Mutinies for Equality: Contemporary Developments in Law and Gender in India

303 Pages·2021·2.955 MB·English

by  Tanja Herklotz, Siddharth Peter de Souza

Mutinies for Equality
Mutinies for Equality studies recent transformations in the area of law and gender
in modern India. It tackles legal and social developments with regard to family life,
sexuality, motherhood, surrogacy, erotic labour, sexual harassment in the workplace and
violence against women, among others. It analyses reform efforts towards women’s
rights and LGBTIQ rights and attempts to situate where a reform has taken place,
by whom it was brought about, and what impact it has had on society. It engages with
protagonists who shape the debate around law and gender and locates their efforts into
a socio-political context, thereby showing that the discourses around law and gender are
closely connected to broader debates around legal pluralism, secularism and religion,
identity, culture, nationalism and family. The book offers compelling evidence that the
drivers of change are emerging from beyond the traditional institutions of courts and
parliament, and that to understand the everyday implications of gender-based reform,
it is important to look beyond these institutional sources.
Tanja Herklotz is a postdoctoral researcher at the Chair for Public and Comparative
Law at Humboldt-University of Berlin and the principal investigator of two Indo-
European research projects on legal cultures and transformative constitutionalism.
Her research interests and areas of publication include comparative constitutional
law with a particular focus on the Global South, law and gender, legal pluralism and
religion-based law, and law and social movements.
Siddharth Peter de Souza is a postdoctoral researcher at the Department of Law,
Technology, Markets, and Society, Tilburg University, and works at the intersection of
data and society. He is also the founder of Justice Adda, a law and design social venture,
and a researcher with the FemLab.Co project. He has edited two books, Crowdsourcing,
Constructing and Collaborating: Methods and Social Impacts of Mapping the World Today
with Nida Rehman and Saba Sharma (2020) and Technology, Innovation and Access to
Justice: Dialogues on the Future of Law with Maximilian Spohr (2021).

Mutinies for Equality
Contemporary Developments in
Law and Gender in India
Edited by
Tanja Herklotz
Siddharth Peter de Souza
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First published 2021
Printed in India
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Library of Congress Cataloging-in-Publication Data
Names: Herklotz, Tanja, editor. | De Souza, Siddharth Peter, editor.
Title: Mutinies for equality : contemporary developments in law and gender in India /
edited by Tanja Herklotz, Siddharth Peter De Souza.
Description: New York : Cambridge University Press, 2021. | Includes bibliographical
references and index.
Identifiers: LCCN 2021005336 (print) | LCCN 2021005337 (ebook) |
ISBN 9781108834063 (hardback) | ISBN 9781108991735 (ebook)
Subjects: LCSH: Sex discrimination against women--Law and legislation--India. |
Sexual harassment of women--Law and legislation--India. | Women--Legal status, laws, etc. |
Women’s rights--India. | Equality before the law--India.
Classification: LCC KNS2108 .M88 2021 (print) | LCC KNS2108 (ebook) | DDC 342.5408/78--dc23
LC record available at https://lccn.loc.gov/2021005336
LC ebook record available at https://lccn.loc.gov/2021005337
ISBN 978-1-108-83406-3 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Contents
Acknowledgements vii
Introduction 1
Tanja Herklotz and Siddharth Peter de Souza
Part I Systems of Inequality
1. Family Matters, Gender Matters: Courts on the Rule against
Restraints on Alienation 21
Krithika Ashok
2. The Lack of Women in the Indian Judiciary: The Inadequacies of the
Judicial Appointment Process 38
Siddharth Peter de Souza and Medha Srivastava-Kehrer
3. Is the Supreme Court Cherry-Picking Its Gender Battles? 57
Jayna Kothari
4. Juxtaposing Equality? Muslim Women’s Rights in the Normative
Realm of Secularism and Personal Law in India 74
Katharina Wommelsdorff
5. Is Sexuality Anti-Indian? Reflections on Obscenity in Contemporary
Indian Popular Discourse 89
Fritzi-Marie Titzmann
Part II Battles for Equality
6. Armed with the Constitution: Feminist Litigation on Indian Family Law 115
Tanja Herklotz
7. Nikah Halala: The Petition, the Promise and the Politics of Personal Law 133
Saumya Saxena
8. The Politics of Erotic Labour: A Case Study of Mumbai Bar Dancers 155
Sameena Dalwai
vi Contents
9. Reactionary Executive versus Deliberative Legislature: The Case
of How the Legislature Championed Compensation for
Reproductive Labour while Regulating Surrogacy 170
Mandira Kala
10. Interrogating the Freedoms of Queer Liberation in India 185
Jason Keith Fernandes
11. Conditions of Possibility: Law, Patriarchy and Single Motherhood in India 204
Saptarshi Mandal
Part III Realising Equality
12. The Politics of Regulating Adult Sexuality through the Institution
of Marriage: Reflections on Queer Experiences from India 225
Sourav Mandal
13. Turning to the State: Between Processing Disputes and Protecting
Autonomy 242
Kalindi Kokal
14. Towards an Egalitarian Workplace: Developments in Anti-Sexual
Harassment Law 258
Poornima Hatti and Aparna Ravi
About the Contributors 281
Index 285
Acknowledgements
This book is the product of a two year long dialogue about recent developments in
the area of law and gender in India that began with a meeting of the editors and
the authors in Berlin in the fall of 2018 and has continued ever since. First and
foremost we would like to express our gratitude to the authors of the various chapters
for their contributions, enthusiasm and engagement with the project. We would also
like to thank the Chair for Public Law and Comparative Law at Humboldt-U niversity
of Berlin for the support of the project and for helping us organise the authors’ meeting.
We are further indebted to Humboldt-University’s KOSMOS programme and its
faculty partnership programme as well as to the Heinrich-Böll-Foundation whose
generous grants allowed us to invite the authors of this book to Berlin. Lastly, we
would like to extend our gratitude to Qudsiya Ahmed, Anwesha Rana and Aniruddha
De from Cambridge University Press for their help throughout the publication process
of this book.
Tanja Herklotz
Siddharth Peter de Souza

I
NTRODUCTION
Tanja Herklotz
Siddharth Peter de Souza
Law and Gender in India
The developments in India since the new millennium have shown that the
law addressing gender (in)equality is in constant flux. In the last two decades,
the Indian parliament has passed key legislation on domestic violence, sexual
harassment in the workplace, maternity benefits, surrogacy and HIV/Aids
prevention, and brought about reforms to the criminal provisions regarding sexual
violence, criminal procedural law and religion-based family laws, addressing
matters related to divorce and inheritance. The Indian Supreme Court has
delivered landmark judgments dealing with online sexual harassment, acid attacks
against women and abortion rights. It has banned the practice of Muslim divorce
by triple talaq, decriminalised consensual sexual intercourse between adult men,
strengthened the rights of transgender people, decriminalised adultery, granted
women a right to enter the Sabarimala temple and given women equal rights
in the army.
In India, like elsewhere, the drivers of legal change often emerge from beyond the
traditional institutions of law-making and jurisprudence, that is, the parliaments
and the courts. Over the past decades, multiple state and non-state actors have
pushed for change or pushed back against it and thereby shaped the outcomes of
legal reform processes. These actors include not only state organs such as the Law
Commission of India and the National Commission for Women, non-state fora
like nari adalats (women’s courts), khap panchayats (community courts) and sharia
2 Tanja Herklotz and Siddharth Peter de Souza
courts and civil society actors such as women’s non-governmental organisations
(NGOs) and LGBTIQ1 groups, but also religious groups, nationalist organisations
and men’s rights groups, and individuals like cause lawyers, petitioners, writers,
bloggers, journalists, scholars and activists.
This book engages with recent developments in the area of law and gender in
India. Our focus lies in addressing the idea of (in)equality and, with it, related
questions of opportunities, access, representation and freedom. We seek to elaborate
where systems of inequality persist in Indian society and its laws and how these
sustain hierarchies of power. We look at landmark moments of legal change and
portray how, through different battles for equality, these structures of inequality are
challenged by various actors, who push for grand law reforms. And we assess how
legal changes translate into social change and how closely they are related to the
everyday struggles that individuals seek when realising equality on the ground.
The book strives to look at the issue of gender (in)equality in India from multiple
angles and seeks to include a range of different voices. It engages with both the
law ‘in the books’ (that is, the constitutional and statutory norms as created,
administered and adjudicated by state institutions) and the feminist and queer
critique thereof as well as with the law as practised ‘on the ground’ (that is, the
multitude of normativities as shaped by religion, culture and custom) and people’s
questioning and reinterpretation of laws in everyday life. The book provides for
both insider and outsider perspectives on Indian law, politics and society from
scholars who live and work in India as well as outside. As a trans-disciplinary
project, it links the views of scholars from different fields, including law, gender
studies, history, political sciences and anthropology. And lastly, the book includes
the voices of both practitioners, such as practising lawyers and activists, as well
as academics.
As a result of the varied nature of the projects in this collection, the book does
not prescribe one particular methodology across the chapters. It offers reflections
that are doctrinal in nature and that work with the legal canon, but it also includes
ethnographic accounts of gender (in)equalities. The authors contributing to this
volume have worked with a variety of different data, ranging from engagement with
legal statutes, case law and official state documents, to analyses of media discourses
and the use of interviews. The chapters draw on normative as well as descriptive
approaches and range from providing micro perspectives of specific case studies to
engaging more abstractly with macro-level developments. The book thus provides
for diverse viewpoints on the issue of gender (in)equalities.
1 The abbreviation LGBTIQ stands for lesbian, gay, bisexual, transgender, intersex and queer.