Democracy vs. Theocracy. A Comparative analysis of women’s rights in India and Afghanistan

Abstract

Women’s rights are one of the fundamental aspects of human rights and democratic governance. Gender equality has been formally recognized in both India and Afghanistan which are South Asian nations, through constitutional and international obligations but the legal status and practical realisation of women’s rights differ significantly. Women’s rights come under human rights which are the basic rights that no one can be deprived of . The women’s rights are important in order to realize equality, justice and human dignity. This article presents a comparative analysis of women’s rights in India and Afghanistan, examining their statutory protections, constitutional and legal framework, healthcare and bodily autonomy, current trajectory post 2021, and contemporary challenges. Through a comparative analysis or examination, this article conveys that India continues to advance in the aspect of gender equality through legal reforms and institutional mechanism, Afghanistan faces serious setbacks in the protection and promotion of women’s rights. 

Introduction

One of the most significant indicators of a nation’s adherence to human rights, rule of law and constitutionalism, is the status of women’s rights. 

India has promoted gender equality through establishment of a constitutional framework whereas Afghanistan witnessed a severe setback regarding women’s rights following with a return of a Taliban in 2021 including restrictions on various aspects like education, employment, freedom of movement, political participation which has limited the access of women to enjoy their fundamental rights and public rights. In India, the Constitution of India is the highest law in the country, and all laws, government actions, and public authorities must conform to it. It lays down the framework for the country’s political system defining the powers of the governmental institutions, and guarantees the rights and duties of the citizens. It was adopted on 26th November, 1949 and came to force on 26th January, 1950.It also lays down the fundamental rights, duties and the Directive Principles of State Policy.

Status of Women in different Ages and Periods in India

Starting from the early Vedic period, the position of women was better off. There is also a mention of women participating in the assembly of those times i.e., the Sabha and the Samiti.. There is also a mention o9f women poets like Apala, Ghosa, Lopamudra and Viswara. Later on in the later Vedic period, the status of women. The social structure became rigid and women are prohibited from attending proper assemblies like the Lok Sabha and Samiti. During this period, there increased stratification and there is a rise in feudalism. Women were considered as the property of men due to which the practice of Sati became legitimized.

Proceeding to the medieval age, restriction on women became stronger through various systems like the Purdah system and Jauhar system. During the 15th to 17th century, we see the Bhakti and Sufi movements in which the stereotypes surrounding women were challenged. Coming to the modern era, the British Colonization of the Indian Subcontinent influences the idea of women. During the national struggle for independence with the coming o9f Mahatma Gandhi, there was a humongous increase in the participation of women. The status of woman is a roller coaster ride in India. The present situation is promising but a lot needs to be done as well as with various existing challenges still prevailing.

Afghanistan from 2004 to 2021 was governed under the 2004 Constitution of Afghanistan, which established a republic with a President, parliament courts and constitutional rights for it’s citizens. It all lasted till 2021. In August 2021, the Taliban regained control and they suspended the 2004 Constitution and also dismantled many of the institutions created under it. In the present times, Afghanistan is governed by the Taliban’s Islamic Emirate, where authority is largely based on Taliban’s interpretation of Islamic law (Sharia) and the decrees issued by the Supreme leader rather than depending on a comprehensive and functioning Constitution. 

 The article undertakes a comparative analysis of the two jurisdictions examines how law functions as both a sword and a shield in the context of gender justice. India is a sovereign, secular, democratic, republic governed by the Constitution of India. The principles of Constitutionalism, separation of powers, judicial independence and the rule of law form the foundation of the Indian Legal system. In democracy, as seen in India, citizens are ensured irrespective of gender, have the right to vote, participate in governance, seek legal remedies and enjoy constitutionally guaranteed fundamental rights. In contrast under Taliban governance, Afghanistan operates as a theocratic system in which political authority is derived from the Taliban’s interpretation of Islamic law. The current regime does not function through democratic elections or representative governance. Here, religious authority plays a dominant role in law making and administration. As a result, the rights which were previously recognised under Afghanistan’s former constitutional framework have been curtailed or suspended. Thus, women facing restrictions in education, employment, public life, political participation, reflects the influence of religious control over individual freedom.

The Transformation that occurred in 2021 i.e., the process of Taliban’s Regaining Control

In February, 2020, the Taliban and the United States\ signed an agreement that included the withdrawal of US forces from Afghanistan. In 2021, as US and NATO troops withdrew, the Taliban rapidly captured districts, border crossings and provincial capitals across the country. Most Afghan government forces retreated, surrendered or offered limited resistance. The speed of such a collapse of systems had surprised many governments and analysts. Between early and mid August 2021, the Taliban force captured major cities including Kandahar, Heret, and Mazar-i-Sharif within about ten days, much of the country fell under Taliban’s control. On 15th August, President Ashraf Ghani fled the country, the government collapsed and the Taliban took control of the Presidential palace. Then, the Taliban re-established the Islamic Emirate of Afghanistan, replacing the former Islamic Republic.

Who are the Talibans?

The word ‘Taliban’ is a Pashto word that means ‘students’ or ‘seekers’. It is an organization-cum-movement which was founded by Mohammad Omar and Ghani Baradar. It is primarily composed of the Pashtuns with a minority population of Tajiks, Turkmens and Uzbeks. The organization was able to form a legitimate government in Afghanistan spanning duration from 1996 to 2001. Whenever they come to power, they prohibit women from all fields. Women are only given restricted access in the sphere of healthcare. 

Can Quran act as a constitution for the Taliban regime?

Quran is often referred to as the word of God. From the Quran, developed the Hadis which is considered as the word of the Prophet. From the Hadis, Islamic law or Sharia has been derived. Sharia is a positive law where positive law means any law made by humans. Since the Sharia is crafted by humans, therefore it is open to verification as well. Sharia is a product of the Quran and Hadis through interpretations. The interpretation is done by following the mechanism of ‘Qiyas’ i.e., reasoning and ‘Ijma’ i.e., consensus of the community.

The kind of interpretation that the Taliban has adopted is stringent and they want to replicate and follow word by word the saying as in Hadis, which is the word of the Prophet. The problem arises because Prophet Mohammed belonged to the late 6th and 7th century AD and to an era where there was no proper legal system. A nomadic way of life is far different from the type of life we live today. Therefore, if the literal implementation of the rules is followed in the 21st century, it will amount to a cruel violation of human rights. There are other countries as well that follow the Islamic law, but their interpretations of the statute is comparatively simpler and lenient.

 Constitutional and Legal Framework

 India through it’s constitutional framework, guarantees formal equality under Article 14,15 and 21, and has enacted progressive legislation such as the Domestic Violence Act, 2005 and the Sexual Harassment of Women at Workplace Act, 2013. Yet, according to the World Bank, Indian Women still possess three-quarters of the legal rights as much as afforded to men, and that one in three3 women globally still face physical or sexual violence.

Afghanistan, on the other hand, at one time with it’s Article 22 of the Afghan Constitution, 2004, once recognised men and women as equal citizens and the Elimination of Violence Against Women Law, 2009 marked a victory in concerning about women’s rights, while all this was systematically dismantled by the Taliban’s return in 2021. In recent contemporary times, Afghanistan has become the only country in which girls are banned from secondary and university education, do not allow women to get employment, and the girl’s require male guardianship for basic freedom. 

1. Core Legal Basis- In India, Articles 14,15,16,21 and 23 of the Indian Constitution deals with women rights ensuring equal rights and it’s specifi8c protections. In Afghanistan, Article 22 of 2004 Constitution ensured equality. Eventually, the Taliban suspended it in 2002.
2. On the basis of right to equality- In India, women’s rights are deemed as fundamental rights with acts like DV (Protection of women from Domestic Violence) Act, 2005, POSH (Prevention of Sexual Harassment) Act, 2013, Equal Remuneration act 1976. In Afghanistan, women’s rights are legally abolished. Women are deemed to be subordinate. Here, Edicts replace laws.
3. On the basis of political participation- In India, women have 33% reservation in local bodies. 14% MPs in Lok Sabha 2024. Women can caste their votes and even contest in elections. In Afghanistan, women are banned from government jobs, and politics. No voting rights are given to them under Taliban.

Education and Employment

In India, education is recognised as a fundamental right under Article 21A of the Constitution. The RTE (Right To Education) Act, 2009 also provides free, compulsory education between the age of 6 to 14. This act is legally gender- neutral. Article  16 provides equality in public employment, Equal Remuneration Act 1976 states same pay vto be provided for same work. Maternity Benefit Act, 2017 provides 26 weeks paid leave, POSH Act, 2013 provides for mandatory ICC at workplaces more that 10 employees. Then there is 33% reservation for women in Panchayati Raj Institutions since 1993. 

Government initiatives like Beti Bachao Beti Paadhao encourage girl’s education targeting districts with low sex ratio. Indian women enjoy legal rights to work in both public and private sectors.  Labour laws and the constitutional framework guarantees and ensures equal opportunities and maternity protections. Some of the challenges include wage disparities, workplace, and discrimination. India has a law as well as policy but the problem lies in implementation, social norms, and poverty. 

In Afghanistan, as per the pre 2021 legal framework, Article 43 of the 2004 Constitution, education was compulsory till grade 9. Post August 2021 Taliban Edicts, brought severe changes in the rights of the women and girls were banned from secondary schools grades 7-12 ‘until safe Islamic environment’ is created. Women were banned in universities making Afghanistan the only country to ban girls from secondary and higher education. In Afghanistan, female education is severely restricted currently in which girls are barred from secondary and higher education. Thus, limiting their long term socio-economic participation. Under Taliban rule, women’s participation in employment has also been severely restricted. All of such restrictions have substantially reduced women’s economic independence. 

Political Participation

In India, Women in India have or possess voting rights and can even contest elections at all levels of government. 33%of seats in local bodies are reserved for women. Article 326 guarantees Universal Adult Franchise and Article 325 prohibit discrimination in electoral rolls. The 106th Amendment Act 2023 mandates 33% reservation for women in the Lok Sabha and State Assemblies, while the 73rd and 74th Amendments have already produced 1.4 million elected women representatives in the Panchayati Raj Institutions. Yet power is still limited: only 74 women sit in the 18th Lok Sabha i.e., 13.6% and only 7 of 12 Union Ministers are women.

Afghanistan, on the other hand, through it’s Article 22 of the 2004 Constitution once guaranteed gender equality. Since the Taliban’s seizure of power in August 2021, the previous existing framework has been suspended. Since then, no elections have been held and the political parties were dissolved in 2023 and women specifically are banned from all public office by edict. UN Women reports that Afghanistan is now the only country with zero women i8n cabinet, parliament, or judicial leadership. 

Violence and Criminal Law 

India being a constitutional regime, operates within a framework of formal criminal protections as anchored in the Constitution. Article 21 has been interpreted by the supreme court to include the right to live with dignity and be free from violence. The Articles and Acts which are in favour of women or females regarding violence are as follows:-

1. Article 15(3) permits special legislation for women.
2. The Bharatiya Nyaya Sanhita 2023 deals with offences of rape, cruelty by husband, dowry death, and outraging modesty. 
3. Protection of Women from Domestic Violence Act 2005 provides civil remedies for physical, emotional, sexual and economic abuse, including the right to resistance.
4. The Sexual Harassment of Women at Workplace Act, 2013 mandates internal complaints committees. 
5. The Dowry Prohibition Act 1961 criminalizes dowry demands. 

Even with all these statutes, there lies a huge gap between law and reality. NCRB (National Crimes Records) crimes in India 2024 report highlights these challenges to women’s safety in India. A total of 29,536 Rape cases were registered during 2024 while 5,737 women lost their lives in dowry related deaths. These figures demonstrate the persistent prevalence og gender bases violence. In spite of legal measures such as the Bharatiya Nyaya Sanhita (BNS) provisions and brings to the forefront the need for stronger implementation of protective laws, societal reforms and victim support mechanisms. 

Afghanistan being a theocratic regime, post August 2021, replaces legal protection with decree based control. The 2004 Constitution, which guaranteed equality ijn Article 22 and enabled the 2009 Elimination of Violence Against Women laws (EVAW) was suspended by the Taliban. The previously existing EVAW law, which had criminalised 22 Acts including rape, battery, forced marriage is now void. After August 2021, the Taliban issued Edicts which are grounded in it’s interpretations of Deobandi Sharia, and even the former ministry of women’s affairs has been converted into the ministry for the propagation of virtue and prevention of vice. 

In present times, there is no penal code to protect women from domestic violence. Instead, women are detained for “moral crimes” such as appearing without a mahram or for wearing improper dress. No female victims can even access male courts without a male guardian. The UN Special Reporter in 2024 concluded that the Taliban has institutionalised ‘gender Apartheid’, making the state itself the perpetrator of violence rather than its arbiter.  

International Legal Obligations

India ratified the CEDAW i.e., the Convention on the Elimination of All Forms of Discrimination Against Women in 1993 and thus it is bound by the obligation of CEDAW to eliminate discrimination against women. Indian courts still frequently refers to international human rights principles for gender justice.

Afghanistan ratifies the CEDAW in 2003 without any reservation. In spite of continuing international obligation, various international report conclude that the Taliban policy are inconsistent with the CEDAW standards and has lead to widespread violation of women’s rights. 

Conclusion 

The comparative analysis shows the difference between India and Afghanistan in the legal protection of women’s rights. India possesses a constitutional democracy with extensive legal safeguards, statutory protections, and judicial mechanisms supporting gender equality, although practical challenges remain. In contrast, Afghanistan has experienced a democratic regression in women’s rights following the Taliban’s return to power, with restrictions affecting education, employment, political participation and personal freedoms. Consequently, while India’s challenge lies in effective implementation of the legal rights, Afghanistan faces the more fundamental challenge of restoring basic legal and human rights for women. 

References

1. Rahmatullah Husani and Navid Nabil, ‘Women’s Rights and Constitution: A Comparative Analysis of India and Afghanistan’ (3 March, 2022) Volume 10, Issue 3 International Journal of Creative Research Thoughts ( IJCRT) https://ijcrt.org
2. Dopal Gupta and Sophita Sara Mathew, ‘Comparative Analysis of the Status of Women in Afghanistan: Pre-Taliban and Post-Taliban Government’ Volume 2, Issue 2 IJPSL https://ijpsl.in
3. Constitution of India 1950 https://legislative.gov.in/constitutin-of-india/
4. National Crime Records Bureau, Crime in India 2024: Statistics (Ministry of Home Affairs, Government of India 2026) volume 1, chapter 3 https://www.oneindia.com/