Comparative Constitutional Law: Women’s Rights in India

Introduction

Catharine MacKinnon once observed that, “Sex equality laws exist nearly everywhere and sex equality exists virtually nowhere.”[1] This paradox is clearly exemplified in India, where crimes against women are rampant, despite the country’s constitutional commitment to substantive equality and its passage of numerous laws to address the web of social harms that have trapped its women. This paper presents an analysis of the treatment of women in India. First, the paper summarizes India’s history, including how women’s status has been affected by various cultural and religious influences throughout different time periods. Then, the paper summarizes some of the common harms that Indian women face today. Finally, the paper discusses key cases of women’s rights in India and the United States and compares gender equality in the two countries.

History

Women were not always treated horribly in India. In ancient times, women had substantial rights and social standing. This is evident from their access to education, social customs surrounding marriage, and the portrayal of women in religious texts. Over time, these protections eroded as various invasions made the country less stable. Furthermore, changes in Hinduism and the emergence of Islam contributed to new cultural beliefs about the role of women. This section of the paper traces the evolution of women’s rights throughout Indian history. Unless otherwise cited, the information in this section is taken from India: A History,[2] Brittanica, or PBS’ timeline of Indian history.[3]

Ancient History

Although the first human inhabitants migrated to India between approximately 70,000 and 50,000 BC., the first major settlement of India did not occur until the Harappan Empire, which lasted from around 3,000 to 1,700 BC.  Together, Harappa and Mohenjo-daro comprised the Indus Valley Civilization. The Harappans were not only the first people to use wheeled transport, but were extremely sophisticated and valued uniformity in city planning and construction, as evidenced by their cities’ extremely detailed, grid-like remains. Interestingly, there is no evidence of a major religion and the Harrapans disappeared suddenly, possibly due to severe climate change.

A significant period in early Indian history was the Vedic period, which lasted from 1,500 to 1,000 BC. During this time, the foundational scriptures and hymns for Hinduism, called the Vedas, were composed. The Vedas are believed to be divinely revealed and are comprised of four books: the Rig-Veda, the Sama-Veda, the Yajur-veda, and the Athara-veda. Hindu priests, called Brahman, memorized and transferred these texts orally. The Vedas also contain evidence of the religious use of astronomy and math. Vedic literature contained three commentaries written by priests: the Brahmanas, Aranyakas, and Upanishads.

During the Vedic period, daughters were less desirable than sons because people believed that boys could contribute more to the family. Sons were valued because of their physical strength, ability to fight, and because they remained with the family after they married. [4] This preference for boys is reflected in sacred literature, including the Athara-veda, which contains rituals to guarantee the birth of a son.[5] However, although daughters were less preferable than sons, girls were still valued by their families. For example, one of the Upanishads contains rituals used to guarantee the birth of an intelligent daughter. Greater proof for the value of the female sex is evident in the fact that women could engage in religious activities, even sacrificial rituals. Additionally, the Rig-Veda contains hymns that were divinely revealed to female seers.[6] In later times, widows were viewed as unclean, but the Rig-Veda reaffirms their value. For example, one of its hymns encouraged a widow to “rise up, woman, into the world of the living” rather than giving up because of her husband was dead. Furthermore, certain epics from this time portrayed widows as the guardians of their family, which reinforces the view of a woman as capable of agency and strength, rather than dependent on her husband.[7]

In the Vedic age, customs surrounding marriage were less harmful to women than modern day practices. Widows could remarry, and girls could remain single until they had received a decent education, which was around sixteen years old. The Athara-Veda describes an educated woman as an asset to the marriage.[8] The Rig-Veda mentions educated girls several times, and in the Upanishads intelligent women engaged men intellectually. In short, the Vedic period was a good time for women. Although they were not the equals of men, they were still valued by society.

The Aryan incursion, which overlapped with Vedic period, was the next major shift in Indian history. The Aryans were a seminomadic people who invaded the region gradually and in waves of tribes, rather than through force. Aryan society was built on three pillars: the language of Sanskrit, the priesthood of the Brahmans, and a hierarchical social structure, which provided the foundation for the caste system that persists in India to this day. Religion was incredibly important and helped propel linguistic advancement, an obsession with holiness, and a fear of being made unclean, all of which contributed to a continued emphasis on social stratification in India.

The Second Urbanization of India occurred when society shifted from being tribal to state based. This change was the result of evolving social, technological, and economic conditions, including a population growth, decreased migration, greater agricultural production, and new social institutions where loyalty ran vertically, rather than horizontally. The caste system began to emerge during this period and religion was increasingly used to legitimize the social hierarchy as divinely ordained, and therefore unquestionable. For example, the Rig-Veda contains a myth where the gods carved up a sacrificial figure that represented human kind. They split him into four parts, which represented the different castes that were each given tasks according to their divinely ordained place in the world. First, the warrior class was comprised of the ksatriya, meaning “the empowered ones,” who assumed military, political, and administrative powers. The next class was comprised of priests, who were the descendants of ancient seers. Next was the mercantile class, called the vaisya, who accumulated land and invested in trade and industry. Finally, the lowest class was the sudra, whose role was to provide labor. This class included indigenous people and people of mixed caste parentage.

India’s history of diversity and division has been largely shaped by the various religions within the country, including Hinduism, Islam, Jainism, Buddhism, Sikhism, and Christianity. These religions have played a significant part in defining the role of women and sometimes, supporting the erosion of women’s status from what they enjoyed in Vedic times. Jainism has approximately four million adherents throughout the world and was founded around 500 BC The word “Jainism” is based on the Sanskrit word for “to conquer” and the religion teaches that every soul is connected by karma in a cycle of reincarnation, and in order to break free, one must adhere to a life of nonviolence.  Jainism is rooted on the five vows: nonviolence, truthfulness, refusing to steal, chastity, and detachment. Mahavira, who lived from 599 to 527 BC, was the last of Jainism’s twenty-four great spiritual teachers, and taught freedom through an emphasis on faith, knowledge, and conduct.

Another significant figure in Indian religious history is Siddhartha Gautama, the Buddha. Gautama was born into the warrior caste and married a princess. According to legend, he left his palace one day and was appalled by the suffering that he witnessed after he saw an old man, a corpse, and a sick man. This experience caused him to reconsider his life of ease, and at twenty- nine, he left his family to seek enlightenment as a way to escape the cycle of suffering. The Buddha taught adherence to the Four Noble truths: the truth of suffering, the truth of the cause of suffering, the truth of the end of suffering, and the truth of the path that leads to the end of suffering. He died when he was eighty years old.

It is evident that Buddhism value women because it offered them opportunities to become educated, to serve others, and viewed them as co-workers with men in spreading the religion. For example, women were eligible to join the Order of Nuns, which allowed them to serve the public and increase their learning.[9] The value of women is also reflected in the story of Dhammadinna. According to this story, her husband chose to follow the Buddha and offered her all his worldly possessions. She refused and instead became devoted to Buddhism. Her wisdom grew until many people sought to learn from her, including her husband. She could resolve difficult questions with the mental agility of “one who severs the stalk of a lotus with the sword.”[10] In short, the influence of Buddhism helped to reinforce the value of women by allowing them to grow intellectually, and respecting the woman’s ability to excel, even beyond a man, in comprehending the truth.

Epics are another important part of Indian history because they help us understand how Indians from the past viewed themselves, reinforced group identity, and responded to major social changes. The Mahabarata and Ramayana are two major Hindu epics, written during periods of significant change, which contain a mixture of religious teachings and a retelling of the history. The Mahabarata narrates the struggle for power between warring groups of cousins, the Kauravas and the Pandavas.[11] The author, Vsaya, appears in the epic as their grandfather. In the story, the older of two princes, Dhritarashtra, is denied the throne because of his blindness and his brother, Pandu, becomes king when their father dies. However, Pandu cannot have children, so his wife prays that the gods will father children in order to carry on his name. Different divine figures, including the god Dharma, the Wind, and the king of gods, Indra, answer the prayer and father children with Pandra’s wives. However, jealousy tears the family apart and after the king’s death, the Pandavas are exiled. The story climaxes with an epic battle on the field of Kurukshetra, in the state of Haryana. During the battle, the Pandavas received divine help from Krishna would not bear arms, but served as a charioteer. The battle ends with the Kauravas being killed off and only five of the Pandava brothers surviving. However, the story ends with the warring cousins being reunited in heaven.

The purpose of the Mahabarata is to describe how a person should live, whether he is a king, warrior, or someone who desires freedom from rebirth through adherence to the moral law. The poem clearly shows that, at times, right and wrong are not black and white. For example, in the epic, the hero is confronted with conflicting meanings of dharma[12] that result in him breaking a moral code no matter what he chooses. The Mahabarata was set in a time when Indian society was evolving and moving from Vedic sacrifice to sectarian Hinduism, while also interacting with other religions. Certain themes from the epics describe social changes. For example, some authors view the recurring theme of retreat as a representation for how clans dealt with conflicts and moved further into the subcontinent. Additionally, the myth of divinity of kings would become a fixture in later dynasties and helped cope with a period where loyalty was still primarily horizontal, given to clans and family, rather running vertically from the individual to the state.

Unlike the Mahabarata, the Ramanaya, meaning “the rule of Rama,” was written with a hopeful focus on an idealized future, with the purpose of legitimizing the monarchical state. Rama is one of the main Hindu gods, who stands for reason, virtue, and right conduct. The epic tells the story of the birth of Rama, who is wrongfully banished from his rightful place as heir to the kingdom.[13] He escapes to the forest with his wife Sita, who is then captured by a demon King. Although Sita remains faithful to her husband and Rama wins her back before returning to his kingdom, she is continually plagued by accusations of infidelity. Eventually, Rama banishes Sita to the forest where she gives birth to his sons. Although the family was eventually reunited, Sita was forever followed by accusations of infidelity and was eventually swallowed by her mother, the Earth. The epic is widely celebrated to this day, and various versions of the story are told throughout India, often through pageants that reenact the story.

Both the Mahabarata, the Ramanaya contain valuable clues about the treatment of women in ancient India.[14] First, both epics emphasize the importance of marriage for women. In the stories, unmarried an unmarried woman could not enter into heaven, no matter how excellent her character was. Second, the portrayal of Sita presents questions about the value of women.[15] Sita and Rama are meant to be the ideal couple, she is loved and valued conditionally. Despite her complete faithfulness to her husband, she lives with constant shame because of the actions of another man and this shame destroys her. Sita has been described as “the emblem of female suffering and its redemptive power.” In the war for independence, Gandhi appealled to her courage to push Indians to fight for their freedom for Britain.

In 320 BC, the Mauryan Empire was established when Chandragupta Maurya overthrew the Nanda dynasty.[16] This is significant because Mauryan dynasty ruled most of the subcontinent, creating the first unified Indian empire. Although Maurya later abdicated and became a monk, many different kings ruled the dynasty over the next 140 years, the most influential being Ashoka the Great, who ruled from 269 to 233 BC. Ashoka is idolized as a peaceful, tolerant ruler who led his empire by the rule of dharma, which is the principle of conquering and leading through duty and righteousness, rather than through force.

However, Ashoka did not begin his rule following the principles of dharma. After coming to power, Ashoka’s life was changed when he forcefully conquered Kalinga, resulting in the loss of 100,000 to 250,000 lives. His choice to use violence had a profound impact on Ashoka and led him to convert to Buddhism. Ashoka’s respect for life was shown through his creation of medical centers for people and animals as well as his discouragement of animal sacrifice. Furthermore, edicts have been found that instructed the king’s representatives to treat the conquered people with so much grace that they would come to see their conquering king as their father. Ashoka’s reign is idealized because of his gentleness and ability to unify people from different regions, castes, backgrounds, and religions through nonviolence and tolerance. His reign was so influential that in 1950, India adopted the lion of Ashoka as part of its state emblem. After Ashoka’s death, the Mauryan Empire fell into decline and eventually disintegrated.[17]

After the decline of the Mauryan Empire, India entered its Dark Age, which lasted until the rise of the Gupta Empire five hundred years later. Weaker dynasties emerged and foreign influence abounded, leading some historians to refer to this period as the Age of Invasions. However, substantial artistic[18] and literary developments occurred during this period, including the Kamasurtra and the Manusmriti, which is Manu’s code of law. Manu’s law played a role in shaping cultural views, although its perspective on the rights of women seems inconsistent. It teaches that girls should obey their fathers, wives should obey their husbands, widows should obey their sons, and wives should revere their husbands as divine, which provides evidence of inequality between the sexes.[19] However, Manu’s law also grants women property rights.[20]

India emerged from its Dark Age with the rise of the Gupta Empire, which lasted from 300 to 600 AD and was established by Chandragupta I in the Ganges River Valley. The empire extended through northern India and parts of central and western India. The greatest ruler was Samudra-Gupta, who ruled between 330 and 380 AD, and has been descried as an ideal king with a mastery of music, war, and poetry. Many believed he was the divine reincarnation of Vishnu, the Hindu god who protects and preserves the universe. Samudra-Gupta has also been called the “Indian Napoleon,” with a body that bore the “marks of hundreds of wounds received in battle” who was the “conqueror of the four quarters of the earth.” His kingdom stretched from modern day Uttar Pradesh to Bengal, reaching north to modern day Delhi. During his reign, he conquered more than twenty kings and received tribute from rulers in Bengal, Assam, Nepal, and parts of the Punjab.

The reign of the Guptas has been described as the Golden Age of India because of the significant advancements in literature, art, math, astronomy, and science. In 500 AD, Aryabhata, an Indian astronomer and mathematician, published the Arybhatiya, a treatise that described earth’s revolution around the sun and an approximated the age of the universe to be 4.3 million years old. The Gupta Empire fragmented around 550. This period of history was significant because there was great prosperity, warfare, cultural advancements and it laid foundation was laid for a highly stratified society. During this era, beliefs about the woman’s role in society were shaped by religious and mythical stories.

b. The Spread of Islam

The spread of Islam is important to Indian culture and history because the divide between the Hindus and Muslims has torn the country apart for most of its modern history and kept Indians from forming a cohesive national identity. The status of women also declined as the Muslims invaded India. Constant invasions resulted in the unraveling of social institutions and fed political instability and economic depression.[21] As social life began to deteriorate, so did the status of women.

Muslims also brought new social norms affecting the treatment of women. In Hindu texts, women are encouraged to be chaste but men are instructed to gaze on women respectfully, placing the burden of sexual purity on both sexes. In contrast, the Muslim system of purdah is a social practice of screening off and excluding women for the sake of protecting their purity. Practices like this shift the burden onto women to go to extraordinary lengths to avoid the male gaze, which often reinforces negative views of the female body. Additionally, many of the Buddhist educational institutions that helped empower women, including convents and monasteries, began to disappear.[22] This section of the paper describes how Islam came to India and transformed the society.

Islam was brought to India between approximately 600 and 700 AD, much later than Hinduism. It was carried to India by Arab traders who traveled through the Bolan Pass and across the Arabian Sea to port cities, including Maitrakas, Chalukyas, Cheras, and parts of Sri Lanka. Islam is founded on the teachings of the Prophet Mohammad, with core beliefs that include profession of faith, pilgrimage to Mecca, fasting during Ramadan, giving alms the poor, and ritual prayer. The first mosque in India was the Cheraman Juma Masjid, which was built around 629 AD by Malik Deneer, a contemporary of the prophet Mohammad.

Islam also spread throughout northern parts of India through force, resulting in the the Ghaznavid dynasty, an empire named for Mahmud of Ghazni that eventually stretched through parts of Afghanistan, Iran, and northwest India. Mahmud, also known as the “Sword of Islam,” lived between 971 and 1030 AD. He was born a Turkish slave and rose to power around the age of twenty-seven.[23] During his life, Mahmud invaded India up to seventeen times.  Around 1024 or 1025 AD, Mahmud attacked the Hindu city of Somnath, located in west-central India, where he sacked the temple of Shiva, killing 50,000 Hindus and carrying away over six tons of gold.

Although Mahmud was a dedicated warrior, he also loved the arts and literature. Under his authority, the city of Ghazna flourished into a major cultural center, with beautiful mosques, gardens, and centers of learning. Many brilliant minds were attracted to Ghazna during this time. Although Mahmud is remembered for forcefully bringing Islam deep into India, his conquests also helped increase the flow of Indian ideas and trade with the outside world. Mahmud’s reign is significant to the development of Indian history because his use of force to bring Islam played a role in sowing hostility between the Hindus and Muslims. Centuries later, the Pakistanis created a long-range missile and name it after Ghazni. For the next several centuries, northern India experienced various Islamic rulers and continuous power struggles until the emergence of the Mughal Empire.[24]

The Mughal Empire was established by a descendent of Genghis Kanh named Zahiruddin Muhammad Babur. At his death, Babur controlled northern India, with territory stretching from the Indus River to Bihar and the Himalayas to Gwalior. The empire lasted for seven generations until its demise in 1858, and is remembered for its longevity, strong administrative organization, and ability to integrate the Hindus and Muslims into a cohesive, unified state. Babur’s son Humayan was a far less capable ruler than his father and lost territory to rebels. However, the next emperor was Akbar the Great, the Mughal Empire’s greatest ruler.

Akbar came to power when he was a teenager and ruled from 1556 to 1605. Under Akbar’s reign, trade regions grew and the empire expanded throughout northern and central parts of India. Akbar advocated religious tolerance, married Hindu women, and removed unequal taxation against non-Muslims. Akbar had discussions with people of various religions in his courts, which led him to create his own faith, called Din-I-llahi.

At his death, his territory reached from Afghanistan to the Bay of Bengal and from modern day Gujarat to Deccan. Akbar’s reign is a significant point in Indian history because he was able to overcome religious differences within his kingdom and form a strong, unified unit that was truly loyal to him. He achieved the type of unity that India has lacked throughout most of its history.

After Akbar’s death, the empire continued to flourish under principles of religious tolerance and rigid administration.  Akbar’s successor was his son Jahangir, who reigned from 1605 to 1627.  After Jahangir’s death, his son Shah Jahan came to power and ruled from 1628 to 1658. Shah Jahan had a passion for cultural advancement and built numerous monuments, including the Jāmiʿ Masjid, the Great Mosque in Delhi, and the Taj Mahal in Agra, which he built to entomb his wife’s body. Shah Jahan intended to build another museum for his own body and to connect the two with a bridge. However, he was overthrown by his son Aurangzeb and imprisoned until his death.

The Mughal Empire’s continued success can be attributed to its strong, centralized administrative system and religious tolerance, which allowed for cohesion among people of different faiths. However, over time, this commitment to tolerance eroded and was eventually replaced by rigid, state sanctioned adherence to Sharia law. When Aurangzeb came to power, he expanded his kingdom by taking the Muslim kingdoms of Vijaypura and Golconda. He destabilized the kingdom by persecuting Sikhs and excluding Hindus from public service and destroying Hindu temples and schools. Religious persecution and unfair taxation led to rebellions and increased poverty within the kingdom. After Aurangzeb’s death in 1707, the empire was weakened and splintered. The Mughal Empire’s final ruler was Bahadur Shah II, who reigned until his involvement in the Indian Mutiny of 1857 resulted in his exile by the British.

The spread of Islam introduced new ideas and religions, adding to the already diverse society living in the region. Tensions between the warring Hindus and Muslims would continue to tear the Indians apart, until they chose to establish the separate countries of Pakistan and India, rather than attempt to form a cohesive, new India.

Additionally, the entry of Islam affected the treatment of women in India. Certain aspects of Islam seem to defend the value of women. For example, passages in the Quran assert that there is spiritual equality between the sexes both men and women have souls. Additionally, the Quran prohibits men from treating their wives as property, and provides for the defense of vulnerable women, includes divorcees and widows. However, under Islamic law, women are still socially and legally inferior to men. Sharia law allows a man to legally divorce his wife by simply pronouncing the “triple talaq,” which is saying “I divorce you” three times—even without his wife’s knowledge. Furthermore, the emphasis on protecting the chastity of women has resulted in their dress, mobility, and ability to engage in society being severely constrained. Muslim clerics have emphasized the need to protect the helpless female from the engaging in the dangerous world and promoted the need for a male agent. This has limited the women’s social movement, often depriving them of the right to go to school or mosques. [25] In short, Islam played a significant role in transforming Indian culture and views on women.

c. British Occupation

British historians have described their movement into India as a response to the need for order amidst the chaos left by the power vacuum created by the fallen Mughal dynasty.[26] On December 31, 1600, Queen Elizabeth granted a group of adventurers a charter that allowed them to control trade relations between the East Indies and England. The East India Company became more powerful during the rule of Jahangir, as the British began to profit from established trade patterns between ports on India’s eastern coast and parts of south-east Asia.

The British East India Company continued to settle various regions in India, including Calcutta, Madras, and Bombay and created centers to make various textiles, including cotton. By 1765, the East India Company had become the strongest power in India. Then, the India Act of 1784 was passed, which transferred control over the company’s activities to Parliament, although members of the Company continued to control activities on the ground in India.

The British occupation was met with a substantial amount of Indian opposition. For example, many Indians solders felt their religion was violated when they were forced to wear leather uniforms or sacrifice caste privilege to serve the British oversees without adequate compensation. Additionally, many Indians feared being forcefully converted by Christian missionaries. A pivotal point in Indian history was the Indian Rebellion of 1857, also known as Great Rebellion, the First War of Independence, or the Sepoy Rebellion. Although it was the culmination of various harms suffered by Indians, one catalyst was the invention of the Lee Enfield Rifle. To use the rifle, Muslim and Hindu soldiers had to use their mouths to bite and tear gunpowder cartridges that were comprised of pig and cow fat. These cartridges violated both major religions of soldiers in the Bengal Army because Muslims believe that are pigs are unclean and Hindus believe that cows are sacred. Many Indian officers refused to use the cartridges and were punished, resulting in more resentment toward the British.

Although the rebellion was serious, it did not spread across India and was restricted to the modern states of Uttar Pradesh, Madhya Pradesh, Rajasthan, and Bihar. As a result of the rebellion, the British took harsh measures to help ensure their control of the Indian people. The British punished the rebels severely; some were even shot from canons. The army was reorganized to prevent unity and cohesion among Indian soldiers of different religions and backgrounds. The British also addressed other factors that contributed to the Great Rebellion. Missionary funding was reduced and the number of British schools in the country was decreased. To further quiet fears of religious oppression, Queen Victoria ordered officials to refrain from involving themselves in Indian religious matters in 1858. Later that year, Parliament passed the Government of India Act of 1858, which transferred control in India from the East India Company to the Queen. This transfer marked the beginning of the British Raj, a period of British control over the territory encompassing modern day Pakistan, Bangladesh, and India.

Although the British claimed that their rule of India was mutually beneficial, many Indians felt oppressed and exploited. The British claimed that they strengthened India’s infrastructure through investment in irrigation and railway systems. However, many Indians asserted that any profits were being leached by the British, rather than put back into India. Another problem was the unfair taxation and regulation of Indian mills, which handicapped Indian businesses and workers advantaged British imports. Additionally, indentured labor became more common, particularly in tea manufacturing.

In short, the British significantly shaped Indian history.[27] They restructured the economy so that the natives and their resources were exploited for the benefit of the British. They also introduced schools, which widened the gap between the poor and wealthy since only the wealthy could afford to be educated in English.[28] The effects of colonialism significantly shaped national identity, because it is rooted in the idea that the natives lack the agency to care for themselves.

d. The Father of India

In the midst of increased oppression by the British, one of history’s great figures emerged, Mahandas Karamchand Gandhi, also called Mahatama, or the “Great Soul.” Gandhi lived from 1869 to 1948 and dedicated his life to the principle of satyagraha, which merges aspects of Hinduism, Buddhism, and Jainism and advocates the use of nonviolent protest for meaningful social change. Gandhi’s major causes included peacefully removing the British, defending social outcasts, and seeking reconciliation between the warring Hindus and Muslims. By this time, women’s rights had significantly deteriorated from ancient times, and the caste system had become entrenched in Indian society, which resulted in the systemic oppression of members of the lower class. Gandhi defended women’s rights because he fought for a society where everyone was equal. He also valued women and included them in his fight against the British.[29]

Gandhi was born to a polygamist state minister named Karamchand Gandhi. His mother was his father’s fourth wife and a deeply religious woman. [30] In his younger years, Gandhi was a mediocre student. According to one school report, he was “good at English, fair in Arithmetic and weak in Geography; conduct very good, bad handwriting.” Gandhi also went through a rebellious phase during his adolescence, engaging in petty theft, atheism, smoking, and meat eating. Later, Gandhi travelled to England to study law, where he was exposed to religious ideas that would shape his theory of nonviolence, including Christianity. In 1893, Gandhi accepted a job offer in South Africa to do legal work after he failed to find work in India.

Gandhi’s time in South Africa molded him because it made him acutely aware of racism and the reality of systemic oppression. Gandhi himself experienced racism first hand when he was thrown out of a first-class compartment in a railway while traveling to Pretoria. A white driver beat him when he would not to move to the footboard in order to accommodate a white passenger. He was also prohibited from hotels for European occupants only.

Gandhi committed himself to fighting for equality in South Africa for years, and led many Indians in peaceful protests that resulted in them being jailed, flogged, and even shot. Eventually, the South African government buckled under pressure from both the movement and other countries, and accepted a compromise crafted by Gandhi and a statesman named Jan Christian Smuts who disliked Gandhi but deeply respected him. Although the effects of his work in South Africa did not provide a long-term solution to its problem of systemic racism, his time in the country helped shape his theory and application of satyagraha to resolve inequality.

In 1915, Gandhi returned to India and began to immerse himself in social activism, advocating the use of strikes and boycotts to challenge social injustice. In February 1919, the British passed the Rowlatt Acts, which permitted the suspects to be held without a trial. On April 3, Gandhi led a protest, which resulted in the British Army firing on hundreds of peaceful protestors in what became known as the Amritsar Massacre. During this time, Gandhi also helped Indians in Gujarat who were unfairly taxed during a famine and deprived of their land by the British.

Between 1920 and 1922, primarily in response to the Armistrar Massacre, Gandhi adopted his noncooperation movement, which used satyagraha to incentivize the British to grant self-rule, or swaraj, to Indians. As part of the movement, Indians boycotted British products and refused to pay taxes levied by the British. However, Gandhi called off the movement after violent outbursts by protestors led to the murder of police officers in 1922. Although this attempt to overthrow the British fell short of his ultimate goal, it helped to raise mass support for the nationalist cause. Afterward, Gandhi was arrested on March 10, 1922, and was imprisoned until February 1924. Upon his release, Gandhi sought to bring peace between the Hindus and Muslims, resorting to fasting for three weeks in 1924 in order to push for peace among his countrymen.

Then, in 1930, the British levied a tax on salt. Although the salt tax only brought in four percent of the government’s revenue, it touched everyone. According to Gandhi, “there is no article like salt, outside water, by taxing which the state can reach even the starving millions, the sick the maimed, and the utterly helpless. The tax constitutes therefore the most inhuman poll tax the ingenuity of man can devise.” In response to the taxes, Gandhi led a 240-mile Salt March from Gujarat to Dandi from March to April, gaining support along the journey. “On April 1930, by picking up a handful of salt, Gandhi inaugurated the Civil Disobedience Movement, a movement that was to remain unsurpassed in the history of the Indian national movement for the country-wide mass participation which it unleashed.” Gandhi was again arrested, along with 60,000 to 90,000 followers, however, the civil disobedience movement continued to grow.

On March 5, 1931, Gandhi signed the Gandhi-Irwin Pact, agreeing to pause his satyagraha campaign in exchange for the release of imprisoned Indians and the right for Indians to make their own salt. As part of the agreement, Gandhi was allowed to attend the Round Table Conference, which was a trio of meetings that the British held in London to determine India’s future. Despite the slight progress, his return to India was dismal. In 1931, the British imprisoned Gandhi again. Then, in 1932, he fasted to protest the state sanctioned segregation of the untouchables, whom he called the Harijans, or “children of God.”[31]

Gandhi helped to restructure the Indian National Congress (“Congress”), a party that was established in 1885, although he later left after he began to question their commitment to nonviolence. In 1942, the Congress passed the “Quit India” resolution, after the British unilaterally drew India into World War II. The resolution was a civil disobedience movement that sought to oust the British. The Congress refused to support Indians fighting alongside the British unless they were granted complete political freedom. In 1942, the British responded by imprisoning 60,000 Indians, including Gandhi and Jawaharal Nehru, who later became India’s first prime minister.

Gandhi’s life was dedicated to nonviolence and advocacy for those whom society deemed to be valueless. He fasted multiple times in an attempt to bring Hindus and Muslims together and pushed for a unified state, rather than a partition between the Hindus and Muslims. Additionally, Gandhi held revolutionary views on the role and strength of women.[32] He fought the social acceptance of child marriage, the dowry system, and wanted increased education for women. Gandhi’s view of the treatment of women can be summarized in this statement, “of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.” Sadly, Gandhi’s life was cut short when a Hindu fanatic, named Nathuram Godse, shot him on January 30, 1948. We can only wonder what effect his gentle yet unwavering push for unity and reconciliation across religion, region, and caste could have had on the future of India, had he been granted a fuller life.

e. Independence and The Partition

In the 1930s, a group of Indian Muslims studying at Cambridge adopted the term Pakistan to represent their desire for a Muslim homeland. Pakistan had two meanings. First, it was an territorial acronym: P(unjab), A(fgania and the Northwest Frontier), K(ashmir), I(ran), S(ind), T(urkharistan), A(fghanistan) and (Baluchista)N. Second, Pakistan meant “the land of the Paks,” who are the spiritually pure and clean. Within India, Mohammad Ali Jinnah and the National Muslim League publicly advocated for a separate Muslim state. In 1949, the League adopted the Lahore Resolution, which asserted that any British proposals for the future of India would be rejected unless Muslims were promised autonomy.

There were numerous failed attempts to bring unity between Hindu and Muslim leadership in India leading up to independence and partition. In 1946, elections in India showed the deep polarization between the Hindus and Muslims, which gave weight to claims by Muslim leadership that a separate homeland was necessary for Muslims and demonstrated that the Congress could not rightfully claim to speak for all Indians. In 1946, the British attempted to set up a Constituent Assembly to create an Indian constitution and a transnational government, but they failed to achieve either goal.

In August 1946, Jinnah led the Muslims in “Direct Action Day,” a public call for a separate Muslim state. The day ended in extreme violence and civil unrest across India, and the loss of thousands of Muslim, Sikh, and Hindu lives in what is now known as the Calcutta Killings of 1946. Then, the British considered the Mouhbatten Plan of June 3, 1947, a three-part vision to partition British controlled India, give the new governments dominion, and allow the countries to secede from the British Commonwealth. Under this plan, Indian provinces would be given a choice to join India, Pakistan, or neither upon independence.

Finally, the British Crown approved the Indian Independence Act on July 18, 1947, which divided the country into a Hindu controlled India and a Muslim dominated Pakistan. At this point, the British believed that Muslims and Hindus could not survive as a single unit. Britain’s quick withdrawal from the region was the result of changing dynamics at home. The Labor Party won the British election in 1945, and the country decided that it could no longer hold on to its massive empire. Although the British originally planned for the transition to take place in June 1948, Lord Louis Mouhbattan accelerated the date because at this point, the British were more concerned with getting out of India than constructing a well thought partition and exit.

The partition took effect on midnight between August 14th and 15th. India recognizes its independence day on August 15, 1947, while Pakistan celebrates its independence day on August 14. The hastily drawn partition resulted in one of the bloodiest migrations in history as people left their homes to join their religious group. Approximately ten to fifteen million people moved because of the split and as many as one million civilians lost their lives because of the fighting and riots that followed. The Sikhs in Punjab were hit especially hard and suffered the greatest casualties relative to their numbers. The partition did not resolve tensions between the Hindus and Muslims and the relationship has remained hostile till this day. A constant source of tension has been the fact that both countries claim ownership of Kashmir. Additionally, India and Pakistan have engaged in three major wars since independence, as well as numerous skirmishes and standoffs and even a nuclear arms race.

f. The Age of Nehru

Jawaharala Nehru, who fought alongside Gandhi for independence and headed the Indian National Congress, became India’s first prime minister and led the country from 1947 to 1964. Nehru was born into an affluent family of Brahmans on November 14, 1889. His father was a lawyer who worked in the independence movement with Gandhi. Nehru had three siblings, including his younger sister Vijaya Lakshmi Pandit, who would eventually become the UN General Assembly’s first female president. Nehru was educated in Cambridge, England. His political views were significantly shaped by his time in Europe and the Soviet Union between 1926-27, where he was influenced by Marxism and communist ideology. When he returned to India, Nehru played a significant role in the Congress, particularly by drawing the youth and intellectuals to the cause.

During his leadership of India, Nehru made significant social and economic changes. He advocated secularism in government and sought to unite India, despite the country’s many religions and ethnicities. Nehru also sought to increase India’s scientific and technological prowess through the use of a National Planning Commission to create a series of five year economic plans to grow India’s industries. During the Cold War, India remained neutral and received aid from the Soviet Union, Great Britain, the United States, and West Germany. This aid boosted India’s industrial development, particularly its iron and steel industries. Under Nehru, India’s absolute output placed it among the world’s ten most advanced nations, although its per capita output still left it among the least productive major countries. Finally, during the 1960’s, the Green Revolution brought scientific advancement to India that changed its agricultural outputs.

As he aged, Nehru’s health began to fail, and in 1964, his third stroke ended his life. Nehru’s leadership of Indian internal affairs rested on principles of secularism, democracy, socialism, and unity. He described his foreign policy as based on Five Principles (Panch Shila): “mutual respect for other nations’ territorial integrity and sovereignty; nonaggression; noninterference in internal affairs; equity and mutual benefit; and peaceful coexistence.”

Lal Bahadur Shashtri succeeded Nehru as India’s prime minister. Nehru’s daughter, Indira Gandhi succeeded Shashtri, becoming India’s first female prime minister and leading the country from 1966 to 1977 and then again from 1980 to 1984. Indira was born on November 19, 1917 and was Nehru’s only child. She studied at a university in Bolpur and then Oxford. Indira married Feroze Gandhi in 1942, and they had two children together, Sanjay and Rajiv. However, their relationship disintegrated and the couple lived apart for most of their marriage.

Indira was heavily involved in politics for most of her life. In 1959, she was elected president of the Indian National Congress and in 1964, she became a member of the upper house of parliament. In 1964, Prime Minister Lal Bahadur Shastri appointed Indira to be the minister of information and broadcasting. After his death in 1966, she became the Congress’ leader and India’s prime minister. During this period, the Congress fractured and Indira was kicked out of the party. In 1969 she formed a new party, called the New Congress, and in 1972, Indira and the New Congress won several overwhelming victories during state legislative elections.

In 1975, the High Court of Allahbad ruled that Indira’s parliamentary seat would be taken from her and she would be banned from politics for six years because of corrupt election practices, overspending on the election, and misuse of governmental funds.[33] In response, India declared a state of emergency, jailed her political adversaries, and passed laws that infringed on the individual liberties of many Indians. Her sterilization program sought to control the Indian population and resulted in the sterilization of over 6 million men in a single year.[34] Indira’s period of emergency rule lasted until 1977, when she and the New Congress were thoroughly defeated in national parliamentary elections by the Bharatiya Janata Party. Indira was imprisoned for corruption in October 1977 and again in December 1978.

In 1978, the New Congress changed its name to the Congress (I) Party, with the I standing for Indira. Indira and Congress (I) then won the election and regained political control in 1980. Her chief political advisor was her son, Sanjay, whom she was grooming to carry on the family’s political dynasty. However, Sanjay was killed in a plane crash in 1980, and Indira began to focus on preparing her other son Rajiv to succeed her.

During Indira’s leadership, she dealt with violent Sikh separatists in Punjab who wanted independence. After the partition, many had claimed that the Hindus got India, the Muslims got Pakistan, but the Sikhs were forgotten. In 1982, a large group of Sikhs fortified themselves in the Harmandir Sahib, the Golden Temple, which was their holiest shrine. In 1984, Indira ordered the army to forcefully remove separatists from the area, leading to the deaths of at least 450 Sikhs. Less than six months later, Indira’s Sikh bodyguards got revenge by ending her life. Indira’s son Rajiv Gandhi succeeded her as Prime minister from 1984 to 1989, but was assassinated in 1991.

g. The Structure of the Indian Government[35]

India is comprised of twenty-nine states and seven territories. Its legal system is based on the common law English model. However, India’s promise of religious freedom has supported its system of personal laws which force the state to defer to the rules set by an individual’s religion to resolve domestic matters, such as marriage, divorce, and inheritance. Additionally, the Indian government is a federal parliamentary republic. The executive branch of the government includes a president, a prime minister, and a cabinet called the Union Council of Ministers who are recommended by the prime minister and then appointed by the president. The legislative branch consists of two houses, the Council of States and the House of the People. Finally, the judicial branch is comprised of lower courts, including:  district courts, high courts, and a labor court. The Supreme Court has one chief justice and twenty-five associate justices. Judges are appointed by the president and serve on the court until they are sixty-five.

Women In India

Due to India’s constitutional commitment to freedom of religion, personal laws have been adopted, which allow various religions to prescribe rules controlling the everyday lives of their adherents. This affects women because the government is hesitant to intervene when freedom of religion is used to perpetuate gender inequality. This public/private dichotomy has also placed matters that occur within the home outside the realm of public intervention. Although some people argue that this hands off approach to family matters is beneficial, others disagree. This system often leaves Indian woman at the mercy of a man who does not value her as his equal, but as a means to increase his status because of her duty to keep the home, provide male children, and as a means to extort money from her family. In short, Indian women are objectified by culture and religion, which legitimizes their mistreatment.

One of the common harms faced by Indian women within the private sphere is domestic violence. Although India passed the Protection of Women from Domestic Violence Act in 2005, and criminalized marital cruelty in Section 498A of the Indian Penal Code, it is still rampant within homes. According to a 2015 study by the government, approximately 40% of Indian women are believed to be the victims of domestic violence. However, private estimates are much higher, reaching over 80%.[36]

Dowry deaths are another example of the victimization of Indian women at home. After marriage, many Indian women find themselves at the mercy of their husbands and in-laws, and may be tortured or killed if their new family believes that they are not worth their bride price, or if their husband’s family wants to extort money from the bride’s family. Although India passed the Dowry Prohibition Act to criminalize the giving or receiving of a dowry, the law has been ineffective in preventing dowry deaths, which are reported to have claimed the lives of 24,771 Indian women between 2012 and 2014.[37] It has been estimated that approximately one Indian woman dies a dowry death every hour in India.[38]

Religion has also been used to glorify systemic inequality as being divinely ordained. Throughout history, epics and legends have been used as the stories that shape cultural identity—they are a powerful force for defining groups, particularly the vulnerable. For example, the legend of the Hindu goddess Sati has been used to idolize the practice of widow burning, the practice of burning widows alive.[39] According to myth, Sati was the granddaughter of Brahma, the creator god.  Sati’s father held a special gathering of the gods so that his daughter could select a husband by throwing a bouquet of flowers and marrying the god who caught it. Shiva, the god of destruction, was not invited. However, Sati prayed and he showed up and caught the bouquet. When Sati’s father refused to accept Shiva, Sati ended her life by throwing herself into a sacrificial fire. Shiva was so overwhelmed with sadness that he took her dead body from the fire and danced with it. The story of Sati is clearly dark to many westerners, because we are able to see it from the outside and it has not played a part in shaping how we construct and understand reality.

In 1987, the Sati Prevention Act was passed, after a young woman named Roop Kanwar was placed on her husband’s funeral pyre and burned. This law criminalizes sati and allows the death penalty for those who are involved in committing the crime. The law also bans the glorification of sati by prohibiting the public worship of women who have engaged in the practice, banning the construction of temples in their honor, or worshipping them as goddesses. However, some Indians have claimed that these laws interfere with their freedom of religion.

There are numerous other gender-based crimes that harm the young as well. Female infanticide and sex selective abortion are both incredibly common India, despite the government’s stance against these practices. According to some estimates, approximately 10 million female fetuses have been lost within the last twenty years. The strong cultural preference for males has also resulted in many families neglecting their daughters, denying girls care, food, and educational opportunities. Furthermore, despite the Child Marriage Act of 2006’s prohibition of child marriage, many girls are still married at young ages. The law even bears evidence of sexism on its face, in its different legal ages of marriage for girls and boys, which are 18 and 21, respectively.

“Eve teasing,” which is a slang term for sexual harassment, and rape are also widespread crimes in India, and have been exacerbated by technological advancements.

People are now making video recordings of rapes and selling them for as little as $3, further normalizing the behavior and allowing it to oppress victims. According to the news network Al Jazeera, approximately 34,650 Indian women reported being raped in 2015.[40] The stories that come out of India are particularly disturbing. In 2012, a young woman named Jyoti Singh was sexually assaulted by six men on a bus. Her body was so battered that her intestines were exposed and she eventually lost her life.  Sexual crimes have also been used by higher castes against lower caste women and girls to reinforce social hierarchy. For example, in July 2015, a male village council in India ruled that two sisters who were Dalits, i.e., “untouchables,” would be raped and paraded naked with blackened faces because their brother married a woman from a higher cast.

Although gender inequality is present everywhere, it is particularly rampant in India despite the country’s attempts to rectify this systemic problem through the law. From birth until death, Indian women are victims of an intricate web of social and religious customs designed to hold them back.

Legal Analysis

Overview of the Indian Constitution and Women’s Rights

The Indian constitution was significantly influenced by commitments to three principles: a secular government, religious freedom, and substantive equality.[41] The Indian Constitution goes beyond merely acknowledging the presence of systemic inequality, and grants the government expansive authority to actively break down certain social hierarchies that have perpetuated inequality throughout most of its history. India’s protectionist approach to gender inequality is rooted in Article 15(3) of the Indian Constitution, which states that the government may make “special provision for women and children” in order to account for the unequal treatment they have historically endured. In short, the Indian government has rejected formalism and neutrality in its pursuit of gender equality.

Article 14 of the Indian Constitution mirrors the United States’ Equal Protection Clause and promises all individuals equal protection of the law. Article 15(1) prohibits state-based discrimination on the grounds of “religion, race, caste, sex, [and] place of birth.” Article 13 states that any laws that are inconsistent with constitutionally guaranteed fundamental rights are void, including laws that violate Article 15. Furthermore, the Indian Constitution asserts that it is the fundamental duty of every Indian citizen to “renounce practices derogatory to the dignity of women.” The Indian Constitution also contains non-justiciable Directive Principles, which are intended to equip the state to work for the societal freedom and equality of women, particularly in the area of labor by providing women with maternity leave, reasonable working conditions, and fair pay.[42] Finally, Article 19 promises of freedom from sex-based discrimination and Article 21 promises of the right to life and liberty.

b. Personal Laws

Despite these protections, the Indian Supreme Court has failed Indian women by upholding religious personal laws, which are have played a significant role in perpetuating de facto inequality. Religious laws govern most aspects of the daily lives of women, including grounds for divorce, maintenance for divorced women, rights of parental guardianship, and rights of inheritance. Although the concept of personal laws is rooted in India’s promise of neutrality, secularism, and freedom of religion, these laws are often oppressive and can keep women form being able to access the state’s remedies.

Article 44 of the Indian Constitution instructs the state to provide a Uniform Civil Code, which would prevent the inconsistency of different personal laws. However, a Uniform Civil Code has still not been passed because religious minorities, particularly Muslims, fear that its passage would undo their distinct, cultural identity.[43] Under Muslim personal law, men and women are treated differently. Men can have multiple wives, divorce their wives by pronouncing the triple talaq, and prevent their wives from being the guardians of their children.[44]

A major case involving Muslim women and personal laws is Mohn Ahmed Kahn v. Shah Bano, where the Supreme Court of India held that a Muslim woman who is unable to support herself after divorce has a right to continued maintenance. Shah Bano was an elderly and sick woman who was kicked out of her home by her husband after being married for over forty years. She filed for maintenance under Section 125 of the Code of Criminal Procedure, which was enacted to prevent destitution and vagrancy of women who have been divorced. Both the magistrate and the High Court held in her favor, and her husband appealed to the Supreme Court of India, claiming that there was a clash of personal and secular law and that under Muslim law he had no duty to continue supporting his former wife.

Although Shah Bano prevailed at the Supreme Court, her victory was short lived because it incited a backlash from vocal members of the Muslim community who interpreted the ruling as wrongful state interference with religious laws.[45] The outcry from Shah Bano was enormous—there were protests, riots, and the case even influenced political elections.[46] The next year, the parliament passed the Muslim Women’s (Protection of Rights on Divorce) Act. Despite its name, this statute undid Shah Bano by providing a bar to Muslim women’s ability to receive maintenance under secular law. Section 5 of the Act holds that a divorced Muslim woman may not bring a claim under the Code of Criminal Procedure, which would probably entitle her to a greater remedy, unless her former husband agrees in writing. Since the law only applies to Muslim women, it has led to the creation of different classes of women on the basis of religion, which directly affects their ability to seek recourse from the state under secular law.[47]

Hindu women have also faced injustice under India’s system of personal laws. In Gutha Hariharan v. Reserve Bank of India, a woman applied to a bank for a bond to be held in her son’s name, but under her guardianship. The bank returned her application, asserting that they required the child’s father to sign as the guardian, or for her to produce a certificate of guardianship before her son could be granted the bond. She then brought a claim asserting that provision 6(a) of the Hindu Minority and Guardianship Act was unconstitutional. However, the Court upheld the provision, which allowed for the unequal treatment of fathers and mothers as guardians, by claiming that a mother was the child’s guardian “after” the father. The court asserted that “after” meant “in absence of,” and denied any sexism in the statute’s language.

Although many of India’s personal laws discriminate against women in their application and on their face, the Supreme Court has held that respect for religious freedom means refusing to enter into this private realm of inequality. By prioritizing respect for the personal/public dichotomy over gender equality, the Supreme Court has allowed the daily lives of women to continue to be controlled by patriarchal rules that give them fewer rights and privileges simply because of their sex. Although women comprise a significant portion of the Indian population, they still lack the social capital to stand up this type of patriarchy by fully engaging in the legislative process. Shah Bano attempted to use the law to get equality, but despite her victory in court, she was forced to abandon her claim because of the uproar it caused within her community. The vulnerability of the female population is exacerbated by factors such as a lack of educational opportunity and the wealth gap between men and women.

Although religion is a sacred and meaningful aspect of personal life for most Indians, the government ought to step in and act on behalf of its citizens when the free expression of religion is used by those in power to infringe the fundamental rights of the vulnerable. The Court could legitimately take this type of action under Article 13 of the Indian Constitution, which asserts that any laws that are inconsistent with fundamental, constitutional guarantees, including gender equality, are void. However, the Court has chosen to prioritize keeping peace between the religious factions over promoting the rights of women. According to the Derrick Bell’s “interest convergence” theory, the powerful majority will not act in the interest of vulnerable populations until it is in their best interest. This means that it is until the majority believe that it is in their best interest to risk angering male dominated religious groups in order to achieve gender equality, personal laws will continue to control the lives of Indian women.

Sexual Harassment in the Workplace

Throughout the world, women are attacked because of and through their bodies. Sexual harassment and assault disproportionately touch the lives of women and remind them that they are not fully human and their bodies are not their own. In its pursuit of gender equality, the Supreme Court of India has chosen to conceive of sexual crimes as a widespread attack on the fundamental rights of women, rather than a harm that incidentally affects women. The Supreme Court’s analysis of cases concerning sexual crimes primarily relies on Article 15, bolstered by Article 19’s promise of freedom from sex-based discrimination, and Article 21’s promise of the right to life and liberty. The Court has also relied on international trends and laws in order to expansively interpret the concept of gender equality.

One key case that demonstrates the Court’s commitment to fighting sexual crimes against women is Vishaka & Ors v. State of Rajasthan, a class action brought by nongovernmental organizations (“NGOs”) and activists after a social worker was gang raped for stopping a child marriage. The petitioners brought the claim in order to find a way to ensure gender equality, in the form of freedom from sexual harassment in the workplace for women.

The Supreme Court held that the rape included major violations of the female worker’s constitutional rights. First, the Court found a violation of Article 21’s right to life and liberty, which includes the right live with dignity. Second, the Court reasoned that a woman’s right to work under Article 19(1)(g) rests on her ability to access a safe work environment. The Court also found violations of Article 14’s promise of the right to equality and Article 15’s prohibition of discrimination on the basis of sex.

In the opinion, the Supreme Court heavily relied on international trends and norms to help interpret and expand the Constitution’s promise of gender equality. The Indian Court has the constitutional authority to use international conventions as a gap-filler when there is a hole in domestic law, as long as international norms are not inconsistent with the spirit of domestic law. The Court stated that, “gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right.” In short, the Indian Court reasoned that international trends and laws provide a floor for what gender equality ought to mean.  Furthermore, the Supreme Court found guidance in two portions from the Convention on the Elimination of All Forms of Discrimination against Women. Under Article 11, the state should take the appropriate measures to remove discrimination against women in the workplace. Under Article 24, the state should use all necessary means to achieve the goal of Article 11.

Finally, the Court established guidelines for preventing sexual harassment in public and private workplaces, now known as the Vishaka Guidelines. The Court defined sexual harassment as behavior that includes, “such unwelcome sexually determined behavior (whether directly or by implication) as: physical contact and advances, a demand or request for sexual favors, sexually colored remarks, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct.” This conduct is also discrimination if the woman reasonably believed that her objection would harm her ability to work by affecting the future possibility of recruitment or promotion, fostering a hostile work environment, or creating fear of retaliation. Furthermore, the Court directed that a female led Complaints Committee be established to handle all claims of sexual misconduct, mandating that at least half the members be female and include third party members who are capable of dealing with sexual harassment. In this way, the system was designed to protect women who are harassed by their immediate supervisors.

When it comes to employment discrimination against women, India seems to be making a significant effort to promote equality. The Court has been willing to consider the effects of sexual harassment on a woman’s ability to achieve her full potential, rather than seeing it is an incidental harm to women. However, the seriousness of this approach could be related to the fact this victim was a member of an NGO, rather than a regular Indian woman. The added publicity may have triggered a different reaction than what the average Indian woman would have received from the Supreme Court.

Gender Equality in American Law

In American law, the guarantee of equality is rooted in the Fourteenth Amendment, which prohibits the denial of equal protection of the law by states. The original purpose of the amendment was to protect the rights of the newly freed slaves who possessed four specific characteristics that justified their legal protection: a history of invidious discrimination, being an insular minority, the fact that race is an immutable physical characteristic, and impotence to protect themselves through the political process.

However, women do not fully fit the paradigm of the newly freed slaves because they are not an insular minority. Interestingly, the fear was always present that once the Equal Protection Clause granted equality to black men, it would grow to influence the rights of women because Congress was aware of the elasticity inherent in the word “equal.”  The Supreme Court uses intermediate scrutiny when there is a challenge of gender discrimination which requires determining whether the law is substantially related to serving important governmental objectives.

Early cases dealing with gender discrimination reflected society’s view that women should be treated differently from men because women were seen as weak, maternal, and in need of special protection to preserve their physical and moral integrity.[48] Generally, as long as the statute was not rooted in animosity, it was upheld at rational basis, which means that the statute would survive any challenges as long as there was a reasonable explanation for it. Practically speaking, this means that the statute would not be struck down, which left women without a shield to protect them against the state-based discrimination that perpetuated social inequality. Essentially, the state took on the role of benevolent protector and engaged in benign discrimination, as the Supreme Court of India sometimes does as well.[49]

In Bradwell v. Illinois, the Supreme Court used rational basis review to uphold a state ban on women practicing the law because of the belief that a woman’s place is in the home. Justice Bradley’s concurrence very clearly summarized the way women were viewed, “Man is, or should be, woman’s protector and defender. The nature and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . . [T]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” Bradley’s concurrence reflected prominent social beliefs that unequal treatment of men and women were just because the laws reflected the natural, divine order.

Another significant case concerning gender equality is Muller v. Oregon, where the court upheld a state law that prohibited women working for more than ten hours because of woman’s physical and maternal nature. The Supreme Court relied on expert reports about the various negative effects of long hours of work on women. Interestingly, the case was decided during the Lochner era, when courts were striking down state laws meant to protect workers because it was seen as restricting freedom of contract.[50] Another case that demonstrates the Court’s benevolent protectionism is Goesart v. Cleary, which was decided in 1948. The Supreme Court applied rational basis scrutiny and upheld a state law that prohibited women from working as bartenders unless the bar owner was their husband or father. The purpose of the law was to protect the woman’s moral and physical wellbeing because the Supreme Court reasoned that if a woman was accompanied by a male family member, she might be protected from the types of moral and social dangers often found at bars.

In the latter half of the twentieth century, the Supreme Court began moving toward increased protection from gender discrimination. In 1971, the Supreme Court struck a statute that prohibited women from administering estates as arbitrary and unreasonable by applying rational basis with bite in Reed v. Reed. This heightened scrutiny against a statute that discriminated on the basis of sex can be seen as reflecting significant social changes during the time period, including the ending of school segregation, the passage of the Civil Rights Act of 1964, and the Voting Rights Act of 1965. During this era of social change, a constitutional amendment was proposed that would have made gender equality a constitutional right. The Equal Rights Amendment (“ERA”) would have provided super-majoritarian, textual evidence of commitment to gender equality and would have increased the scrutiny for gender discrimination to strict scrutiny. However, the ERA, which was proposed in 1972, died ten years later without a sufficient number of votes. Additionally, many religious conservatives saw the ERA as an attack on traditional family values.

An interesting case is Fronterio v. Richardson, where a man claimed gender-based discrimination because of the different qualification criteria for spousal benefits for husbands and wives in the armed forces.[51] The Supreme Court applied strict scrutiny, which requires that the law e narrowly tailored means to reach a compelling end. The Supreme Court held that the ends of administrative efficiency were not strong enough to legitimize a discriminatory statute and struck it. Interestingly, the Court received four votes for strict scrutiny for gender-based discrimination; two votes were withheld in order to wait for the passage of the ERA.

The most significant change in gender protection occurred in Craig v. Boren, where the Court adopted intermediate scrutiny for gender-based discrimination. The case involved a challenge brought by a male who could not buy beer, although females his age were legally allowed to. The reason for the state law was that males within 18-20 were more likely to be arrested for being drunk and driving while intoxicated. Males within his age group were also more likely to drink and drive than females who wee the same age. In short, the state presented a reasonable defense for the law’s purpose and means. The majority opinion, written by Justice Brennan did not openly acknowledge the adoption of a new standard of scrutiny, however Justice Powell’s concurrence contained a footnote that cited dissatisfaction with the “two-tier” approach” and asserted that the new standard is a “middle-tier” approach.

A final case that is significant for gender equality is United States v. Virginia. Virginia Military Institute (VMI) was a military school that had only admitted men. The United States claimed that this policy violated the Equal Protection Clause and sued VMI. The District Court held for VMI but the Fourth Circuit held in the United States’ favor. So, VMI created the Virginia Women’s Institute for Leadership, in an attempt to remedy the constitutional violation. However, the Supreme Court held that the Virginia Military Institute’s creation of a woman’s only academy could not save it from a challenge, contending that blanket exclusion of women from the institute violated the Equal Protection Clause.

Interestingly, the language of the Ginsburg’s majority opinion states that the justification must be “exceedingly persuasive justification,” which echoes the strength of language for strict scrutiny. Additionally, the majority opinion asserted that the statute must not rely on “overbroad generalizations” which is an interesting contrast to Justice Bradley’s concurrence that parroted and glorified stereotypes about men and women in Bradwell v. Illinois.

Conclusion

Although the Untied States and India both struggle with achieving gender equality, India has truly failed its women. This is an interesting dilemma because there are substantial protections for women found in the Indian Constitution and the Indian Supreme Court has explicitly acknowledged that the state of women today is the result of social practices that have held them back in the past, rather than the female nature. India’s substantive theory of equality ought to have equipped the country to dismantle the various social and cultural institutions that have perpetuated sexism because under this theory, justice is dismantling the hierarchies that perpetuate inequality, rather than adopting a neutral framework and rigidly applying legal rules without considering their context.

One reason for this failure is the Indian Constitution’s conception of religious freedom, which upholds its system of personal laws. This has created a dilemma where the Supreme Court would risk angering the male dominated religious communities if it chose to enforce equality within the private sphere. It is more valuable to the male dominated court to keep peace between the Hindus and the Muslims than to advocate for the rights of women, who lack the social capital to cause the Supreme Court to see their interests as converging with the interests of those in power. Although the law is meant to be a tool for justice, it often serves as a mirror to reflect to a society who and what it values. Regardless of the promises contained in the Indian constitution, the law will not be tool to promote true gender equality until the society has changed.

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