The Constitution of India is made under the basic foundation of social justice and one of the factor ingredients is gender justice, which can also be termed for human rights for women, children’s and third gender. The Universal Declaration of Human Rights, 1948 to affirms the ideal and equal rights to men and women both of which lead the U.N Convention to Eliminate All Forms of Discrimination Against Women in 1979.
To begin within the Vedic period, women’s rights were tossed with absolute rights and crooked practices. In the medieval interval at the time of British and royals like Raja Ram Mohan Roy, legal status for Indian women and children was passed by the legislature. Abolition of The Hindu Widows Remarriage Act 1856, The Child Marriage Restraint Act 1929, The Hindu Women’s Right to Property Act 1937 and the Hindu Women’s Right to Separate Residence and Maintenance Act 1946 by the British Government were taken to improve the legal, social, and economic status of women. After Independence, while framing the constitution it was felt that such abolition is not sufficient to protect and therefore, the Principle of Gender Equality was established under the head of its Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles with supporting rights and enactment.
India received very zestful international attention for the holistic principle of equality, yet the country remained soaked with old norms and believes for centuries. Before the 1970’s complexity in enforcing Human Rights was reflected in decisions of the Supreme Court which during the time of the 1980s was changed with the development of Public Interest Litigation (hereinafter PIL). This gave a Humanitarian Approach to supreme judgments as desired by the constitution.
What is Gender Justice?
In a comprehensive sense, Gender Justice refers to equal treatment of both men and women and that justice to the fairer sex. No society can progress without gender justice as it particularly concerns workplaces and families providing a framework of human rights as a stepping stone of liberalization, equality, empowerment to all gender and identities leading to societal transformation.
To rectify gender justice, key elements are provided globally which are;
- Fair treatment of women and men in the substantive standard of equality.
- Fairness at the interpersonal relations and at the level of institutions mediating and offering redressal when needed.
- Helps in recognizing and acceptance of long history of gender injustices, which now have to be favored with principles of equality
- Arbitering the social construction of gender by characterizing the third gender acknowledged as transgenders.
This gave birth to the meaning of gender justices denoting equality and fair treatment of the same or different gender without discrimination.
Gender Justice as basic Human Rights
Be it men women or third genders the term gender justices provide equal freedom for personal choices without the limitation of rigid gender role, stereotype and other political prejudices. As human rights are something which shall not only be drafted in the paper but has to have been in practice for the development of society. By valuing different aspirations and treating them with great respect, NGOs, media and public representatives together can transform the society with awareness. It provides a place where men and women can be treated as a human fully with the justified balance of social relation.
The only possible way to bring justice in the status of changed genders and women is the development of social justice. Economist Amartya Sen asserts social development is the way to provide freedom of power to all inferior genders and bring out their fullest. Literacy, health and other basic facilities can give inferior genders to change economic standing in family and society which will help in improving their decision-making power as well.
As in the recent case of S. Sushma and another’s v Commissioner of police and others in Madras High Court when a writ petition was filed by 2 lesbian women against police harassment on lodging a missing complaint. It was observed that such inferior’s communities face a lot of hostility from society. To make people understand Madras High Court decided to have psycho-education sessions and issued guidelines and directions in respect. This judgement also emphasized the evolution of empowering gender with unique features to be equally treated.
Social and economic dependency creates a high level of inequality and therefore promotion of such will be proved inadequate even though the state has provided efforts to protect. Considering woman from marginalized groups relies on the family which aces poor literacy and low social access resulted in gender discrimination by masculinity. Leading to women working unnoticed and underpaid. Therefore, equal participation of both men and women can bring social and economic development whereas both benefiting as such from it is crucially important to achieve gender justice.
1. Education of gender justices to youth
Knowledge is the key to learn which provides quality of equality and democracy amongst the people from their attitude behavior and cultural practices, received by both formally and informally in school, family or through mass media and social institutions. Education is the way to acquire such attitude and behavior excluding different socio-cultural aspects. Due to the lack of adult education and distance education, this gender imbalance has become a challenge to conquer justice and development for upcoming generations. Slowly but gradually changes are seen as it was observed in the Supreme Court case of Mohini Jain’s (1992 AIR 1858; 1992 SCC (3) 666; 1992 SCR (3) 658) decision, modified by honorable judge Unni Krishnan that right to education to the level of primary school as mandatory. It was observed that education is energy and power that transforms the potentiality of intelligence-as without one, a person is equal to an animal.
It was proclaimed by Nelson Mandela that education can change the world into liberal, equal and bring fraternity between genders. The UN charter is the first to proclaim gender equality and that inter-government commission met in 1947 for discussion and implementation of equality agreement in the Indian constitution. Eventually, the concept of ‘equal educational opportunity was provided which was later understood not only in terms of mere educational facilities but also as a practical aspect of issues involving gender biases.
For women the highest point of education was in the Vedic period, from the 19th century up to the time of independence institutions for women’s education was made to large scale. In the 1800’s Raja Ram Mohan Roy made the basis for equal rights for women like, education, remarry and the right of property. Later on, Jyotiba and Savitri Bai Phule opened a school for lower groups followed by an indigenous education system school by Swedish missionaries in the 17th century. Other former leaders like Vivekananda and Annie Besant contributed to improving the educational aspect for women.
The Universal Declaration of Human Rights, 1948 stressed more on equality between men and women which lead to the formation of the Convention of Discrimination Against Women, 1966 (CEDAW) by the General Assembly in 1979 ratified by India in 1993 followed by the Beijing Declaration in 1995. In 1976 United Nations Development Fund for Women (UNIFEM) was also created to provide empowerment in technical and financial assistance to women. Between 1975 and 1995 these international bills for the right for women were raised for creating awareness of gender equality and justice. The United Nations General Assembly also created the United Nations Entity for Gender Equality and Empowerment of Women in 2010.
Apart from these commissions, United Nations Economic and Social Council (ECOSOC) a global policy was made exclusively for the advancement of inequality amongst gender’s economic status. Gender-Related Development Index and Gender Empowerment Measure were made by United Nations Development Program to keep a check on states as regards gender justice’s performance. Article 21 of the European Union also empowers to promote equality.
Demanding of Gender Justices at the European Union (2002), the African Union (2005) officialized through contract 17 sustainable development goals (SDGs- agenda 2030) with 5 explicit goals and 8 demanding productive employment equally for both men and women.
Gender Justice in India
In the early 1900s, women’s struggle emerged focusing on social and freedom struggles with equally campaigned with men. And in the mid-1900s Indian patricentric society started violating the personal rights of women in form of dowry, domestic violence and female infanticide, which also manifested politically. But our constitution gave the key to the open minds of people.
1. Constitutional value under article
First things first, the preamble of the Constitution of India beginning with “WE THE PEOPLE OF INDIA…” secured in its meaning both men and women of any caste, race, etc., to be the same. It also ensured “EQUALITY, DIGNITY” on which basis several important enactments regards to family, employment, a succession which aimed to balance gender hierarchy.
Article 14– Equality before the law and equal protection of the law.
Article 15– Rights against discrimination.
Article 16– Equal opportunity with regards to public employment.
Article 21– Guarantees the right to life with dignity.
Article 23– Right against exploitation and human trafficking.
Not only in fundamental rights but also part IV of the Indian constitution under the head of Directive principle, it is instructed to state to protect and secure social, economic and political justices.
Article 39– Equal pay and adequate livelihood to men and women with the dignity of freedom of childhood to children’s and promote justice on basis of equal opportunity.
Article 44– Maintain Uniform Civil Code throughout India with an objective to harmonies discrimination against cultural practices and discrimination against vulnerable groups which is reinforced after Keshvananda Bharti v State of Kerala (AIR 1973 SC 1406).
Article 51A(e)– Provided the spirit of promoting harmony and brotherhood amongst the people and to practice derogation of the dignity of women.
The legislature has also successfully reserved seats for women in elections of panchayats and municipalities under articles 243D and 243T of the Indian constitution.
2. Gender justice and Indian laws
The right to abortion in India is protected under the Medical Termination of Pregnancy Act 1971, although there is no provision for women to abort on basis of their will, section 312 of the Indian Penal Code 1860 defines offence to who causes woman miscarriage the child, not in good faith. The sexual harassment of women at workplace (prevention, prohibition and redressal) Act 2013 provided for the protection of the dignity of women in the workplace with peace and harmonized environment as for growth like men, as it was also observed in a landmark judgement by Supreme Court in Vishakha v state of Rajasthan (1997 (6) SCC 241), amounting to a violation of gender equality the judgement laid definition of sexual harassments, preventive steps with complaint mechanisms and awareness at workplaces. The Domestic Violence Act 2005 on the contrary curbed domestic violence at home. The combination of civil and civil remedies is provided due to the number of domestic violence reported as compared to sexual assaults. As for the rape cases, it is considered as gender-biased to male-oriented terms and hence laws are formulated. In the case of sex workers except for male prostitutes the law dealing is primarily known as Immoral Traffic (suppression) Act 1956. The tradition of dowry is a deal under Dowry Prohibition Act 1961.
3. Third genders in India
With regards to the third gender even collecting ration was intimidating, but in 1994 Tamil Nadu was the first state that allowed to covey their sex as ‘T’ which led to the right to vote under ‘M’ or ‘F’. Later election commission recognized their gender as ‘O’ symbolling others. In national legal service authority v union of India (WP (Civil) No. 400 of 2012), landmark judgment of Supreme Court, the question was raised upon their social and economic backwardness resulting to allow them in educational institutions and based on that allot employments just like any other human being with as such human rights. This led them to be formally recognized in India for the first time.
i. Industrial Laws- The Factory Act 1948, The Plantations Labor Act 1951, The Mines Act 1952, The Beedi and Cigar Workers (Conditions of Employment) Act 1966, The Contract Labor (Regulation and Abolition) Act 1970 and The Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 not only regulated working hours but also provided provisions for health, safety, welfare and equal treatment and equality before the law. Most of these laws are adopted by international labor organizations keeping in view soft and tender personalities. The important statutes covering women concerning equal pay and work are providing prohibition of employment in night hours, fixation of working hours and minimum permissible load. Provided factories to employ 30 women workers with a suitable room for children under the age of 6 years. Separate and adequate restrooms, canteens, toilets, washing and bathing facilities shall also be provided.
ii. The Employee’s State Insurance Act 1948- Provides social benefits like sickness, disablement, or medical in addition maternity benefits are also provided to women.
iii. The Maternity Benefit Act 1961- Aims at resolving economic problems faced by women mostly related to unequal wages due to biological role by regulating work establishment for at least 80 days during 12 months to claim the benefit under this act. The Supreme Court in the landmark judgment of Air India v Nargesh mirza (AIR 1978 SC 12; 1977 (4) SCC 334) struck down the provisions of rules which stipulate termination of service of an air hostess on her first pregnancy.
iv. The Equal Remuneration Act 1976- Gave effect to article 39 of Indian constitution and principles of International Labor Organizations for protection of women in discrimination of work and wages. This act was passed by parliament, monitored by the central ministry of labor and central authority this enactment employs women and men with equal pay for equal work.
v. National Rural Employment Guarantee Act 2005- Enhanced livelihood and opportunity to households by provided unskilled manual laborers wages of Rs. 100/ day, prioritizing women specially engaged in agricultural farming and paid less even for their long working hours. This direct control of resources will enhance the health and socio-economic status of herself and her children.
Thus, such employment schemes have created a positive impact on gender justice and equality. The next step shall be taken to enhance the living standards of rural areas in India as where overpopulation resides.
Gender Justice and Economics
The policy of increase in women labor is implicated in the verbal agreement with help of economic regulating organizations like G20 by creating jobs and advocating India with the context of Germans and other countries holistic approach. The issue of inequality was first addressed in the Los Cabos summit (2012) with reports of low social and economic participation of women, rectified by the Brisbane Action Plan (G20-2014). Following the Antalya summit obligation in women participation was studied and promoted by member countries to increase the dedication by initiating a group formed under the name of Women 20 (W20). A year later at the Saint Petersburg summit, demand for financial education for women was made along with entrepreneurial potential.
The G20 summit held in 2016 attended by W20 regularly also failed in adding the main goal regards gender equality with economic development. Delegating W20 in the closing gap in training, education, and pay, eliminated the legal barrier to women’s economic ownership by breaking social norms (headed by Germany 2017 summit). Modi government in India also developed a strategy to increase women’s employment by professional and self-qualifying employment after emphasis put forth in human values and social justice to genders participation in Bad Neuenahr on May 18, 19 2017 concerning economic growth. To remove all formal deficiencies value attitudes and informal norms changes it will take both time and holistic approach on domestic as well in international levels.
Role of legislation empowering women income
Since 2014, Prime Minister Narendra Modi considering population growth and opportunities took one of the most important measures under “make in India”. The plan is to increase industrial production in global markets by 25 % leading to the creation of 100 million jobs. 25 industries were selected as investment targets directly opened to foreign investors. One of which is the textile industry- mainly focused on employing women. Calculating of which 64 million jobs for women would be created. Since the textile industry is poorly contributing to the economic empowerment of women and although India just began with digitalized market globally, a thought of “Start-Up India” is also initiated, this explicitly targeted to women with regards to social justice.
Gender Justice and Foreign Countries
With regards to Gender Justices, the Gender Index ranks of UK and USA are dynamic than Africa or the Middle East or South East Asia, providing Equality as a fundamental principle under article 2. 3(2), 21 and 23 of the European Union Charter issued few directives to empower and ensure equality. The first equal treatment directive was issued in 1976 by the council of minister of the European Economic Community (European Union) and other in 2004. In 2006 implementation of such principles was supplied to every member state.
The laws in the UK are closely modulated with European Union, Sex Discrimination Act, 1975 and Equal Pay Act, 1970 both were amended covering 4 forms of discrimination, direct, indirect, harassment and victimization. The Equality Act 2006 and Domestic Violence, Crime and Victim Act 2004 helped in creating a public duty to promote gender equality. Forced Marriage (Civil Protection) Act 2007 was passed to cover injunction even by 3rd party. Support to that Employment Protection Act 1975 was provided to benefit 14 weeks maternity leave and 2 weeks paternity leave for working women. The Sexual Offence Act 2003 helped in prosecuting rap sexual assaults with financial compensations. This not only purviews to a woman but other genders as well. Policing and Crime Act 2009 along with Female Genital Mutilation Act 2003 made prostitution and female genital mutilation illegal. For third gender recognition Act, 2004 was passed.
Women’s rights convention New York in 1848 marked the beginning of Gender Justices in America. The Civil Rights Act 1964, Equal Pay Act 1963, Family and Medical Leave Act 1993 were some of the statutes determining the controversial status of women as fundamental rights. For third genders, there is no federal law designed but are recognized on their identity and are equally treated. In the 19th amendment of the constitution of US 1920 gender equality was recognized concerning vote but some portion as in the workplace was still in discrimination which was overcome under Civil Rights Act 1964.
Other countries also approached to meet personal ground of equality to overcome gender injustices some of which are-
1. Argentina Gender Identity Law– Adopted in 2012 allowing legal genders based on self-determination and legalized sex-change surgeries.
2. Germany’s Wage Transparency Act– Adopted in 2018, allowing companies with more than 200 employees to provide medical allowance to at least 6 colleagues and the opposite sex.
3. Rwanda’s Political Representation- Adopted in 2003 allowing 30% seat reserved in parliament for women.
4. Pakistan’s Transgender Persons (Protection of Rights) Act– Adopted in 2018 prohibiting discrimination against transgenders and allowing them to recognize their own identity.
5. Iceland’s Equal Pay Law– Adopted in 2018, for fair wages by companies to overcome gender-based pay discrimination of 6%.
6. Sweden’s Parental Leave– Allowed 480 days of leave to parents for a child who is below 8 years of age which can be equally and non-transferable divided in 90 days off to ensure each parent.
7. Norway’s Board Membership Rule– Adopted in 2008, for women to make 40% board in public listed companies.
8. New Zealand’s Sex Work Decriminalization– Prostitute Reform Act 2003 was passed to protect sex workers through employment as under human rights statutes.
9. Canada’s End to Tampon Tax– Adopted in 2016, eliminated 5% tax on menstrual products.
10. Morocco’s Law on Domestic Workers– Adopted in 2016, for proper labor contracts with regards to limiting working hours, day-offs and paid vacations, with an appropriate penalty if violated.
The new evolution has begun by recognizing gender justice. Indian judiciary has played a vital role by focusing on Constitutional rights and shaped human rights by accepting universal norms and believes. Courts have mechanized branches of a government official by delegating the role of performance when required. Enforcement of gender justice and international laws the procedure of the Indian Constitution has provided boundaries and respect for every petition and PIL about guidelines. For the successful promotion of gender justice’s coordination is required by every individual. As law eliminates discrimination so is a positive action for substantive equality is equally necessary. This will help in securing equality and justice amongst all genders.
Rabindra Nath Tagore has also said- “where the mind is fearless and the head is held high with the power of knowledge-breaks the domestic wall of narrow into fragments and where words are of deep truth and perfection without the clear stream of reason are deserts of dead habit, the country shall be awakened by these”.
- Constitution of India
- Gender justice as international object: India in G20
This article has been written by Roshni Sewlani, 3 year LL.B student at Mumbai University.
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