Gender Justice Under Indian Justice Sysytem

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Copyright 2014. DEADLY LAW

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.

Gender Justice Under Indian Justice Sysytem

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