lawyers in India

Gender Inequality

Written by: Abhishek Vinod Deshmukh - Student of 1st year of Hidayatullah National Law University, Raipur
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  • Man and woman are both equal and both plays a vital role in the creation and development of their families in a particular and the society in general. Indeed, the struggle for legal equality has been one of the major concerns of the women’s movement all over the world. In India, since long back, women were considered as an oppressed section of the society and they were neglected for centuries. During the national struggle for independence, Gandhi gave a call of emancipation of women. He wrote – :I am uncompromising in the matter of women’s rights. The difference in sex and physical form denotes no difference in status. Woman is the complement of man, and not inferior". Thus, the first task in post-independent India was to provide a constitution to the people, which would not make any distinctions on the basis of sex. The preamble of constitution promises to secure to all its citizens- "Justice- economical, social, and political".

    The constitution declares that the equality before the law and the equal protection of laws shall be available for all . Similarly, there shall be no discrimination against any citizen on the ground of sex . Article 15(1) guarantees equalities of opportunities for all citizens in matters of employment. Article 15(3) provides that the state can make any special provisions for women and children. Besides, directive principle of state policy which concern women directly and have a special bearing on their status directly and have a special bearing on their status include Article 39(a) right to an adequate means of livelihood; (d) equal pay for equal wok both men and women, (e) protection of health and strength of workers –men, women, children and Article 42 provides for just and humane conditions of work and maternity relief.

    It is really important to note that though the Constitution of India is working since more than fifty-seven years – the raising of the status of women to one of equality, freedom and dignity is still a question mark.

    In India, since independence, a number of laws have been enacted in order to provide protection to women. For instance the Dowry prohibition Act 1961, The Equal Remuneration Act 1986, The Hindu Marriage Act 1956, The Hindu Succession Act 1956, The Muslim Women (Protection of Rights on Divorce) Act, 1986, the commission of Sati (prevention) Act 1987, Protection of the Women from Domestic Violence Act 2005, etc. But, the laws have hardly implemented in their letter and spirit.

    The sense of insecurity, humiliation and helplessness always keep a women mum. Our whole socialisation is such that for any unsuccessful marriage which results in such violence or divorce, it is always the woman, who is held responsible. Cultural beliefs and traditions that discriminate against women may be officially discredited but they continue to flourish at the grass root levels. Family relations in India are governed by personal laws. The four major religious communities are – Hindu, Muslim, Christian and Parsi each have their separate personal laws. They are governed by their respective personal laws in matters of marriage, divorce, succession, adoption, guardianship and maintenance. In the laws of all the communities, women have fewer rights than that of man in corresponding situations. It is really that women of the minority communities in India continue to have unequal legal rights and even the women of the majority community have yet to gain complete formal equality in all aspects of family life. This is basically the problem of gender inequality. But what is this problem and how this can be solved.

    As An Concept
    Gender Inequalities refers to the obvious or hidden disparities among individuals based on the performance of gender. This problem in simple term is known as Gender Bias which in simple terms means the gender stratification or making difference between a girl and a boy i.e. a male or a female. In making biasness among the gender India has 10th rank out of 128 countries all over the world which is shameful for us . But this problem is increasing although government has banned the pre-natal sex examination. In India (in the older times) this problem is mainly seen in the rural areas because many rural people think that the girl child is burden on them. But now this is also being seen in the urban areas i.e. in offices, institutions, schools and in society. The afflicted world in which we live is characterised by deeply unequal sharing of the burden of adversities between women and men. Gender Inequality exists in most part of the world, from Japan to Morocco, or from Uzbekistan to United States of America (as stated earlier).

    However, inequality between men and women can take very many different forms. Indeed, gender inequality is not one homogeneous phenomenon, but a collection of disparate and interlinked problems. The issue of gender inequality is one which has been publicly reverberating through society for decades. The problem of inequality in employment being one of the most pressing issues today. In order to examine this situation one must try to get to the root of the problem and must understand the sociological factors that cause women to have a much more difficult time getting the same benefits, wages, and job opportunities as their male counterparts. The society in which we live has been shaped historically by males.

    However, in many parts of the world, women receive less attention and health care than men do, and particularly girls often receive very much less support than boys. As a result of this gender bias, the mortality rates of females often exceed those of males in these countries. The concept of missing women was devised to give some idea of the enormity of the phenomenon of women's adversity in mortality by focussing on the women who are simply not there, due to unusually high mortality compared with male mortality rates. In some regions in the world, inequality between women and men directly involves matters of life and death, and takes the brutal form of unusually high mortality rates of women and a consequent preponderance of men in the total population, as opposed to the preponderance of women found in societies with little or no gender bias in health care and nutrition. Mortality inequality has been observed extensively in North Africa and in Asia, including China and South Asia.

    Types of Gender Inequalities

    There are many kinds of gender inequality or gender disparity which are as follows:
    1. Natality inequality: In this type of inequality a preference is given for boys over girls that many male-dominated societies have, gender inequality can manifest itself in the form of the parents wanting the newborn to be a boy rather than a girl. There was a time when this could be no more than a wish (a daydream or a nightmare, depending on one's perspective), but with the availability of modern techniques to determine the gender of the foetus, sex-selective abortion has become common in many countries. It is particularly prevalent in East Asia, in China and South Korea in particular, but also in Singapore and Taiwan, and it is beginning to emerge as a statistically significant phenomenon in India and South Asia as well.

    2. Professional or Employment inequality: In terms of employment as well as promotion in work and occupation, women often face greater handicap than men. A country like Japan and India may be quite egalitarian in matters of demography or basic facilities, and even, to a great extent, in higher education, and yet progress to elevated levels of employment and occupation seems to be much more problematic for women than for men. The example of employment inequality can be explained by saying that men get priority in seeking job than women.

    3. Ownership inequality: In many societies the ownership of property can also be very unequal. Even basic assets such as homes and land may be very asymmetrically shared. The absence of claims to property can not only reduce the voice of women, but also make it harder for women to enter and flourish in commercial, economic and even some social activities. This type of inequality has existed in most parts of the world, though there are also local variations. For example, even though traditional property rights have favoured men in the bulk of India.

    4. Household inequality: There are often enough, basic inequalities in gender relations within the family or the household, which can take many different forms. Even in cases in which there are no overt signs of anti-female bias in, say, survival or son-preference or education, or even in promotion to higher executive positions, the family arrangements can be quite unequal in terms of sharing the burden of housework and child care. It is, for example, quite common in many societies to take it for granted that while men will naturally work outside the home, women could do it if and only if they could combine it with various inescapable and unequally shared household duties. This is sometimes called "division of labour," though women could be forgiven for seeing it as "accumulation of labour." The reach of this inequality includes not only unequal relations within the family, but also derivative inequalities in employment and recognition in the outside world. Also, the established fixity of this type of "division" or "accumulation" of labour can also have far-reaching effects on the knowledge and understanding of different types of work in professional circles.

    5. Special opportunity inequality: Even when there is relatively little difference in basic facilities including schooling, the opportunities of higher education may be far fewer for young women than for young men. Indeed, gender bias in higher education and professional training can be observed even in some of the richest countries in the world, in India too. Sometimes this type of division has been based on the superficially innocuous idea that the respective "provinces" of men and women are just different.

    Issues that Need Investigation

    This is the issue which needs some investigation. The problems out coming are as follows:
    (1) Under nourishment of girls over boys: At the time of birth, girls are obviously no more nutritionally deprived than boys are, but this situation changes as society's unequal treatment takes over from nature's non-discrimination.

    There has, in fact, been plenty of aggregative evidence on this for quite some time now. But this has been accompanied by some anthropological scepticism of the appropriateness of using aggregate statistics with pooled data from different regions to interpret the behaviour of individual families. However, there have also been some Detailed and concretely local studies on this subject, which confirm the picture that emerges on the basis of aggregate statistics. One case study from India, performed in 1983, involved the weighing of every child in two large villages. The time pattern that emerged from this micro study, which concentrated particularly on weight-for-age as the chosen indicator of nutritional level for children under five, brings out clearly how an initial condition of broad nutritional symmetry turns gradually into a situation of Significant female disadvantage.

    The detailed local studies tend to confirm rather than contradict the picture that emerges from aggregate statistics. In interpreting the causal process, it is important to emphasise that the lower level of nourishment of girls may not relate directly to their being underfed vis--vis boys. Often enough, the differences may particularly arise from the neglect of health care of girls compared with what boys get. There is, in fact, some direct information of comparative medical neglect of girl’s vis--vis boys in South Asia. Indeed, when In a study, admissions data from two large public hospitals in Bombay (Mumbai), it was very striking to find clear evidence that the admitted girls were typically more ill than boys, suggesting the inference that a girl has to be more stricken before she is taken to the hospital. Under nourishment may well result from greater morbidity, which can adversely affect both the absorption of nutrients and the performance of bodily functions.

    2) High incidence of maternal under nourishment: In South Asia mostly in India, maternal under nutrition is more common than in most other regions of the world. Comparisons of Body Mass Index (BMI), which is essentially a measure of weight for height, bring this out clearly enough, as do statistics of such consequential characteristics as the incidence of anaemia.

    (3) Prevalence of low birth weight: In South Asia, as many as 21 per cent of children are born clinically underweight (in accepted medical standards) - more than in any other substantial region in the world.17. The predicament of being low in weight in childhood seems often enough to begin at birth in the case of South Asian children. In terms of weight for age, South Asia has around 40 to 60 per cent children undernourished compared with 20 to 40 per cent under nourishment even in sub-Saharan Africa. The children start deprived and stay deprived.

    (4) High incidence of cardiovascular diseases: South Asia stands out as having more cardiovascular diseases than any other part of the third world. Even when other countries, such as China, have greater prevalence of the standard predisposing conditions, the Indian population seems to have more heart problems than these other countries have. It is not difficult to see that the first three observations are very likely causally connected. The neglect of the care of girls and of women in general and the underlying gender bias that they reflect would tend to yield more maternal under nourishment, and through that more foetal deprivation and distress, underweight babies, and child under nourishment. But what about the last observation - the higher incidence of cardiovascular diseases among South Asian adults? In this it has been shown that low birth weight is closely associated with higher incidence, many decades later, of several adult diseases, including hypertension, glucose intolerance, and other cardiovascular hazards.

    The robustness of the statistical connections as well as the causal mechanisms involved in intrauterine growth retardation can, of course, be further investigated, but as matters stand these medical findings offer a possibility of causally interconnecting the different empirical observations related to South Asia, The application of this medical understanding to the phenomenon of high incidence of cardiovascular diseases in South Asia strongly suggests a causal pattern that goes from the nutritional neglect of women to maternal under nourishment, from there to foetal growth retardation and underweight babies, and thence to greater incidence of cardiovascular afflictions much later in adult life (along with the phenomenon of undernourished children in the shorter run). What begins as a neglect of the interests of women ends up causing adversities in the health and survival of all - even at an advanced age? Given the uniquely critical role of women in the reproductive process, it would be hard to imagine that the deprivation to which women are subjected would not have some adverse impact on the lives of all - men as well as women and adults as well as children - who are "born of a woman" (as the Book of Job describes every person, not particularly daringly). Indeed, since men suffer disproportionately more from cardiovascular diseases, the suffering of women hit men even harder, in this respect. The extensive penalties of neglecting women's interest rebounds; it appears, on men with a vengeance.

    Focusing on India
    While there is something to cheer in the developments I have just been discussing, and there is considerable evidence of a weakened hold of gender disparity in several fields in the subcontinent, there is also, alas, some evidence of a movement in the contrary direction, at least in one aspect of gender inequality, namely, natality inequality. This has been brought out particularly sharply by the early results of the 2001 decennial national Census of India, which are now available. Early results indicate that even though the overall female to male ratio has improved slightly for the country as a whole (with a corresponding reduction of the proportion of "missing women"), the female-male ratio for children has had a substantial decline. For India as a whole, the female-male ratio of the population under age 6 has fallen from 94.5 girls for hundred boys in 1991 to 92.7 girls per hundred boys in 2001.

    While there has been no such decline in some parts of the country (most notably Kerala), it has fallen very sharply in others, such as Punjab, Haryana, Gujarat and Maharashtra, which are among the richer Indian States. Taking together all the evidence that exists, it is clear that this change reflects not a rise in female child mortality, but a fall in female births vis--vis male births, and is almost certainly connected with increased availability and use of gender determination of foetuses. Fearing that sex-selective abortion might occur in India, the Indian Parliament banned some years ago the use of sex determination techniques for foetuses, except when it is a by-product of other.

    Necessary medical investigation. But it appears that the enforcement of this law has been comprehensively neglected. This face of gender inequality cannot, therefore, be removed, at least in the short run, by the enhancement of women's empowerment and agency, since that agency is itself an integral part of the cause of natality inequality. Policy initiatives have to take adequate note of the fact that the pattern of gender inequality seems to be shifting in India, right at this time, from mortality inequality (the female life expectancy at birth is by now two years higher than male life expectancy in India) to natality inequality. Indeed, there is clear evidence that traditional routes of changing gender inequality, through using public policy to influence female education and female economic participation, may not serve as a path to the removal of natality inequality.

    A sharp pointer in that direction comes from countries in East Asia, which all have high levels of female education and economic participation. Despite these achievements, compared with the biologically common ratio across the world of 95 girls being born per hundred boys, Singapore and Taiwan have 92 girls, South Korea only 88, and China a mere 86. In fact, South Korea's overall female-male ratio for children is also a meagre 88 girls for 100 boys and China's 85 girls for 100 boys. In comparison, the Indian ratio of 92.7 girls or 100 boys (though lower than its previous figure of 94.5) still looks far less unfavourable.

    However, there are more grounds for concern than may be suggested by the current all-India average. First, there are substantial variations within India, and the all-India average hides the fact that there are States in India where the female-male ratio for children is very much lower than the Indian average. Second, it has to be asked whether with the spread of sex-selective abortion, India may catch up with - and perhaps even go beyond - Korea and China. There is, in fact, strong evidence that this is happening in a big way in parts of the country.

    There is, however, something of a social and cultural divide across India, splitting the country into two nearly contiguous halves, in the extent of anti-female bias in natality and post-natality mortality. Since more boys are born than girls everywhere in the world, even without sex-specific abortion, we can use as a classificatory benchmark the female-male ratio among children in advanced industrial countries. The female-male ratio for the 0-5 age group is 94.8 in Germany, 95.0 in the U.K., and 95.7 in the U.S., and perhaps we can sensibly pick the German ratio of 94.8 as the cut-off point below which we should suspect anti-female intervention. The use of this dividing line produces a remarkable geographical split of India. There are the States in the north and the west where the female-male ratio of children is consistently below the benchmark figure, led by Punjab, Haryana, Delhi and Gujarat (with ratios between 79.3 and 87.8), and also including, among others, Himachal Pradesh, Madhya Pradesh, Rajasthan, Uttar Pradesh, Maharashtra, Jammu and Kashmir, and Bihar (a tiny exception is Dadra and Nagar Haveli, with less than a quarter million people altogether).

    On the other side of the divide, the States in the east and the south tend to have female-male ratios that are above the benchmark line of 94.8 girls per 100 boys: with Kerala, Andhra Pradesh, West Bengal and Assam (each between 96.3 and 96.6), and also, among others, Orissa, Karnataka and the north-eastern States to the east of Bangladesh (Meghalaya, Mizoram, Manipur, Nagaland, Arunachal Pradesh). One significant exception to this neat pattern of adjoining division is, however, provided by Tamil Nadu, where the Female-male ratio is just below 94, which is higher than the ratio of any State in the deficit list, but still just below the cut-off line used for the partitioning (94.8). The astonishing finding is not that one particular State seems to provide a marginal misfit, but how the vast majority of the Indian States fall firmly into two contiguous halves.

    Classified broadly into the north and the west, on one side, and the south and the east, on the other. Indeed, every State in the north and the west (with the slight exception of the tiny Union Territory of Dadra and Nagar Haveli) has strictly lower female-male ratio of children than every State in the east and the south (even Tamil Nadu fits into this classification), and this indeed is quite remarkable.

    The pattern of female-male ratio of children produces a much sharper regional classification than does the female male ratio of mortality of children, even though the two are also fairly strongly correlated. The female-male ratio in child mortality varies between 0.91 in West Bengal and 0.93 in Kerala, on one side, in the southern and eastern group, to 1.30 in Punjab, Haryana and Uttar Pradesh, with high ratios also in Gujarat, Bihar and Rajasthan, in the northern and western group. The north and the west have clear characteristics of anti-female bias in a way that is not present - or at least not yet Visible - in most of the east and the south. This contrast does not have any immediate economic explanation. The States with anti-female bias include rich ones (Punjab and Haryana) as well as poor States (Madhya Pradesh and Uttar Pradesh), and fast-growing States (Gujarat and Maharashtra) as well as growth failures (Bihar and Uttar Pradesh).

    Also, the incidence of sex-specific abortions cannot be explained by the availability of medical resources for determining the sex of the foetus: Kerala and West Bengal in the non-deficit list, both with the ratio of 96.3 girls to 100 boys (comfortably higher than the benchmark cut-off of 94.8), have at least as much medical facilities as in such deficit States as Madhya Pradesh or Rajasthan. If commercial facilities for sex-selected abortion are infrequent in Kerala or West Bengal, it is because of a low demand for those specific services, rather than any great supply side barrier.

    It would also be important to keep a close watch on whether the incidence of sex-specific abortions will significantly increase in States in which they are at this time quite uncommon. It was never meant to be an elitist idea. It has come and assumed from the grassroots level. The women parliamentarians have been able to make many changes to address the state of women in India. But one can never say enough has been done for women.

    In India, this problem is mainly in work places i.e. related to Sexual Harassment and Wage Payment and related to inheritance. Although, judiciary decided in favour of the deceased i.e. the suffered parties. There are many landmark and famous cases of gender discrimination in work place like that of Vishaka v. State of Rajasthan it was held that a woman was brutally gang raped in the village of Rajasthan. The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need. So, a writ of Mandamus was filed in Supreme Court under Article 32 of the Indian constitution.

    Later the Supreme Court decided that direct that the certain guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.

    Since Article 15(3) itself hints substantive approach, its application for giving special educational facilities, for giving representation in local bodies and for protection in places of work has a substantive dimension. Upholding a service rule that preferred women in recruitment to public employment to the extent of 30% of posts, the Supreme Court stated in Government of A.P. v. P.B. Vijayakumar: "To say that under Article 15(3) job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provision for women in respect of employments or posts under the state is an integral part of Article 15(3)".

    Also, In Mackinnon Mackenzie & Co. Ltd v. Audrey D'Costa The Court observed that there was discrimination in payment of wages to lady stenographers and such discrimination was being perpetuated under the garb of a settlement between the employees and the employer. The Court finally not only made it mandatory to pay equal remuneration to lady stenographers as their male counterparts but also observed that the ground of financial incapability of the management cannot be a ground to seek exemption from the Equal Remuneration Act, 1976.

    Andhra Pradesh's Hindu Succession (Amendment) Act 1986 is a piece of legislation that ought to be replicated in all our states. The Act confers equal rights of inheritance to Hindu women along with men, thus achieving the constitutional mandate of equality. An important measure undertaken to thereby eradicate the ills brought about by the dowry system while simultaneously ameliorating the condition of women in Hindu society.

    But now after the decision of the Supreme Court in Gurupad Khandappa Magdum v Hirabai Khandappa Magdum and that till such time, such ascertained share is handed over, the Hindu Undivided Family (HUF) would continue to be treated as the owner of such assets, notwithstanding the ascertained shares of such female heir as part of the corpus of the Hindu family, even as held in State of Maharashtra v Narayan Rao Sham Rao Deshmukh. And also after the amendment of Hindu Succession Act in September 2005 under Sec. 3(2), the right of a Hindu widow to get the full share of her late husband in coparcenary property (with limited interest — later enlarged to absolute right) continues or has been curtailed now. It means that From September 2005, daughters also have become coparceners.

    So, these are some landmarks where the legislature and judiciary had performed a well job i.e. by serving in favour of the deceased or victim in a way that the truth or right should not to fail.

    Measures To Solve Gender Inequality

    Every problem has its own solution elsewhere or what ever the problem is? Like this phenomenon this problems has many measures out of which some of the simple one are stated below (except legislative and judicial Solutions).

    1. Changes at District level mechanism: A clear cut administrative should be made available at the district level for monitoring and reviewing the incidence of inequality against women. This district level machinery headed by District Magistrate should consist of representatives of police, prosecution machinery, judiciary and the representatives of prominent individuals of women’s organizations in the Districts. This committee should review progress of investigation and prosecution. At least one special cell should be created at the district level for ensuring better registration and progress of investigation and monitoring of crimes against gender equality. This special cell should network with community groups and women’s organizations and help to create an atmosphere in which people would feel encouraged to freely report the cases of gender injustice. At present, most, non-reporting of the cases is due to lack of confidence in enforcement machinery.

    The reporting of violence against women from the Thana to the district level and from district level to the state level gets obscured in the overall mass and complexities of the currently prescribed reporting system. Specific format should be created and implemented for reporting on gender-related crimes.

    2. Changes at State level Mechanism: Similarly, like District level mechanism there should be State level machinery at the State level in which there should be special entry for those cases which needs prompt actions. This institution will make a full control over the district level machinery. So that there should nit be any corruption or fraud with innocent persons.

    3. Law of Torts: An area of civil wrong is tort law. Tort law is probably one of the most underutilised areas of the law with respect to the problem of gender injustice. The torts that are directly applicable are:
    Unlawful imprisonment
    Tort of harassment
    Tort of Medical pre- natal test
    It means that there can be punishment under tort law also.

    4. Sensitization of Criminal Justice system: The police officers, prosecutors, and judges at all levels of hierarchy need to be exposed to the gender equality education which would enlighten them on existing assumptions, myths and stereotypes of women and how these can interfere with fair and equitable administration of justice. Judicial system should comprise of all types of officers i.e. from judiciary i.e. judges, police officers and which should take immediate action in serious cases.

    5. Family Law: Another of wrong is family law also. In this accused can be punished under Domestic Violence Act, 2005 and Dowry Prohibition Act, 1987 other laws relating to family disputes. The suit/ case can be filed for domestic violence or any other household wrong.

    The most significant factor in continued use of law to enforce patriarchal privilege is that men still control not only the legal process and the interpretation of laws, but also the subject matter and vantage point of law. If the subject matter of law is male concerns and if the perspective employed within the legal process are those of men, then women should actually have no reason to expect that mere reform of existing law will materially improve the condition of women. This is particularly true when attempts to improve the statutes of women are made through incremental reforms that are not grounded in an understanding of how women’s oppressions are constructed. Reforms of rape law will not materially improve the status of women when the point of rape laws is their no enforcement.

    It has been shown that law is strictly restricted in it capacity to deliver gender justice, which in itself is contingent on the nature of law and its functioning. In this connection it is worthwhile to recall that the law itself is not a monolithic entity, which simply progresses or regresses.

    Historically, the development of law has been an uneven one. That is to say, more than not, what law promises on paper cannot carry through in reality. That is why law-as-legislation and law-in-practice are most of the time in contradiction with each other. To cite an example, the Indian constitution explicitly enshrines formal equality for women. However, the lives and experiences of India women relentlessly continue to be characterized by substantive inequality, inequity and discrimination.

    Gender justice may not be then that much of a caste in the sky. Finally, one must at least clearly suggest what ought to be done. The present feminist analysis is such a modest endeavour which not only attempts to understand the reality but also tries to explain how to change it.

    "Fight for gender equality is not a fight against men. It is a fight against traditions that have chained them – a fight against attitudes that are ingrained in the society – it is a fight against system – a fight against proverbial laxshman Rekha which is different for men and different for women. The society must rise to the occasion. It must recognize & accept fact that men and women are equal partners in life. They are individual who have their own identity".
    - Dr. Justice A.S. Anand

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