by Paras Ahuja and Rahul Garg
One is not born, but rather becomes, a woman
-Simone De Beauvoir
Despite prolific attempts by activists, growing nation-wide awareness on gender equality and an increase in egalitarian legislation and growing policy efforts, gender equality has been a distant dream in many contexts, perhaps far too high to be achieved. Sexist attitudes and gender stereotypes prevalent within the society iterate these inequalities, while also simultaneously justifying them, through a kind of ‘feedback loop’. Discriminatory laws often provide these stereotypes and sexist attitudes legitimacy. Academic conceptualizations of sexism now include what is termed as ‘hostile sexism’ and ‘benevolent sexism’, which together form a part of the ‘ambivalent sexism framework’. This theoretical framework developed to challenge the traditional notions of sexism which were restricted exclusively to ideas of hostility towards women (Glick and Fiske, 1996). Hostile sexism often has misogynistic undertones based on negative prejudices and representations of women as angry, overly-emotional, sexually manipulative and over-reactive beings, prone to make a big deal out of trivial issues. In contrast, benevolent sexism is couched in supposedly positive representations of women, which are equally harmful for gender equality (Glick and Fiske, 1996). Representations of women as feeble, pure and caring, or warm, maternal and fragile entities, who need to be protected and guarded, are instances of benevolent sexism. Albeit seemingly protectionist, attractive and fair, these representations are equally subservient to gender equality. Initially theorized to be binaries, hostility and benevolence, however, have later developed to exist as complementary ideologies, having a strong diffusive bond reflecting in their positive correlation (Glick et al, 2000). On a national level, this means that countries with representations and endorsements of hostile sexism often also reflect benevolent sexist attitudes. Together, these complementary attitudes portray women as incompetent, weak, and lower in the gender hierarchy.
Through our analyses of Indian legal statutes that are deeply entrenched in sexist attitudes and prejudicial depictions of men and women, we observe that gender discrimination and sexism’s societal prevalence are further reflected in the framing of legal provisions. For instance, under Section 20(2) of the Hindu Adoptions and Maintenance Act, 1956, a child can claim maintenance amount (provision for food, clothing, residence, education and medical expenses) from his/her parent, only so long as the child is a minor (below the age of eighteen years) and is unable to provide for himself/herself. However, Section 20(3) of the Act provides for an exception to this rule by casting a positive legal obligation on every parent to provide for all the expenses (as aforementioned) of an unmarried daughter even after she attains maturity, till the time she gets married. Although seemingly protectionist and benevolent towards women, these provisions portray women to be incapable of earning for themselves (vis-à-vis men) by placing legal responsibility on a parent to mandatorily provide for all their expenses till they get married. These representations continue to exist even after marriage, as can be understood from Section 18 of the Act, which entitles every woman to ask for maintenance (living expenses as aforementioned) from her husband throughout her matrimonial life. Sexist portrayals still continue after her husband dies, as under Section 19, it is now her father-in-law who is legally required to maintain her till she gets remarried. Similarly, Section 37 of the Special Marriage Act, 1954, also entitles only the wife for making maintenance or permanent alimony claims. In this post, we analyze one such protective legislation and a subsequent Supreme Court of India ruling that serves as an example of how benevolent sexism operates, while highlighting glaring endorsements of deep rooted stereotypes.
The Prohibition of Child Marriage Act, 2006 (hereinafter, “the Act”) is a legislation that pertains to the prohibition of child marriage in India that is built on the erstwhile Child Marriage Restraint Act, 1929. The former intends stronger punishments; hence greater deterrence, as evident in the nomenclature used; ‘prohibition’ vis-à-vis ‘restraint’. In order to ensure this deterrence, Section 9 of the Act punishes an adult-male with imprisonment up to two years and/or fine in the event that he contracts a child marriage. However, this provision entirely excludes adult-females marrying minor-boys from any punishment. We argue, in seriatim, that this exclusion of adult-females from punishment under Section 9 of the Act relies on gendered representations and is unconstitutional on grounds of equality rights. We shall advance this discourse with the thematic understanding of Butler’s concept of performativity, in which Butler suggests that one ‘performs’ their gender in order to align with the continuous and repetitive societal discourse on how a person of a given gender is supposed to behave (Butler, 1990). This becomes relevant from a legal view-point, since we argue that the way laws and judicial pronouncements are worded has a pivotal role in forwarding a certain representational narrative/choreography of gender-roles, the continuous iteration of which creates the idea of gender; which one continues to ‘perform’.
While interpreting this provision in the November 2019 case of Hardev Singh v. Harpreet Kaur, the Supreme Court of India eschewed from commenting on the desirability of distinction in culpability. However, in tracing the telos of the provision through its Object and Reasons Clause and the 13th Report of the Parliamentary Standing Committee the court observed that the provision had to be read through gendered dimensions of child marriage, given that the reason for punishing only adult-males contracting child marriages was to protect minor-girls from the resultant negative consequences of child marriage.
Thereafter, the court identified these negative consequences to include reproductive rights and risk of infections in child-brides, early motherhood and mal-nutritioned children being reproduced by child-brides, rightly so. Furthermore, the court contextualised the gender dimensions, and asserted the legislative intent by stating that only male-adults are punished for marrying minor-girls, since they possess sufficient maturity to be held responsible for their acts. This highlights deep-rooted stereotypes that view adult-females as vulnerable and immature vis-à-vis adult-males. They are represented as naive and ingenuous individuals, who cannot be held responsible for their decisions, which impact others adversely. Such stereotypes appeal to ideas of pity and emotion, which is driven by modes of benevolent sexism.
Hardev Singh also states that adult-females are not punished since, “…they generally have little say in matters of marriage, while adult-males are deemed to have the capacity to opt-out of such marriages”. This positions women as juvenile and voiceless beings who are vulnerable and is a clear generalization of vulnerability to an entire class, which is rooted in gender-stereotypes and gender-representations. Benevolent sexism also operates here, since the law while stereotyping women, views them as fragile entities, deeming their protection necessary. The same does not find support in law, either. Article 14 in the Indian Constitution (which acts as the Indian equivalent of the Fourteenth Amendment) guarantees every citizen the right to equality and equal protection of laws. In United States v. Virginia, the US Supreme Court cautioned that provisions based on overbroad-generalizations of capacities of either gender, of ‘the-way-women-are’, and of ‘what-is-appropriate-for-women’, violate the right to equality – or to equal treatment. This view was adopted in Anuj Garg v. Hotel Association of India, which stated that laws which create artificial constraints on an individual (here, gender stereotyping and benevolent sexism do that by alluding weakness and fragility to women) or perpetuate inferiority of women in any way shall be unconstitutional.
In the constitutional scheme of equality in India, discriminations or classifications made between two persons or classes solely on the basis of their sex are not allowed as per Article 15(1) of the Constitution. In other words, Article 15(1) furthers the right to equality since it prohibits discrimination based on certain grounds, one of them being sex. However, as an exception to this general rule of non-discrimination, Article 15(3) of the Indian Constitution exists to allow for protective discrimination in favor of women, so as to safeguard their interests. Therefore, Article 15(3) allows for the framing of legislations or special provisions to discriminate in favor of women with the object of righting the historical and structural wrongs that were committed against them. The rationale behind allowing such special provisions to be framed is to ensure substantive equality and not merely formal equality and to ensure a level playing field by helping women overcome discrimination. The same is often justified as a form of positive action (or affirmative action and reverse discrimination as is popularly called in other jurisdictions). Examples of such special provisions include reservations in public employment, educational institutes and various beneficial legislations including maternity benefits. In that sense, this rule of exception, enshrined under Article 15(3) of the Constitution, is nestled in the scheme of equality and its purpose is not to digress from the concept of equality; but only to accord differential treatment to women in areas where they continue to be unequally placed vis-à-vis men.
While the court in the case of Hardev Singh justified the non-punishment of adult-females as a special provision for them under Article 15(3), we argue that Article 15(3) does not allow discriminating in favour of women on basis of stereotypical understandings of gender roles. A significant analysis of this caveat was made in the Supreme Court judgement of Anuj Garg v. Hotel Association of India where the court stated that any special provision or protective legislation for women framed under Article 15(3) should not emanate from a stereotypical belief relating to a particular gender. In this case, the court outlawed a statute that prevented women from seeking employment in areas where liquor was consumed by the public, whereas their male-counterparts above the age of 25 years were allowed, given that this statue was one based on stereotypical assumptions and representational narratives of victimized women working in bars and the like establishments. While doing so, the court highlighted how any discrimination providing for a special provision for women under Article 15(3), should not be based on gender-stereotypes or gender-roles. Scholars have similarly argued that statutes which seek to justify gendered societal roles on the basis of sex and biological differences demand a greater judicial scrutiny (Williams, 1992). By excluding adult-females from the provisions of the Prohibition of Child Marriage Act, the Act not only alludes to gender essentialism – an idea that suggests that attributes attached to men and women are innate- (Grosz, 1995), but also produces gendered representations that attribute weakness, need for protection and vulnerability to women. In this sense, the legislation reinforces gender constructions, makes iterations of stipulated behavior, and aligns to gender performativity (Butler, 1990), which has the effect of suggesting that women will continue (or must continue!) to perform womanhood (for the lack of a better word!) based on these stipulated behaviors.
These notions of benevolent sexism also draw on ideas of romantic paternalism, since they portray women as gentle, by emphatically supporting that women need to be excessively protected and guarded by men. They perpetuate gender norms which represent women to lack a sense of responsibility, chivalry or strength. Therefore, romantic paternalism together with benevolent sexism exhibits women as the feebler-sex, by not holding them culpable. As far as the law on this point goes, the Indian Supreme Court in the landmark judgement of Joseph Shine v. Union of India clearly asserted that romantic paternalism cages women, instead of protecting them. Similarly in the US Supreme Court case of Frontiero v. Richardson paternalistic or overly-protectionist legislations were held to be unconstitutional. We believe such paternalistic policies harm gender equality in the long run, although protectionist policies seem attractive and acceptable on their face-value.
The repercussions of this provision, like many other provisions which perpetuate gender-roles and benevolent sexism, are manifold. Provisions like these tighten the screws for the same discriminatory discourse to continue. Iteration and continuous citation of such discriminatory provisions and judgements reinforce the stereotypes surrounding a particular gender. They attach adjectives to gender, which become difficult to be debunked. They also reflect a kind of confirmation bias with which provisions are drafted and judgements are spelt by perpetuating gender-roles, in the garb of protection. More broadly, benevolent sexism and romantic paternalism, even though subjectively positive as concepts, have negative consequences for equality rights. Although seemingly beneficial, the belief that women are ‘pure, gentle, feeble, or soft’ is deceptive and harmful in the long run. These harmful ramifications of benevolent sexism can be observed in many contexts today. Consider for instance the fact that women are not given challenging assignments at workplace (as exemplified by Glick and Fiske). Or for instance, the job appraisals of women which are on more sexist dimensions such as, “Our clients adore you because you’re so warm and nurturing”, instead of an honest, critical feedback. This stems from another sexist notion that says that, “nobody wants women to cry”. These portrayals of weakness, a lack of responsibility or strength projected through seemingly positive virtues of softness and purity may seem acceptable for a while. However when it comes to the larger issue of promotion and gender-equality at workplace, women only lose out due to these portrayals and sexist notions.
We believe that apart from the obvious ramifications which have been discussed in the form of benevolent sexism, the provision does more harm than it seems to do. By justifying the punishment of only adult-males through the excessive emphasis on the health of minor-girls, it also fails to address the adverse impacts that child marriage has on a minor-boy, besides re-affirming stereotypes associated with the female-gender. The 156 million boys married before adulthood (UNICEF) are equally vulnerable to negative consequences of child marriage. Child grooms lack awareness about safe-sex and contraceptives, and are prone to infections (Cappa, UNICEF, 2019) in the same way young girls are. Early fatherhood adversely impacts their education and childhood in as much as early motherhood does for a minor girl (Fore, UNICEF, 2019). We observe that the law by excluding to punish adult females fails to pay attention to these negative consequences of child marriage on minor boys. Provisions such as Section 9 rarely grab the attention in equality rights discourse. A major reason why they are not considered problematic is because they seem to be favoring females by letting them escape any punishment. But, at a deeper level, such provisions lead to perpetuation of gender stereotypes that deem women to be weak, fragile and incapable of inflicting harm and therefore, confirm to the idea of power hierarchy in gender. They also erroneously use gender as a benchmark to determine one’s capabilities (capability to take responsibility for one’s harmful actions, in this case) an idea which is harmful for equality.