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8/12/2019 Gender Justice Under Indian Justice Sysytem
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HISTORICAL CONCEPT OF GENDER JUSTICE
The concept of equality between male and female was almost known to us
before the commencement of constitution of India. But the concept of
gender justice is a recent discovery of law. From the time immaterial
society has been male dominated, with women relegated to thebackground and their rights compressed upon. It is only recently that
woman began to assert their rights and law recognized that men and
women have equal rights. The major causes of all the evils faced by the
women includes: illiteracy, economic dependence, caste restrictions,
religious prohibition, lack of leadership qualities, lack of self-reliance,
lack of courage to meet challenges and apathetic attitudes of males in the
society.
In order to modernize the conditions of women in India, legislatureenacted a larger number of enactments and many of them were enacted in
colonial period.1Apart from these laws there are some more enactments
pertaining the industry which contains special provisions for women.2The
constitution 0f India too gives special protection to women.3
1 Sati Abolition Act, 1892. Widow Remarriage Act, 1856, Infanticide prevention Act,
1870, Hindu woman right to property Act, 1937.
2The Workmen Compensation Act, 1921, Payments of Employees act, 1936, Factories
Act, 1948, Maternity Benefit act, 1961. Minimum wages Act, 1948, Employees state
Insurance Act, 1948, Pension Act, 1987, Prohibition of Child marriage Act, 2006
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According to the available statistics around the world about 33% of the
women have experienced violence in one form or the other in their
intimate relationship at some point in their life. Crime against woman are
as old as civilization and equally ancient are the efforts to combat and
arrest them. In the caseDadya Shankr Alhat V State of Maharastra, it was
observed that a large number of cases in recent times coming before the
court involving rape and murder of young girls.4
In ancient India, women were respected and there was gender dignity.
Manu says "where women are honored, Gods are happy, where women are
not respected, all efforts come into naught". Hindu women had an honored
place during the Vedic period. They inherited and possessed property.
They took part in religious duties and attained assemblies. During the Rig
Veda period women enjoyed very high status. Still there was
discrimination between sons and daughters. Womens status began to
decline during the Yajur Vedic period and further declined during the
Sama Veda period. The degradation reached its nadir during the
Atharva Veda period. By the time of Sutra period, women lost all her
religious andbecame her husbands property.
3Preamble, Article 14, 15, 23, 39 and 51(A) of Constitution of India.
4AIR 2009 SC 56
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GENDER JUSTICE UNDER INTERNATIONAL CONVENTIONS
AND DECLARATION
The major document of Human Rights is Universal Declaration of Human
Rights, 1948 recognized that the individual is unrestricted to certain basic
rights. Human rights mean those minimum rights, which every individualmust have against the state or its instrumentalities by virtue of his/her
existence as a human being.
Human rights standards relating to women have to cover the followings;-
1. Human rights and fundamental freedom should apply to men and
women equally.
2. Safeguard to prohibit the discrimination based on sex so as to ensure
equal treatment and equal opportunities for women.
3. Identify and eliminate the obstacles to equal exercise of human rights
and freedoms by women which are gender specific.
The international covenant on Civil and Political Rights recognizes the
intrinsic dignity and equal and inalienable rights of all members of the
Human family. It mandates the state parties to ensure that every one enjoy
the civil and political rights as well as the economic, social and cultural
rights without any discrimination on the ground of sex.
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Another important international covenant recognizing the rights deprived
from the inherent dignity and the equal and inalienable rights of human
person is the international covenant on Economic, Social and Cultural
Rights.
Article 2 of Declaration of the protection of All persons from beingsubjected to Torture and other cruel, inhuman or degrading treatment or
Punishment Act,1975 says about the upholding the concept of human
dignity, human rights and fundamental freedoms applies equality to men
and women.
Convention against Torture and other cruel, inhuman or degrading
treatment or Punishment 1984 aims to give effect to the declaration on the
Protection of All persons from being subjected to Torture and other cruel,
inhuman or mortifying Treatment.
The General Assembly of United Nations adopted on 7th November 1967,
the "convention on the elimination of Discrimination Against women".
The convention directs that all appropriate measures shall be taken to
ensure to women, married or unmarried, equal rights with men in the fieldof economic and social justice and in particular:
1. The rights without discrimination on ground of marital status or any
other grounds to receive vocational training to work, to free choice of
professional and employment advancement;
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2. The right to equal remuneration with men and to equality of treatment
in respect of work of equal value;
3. The right to leave with pay, retirement, privileges and provisions for
security in respect of unemployment, sickness, old age or other
incapacity to work.
The Covenant on the Elimination of All forms of Discrimination against
Women, 1979 (CEDAW) was adopted by the United nation general
Assembly on 18th December 1979. It is the most wide-ranging most
comprehensive document safeguarding the interest of women. It is the
convention establishes an International Bill of Rights for women and an
agenda for action by countries to guarantee the enjoyment of these rights.
The preamble of this convention itself acknowledge existence of broad
discrimination against women and states that such discrimination violates
the principles of equality of rights and respect for human dignity.
The purpose of SAARC convention on preventing and combating
trafficking in women and children for prostitution, 2002 is to promote
cooperation amongst member States so that they may effectively deal withthe various aspects of prevention, prohibition and suppression of
trafficking in women and children,. The repatriation and rehabilitation of
victim of trafficking and prevent the use of women and children in
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international prostitution networks, particularly where the countries of
SAARC region are the countries of region, transit and destination.
GENDER JUSTICE UNDER INDIAN LAWS
The constitution of India, the fundamental law of Land, is a ample
document containing the principles of Justice, liberty, equality and
fraternity. These principles constitute the twist and woof of the
constitution and enliven the provisions.
The constitution assures the dignity of the individuals irrespective of sex,
religion, race, sex, caste or place of birth. As far as women's are concerned
the constitution contains both positive and negative provisions securing
gender equality. The rights and freedoms guaranteed under the provisions
of the constitution are the same for both men and women, but in few cases,
considering the problems and limitations of the weaker sex, the women
have been allowed the benefits of certain special provisions.
The preamble, Fundamental Rights, Directive Principles of State policy
and Fundamental duties of the constitution contains the provisions stating
equality as well as protective measures in favor of women.
Equal rights to men and women in terms of status as well as opportunity
are the basic goals enriched in the preamble. The objectives specified in
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the Preamble have great implication for the interpretation of the provisions
of the constitution.
The constitution of India guarantees the right to equality through Art 14-
18. Equality is one of the magnificent corner-stones of Indian
Democracy.
5
The doctrine of equality before law is a necessary effect of"Rule of Law" which pervades the Indian Constitution.
6The concept of
equality and right to equality is declared by Supreme Court to be the
Basic structure of the constitution and any treatment of equals unequally
and unequal's as equals will be violation of it.
Discrimination on the ground of Sex is against the authorization laid down
in Art 14 of Constitution of India. The judiciary has always struck down
without any hesitation the rules discriminating women on ground of sex.
In the caseAir India V nargesh Meerz7the supreme court struck down the
Air India regulation relating to the retirement of air hostesses.
Payment of equal pay for equal works has been justified Under Art 14.
Unequal pay for materially equal work cannot be justified on the basis of
an artificial classification between the two kinds of work and employment.In the caseMackinnon Mackenzie and co.ltd V Andrey D' Costa, the court
5Indra Sawhney V Union of India AIR 1993 SC 477
6Ashutosh Gupta V State of Rajasthan AIR 2002 SC 1533
7AIR 1981 SC 1829
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held that the employer is bound to pay the same remuneration to both the
men and women when they were doing practically the same kind of work.
Sexually harassment of women at work places is definitely a violation of
"Gender Equality". Article 14 bars discrimination and arbitrariness and
hence it is a safeguard against any arbitrary or discriminatory state action.
The horizons of equality have been expanding as a result of judiciary
pronouncement and Art 14 has now come to have a "highly activist
magnitude", which cover every person in India whether a citizen or not.8
A specific application of equality is provided in Article 15, which
concretizes and enlarge the scope of Article 14. This provision directs the
state and its instrumentalities not to discriminate a citizen on ground of
religion, race, caste, sex, place of birth etc. Consequently all laws are to be
applied to members of both sexes equally without any discrimination on
the ground of sex. Article 15(3) specifically provides the prohibition of
discrimination and it gives the power to the state to make any special
provisions for women and children.
Article 16 is a specific application of the general rule of the equalitybefore law laid down in Art 14 and of the prohibition of discrimination in
Art 15 (1). With respect to the opportunity for employment or appointment
8 M.P Jain; Indian Constitutional Law (LexisNexis Butterworth Wadhwa, Nagpur, 6th
Ed. 2010)
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of any office under the state. The right is given to all citizens irrespective
of gender. It is not a right to public employment as such, rather it is only a
right to be considered for public employment.
Article 19 (1) (g) of the Constitution declares that all citizens have the
right to practice any profession or to carry on any occupation or trade or
business. The right under this Article must be exercised consistently with
human dignity. Therefore sexual harassment at workplace amounts to this
articles violation.
The right to privacy is an integral part of the right to life and liberty
enshrined in Art 21 of the constitution. Neera Mathura V L.I.C9 is the
landmark case where the supreme court recognized the women's right to
privacy.
According to Art 39(a), the state shall direct its policy towards securing
the citizens men and women equally, have the right to an adequate means
of livelihood.10
Art 39 (d), the state shall direct its policy towards
securing equal pay for equal work for both women and men. Denial of
equal pay for equal work amounts to discrimination. Equal remunerationAct 1976 was enacted by the parliament to achieve the principles of equal
9AIR 1992 SC 292
10Olga Tellis V Bombay Municipal Corporation
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pay for equal work. In Randhir Singh V Union of India11
, the Supreme
Court has held that the principle of equal pay for equal work though not a
fundamental right is certainly a constitutional goal and therefore capable
of enforcement.
The fundamental duties contain a provision for protecting the dignity of
women. It says that it shall be the duty of citizens of India, to promote
harmony and the spirit of common brotherhood among all the people of
India transcending, religious, linguistic and regional or sectional
diversities, to renounce practices belittling to the dignity of women.12
Among women related crimes, sexual offences constitutes the common
and deplorable , those offences like rape, outraging the modesty of a
woman, feticide, abduction, seduction, bigamy, adultery, criminal
elopement, bride burning and dowry death comes under this rubric.
The criminal procedure code, 1973 incorporated several modern concepts
and principles. those changes transformed the untainted adjective law in to
a mixture of procedural and substantive laws with predominance of
procedural provisions. Procedural laws are expected to be gender neutral,still there are several provisions in the criminal procedure code, which
have positive pro-women slope.
11AIR 1982 SC 879
12 Article 51 (1) (e) of Indian constitution
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According to Hindu Marriage Act, 1955 and special marriage act. 1954
the minimum age prescribes for boys and girls for marriage is 21 years
and 18 years respectively. Though, Prima- facie it may appear to be
discrimination on a close analysis one can find that it can be justified on
biological and sociological factors.
There are also some other legislations which keep on eyes n the Gender
Justice system. like-
The Prisons Act 1894, which mandates the separation of maleprisons from females.
13
The factories Act 1948 says about separate and adequate screened
facilities to be provided for use of male and female workers.14
The Mines Act, 1952 contains several salutary provisions toprotect the interest of women and to ensure their safety and
security.
Section 3 of Dowry Prohibition Act prescribe penalties for givingand taking dowry. Women belong to the destitute sections of the
society are the sufferers of the deadly practices of dowry. Hence
the Act is highly significant for those belonging to the lower strata
of the society.
13sec 27 of Prisons Act 1894
14section 41(1)(b) of Factories Act 1948
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The maternity benefit Act, 1961 is a gender specific legislationintended to award certain benefits to women workers in stipulation
connected with pregnancy, miscarriage, medical termination of
pregnancy etc.
The pre-conception and pre-natal Diagnostic Techniques(prohibition of sex Selection) Act, 1994 prohibits the sex selection
and has been enacted to prevent the misuse of pre natal diagnostic
practice.
The Protection of Women from domestic violence Act, 2005 aimsto prevent domestic violence arising out of domestic affiliation in
shared household.
To prohibit the child marriage there is the prohibition of ChildMarriage Act,2006
The above discussion reveals that many laws have been enacted to affirm
and promote principles of equality and equality of women and to take
care of their special needs.
CONCLUSION AND SUGGESTIONS
Women being physically weaker than men , Gender Justice demands that
women should be protected from atrocities committed by men. Women
remain unequal with men in most parts of the world. Most of the women
are unaware of their rights, hence there is a stronger need for making them
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conscious of their rights. They have to lunch relentless battle for their
unrestraint. If half of the population remains deprived, ignorant,
downtrodden and discriminated against, the country cannot lead in an era
of prosperity. Here it is apt to quote Justice Krishna Iyer:- The fight is
not for womens status but for human worth. The claim is not to end
inequalities of women but to restore universal justice.
Though there has been considerable legislation in regard to women during
the post- constitution era, in reality the position of woman today is not
much better than that in pre-constitution periods. The equality clause of
the constitution had made little or no impact on the social or economic life
of woman in India. A woman continues to be dependant economically,
socially and psychologically.
We are proud of the fact that, India was one of the 1st countries in the
world to give women the right to vote. The Indian constitution is one of
the most progressive in the world and guarantee equal rights for men and
women. but also in India in every hour from an survey concluded that 17
crimes are committed against woman every hour. The India Judiciary
enjoys a reputation of being Gender sensitive, protecting the rights granted
by the Constitution and special legislations, but the reality is that there is
wide-spread non-implementation of the legislation.
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It is realized that despite the constitutional safeguard and the active
judicial support towards the cause of women, changes in social attitudes
and institutions cannot be brought about very rapidly. However it is
necessary to accelerate this process of change by deliberate and planned
efforts so that the deadly social evil of gender inequality is buried deep in
its grave. Laws written in black and white are not enough to combat the
evil. The role of courts and judges assume greater importance and it is
expected that the courts will deal with cases relating to woman in a more
realistic manner. A social sensitive judge is indeed a better statutory
armour in case of crime against women than the long clauses of penalprovisions, containing complex exceptions and provisions.
Gender justice is a problem that is seen all over the world. But unless there
are certain attitudinal changes, women will continue to get a fresh deal.
They need to be educate. Educate mothers take care of their children
irrespective of the boys or girls.
SUBMITTED BY-
Rajashree Aryabala Tripathy.
B.Sc.LL.B (5th
yr)
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KiiT School of Law, KiiT University, Bhubaneswar, Orissa.