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Role Of Indian Judiciary In Neutralizing Gender Equality

This seminar paper analyses how the Indian judiciary plays an important role in interpreting and applying the laws related to gender equality. In a country where gender disparity is so common whether be it in the education sector, health sector or employment sector to name a few, the judiciary plays a pivotal role in empowering women and filling this gender gap. It also analyses several provisions which have been embodied in our Indian Constitution for protecting and preserving the rights of women and for safeguarding their interests, but many are still unaware or ignorant about their rights, which are provided to them by the law.

The paper finally seeks to identify strategies and make recommendations concerning the role of the judiciary in promoting gender equality. In many judicial pronouncements, the judiciary has shown its desire to help the deprived and underprivileged section of the society i.e. the women who face the brunt of sexual violence in silence while giving a whole new dimension to justice itself.

There should be no discrimination between men and women. Women should know their fundamental and social rights which they get once they are born. There should be respect and dignity towards women and they should have equal rights in society and other judicial works.

Aim and objective
To acknowledge the role of Indian judiciary in neutralizing gender equality.

  • Gender Justice- Full equality and equity between men and women in all spheres of life, resulting in women jointly, and on an equal basis with men, defining and shaping the policies, structures and decisions that affect their lives and society as a whole.
  • Stereotypes- A widely held but fixed and oversimplified image or idea of a particular type of person or thing.[2]
  • Exploitation- The action or fact of treating someone unfairly in order to benefit from their work.[3]
  • Disparity- a great difference.

Law has a crucial role to play in upholding gender equality in society and it needs to contemplate how differences in women's and men's social, economic, and legal abilities impact the way they experience law and justice in their lives, and how their daily lifestyle considerably shapes patterns of their life.

Law helps an individual by providing them the right to enjoy their life lawfully and to live as free and autonomous agents of society. The Supreme Court of India has evolved its gender jurisprudence over the years and has exhibited an optimistic, progressive and activist attitude towards gender-specific issues and thereby took a bold move towards securing gender justice.

The Honourable Court has openly acknowledged the rights to privacy, bodily integrity, faith, choice, equality of status and equal opportunities, dignity and right against exploitation. The recent judgments of the Supreme Court on adultery and temple entry have broken the gender stereotypes that existed for centuries and have created new milestones in gender justice.

International covenants
  1. Universal Declaration of Human Rights (UDHR)
    The UDHR proclaimed equal entitlements to the rights contained in the Declaration, without distinction of any kind, such as . . . sex, � . In the drafting of the Declaration, there was considerable discussion about the use of the term all men rather than a gender-neutral term. The Declaration was eventually adopted using the terms all human beings, and everyone, in order to leave no doubt that the Declaration on Human Rights was intended for everyone, man and woman alike.
  2. International Covenant on Civil and Political [4]Rights (ICCPR)
    The human rights guaranteed by the ICCPR include inter alia the right to life, freedom from torture, freedom from slavery, right to liberty and security of the person, rights relating to due process in criminal and legal proceedings, equality before the law, freedom of movement, freedom of thought, conscience and religion, freedom of association, rights relating to family life and children, rights relating to citizenship and political participation, and minority groups' rights to their culture, religion and language. The ICCPR sets out the prohibition of discrimination based on, inter alia, sex, as well as the equal right of men and women to the enjoyment of all rights contained in the treaty.
  3. International Covenant on Economic, Social and Cultural Rights (ICESCR)
    The ICESCR guarantees rights including inter alia the right to work, the right to form trade unions, rights relating to marriage, maternity and child protection, the right to an adequate standard of living, the right to health, the right to education, and rights relating to culture and science. The ICESCR also sets out the prohibition of discrimination based on, inter alia, sex, as well as the equal right of men and women to the enjoyment of all rights contained in the treaty.
  4. Convention on the Elimination of Discrimination against Women (CEDAW)
    The CEDAW articulates the nature and meaning of sex-based discrimination and gender equality, and lays out State obligations to eliminate discrimination and achieve substantive equality. Importantly, the Convention covers not only discriminatory laws, but also practices and customs, and it applies not only to State action, but also State responsibility to address discrimination against women by private actors.

    The Convention covers both civil and political rights (rights to vote, to participate in public life, to acquire, change or retain their nationality, equality before the law and freedom of movement) and economic, social and cultural rights (rights to education, work, health, property and financial credit). CEDAW also pays specific attention to particular phenomena such as trafficking, certain groups of women, such as rural women, and specific areas where there are special risks to women's full enjoyment of their human rights, such as matters related to marriage and the family[5]
  5. Declaration on the Elimination of Violence Against Women (DEVAW)
    The DEVAW is the first international instrument to specifically address the issue of violence against women. It recognizes that violence against women constitutes a violation of the rights and fundamental freedoms of women and a manifestation of historically unequal power relations between men and women. The Declaration calls on States to condemn violence against women and to works towards its eradication.

The prohibition of discrimination based on sex is also provided for in the Convention on the Rights of the Child (article 2) and the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (article 7). The Convention on the Rights of Persons with Disabilities (article 6) recognizes the multiple discrimination that women with disabilities are subjected to, and States Parties commit to addressing this discrimination and taking take all appropriate measures to ensure the full development, advancement and empowerment of women in the enjoyment of their human rights.

The Committee on the Elimination of all forms of Racial Discrimination, which oversees compliance with the Convention on the Elimination of all forms of Racial Discrimination, has also recognized the gender dimensions of racial discrimination, and has endeavour[ed] in its work to take into account gender factors or issues which may be interlinked with racial discrimination. Additionally, the Committee against Torture, which monitors the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, regularly addresses issues of violence against women and girls.

Global commitments
Women's rights have been at the heart of a series of international conferences, which have produced significant political commitments to ensure women's human rights, and equality such as:
In addition, the rights of women belonging to particular groups, such as older women, minority ethnic women or women with disabilities have been also addressed in various other international policy documents such as the International Plans of Action on Ageing (Vienna 1982 and Madrid 2002), the Durban Declaration and Programme of Action (2001) and the World Programme of Action concerning Disabled Persons (1982).

Vienna Declaration & Platform for Action
In 1993, the World Conference on Human Rights was held in Vienna and sought to review the status of the human rights machinery in place at the time. Women's rights activists mobilized to ensure that women's human rights were fully on the agenda of the international community, joined by the rallying cry Women's Rights are Human Rights. The Conference was successful in adopting the Vienna Declaration and Program for Action, which stated that the human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights and placed particularly heavy emphasis on eliminating all forms of gender-based violence.

International Conference on Population and Development (ICPD)
The ICPD, which was held in Cairo in 1994, represented an important milestone for women's rights. The ICPD Programme of Action is explicitly grounded in human rights, and proclaims that [a]advancing gender equality and equity and the empowerment of women, and the elimination of all kinds of violence against women, and ensuring women's ability to control their own fertility, are cornerstones of population and development-related programmes.

The Conference was also important for its clear statement of reproductive [6]rights, explaining that these rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.

The Programme of Action sets specific targets relating to the provision of universal education; the reduction of infant, child and maternal mortality; and to ensuring universal access by 2015 to reproductive health care, including family planning, assisted childbirth and prevention of sexually transmitted infections including HIV/AIDS.

Beijing Declaration & Platform for Action
Adopted during the Fourth World Conference on Women in September 1995, the Beijing Declaration and Platform for Action focused on 12 areas concerning the implementation of women's human rights and set out an agenda for women's empowerment. It is considered a significant achievement in explicitly articulating women's rights as human rights. The Platform for Action includes a series of strategic objectives, aimed at the elimination of discrimination against women and achievement of equality between women and men.

It involves political and legal strategies at a global scale using a rights framework as its basis. The Platform for Action is the most comprehensive expression of governments' commitments to the human rights of women. It is concerning though that both the 2005 and 2010 reviews of the Platform concluded that de jure and de facto equality has not been achieved in any country in the world and the 2010 review recognized that even where legal reforms have taken place, they are often ineffectively implemented.

Millennium Development Goals (MDG)[7]
In 2000, the international community agreed to 8 time-bound development targets to be achieved by the year 2015, including a Goal on gender equality and the empowerment of women, as well as one on the reduction of maternal mortality. MDG 3 aims to promote gender equality and empower women. However, the corresponding target relates only to eliminating gender disparities in education.

In addition to an indicator on the ratio of girls to boys in education, Goal 3 includes indicators on the share of women in wage employment in the non-agricultural sector and the proportion of seats held by women in national parliament. MDG 5 aims to reduce by three quarters, between 1990 and 2015, the maternal mortality ratio. Unfortunately, at the 2010 review Summit of the MDGs, the goal on maternal mortality was revealed to be the most off track of all of the MDGs.

This reality has been considered especially scandalous considering the fact that we have the knowledge and tools available to make pregnancy and childbirth a safe experience for women. In 2010, the Secretary General launched a Global Strategy for Women's and Children's Health, setting out key actions to improve the health of women and children worldwide.

The UN Conference on Sustainable Development
[8]The Rio+20 Conference on sustainable development brought Heads of State and Government to Brazil in 2012, to appraise implementation progress and gaps for agreements struck since the landmark 1992 UN Conference on the Environment and Development in Rio. In Rio+20, countries renewed their political commitment to sustainable development and agreed to establish a set of sustainable development goals (SDGs). Importantly, the outcome document also reaffirms the commitments of States to:
women's equal rights, access and opportunities for participation and leadership in the economy, society and political decision-making, and includes explicit references to accelerating implementation of commitments in CEDAW, the Beijing Platform for Action and the Millennium Declaration. The outcome document also includes recognition that gender equality and the effective participation of women are important for effective action on all aspects of [9]sustainable development and calls for the repeal of discriminatory laws and ensuring women's equal access to justice.

Constitutional and Statutory provisions
The Indian Constitution enshrines the proposition of gender parity in its Directive Principles, Fundamental Duties, the Preamble, and Fundamental Rights. Not just does the Indian Constitution guarantee women equal rights, but it also authorizes the Centre to take effective inequity actions in support of women. Our laws, growth approach, schemes and initiatives have been aimed at benefitting women in various areas within the context of an egalitarian polity.

The Central Government has also endorsed plentiful international treaties and agreements on human rights, dedicated to ensuring equal protection for women. But very few people are aware of these provisions. It is very necessary for everyone to know their rights and remedies in case of violation of the same, especially for those who are exploited.

Article 14:
It mandates the State to not refuse to any individual, parity before the law or the impartial safeguard of the laws within the country of India. The "equality before the law" process discovers a spot in all penned documents that ensures universal rights that all people, regardless of birth, ethnicity, gender or race, are alike before the law.Equal protection of laws means impartial safeguard of laws for every individual within the region of India.

Article 15(1):
It mandates the State to not segregate towards any person on the sole basis of sex, ethnicity, race, nationality, caste, or any of them.

Article 15(3):
It [10]mandates the State to prepare some special arrangement to benefit children and women. So, it declares that even though the state won't segregate anybody, they can make exclusive provisions just for children and women for securing their stakes. At the other hand, Article 15(3) supports discussions at promoting women and children by laws such as Children's Sexual Harassment Act, the Domestic Violence Act, Workplace Harassment Law, Sexual Abuse Legislation (Nirbhaya Act), the Amendment to the Hindu Succession Act, and so on. This also tackles restrictions on wife's allowance, marital rape, Food Protection Bill restrictions, etc.[11]

Article 16:
It mandates equal opportunity for all in events concerned to education or allotment to any office within the State for all people. Article 16(1) and (2) lay down guidelines concerning equal opportunities for public-sector jobs. Nevertheless, it is specified in Article 16, Clause 3, that the said article shall nowhere preclude Parliament from passing any legislation establishing any provision of residency within that State or territory of the Union to people appointed to any office within that State, prior to recruitment or allotment to any office within that State. Article 16(4) of the Indian Constitution requires that facilities be reserved for the benefit of the deprived class of people within the State.

Article 39(a):
It mandates the State to aim its approach against equally reserving the right to a decent medium of living for men and women.

Article 39(d):
It mandates the State to ensure equal wages for men and women for equal work. Our Constitution does not expressly recognize the 'fair pay for fair work' principle a civil right, but definitely, it is a constitutional goal. According to it, the provision of the Directive declaring "fair pay for equal work" implies same wages for both genders for equal work for each and as between the sexes.

Article 39A:
Promoting justice, on an equal opportunity basis and offering free legal assistance by effective law or scheme or in some other way to assure that favourable circumstances for accessing justice are not denied to any person due to monetary or other limitations.

Article 42:
It mandates the State to provide for the arrangement of fair and reasonable working conditions and maternity assistance.[12]

Article 46:
It mandates the State to publicize the academic and monetary concerns of Scheduled Castes, Scheduled Tribes and other backward classes. It also guides the State to publicize with great effort, the academic and monetary concerns of the backward classes of the population, and in great of the Scheduled Tribes and Scheduled Castes, and must preserve them against societal maltreatment and all aspects of oppression.

Article 47:
The State will improve the people's degree of living conditions and nutrition. It defines the Government's primary responsibilities, which is the most critical item for social change purposes. It applies to health care, the aged, enhancing job standards, safeguarding justice raises the duties of the Government.

Article 51(A) (e):
Promoting solidarity and the nature of mutual friendship among all the country's people, and disavowing acts defamatory to women's dignity.

Article 243 D (3):
More than or equal to one-third (including those of the number of seats reserved for women who belong to the Scheduled Tribes and Scheduled Castes) of the maximum number of seats to be held by open voting in each Panchayat to be reserved for women and to be allocation such seats to be done by succession to separate constituencies within a Panchayat.

Article 243 D (4):
More than or equivalent to one-third of the total number of jobs to be reserved for women for Administrators for each tier in the Panchayats.

Article 243 T(3[13]):
More than or equal to one-third (inclusive of the proportion of seats reserved for women who belong to the Scheduled Tribes and Scheduled Castes) of the maximum number of seats to be held by open voting in each municipality to be reserved for women and allocated by succession to separate constituencies in a municipality for these seats.

Article 243 T(4):
The allocation of administrator posts for Scheduled Tribes, Women and Scheduled Castes in Municipalities in a way that a house of a State can provide by statute.[14]

To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc., the crimes, which are directed specifically against women, are characterized as 'Crime against Women'.

These are broadly classified under two categories:
  1. The Crimes Identified Under the Indian Penal Code (IPC)
    1. Rape (Sec. 376 IPC)
    2. Kidnapping & Abduction for different purposes (Sec. 363-373)
    3. Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
    4. Torture, both mental and physical (Sec. 498-A IPC)
    5. Molestation (Sec. 354 IPC)
    6. Sexual Harassment (Sec. 509 IPC)
    7. Importation of girls (up to 21 years of age)
  2. The Crimes identified under the Special Laws (SLL)[15]
    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.
  3. Some acts which have special provisions to safeguard women and their interests are:
    1. The Employees State Insurance Act, 1948
    2. The Plantation Labour Act, 1951
    3. The Family Courts Act, 1954
    4. The Special Marriage Act, 1954
    5. The Hindu Marriage Act, 1955
    6. The Hindu Succession Act, 1956 with amendment in 2005
    7. Immoral Traffic (Prevention) Act, 1956
    8. The Maternity Benefit Act, 1961 (Amended in 1995)
    9. Dowry Prohibition Act, 1961
    10. The Medical Termination of Pregnancy Act, 1971
    11. The Contract Labour (Regulation and Abolition) Act, 1976
    12. The Equal Remuneration Act, 1976
    13. The Prohibition of Child Marriage Act, 2006
    14. The Criminal Law (Amendment) Act, 1983
    15. The Factories (Amendment) Act, 1986
    16. Indecent Representation of Women (Prohibition) Act, 1986
    17. Commission of Sati (Prevention) Act, 1987
    18. The Protection of Women from Domestic Violence Act, 2005
  4. Special Initiatives for women
    1. National Commission for Women: In January 1992, the Government set-up this statutory body with a Specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc.
    2. Reservation for Women in Local Self -Government: The 73rd Constitutional Amendment Acts passed in1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.
    3. The National Plan of Action for the Girl Child (1991-2000): The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child.
    4. National Policy for the Empowerment of Women, 2001: The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a National Policy for the Empowerment of Women in the year 2001. The goal of this policy is to bring about the advancement, Development and empowerment of women.
Judicial response[16]
The judicial decisions given by the Indian Judiciary has affected and brought a lot of important changes in the usual norms of the society.

In the case of Air India Etc vs Nergesh Meerza,1982 1 SCR 438 : (AIR 1981 SC 1829) Indian airlines had laid down some provisions which were held violative of Article 14 of the Constitution of India. The provision stated that the air hostesses will not marry for their first four years of their joining and shall lose their jobs if they become pregnant and shall retire at the age of 35 unless it is extended by the managing director at his discretion.

The Supreme Court held that the termination of service on the first pregnancy conflicts Article 14 and the extension of the job by the managing director also violates the principle of equality established by Article 14 because this provision gives unrestrained authority in the hands of one person.

In the Dharwad District PWD Employees Association v. State of Karnataka& Ors.,1990 Equivalent citations: 1990 AIR 883, 1990 SCR(1) 544, the Court held that there shall be no discrimination based on gender between the workers and they should be paid fairly according to their work and that the Article 39(d) of the Indian Constitution provides for payment of equal consideration to both men and women workers for equal same work or work of a similar nature and Article 16 provides that there shall be equal opportunity for all citizens in matters of employment.

In the case of Mohd. Ahmed Khan vs Shah Bano Begum And Ors,1985 Equivalent citations: 1985 AIR 945, 1985 SCR (3) 844, the Supreme Court of India had commanded the parliament to frame a uniform civil code concerning the liability of a Muslim husband to give maintenance to his divorced wife who is not able to maintain herself after the iddat period and held that the section 125 of the Code of the Criminal Procedure, 1973 will be applied to all husbands irrespective of religions and the husband will have to maintain her divorced wife.

In the Vishaka & Ors vs State Of Rajasthan & Ors, 1997, the Supreme held that gender equality can be established through fundamental rights guaranteed under Article 14, Article 19, and Article 21 of the Indian Constitution and sexual harassment at a workplace is a clear cut violation of these fundamental rights which in turn violates the principle of gender equality and in absence of any domestic law to address the evil of sexual harassment, assistance can be taken from International Conventions and Statutes as long as it does not conflict the interests of any domestic law or the Constitution of India. Guidelines were set which were to be followed by the employers to ensure a fair, safe, and comfortable working environment for the employees, especially to women.

The very recent decisions of the Supreme Court beginning from the TRIPLE TALAQ case to the very controversial SABARIMALA[17] case, the Supreme Court has showcased a never before proactive role in ensuring gender justice not only in the best interest of women but in the interest of the whole of humanity.

On 6th September 2018, another historic and progressive judgment was passed by the Chief Justice Deepak Misra by reading down Section 377 IPC by decriminalising homosexuality. The judgment is one of the most prominent judgments passed by the Honourable Supreme Court in ensuring gender justice.

Again in the case of Joseph Shine vs. Union of India, the Court overruled its own judgment in the case of Sowmithri Vishnu vs. Union of India & Anr, by decriminalising adultery and striking it off the Indian Penal Code holding that the law was based on gender stereotypes and thus violated Articles 14 and 15 of the Constitution as the law considered only the husband of the adulteress aggrieved while the wife of the adulterer had no interests.

The Court went a step ahead and held that adultery itself cannot be made an offence as subjecting interpersonal relationships to the rigours of criminal law would amount to an unwarranted intrusion into the right to privacy.

Off late, the Court has lifted the ban on women of 10 to 50 years from temple entry at Sabarimala in Kerala. Justice Deepak Misra has pointed out the inequalities persistent in modern society based on gender. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mind-set result in indignity to women and the degradation of their status.

The society has to undergo a perceptual shift from being the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man.

Critical evaluation
The heavy protests that followed the Sabarimala Court order and still continues, indicates that judiciary has travelled ahead of its time in ensuring gender justice while the conservative and patriarchal society denies these changes.

In the Judgment of Charu Khurana and Others Vs. Union of India 2015 (1) SCC 192, the Apex Court has once again expounded the concept of Gender Justice by observing that: Though there has been formal removal of institutionalized discrimination, yet, the mind set and attitude ingrained in the subconscious have not been erased.

Harri Holkeri late prime minister of Finland once quoted that Men and Women have roles�their roles are different, but their rights are equal

Discrimination based on gender is a social evil that should be curbed at all times. The judiciary of a nation has to step up and interpret the laws in such a way to uphold the principle of equality. Constitutional efforts have to be made to empower the state of women in our society and amend all the existing laws which restrain women from making choices and accessing all the opportunities in life.

Governments have to introduce programs, schemes, funds, and welfare policies that should focus on the social, economic, and educational empowerment of women. Initiatives have to be taken to make a change in the mindset of society. The Indian Judiciary has an important role to play in establishing gender fairness in a country where gender disparity is prevalent in almost all sectors of society.

The Indian Judiciary through his judicial decisions has helped women to get her what is due to her as a matter of right and has shown that discrimination against women in Indian society won't be tolerated at all.

Gender inequality has been a social issue in India for centuries. Although, there has been no dearth of social, economic, political, legal and Constitutional efforts made for the empowerment of women both prior to and post- Independence; however, women in India continue to face atrocities such as rape, dowry killings, acid attacks, human trafficking, etc.
The need of the hour is to make a change in the mindset of the society.

It is not easy to change the culture of disregard for women which are so deep rooted in the Indian society. But it also does not mean that it is impossible to do so. Only revolutions bring changes in a day, but reforms take their time.

Hence all we need is a concentrated effort focused in the right direction that would rest only with the liberation of men and women from all forms of social evil.

  • Constitution of India, 1950- Professional's Bare Act, 2020
  • Indian Penal Code, 1860- Professional's Bare Act, 2021
  5. Constitution of India, 1950- Professional's Bare Act, 2020

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