Equality. That’s the desirable outcome for many. Between men and women, there’s a need to foster that and empower people to go beyond. But, what happens when equality falls short?
According to the World Bank’s Women, Business & Law 2024 Index, it’s said that India ranked 113 out of 190 countries and has climbed. Though, sure, baby steps, but 113 out of 190 may not be the best rank. But, what’s the rank for? It’s the gap between legal rights enjoyed by men and women. According to the ranking, it’s said that Indian women enjoyed 60% of the legal rights given to men. And that’s considered lower than the global average of 64.2%, which may not be that great either.
It’s said that India’s performance was lower, with regard to supportive frameworks. And it was outlined that equal laws are strongly linked to higher female workforce participation, higher wages for women, more women-owned businesses, better representation in managerial roles and better work-family balance.
But, what are the on-the-ground realities for women in India, when it comes to legal rights?
According to Nandini Khaitan, Partner – Dispute Resolution at Khaitan & Co, “Over the years, much work has been done to bring women’s rights up to par with men in India. There’s an entire spectrum of laws and provisions enacted for safeguarding and empowering women, be it in the space of criminal offenses, workplace safeguards from harassment and discrimination bringing equality in succession and divorce laws and more. The Constitution of India, itself, prohibits discrimination against any citizen of the country on the ground of s*x. Cultural norms, where, historically, men have laid down policy will change, with women becoming educated, joining the workforce and partaking in decision-making as they climb the ladder”.
Khaitan adds, “According to the report, there are 3 primary markers for assessing the support a woman has, which affects her economic development in a country: legal rights, which are the foundation for equality, supportive frameworks, like government policies that enable the implementation of these rights and the actual realization of women’s rights in practice, as assessed by surveying experts and other tools. While India, an emerging economy, has a score of 74.4/100 in the legal rights framework, the assessment of such rights actually benefiting women is 35/100, due to which the overall rating of the country comes down. In this context, it is interesting to note that the report states that high-income economies have an average score of 75.4 on legal rights”.
So, what are some of the most persistent challenges or barriers women in India are facing that prevent women from having 100% of the legal rights afforded to men?
Khaitan remarks, “The obstacles that persist in women benefiting from these laws are ineffective implementation of the policies, lack of awareness and dated societal practices. Exercising one’s rights and choices starts from being aware of what rights and choices one has or does not have. So, the most fundamental step towards women empowerment is education and, then, sensitization of these rights across stakeholders in society”.
“Financial dependence, very often, puts up barriers for women from exercising their choices, even if they are aware of them. For instance, while a woman may be aware that there exist laws against dowry demands, economic dependency may prevent her from taking recourse to such laws. Sometimes we see women from underprivileged backgrounds asking for advice on receiving money under government schemes, but they do not even know if there is a bank account in their name or under whose name the family home is. So, lack of literacy and financial independence are some of the main roadblocks to women exercising their rights, especially in low-income families”, adds Khaitan.
And what about unpaid care work? An SBI report outlines that if all women doing household chores are paid for their jobs, then the amount paid to them would be the equivalent of about 7.5% of India’s GDP. And an ILO report outlines that these women from 64 countries work for 16.4 billion hours without pay. So, with women bearing a disproportionate burden of unpaid care work, how could this be tackled or dealt with?
Khaitan remarks, “The issue of unpaid work exists because of the way society was set up and the way roles of men and women were divided and perceived. With such divisions breaking down, changes in the roles and, more importantly, mindsets are bound to take place. As women transition from their earlier homebound roles, sensitization of their rights and support is needed till their new roles are the norm. For example, with crèche facilities, there are safeguards in the workplace against harassment, maternity and paternity leave”. And a crèche enables parents to leave their children, while they are at work and children are provided with an environment conducive to holistic development.
Khaitan adds, “Government support for childcare and healthcare facilities will go a long way in providing women institutional support, as they join the workforce and help with changing the perception around women working. As this happens, men, too, will have to transition to taking up some traditional responsibilities and that will go a long way towards bridging the gap. For instance, if men take longer paternity leaves, it will help women rejoin work quicker after maternity leave”.
One such interesting development to foster more equality is law firm Khaitan & Co’s (KCO’s) menstrual leave policy that entitles members to a maximum of 12 paid days per calendar year for reasons associated with menstruation, menopause and related challenges. Could that be scaled up to become more than company policy and become a legislative policy across India? And could there be potential challenges with this?
Khaitan declares, “Along with the menstrual policy, which 80 people have already availed of, since it was started in September 2023, KCO, has published a ‘Compendium On LGBTQIA+ Rights’ for spreading awareness on the rights of the queer community and has, even, provided same-s*x partner insurance policy to its members. There is a marked change in the role of corporate India and legislative policies towards gender issues. Legislatively, this can be seen in The Maternity Benefit Act 1961 or The Maternity Benefits (Amendment) Act 2017, which is one of the most progressive maternity benefits in the world with 26 weeks of paid leave for women in India. Most developed countries fall short of providing such a robust leave policy. Taking a cue from the inclusivity mindset, the menstrual leave policy can, definitely, find legislative support going forward. There may be teething issues, but with women entering the workforce, soon it will be the norm”.
And sure, maybe, progressive policies are great. And people may be availing of KCO’s menstrual leave policy. But, what about broader inclusive government policies? If they’re, on paper, afforded to women, are they being exercised or utilized? If not, what would it take for women to access and enforce these legal rights?
“There are many rights which women have but may remain on paper, depending on their individual circumstances, level of awareness and financial independence. One of the issues that we see very often is that even though crèche support is mandatory under the Maternity Benefit Act for workplaces having over 50 employees, workplaces still do not provide the support. The Supreme Court of India has recently renovated and installed a dedicated crèche on the premises and, hopefully, this will inspire workplaces to follow suit. Women’s safety is, also, an issue which needs better safeguarding, especially, in rural areas and even in urban areas, when they commute for work”, states Khaitan.
But, what about equality itself? Could men and women in India ever be tangibly equal? Or is that just a pipe dream?
“Men and women are equal in all respects. It is the perceptions and societal mindset that need changing and it will evolve with the changing roles and time. In 1916, Regina Guha was refused enrolment as a pleader by a High Court, but, today, females are equalling and surpassing the number of male students in National Law Schools. The change may be slow but it is happening and is inevitable”, quips Khaitan.
