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GENDER JUSTICE
INTRODUCTION
The issue of gender justice has been debated over for a long time and is still one of the biggest
human rights challenges. Although gender equality is a fundamental human right and is essential
for a peaceful and developed society, achieving gender equality is still an unfinished business. In
India, deeply-rooted cultural institutions play a major role in perpetuating gender inequality. The
Indian courts often act as activists for people and a profound Indian Constitution create hope for
achieving gender justice.
The Constitution of India has given new dimensions of Indian society in certain sphere. The
Constitution does not use the word 'Gender'. It uses the word 'sex' in articles 15(1), 16 (2) and
325 which prohibits discrimination on the grounds of sex. Although the word 'sex' has a
narrower meaning than the word 'gender' and the above provisions merely guard against
discrimination on the basis of 'sex' and the 'gender justice' which aims at much more than mere
absence of discrimination. The distinction and discrimination on the basis of sex, color, creed,
caste, race religion etc have been done away with, and according to fundamental rights have
been declared void. In the same strain, Article 14 of the Constitution guarantee quality before the
law, Article 15 and 16 remove prohibition or discrimination on the ground of religion, race,
caste, sex or place of birth etc and also gives a direction to the state to make provisions for
women and children. Interestingly, our constitution authorizes the state to make special
provisions for the protection and development of women and children. A large number of laws
have also been enacted from time to time for empowering them and raising their status. The
government has amended a number of laws that affected women adversely including laws related
to dowry, rape, cruelty, maintenance, marriage, domestic violence, prostitution and obscenity etc.
The apex court of India has passed several progressive judgments favouring women. Various
welfare and development schemes have been introduced to improve the living conditions of
women and to increase their access to and control of material and social resources. Further,
various special steps have been taken to remove legal, social and other constraints and disparities
to enable them to make use of the rights and opportunities made available to them yet there are
many outdated social customs and traditions which are still followed, they wield more power and
authority than the statutory enactments and undo, most of the gains of these pragmatic
programmes resulting in inequitable distribution of the fruits of progress and development.
GLOBAL VIEW ON GENDER JUSTICE
Gender Justice, simply put refers to equality between the sexes. Gender justice is a correlation of
social, economic, political, environmental, cultural and educational factors, these preconditions
need to be satisfied for achieving gender justice. Globally, gender justice as a cause has gained in
strength over the years, as it has been realised that no state can truly progress if half of its
population is held back.
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The struggle for equal rights, freedom and justice has been made by human rights activists,
feminists, NGO's and through Government support. Even though considerable progress has been
made in this regard, women are still lagging behind. With globalisation, there are other complex
issues that women face today along with the elementary issues that have always plagued women.
Consumerism and cultural heterogeneity has brought in its fold more objectification of women.
Apart from these issues, there are still many cultures in the world where the condition of women
is still deplorable, they still have no control or right over themselves or their bodies or their
children. The condition is worse in Africa and the Middle East. Gender Justice refers to
harmonising of rights and needs of women into mainstream society. Justice in this sense means
more balanced behaviour, an end to violence and equal distribution of social necessities.
Globally, the United Nations has established a strong mandate for gender justice. The focus on
gender equality and gender justice has been there since the inception of the UN. In 1946, a
separate body was formed to work on the advancement of women. The Commission on the
Status of Women worked from its inception to collect and compile data on women's situation
around the world, to promote women's human rights and raise awareness of, and support for,
their contribution to development. The Decade for Women (1976-1985) and four world
conferences on women (between 1975 and 1995) contributed significantly to raising awareness
and commitment to gender equality and gender justice. In 1995, the Beijing Declaration and
Platform for Action had been framed for guiding work at national level.
The human rights treaty on gender equality – The Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) has been ratified by 185 states and the optional
protocol by 90 states. Since 1995 and the adoption of gender mainstreaming as a critical strategy
for achieving gender equality, intergovernmental bodies – such as the General Assembly, the
ECOSOC and the Commission on the Status of Women - have worked to mainstream gender
perspectives as an integral part of all policy areas. At the 2005 World Summit, world leaders
reiterated that progress for women is progress for all. The UNIFEM is another agency of the UN.
It is the development fund for women at the United Nations. It provides technical and financial
assistance to innovative programmes and strategies to foster women's empowerment and gender
equality. The United Nations Development Programme (UNDP) also has the Gender
Development Index (GDI). It is an indication of the standard of living in a country, developed by
the UN. It aims to show the inequalities between men and women: long and healthy life,
knowledge and decent standard of living. India is ranked 128th in the Gender Development
Index, while USA is 12th and UK is 16th.
INDIAN LEGISLATIVE FRAMEWORK ON GENDER JUSTICE
In India, the principle of gender equality has been enshrined in its Constitution, the very
document that provides the basis and guidance for governance in a democracy. In this sense,
gender justice in India is inextricable for the working of the democratic principles we have
adopted. The inclusion of gender justice – equality before the law, enfranchisement, positive
discrimination for neutralizing social and economic inequity – among other things made the
Indian Constitution.
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While we are still a long way from achieving what can be termed as „equality‟ in the sphere of
gender, the fact that the Constitution provided a foundational basis to the idea of gender justice
in India has helped us sustain a struggle for levelling the field en masse and has paved the way
for enactment of legislations that were passed in the years following 1950.
The Constitutional Provisions that provide for gender justice in India include Articles 14, 15, 16,
39, and 42.
Article 14 provides for equality before the law, or for the equal protection of laws. The equality
provided herein is therefore two pronged: equality before the law means that the State shall not
discriminate between two citizens – every person is the same in the eyes of the law. On the other
hand, equal protection of laws enables the State to undertake positive discrimination in order to
bring all citizens on an equal footing. It gives the State freedom to make special provisions for
disadvantaged sections of the society, which includes affirmative action and special status for
women etc.
Article 15 (1) explicitly prohibits any discrimination on the basis of sex; it states, „The State shall
not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them.‟ This does not prevent the State from taking affirmative action in favor of women.
Under Article 15(3), the State is provided with the power to make special provision for women
and children.
Article 16 provides for equality of opportunity of all in matters relating to public employment or
appointment to any office; it specifically forbids discrimination on the grounds of sex. Article 16
(2) reads: „No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect or, any
employment or office under the State.‟
Article 39 provides for securing the right to an equal means of livelihood for both men and
women and that both men and women have the right to equal pay.
Article 42 provides for securing just and humane conditions of work and for maternity relief.
Apart from these major Constitutional Provisions the other constitutional provisions
accentuating upon gender equality are hereby mentioned below:
i. The State to promote with special care the educational and economic interests of the
weaker sections of the people and to protect them from social injustice and all forms of
exploitation (Article 46)
ii. The State to raise the level of nutrition and the standard of living of its people (Article
47)
iii. To promote harmony and the spirit of common brotherhood amongst all the people of
India and to renounce practices derogatory to the dignity of women (Article 51(A) (e))
iv. Not less than one-third (including the number of seats reserved for women belonging to
the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled
by direct election in every Panchayat to be reserved for women and such seats to be
allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))
v. Not less than one- third of the total number of offices of Chairpersons in the Panchayats
at each level to be reserved for women (Article 243 D (4))
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vi. Not less than one-third (including the number of seats reserved for women belonging to
the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled
by direct election in every Municipality to be reserved for women and such seats to be
allotted by rotation to different constituencies in a Municipality (Article 243 T (3))
vii. Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the
Scheduled Tribes and women in such manner as the legislature of a State may by law
provide (Article 243 T (4)).
In order to meet the Constitutional Mandates, the Indian State has in the years following
Independence enacted various laws that provide for equal rights, help counter the results that
have arisen from social discrimination and provide support to women.
While there are various crimes defined under the Indian Penal Code, 1860 (IPC) of which both
men and women can be victims (robbery, theft, murder, etc.), but there are a few crimes which
fall under the category of crimes against women, defined under the Indian Penal Code (IPC),
1860:
i. Rape (Sec. 376 IPC)
ii. Kidnapping & Abduction for different purposes ( Sec. 363-373)
iii. Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
iv. Torture, both mental and physical (Sec. 498-A IPC)
v. Molestation (Sec. 354 IPC)
vi. Sexual Harassment (Sec. 509 IPC)
There are also numerous legislations that have specific provisions to address women and their
interests thereby providing a strong legislative basis for gender justice in India. These are:
Although all laws are not gender specific, the provisions of law affecting women significantly
have been reviewed periodically and amendments carried out to keep pace with the emerging
requirements.
Some acts which have special provisions to safeguard women and their interests are:
(i) The Employees State Insurance Act, 1948
(ii) The Plantation Labour Act, 1951
(iii) The Family Courts Act, 1954
(iv) The Special Marriage Act, 1954
(v) The Hindu Marriage Act, 1955
(vi) The Hindu Succession Act, 1956 with amendment in 2005
(vii) Immoral Traffic (Prevention) Act, 1956
(viii) The Maternity Benefit Act, 1961 (Amended in 1995)
(ix) Dowry Prohibition Act, 1961
(x) The Medical Termination of Pregnancy Act, 1971
(xi) The Contract Labour (Regulation and Abolition) Act, 1976
(xii) The Equal Remuneration Act, 1976
(xiii) The Prohibition of Child Marriage Act, 2006
(xiv) The Criminal Law (Amendment) Act, 2018
(xv) The Factories (Amendment) Act, 1986
(xvi) Indecent Representation of Women (Prohibition) Act, 1986
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