married A2 and had a son and a daughter. She
received property being the class 1 heir of previous husband
(house). The court ruled that the house would go to the new sons
and not the son from the original marriage.

3. Guardians and ward act

● Section 6 - The Hindu Minority and Guardianship Act, 1956
Gita Hariharan v RBI - The bank called for the father and did not allow the
mother to fill up the form for her son. The bank said that in presence of father, the
mother cannot be the natural guardian.
“After him” - read provision in a manner so that it workable - “after him: means
after the lifetime or in absence of the father. Broader interpretation given to make
the provision sensible.
● Parentage has been divided into two categories - parentage has its own
decisions or rights - parents who is guardian in terms of right will still be a man.
Mother only has right over the custody over the child.
● In case of an illegitimate child (Live-in marriage), the mother and then her father.
Children from void or voidable marriage (ceremony of marriage has been gone
through) not covered. Father not given the responsibility.

4. Hindu Marriage Act, 1956

● Difference in terms of gender not justified and should be done away with.
● Section 5 -
❖ Section 5(iii) - age of marriage
❖ Section 5(ii) (b) - procreation of children as a ground for voidability
❖ Prohibited degrees of relationship - for male it is 5, for women it is 3 generations
● Section 9 - should be seen in the light of the privacy discourse after Puttaswamy - lot of
emphasis on sex. Marriage is not just about sex. A woman does not need to go back to
the husband for the purpose of sex - can be harmful to some of the women.

5. Hindu Adoption and Maintenance Act

● Half deals with adoption, rest deals with Maintenance
● From Section 18 - Maintenance
❖ Section 18 - Maintenance of Wife- Victorian Morality/ Chastity - no talk of conduct
of men but only women
● Act brought in 1956 with important amendments in 2001 and 2010.
● Pre 1956
 ❖ Adoption permitted in Shastric sense for the Hindus but only permissible by the
husband not by the wife.
❖ After the death of the husband, a woman would be entitled to adopt the child for
the continuance of the lineage and property devolution and this adoption would
be construed as valid from the date of the husband’s death. (doctrine of relating
back)

Class 13 : 19th March, 2019

● Adoption pertains to three categories of people - people who would given for adoptions,
the one who wants to adopt and the child per se.
● 2010 legislation is more or less gender neutral but certain things are there which needs
to be looked at.
● In Classical Hindu philosophy, adoption was allowed only for allowing progression of
family or for religious purposes - lighting the Chita. Women could have only adopted as
agent of husband. Hence a doctrine was evolved. As per doctrine of ranting back, a
widow was entitled to adopt on behalf of her husband for the purposes of preserving the
family property as she herself was a limited owner. Such an adoption would be traced
from the time the husband was alive. In order to preserve property going to other
coparceners, the wife could adopt. [pre dated adoption]
● What changed in 1956
○ The doctrine was abolished in 1956.
○ Earlier adoption of a girl child was not generally permitted. Some of the
customary practices provided for it but not in the classical sense. Abolished in
1956.
○ A women on her own merit could not have adopted a child or have given a child
for adoption. Abolished in 1956.
● Tone of JJ Act is child centric whereas HAMA is parent centric.
● Two out the 3 abolished continued in minuscule manner [1956-2010]
○ A women is allowed to adopt only in absence of husband.
○ Husband cannot adopt without the consent of the wife.
○ No Shashtric ceremony of Dattam Homa will be now needed for practise of
adoption. Only give and take of child required.
● Brajendra v. State of MP - SC - 2008 - lady was almost compelled to get married -she
was a crippled women - the village required all virgin girls to get married- the man left
her two days after marriage looking at her physical condition - no consummation
happened - she continued to live like this for 22 years after which she adopted Brajendra
- dispute over agricultural land - she made a statement that she is my adopted son and
property belongs to him - the court did not consider adoption to be a valid adoption
saying that even if the woman is sane, she is living a life like a divorcee but she is not a
divorcee technically. She could not have validly adopted. The same position till date. The
court stated that a woman who has not been divorced by the husband, nor is she a
widow and even if technically her marriage continues ( although she has lived all her life
 alone) adoption without the consent of the husband is invalid and thereby the property
cannot go to the son.
● Malti Roy Chaudhari v. State of WB - HC- Malti was a married women - adopted child
in a ceremony in presence of the husband - 20 years later - property dispute - husband
said i was there but i did not consent - the requirement of the law is that there needs to
be express consent - the court upheld the contention - court stated that express
permission of the husband is required when the wife is initiating adoption and the
presence of her husband during ‘the give and take of the child’ is mandatory.
● The other provision with a problem is capacity of a Hindu male/female - should be
capacity of a Hindu person - should be gender neutral
● These two lacunae still exist in 2010 law.
● Features
○ If a single parents wants to adopt, if the child is of different sex, 21 years age
difference mandatory.
○ In presence of a son, grandson, or son’s son son, adoption not allowed.
○ In presence of daughter, her daughters or her daughter, adoption not allowed.
○ Adoption is possible only once in a lifetime. No child can be given in for adoption
more than once and cannot be returned to original parents.
○ Rights and obligations of new family will incur and will be cut off from rights and
obligations of the old family except not allowed to marry in their family - sapinda
relationship.
○ Adoption under the HAMA possible only wrt to a child of 15 years of age or
below.

Christian Personal Laws

● Highly discriminatory and confusing
● In 1851, Bombay HC delivered State of Bombay v. Narassu Appa Muni - princely
states - Bombay bigamy prevention act - no bigamy for husband or wife - whether it is
discriminatory for a man or not was questioned. Court laid down two point
○ Personal laws are out of the purview of part 3 of the constitution.
○ Personal laws are not ‘laws’ as per the meaning of Article 13 of the Constitution.
The case simply says that part 3 is public law rights and should not be read into private
matters. Like the 1858 proclamation
● Mary Roy v. State of Kerala - This case deals with two legislations - resident of
travancore - two laws applicable - travancore Christian succession act and Cochin
Christian succession Act - as per these two legislations- three sections’ constitutional
validity challenged.
○ Christian man dies interesante - daughters have no rights over property and sons
get the property -
○ Exclusion will be total if she has already been given Streedhan property which is
rupees 5,000
 ○ If no streedhan has been given, then, she will get 1/3rd the share of the brother
whichever is lesser. If ⅓ is 2000, she will get 2000 and not 5000. So she does
not get more than 5000 in any case.
● During this period, Indian Succession Act, 1925 came into being. This travancore law
was already in operation. The legislation (ISA) could be divided into 3 parts - one part
covers people married under SMA; second part covered people who married under Parsi
marriage and divorce and act, 1865; third deals with the Indian Christians married
another Indian Christian as per the Indian Christian marriage act. In 1951, there was
another legislation called Part B States (Laws) Act. The purpose of this law is very
peculiar - it says that all princely states (travancore, Cochin, etc.) - general legislation
would be applicable to them - in the schedule to the Act - Indian succession Act was
added - so all Part B states will have this general law applicable instead of their own
laws - question before the court is that - have the travancore and Cochin acts been
repealed?
● Mary Roy on demise of her father, the brother ousted her from the ancestral property
and denied her all shares on the father’s property. The brother cited the Travancore
Christian Succession Act. The women challenges this under Article 32 of the Indian
Constitution - constitutional validity challenged - the case came to court in 1980s - the
Supreme Court very conveniently did not talk about constitutional validity of the
travancore act - instead it held the following
○ Travancore Act repealed with enacted of Part B Laws act
○ All the transactions that have happened since 1951, in accordance with 1916
legislation are all invalid.
Therefore, the court concluded that we are declaring 1951 act has to be given
retrospective effect.

● Important flaws -
○ Constitutional validity did not checked - given that petition was under Article 32.
○ The ghost of Narsu Appa Muni still haunts us.
○ Retrospectivity is questionable
■ ISA which came into 1925 - the preamble talked about its applicability to
the Christians and not affect the customary practises of smaller
communities - allowed customary religion to thrive.
■ Section 29 of travancore act says that in case the legislation gets
appealed, most of the settled claims continue to prevail.

Class 14 : 26th March, 2019 - Law Relating to Sexual Harassment of Women in India

● Two words - sexual harassment at workplace, sexual harassment of women- law relating
to sexual harassment construes women to be at the centre.
● Two aspects - assault and harassment - distinct but overlaps possible - broad two
spectrums - law relating to SH need not always be purely criminal - it can have civil
dimensions to it - can also call for compensation.
● What is the meaning of SH? Tracing the journey of the law, types of SH, IPC 1960,
Vishakha Judgement, Laws relating to SH at workplace 2013
● Sexual Harassment
❖ Various authors but Common ground between them is that it affects women at
large, means to be read alongside to laws relating to rape (both are non
consensual)
❖ Mackinnon - SHW dimension - SH is coercion, unwanted sex under threat or sex
that is economically enforced - basis of definition is that of control mechanism -
her stepping out of her house against the earlier notion of her staying at home -
is becoming the power structure wants it that way.
❖ Farley - Misogynistic - male behaviour - women’s sex roles over her functions as
a worker - also a part of power dimension.
● Two categories of SH (broad) - General laws based on this including the IPC - Verbal -
Outraging the modesty of a woman; second part - more on assault - Manhandling -
more based on non consensual acts.
● Another form of division - more particular to SHW - Quid Pro Quo and Hostile Work
Environment - 2013 legislation covers both varieties of SH - These categories are
particular to the labour scenario/ employment scenario unlike the earlier classification.
❖ Quid Pro Quo - vertical position between the employer and employee -
termination, appraisal, salary all dependant on the employer.
❖ Hostile Work Environment can either be vertical or horizontal - makes it
impossible for you to function in that environment
● Decoding Some Myths
❖ Most under reported cases
❏ Patriarchy - Why do you wear such clothes? Why did you go out? Victim
blaming.
❏ Misogyny- subset of patriarchy - some students rating some female
teachers very highly and the male teachers commenting that they got it
because of being women.
❏ Entitlement - Most legislations clearly show this.
❖ Why most Legislations are women centric
❏ Such acts are not fun - the society should not underplay it.
❏ It is not trivial - just being there is no molestation, we do not see the larger
context in which such act lies.
❏ It is a power crime - many a times, woman is not a position to report such
acts - example can be actress who could not come out and speak against
the directors - they did it later. Pattern also suggests that women who are
well placed like Aishwarya, Sonam and Alia were never targeted.
● Working Definition of Sexual Harassment
❖ Element of Employment has to exist when it comes to SHW. If not present (say
like for students - other molestation laws to be looked at)
 ❖ Unwelcome secually determined behaviour - whether directly or by implication -
❏ Demand or request for sexual favours (Quid Pro Quo)
❏ Others are mostly hostile work environment
● Muthamma v. UOI - IFS officers - Recruitment, Cadre Seniority and Promotion Rules -
No married woman shall be entitled as a right to be appoint to the service. Rule 8(2) of
IFS (Conduct and Discipline) Rues, 1961 - obtain permission of the government before
the marriage and the second part could have required such a woman to resign if the
government was satisfied that her family and domestic commitments were likely to come
in the way of her discharge of functions - Supreme Court criticised the rules wrt to the
Constitution - Article 16(3) - misogyny and hangover of the masculine culture -
discrimination at workplace was also there.
● Air India v. Nargesh Mirza - Working Rules for the staff of Air India - not as emphatic as
the previous case - three service rules in question
❖ Can't marry within 4 years of joining service
❖ moment the marriage takes place, the woman had to resign after becoming
pregnant.
❖ Air hostess should retire at the age of 35 years.
Clear cut commodification of a woman - The court upheld the first requirement - it is
aligned with the population control policy called it a sound and salutary provision - Court stated
that the second prohibition ( resignation) should be applicable to the third pregnancy - court did
not demolish the provision as ultra vires - age requirement of 35 is discriminatory and should be
struck down.
● Neera Mathur v. LIC - Appointed by LIC when neither LIC nor Neera had clue that she
was pregnant - She applied for maternity leave and when she came back - she was
given a notice- LIC said that you in the beginning gave wrong information - there was a
fraud on your part - Questions from (iii) to (viii) - she did not answer these questions -
fraud and the questionnaire both challenged in court. The court said it is a matter of
dignity - no state authorities has the right to ask for such details - Privacy has been
invaded- this is not connected to her efficiency at work - modesty and self respect allow
her to keep quiet - does not mean that she is lying - misogyny clearly reflected - she is
required to do an office job and not required to go from door to door to sell policies -
these questions have no relation to such work.

Class 15 : 02nd April, 2019 :

● Protections apart from the 2013 act

❖ Section 354 of the IPC – Assault or criminal force to women with the attempt to
outrage her modesty – there is a criminal assault – it has not defined what a
women’s modesty means – a woman though has been defined. Assault category
of the offences – it's immaterial if the woman feels her modesty has been
outraged - based on what society thinks of modesty.
❖ Section 509 of the IPC - word, gesture or acts intended to insult the modesty of a
women - common with 354 in using of the term modesty of women - here the
 women should be embarrassed or what she feels is important unlike
354.Essential here is that of outraging the modesty of woman - No criminal
assault is involved in this section unlike 354
❖ Similarities - Use the same term, victim is the woman, word modesty has not
been defined.
❖ Differences - Perpetrator under 509 could also be woman, 354 based on societal
standards, use of assault
● Modesty
❖ 7 and a half month old infant girl - a man tried to fondle her private parts - family
members found it - Whether this amounts to outraging the modesty of a woman?
All three judges divided. One judge says that it has to been seen when a woman
feels that her modesty has been affected. The other judges looked at the
culpable intention which is the crux of the 354 - primary concern is outraging of
modesty. It was also held that absence of any reaction to such acts is not a
decisive criterion. Definition of a woman including woman of any age including an
infant.
Test : whether a reasonable man would think that it was enough to outrage the
modesty of a woman - the woman herself is also reasonable. Patriarchal notions
of decency brought in. This case continues to govern definition of modesty and
hence 509 seen as a better option.
❖ Rupan Deol Bajaj v. KPS Gill - Court here said that common notions of
mankind have to be ganged by contemporary societal standards. Again
Patriarchal. ( AF! ) Again laid down the reasonable man test. This can be
criticised for a) use of feminine decency term. b) does not cover acts of women
toward men.
❖ Various reports of the UN
❏ UN report of the Special Rappo on Violence against women - concept of
modesty links sexual violence to arcane notions of female morality and
then shifts the focus from the violence perpetrated on the victim to the
notion of morality prevailing in the society.Cases are reduced it to mere
humiliation in the eyes of society which is wrong.
❖ Vishaka v UOI (1997)
Important because predominantly it does three things
1) Recognizes right to work in a dignified environment
2) Recognises the Vacuum of law on the subject
3) Till such a framework comes into place, the court gave guidelines to be
adhered to
4) Court also looks at it from the human rights view
❏ Gang rape of a lady - needed to protect her in the workplace where she
worked
❏ Article 14, 15(1), 19 and 21 are central to women’s health and dignity -
right to work in a hostile free environment - value of dignity is recognised
as a well established legal norm in CEDAW.
 ❏ General recommendation 23 to Article 11 of CEDAW, Beijing Statement
of Principles of Independence of Judiciary
❏ Asic guidelines were laid down however implementation has been
extremely poor.
❖ AEPC v. A K Chopra -
Typist Ms. X harassed by her boss and the man tried to molest her - she
objected everytime - next day on 15th Aug - office was closed - 17th August the
matter was reported to the senior most person - it was asked why she had taken
so long. It was told by her that none of such days were working. The man had
actually not touched her - no physical contact - so does this fall under sexual
harassment? Immediately on the complaint, a disciplinary committee was put in
place - adverse findings against Chopra found - report sent to the authorities who
ordered for his compensation. He appealed before the HC fo writ of mandamus
saying that the hearing was not proper and natural justice was violated. HC laid
down two disturbing finding. Vishaka judgement was not out when HC was
dealing with the matter. HC said that when there is no physical assault or
molestation, there cannot be any sexual harassment. It also laid that the
disciplinary committee does not have the authority to suspend the person like
that. It has to be brought to a judicial authority.
Matter reached to SC -
SC said that behavior of the harasser did not cease to be outrageous for want of
an actual touch or assault.
In all SH cases, the broader possibility of the case should be seen and the court
should not be swayed by the narrow technicalities and dictionary meaning of the
term molestation.
❖ Medha Kotwal Lele v UOI
PHD students were facing problems in Universities in various places. Medha
Kotwal compiled these reports and questioned why Vishaka guidelines were not
being implemented - Court called for amendment of the service rule. Led to the
amendment of varous laws.
❖ DS Grewal v. Vimmi Joshi and Ors. (2008) SC - Not a PIL, the lady in question
was a principal herself. SC had to see if harasser was an employee of the place
or not? Hiendra Bahadur, who was a managing trustee would come to the school
sometimes for general meetings, etc. Hence he was neither a regular employee
nor was he head of Ms. Joshi. He wrote a letter to Ms. Vimmi and also tried to
touch her and made lewd remarks on her. Father reported matter to school
administration. The administration looked down on the father and said that the
letter was torn and they doubted if it was real. They said it was a love letter and it
cannot be sexual harassment. They also said that it cannot come under SHW as
both parties were not in school at that time and he was not a regular employee.
Ultimately, the women’s services were terminated. Ms. Vimmi went to the court.
The court ordered for appointment of a committee with a woman head, reinstate
her and pay her for the job. In case there is an adverse finding, the matter has to
be taken up by the school itself. After Vishaka and before 2013 legislation, most
 of the case are upholding the need for a legislation and upholding cases of
harassment.

● SHW - look at figures, look at remedies, look at who are subjected to such a law -
various collectives were formed to call for a law of this kind - four perspectives seen -
Feminist - power relation; legal - exploitative and discriminatory. Organisational - difficult
to make a law and it is very interpersonal; look at the table on the slides.

Class 16 : 03rd April, 2019

● Features of the SHW Act, 2013

❖ Civil legislation - no criminal punishment, speedier in nature
❖ Three key terms - prevention, prohibition and redressal
❖ Preamble first paragraph - sexual harassment of women - maybe possible that
the women is not an employee and for prevention and redressal of complaints.
❖ Definițional clause - comprehensive
❏ Aggrieved woman
➔ whether employed or not - can invoke the POSH act even if she is
a mere visitor and not an employee
➔ Dwelling house/ place - employed in such place - visitor to house
will not be covered - employer/ employee relationship important.
❏ Employee
➔ very comprehensive - however as an intern when you are not at
the workplace and the alleged acts have taken place over call -
employment is promised - connected to a person in relation to
employment and deals with future prospects of employment -
notional extension of who is an employee will be given to the girl.
❏ Employer - both organised and unorganised sector covered under the
definition - control and pay need to be looked at. Even a contractor can
be held as the employer
❏ Sexual harassment - two kinds of SH - quid pro quo and hostile work
environment are the types
➔ Very wide
➔ Directly or indirectly
➔ Both varieties covered under the provision
❖ The Internal Committees
❏ Needs to be put in the conspicuous places of the organisation.
❏ Presiding Officer - senior women - if not there she can be invited from
other branch/ department or an independent woman can be called from
outside the organization
 ❏ 2 or more - knowledge of social work, legal knowledge, committed to the
cause of the women (?). Members required from the office itself but it not
mandated that such knowledge is to be substantiated by a qualification -
but the committee has powers of a civil court- hence it is required that a
criterion is laid down.
❏ 1 from NGOs or associations committed to the cause of women - (?)
difficult to find an organisation like this
❖ Section 9 - Complaint of Sexual Harassment
❏ Complaint given in writing - 3 months limitation period is given - which is
too less.
❖ Conciliation Provision - diminishes the gravity of the offence. Opens door for
power play based incentivisation.
❖ Action during pendency of inquiry - full paid leave to the woman, own transfer or
transfer of the accused (used in AEPC case)
❖ Punishment for false or malicious complaint - IC/LC comes to conclusion that
allegation is malicious or has been made knowing it to be false, may recommend
to the employer about the recommendation. A proviso has been added to protect
the victim - failure to prove does not amount to a false or malicious complaint.
❖ Prevention mechanisms are not that visible in the act - awareness, sensitisation
programme, etc. not talked about.
❖ Determination of compensation - grounds have been laid down.

Class 17 : 9th April, 2018

● Jews were hard working community and did not have lands, so they had to make use of
their hands and work on lands. Christian morality said that one cannot use they body to
earn money. If that happens, the purity is lost. [Theory] When such acts become
profession, it is stigmatised.
● Another theory is sexual morality [Theory]
● However, in reality, all professions require body parts. So why some body part are
stigmatised and others are not.
● Another theory is that organs cannot be commodified.[Theory] - organ donation,
surrogacy, prostitution, etc.
● Professions such as Manual Scavenging, mining, domestic workers, bar dancers,
massage parlours are stigmatised. The common link between them is lack of choice or
their survival strategies. The moment there is no choice, there is no control over how you
are treated or how the employer works - vulnerability is attached to them.
● The legislation in India for Prostitution - Prohibition of Immoral Trafficking Prevention Act
❖ Term used is immoral and not illegal - hence societal morality has been seen.
❖ Legislation does not use the term prostitution.
● One side says prostitution should be legalised and the other says that prostitution cannot
be legalised.
● In the industry, there is the prostitute and the customer and in between there are people
who link them. The linkers are basically a pimp, brother owners, husband of the
prostitute, brothel, the police, etc.
● What is prostitution?
❖ Exchange of sexual services for money
● Types of Prostitution - predominantly of two types
❖ Voluntary
❖ Involuntary - Call girls
❖ In India, organised prostitution is prohibited.
● What is trafficking?
● Prostitution can be both voluntary or involuntary but trafficking is always involuntary.
Prostitution is always done for sexual reasons.
● Legalisation
❖ Pro
❏ Health and safety (physical and state oppression) benefits of the
prostitute workers.
❏ Recognising the sex workers
❏ Autonomy
❏ Economic Taxation
❏ Better Regulation
❏ Unionisation
❖ Against
❏ Industry of vulnerables
❏ Adds to the sex industry
❏ Commodification
❏ Market increase
❏ Further takes away the dignity
❏ Idea of consenting to be a prostitute and the idea of consent in during a
particular act.
❏ Stigma
❏ Health
❏ Union is useless - only deals with violence, etc. - does not help for
rehabilitation.
❏ Decriminalisation has not been regulated well in foreign countries.

Class 18 and 19: 10th April, 2019

● None of the legislations prohibit prostitution directly. (Constitution, IPC, Special Laws)
● Let's look at trafficking
❖ Article 15, Article 39F,41, 51-A, 15(3)
❖ IPC- section 366, 370
❖ Special legislation - SITA, PCMA, Child Labour
● 1949 - UN Convention on Suppression of Traffic in persons and of the exploitation of
persons by others - to uphold this - India made SITA, 1956, SITA also went some
 amendments and now we have the PITA, 1986. Substantially they are the same, but the
penalties have been enhanced. Both the legislation are trying to uphold the international
documents that India has signed.
● Law relating to Trafficking - Trafficking Act, 1956 and 1986 - talk about six sections
❖ Prostitute
❖ Pimp
❖ Brothel Owner
❖ Person living off the prostitute’s income
❖ Children (can also be a category under 4)
❖ Person frequenting a brothel
● 1956 version penalised
❖ A female who is offering her body for sexual intercourse
❖ If she does it for payment
❖ Punishable under the Act
❖ Flaws
❏ Only women were seen as prostitute
❏ Basically punishing prostitution and terming the act as immoral trafficking.
● 1986 - Prostitute means - sexual exploitation of a person for commercial purposes - still
the flaw of it being immoral trafficking continues to exist.
● Organised prostitution is punishable under the 1986 act- a person who is running a
brothel,a pimp or a woman who is soliciting in public will be penalised. We presume the
following will not be penalised - a woman who engages in sexual activity in a place
which is not a brothel or if soliciting is done but not in public. Red light areas are not
covered under this. Only if such acts happen in public, they are prohibited. It leaves out
Devadasis (women forced in sexual activities) - socio cultural religious purposes are not
covered under the act. Legislation starts off with the promise is that they want to address
trafficking but they are in actuality prohibiting sex workers. The person who gets
seduced is out of the purview of the act. Person who is living off the wages of a
prostitute is also to be prosecuted - there has been a lot of criticism to the word living off
- there can be times when woman is the only earning member and the others are
dependant on her. It is suggested that person living on and not off should be changed.
● Section 7, 8, 15, 20 -
❖ Section 20 empowers the magistrate that any person residing in or frequenting
any place which is within that place, magistrate is empowered to remove her
from that place and also prohibit from re entering that place. Within 200 metres of
the scheduled area, Magistrate can stop her from entering that place.
Constitutional validity has been challenged and high courts have given mixed
response.
❖ In the case of Shanta v. State where the court stated that prostitution per se is
not a criminal offence and therefore to punish a woman merely because she
frequents a brothel or because she is involved in the maintenance of her
residence, it cannot be tagged as carrying on prostitution for the purposes of this
legislation. Upheld by Madras HC in Ratnamala Judgement.
❖ In Shama Bai v State, court said that Section 20 is arbitrary in nature as it
compels the woman to leave the locality and not to return again without the
magistrate’s permission is unreasonable restriction violative of article 19(1)(d).
❖ The idea is that you do not want the region to be contaminated - morality aspect
has played in.
❖ Section 7 and 8 - 7 talks about - if a woman is actually soliciting on street, she
will be considered as engaging in prostitution punishable under the scheme of
the act.Section 8 - woman found in the activity will be sent to a correctional
home. Woman found on raid maybe sent to correctional homes - only talks about
sending a female to such homes - wherein we appreciate the vulnerability of the
woman but she needs to be corrected - which is wrong. Name itself is wrong.
Instead of rescue home, it is called correctional house where she can be kept for
2 years. If she wants to go, she is not allowed. The act is silent about this aspect.
❖ Section 15 - powers given to special officers - empowers special police officers to
conduct raids and rescue the women from such places to be sent to the
correctional home. There is no caution or code of conduct of such raids. 3 cases
one after the other called for delimiting. I- Police wanted t know if it was a brothel
- wanted to raid - dressed as civilian - had sexual intercourse and said he was
the police and will be the witness. II- Another case - police was involved in sexual
activities and police barged in when women was naked. III- Police planted a
person - sent a customer - class X student was kept to witness who deposed in
front of the court. Combined effect of the cases - dignity of the prostitute has to
be kept intact - caution needs to be exercised.
❖ Kamla Bai v State of MH and State v Gaya Raam - If the investigation under
this act is proceeded in such a manner, it will be extremely difficult to determine
whether a person was conducting an investigation or was he committing an
offence himself.
❖ In Re Ratnamala and ors. - Madras HC - Progressive Ruling - first saw how to
designate something as a brothel and how can we prevent women from going
there again and again.
❏ The surveillance as well as use of decoy witness has to be done only if it
is extremely necessary and that too keeping the dignity of the woman
intact.
❏ The court also observed that prostitution under this legislation is not a
punishable offence. The legislation highlights the subject of trafficking and
fundamentally treats a prostitute as a vulnerable victim.
❏ It was also seen that invading into her bedroom, her house or even her
brothel is a violation of her modesty under section 504 of the IPC.
❏ Use of witnesses who are underage boys is a shocking method employed
by the police which deserves to be condemned at all levels.
❖ State of MH and Ors. v Madhukar Narayan Mardhikar - SC - a woman even if
perceivably of easy virtue is entitled to privacy and no one can invade her privacy
as an when one liked. (entitled to equal protection of law)
● Protocol top revent, suppress and punish trafficking in persons especially women and
children (Palerome Protocol) signed in 2002 but ratified in may 2011 - This convention is
very broad in its approach -
❖ For the first time, it defined trafficking - both for labour and prostitution - wider
❖ 3 R feature- Raid, Rescue, Rehabilitate
❖ Repatriation
● Supreme Court Judgements but no amendments to this effect
❖ Vishaljeet v UOI (1990) - There is an international conventions and the court is
asking the state to make rules -
❏ the court said that there has to be clear steps to be taken to eradicate
child prostitution. Many a time, when a woman and child soliciting a
customer were treated in the same way - need to deal with child
prostitution specifically.
❏ Social welfare and rehabilitation programmes have to certainly address
children and girls or other fallen victim rescued from the brothel houses or
from the vices of prostitution.
❏ We need to add the Devadasi as well as the Jogini traditions within the
ambit of such a legislation
❖ Gaurav Jain v UOI (1990) -
❏ A committee has to be constituted dedicated for child prostitution.
● Most cases deal with women when it comes to prostitution, they have a story attached to
them (sold, forced into this….), even though they find love, they are not able to come
out.
● New version of the 2016/2018 Trafficking legislation after the signing of protocol
❖ 1986 criticism
❏ Definitional ambiguity - 1) trafficking was not defined at all (2) even
commercial sexual exploitation is very inadequately defined.
❏ It is presumed that brothel is the place where while business of trafficking
manifests itself. What about things happening on a moving vehicle or any
other place. Various other sexual exploitation not covered.
❏ Use of the term correctional homes - treating victims as offenders.
❏ Punishment - Act punishes the persons soliciting in public but does not
punish the main procurer who has procured this girl for the purposes of
this legislation.
❏ Any person frequenting a brothel is being punishment with severe
punishment - what if the person visits the place as a health worker-
needs to be narrowed down.
❏ Enforcement - section 15 needs to be seen
❏ Convictions - NCRB data suggests that in terms of convictions, there are
very few figures - if there is a child involved in this, the owner says that i
have not brought him but is his child himself, child does not say who his
parents are and the parents sell him away.
❏ Multiplicity of authorities for child related matters
 ❏ Rehabilitation, compensation - After the correctional home, they can go
anywhere. The act is silent on what is meant by Rehabilitation
❖ Hence the act was patriarchal and wanted to clean the society of such woma
❖ 2016 Bill - 5 important points
❏ Trafficking now includes not just for prostitution but also for the purposes
of forced labour.
❏ Section 8 has been deleted.
❏ Term Corrective home has been replaced by welfare and rehabilitation
homes
❏ All offences have been made cognisable and non bailable - there is a
reversal of burden of proof
❏ Punishment for dereliction of duty has been enhanced (dereliction of duty
involved omission to provide care, protection and rehabilitation to the
victim)
❏ Repatriation for cross border victims
❏ Establishment of a national anti trafficking Bureau that would monitor and
moderate all aspects of trafficking

Class 20 : 16th April, 2019 : Law relating to indecent portrayal of women

● Legal Framework
❖ Constitution - used for both print and electronic media
❖ IPC - language used specific to print media (publication,.....)
❖ 1986 Act
❖ IT Act
❖ YPA ,1956
❖ CTNA, 1996
● Some legislations are women specific and other are gender neutral (YPA). CTNA is a
mix of both.
● Section 292 of the IPC - Test of Obscenity - something against modesty or chastity- idea
is related to a woman - Ranjit D Udeshi v State of MH - look at the work in the context
of how society is wrong then - there is also a need to balance literary standard and
sexuality- look at the dominant message of the work. Art must be so preponderant to
push the obscenity into the shadow - judged by prevailing standards of that society
● Two important discourses from the judgement - legal paternalism - state governs what is
good or bad for people. The other being legal moralism - law determines the morality of
the society. Same idea upheld in other cases.
● Chandra Kant Kalyandas Kaodkar v State of Maharashtra - depravity of just
individual not relevant. Should happen for a group or class of people.
● Ponography is a contentious issue : two branches of debate - Obscenity and indecency -
need to have specific legislation apart from 292 - NCRB report - led to
❖ IRWA, 1986.
❖ Advertisement council of India established,
❖ YPA, 1956, and
 ❖ CTNA, 1995
● IRWA - Defining Indecency - indecent representation of women - core elements taken
from 292 itself but only look at women as per her physicality and in no other sense -
portrayal like in deo ads not covered under this. (two men talking about how a woman
will be attracted to them on using a deo)
● Indecent - 4 components
❖ Only connected to physicality of a women
❖ Figure of a woman
❖ Lascivious or prurient interest
❖ Sexual being of a woman
● During this time, third wave of feminism was on the rise - issues had come up -
❖ sexual objectification was seen in various ads, NCW took a note of these and
called for a ban of such ads. IRWA does talk about it
❖ Stereotyping of women - not covered under the IRWA (Moov Ads) - Around this
time, there was a huge confusion around ‘derogatory to the women’ - it was
being limited to the physicality of a woman - hence stereotyping was out of it.
❖ Stigmatisation - Fair and Lovely Ads - not covered under the IRWA
● 1986 covered partially sexual objectification and clearly did not cover gender
stereotyping -
● Also in Aveek Sarkar v. State of WB - Aveek Sarkar is the editor of ABP. They were
raising a combination of 292 and IRWA - Boris Becker posing semi nude - picture was
put up on their paper - it was said that it was indecent - SC applied test of community
standards and looked at if it was indecent or obscene or something else. The court say
that the photo wants to portray a message and it should be seen in that context. When
seen from that context, the picture is not objectionable and does not deserve to be
booked under section 292.
● Portrayal of women in Indian media can be divided into Sexual objectification or
commodification (covered by IRWA, Media prohibition Act, IT Act) and Gender
Stereotyping (No indian law, dealt under international instruments such as CEDAW,
platform of action, Beijing Declaration)
● Sexualisation/ Commodification
❖ Value is based on sexual behaviour or appeal and not other characteristics.
❖ Person is held to a standard that equated physical attractiveness with being sexy
❖ Made into a thing of others sexual use, with no capacity of independent action
and decision making.
❖ Sexuality is inappropriately imposed on them. Skills ignored (Bar Dancers)
● Debates around indecency discourse -
❖ Legal Moralism - state upholding communities moral standards and take steps to
punish people violating them,
❖ Legal Paternalism - State acts as a father - state decide whether the material is
good for the state or not - state entitled to interfere with the freedom of a self
conscious adult.
❖ Individual Freedom - free will (Actress don’t mind if they get money)
● IRWA Bill 2012 - disappointment in itself as it does not cover the issues - does try to do
a few things though
❖ Indecent representation - depicting women as a sexual object and it not limited to
the figure.
❖ Amends definition of advertisement and brings in modern electronic forms
❖ Punishment increased
❖ Authorisation given to police officers of higher levels to investigate.
❖ Section 6 - earlier it was 2 years and fine upto 2000. Now it is 3 years and fine
50,000 (first conviction) second conviction was not less than 6 months now it has
been increased
● The I&B ministry moved a draft guidelines to halt indecent representation of women.
Advertisement Code and Broadcasting guidelines (self regulatory guidelines put in place
by PTI)
● Case about Miss india contests, etc. - the court in the case of Chandra Raj Kumari v.
Police Commissioner Hyderabad- stated that the right to life includes right to live with
human dignity or decency and therefore holding beauty contests is repugnant to dignity
and decency of the women and offends article 21 of the Constitution.