lawyers in India

Comparative Study on Gender Justice

Written by: Upasana Mukherjee - V Year Law Student in Symbiosis Law School
Constitutional Lawyers in India
Legal Service
  • Bangles, which are synonymous with women, have been quite often used as a metaphor for shackles. Not only in feminist literature, but also otherwise. Gender Inequity has been a prevalent condition in all cultures surpassing all other differentiations. Male chauvinism as a state of mind is so well dissipated that gender stereotypes and sexism exists even in urban subcultures just as it does, more so, overtly in rural, rudimentary cultures. Gender dynamics have largely been deepened by simple dichotomies between the sexes and its associated products and practices. From tribal to agricultural to industrial societies to organised states the division of labour has primarily stemmed from physiological differences between the sexes, leading to the power resting with the men, resulting in the established gender hierarchies. We have been gifted with a history of discrimination, subjugation and suppression.

    In India, it is believed that women enjoyed an equal status as men in the Vedic Period. The education of women held considerable significance, especially from works of katayana and patanjali. The Upanishadas and the Vedas have cited women sages and seers. But the condition declined considerably afterwards. Historical practices such as Sati, Jauhar, Purdah and Devdasis, child marriage, are a few traditions reflective of the gender imbalance in Indian Society. Though these practices are largely defunct now, due to legal reform, the essence of the dysfunctional gender equity still is rampant and manifested today through domestic violence, trafficking, dowry deaths, female infanticide, female foeticide, sexual objectification and violence and sexual harassment at work place.

    In ancient Greek and Roman societies women were treated as inferior to men. Procreation of children has been held to be the only role for women. Conception was her only purpose. Hence women were greatly discriminated against. The perception of women among Christian theologians was highly unfavourable. Gender inequity continued into medieval societies as subversive perspective on gender deepened. Under common law of England, a married woman hardly had any rights; she had no rights to her property after marriage. In the early history of the United States, women and children were considered as a man's possession. Women began working in industries, the conditions of work and timings were atrocious but it was until 1910 that the states passed legislations alleviating the conditions of work.

    The issue of suffrage is another glaring illustration of gender prejudice. The struggle for the right to vote for women in USA and Europe blatantly highlights the gender intolerance, the politics of power resulting from dysfunctional gender hierarchies. The movement for woman's suffrage started in France in the 18th Century. In USA women were given the right to vote in 1920, whereas in UK it was in 1928.

    Continuing into the 20th Century, gender imbalances gave rise to Feminist Movements, especially in North America and West Europe. With fervent movements and growth of awareness, there arose gradually some liberalisation in social structures and institutions. Various legal reforms were introduced, legislations were passed, which helped in alleviating some of the divides in gender inequity.

    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.

    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.

    Laws in India:
    There are various legislations that have been passed in India with a view to curb the imbalance in gender hierarchy and aid in women's empowerment. The constitution of India guarantees various rights for women in this regard. This can be evidenced by Part III of the Constitution which deals with fundamental rights and Part IV which deals with Directives Principles of State Policy. Article 14 statesthat there shall be equal protection of the law and equality before the law which means that the Courts or any Law enforcement agency should not discriminate between a man and a woman. The right to equality is the foundation on which other laws are formulated and can be implemented.

    Without the right to equality, the purpose of gender justice cannot be achieved. Article 15 guarantees the right against discrimination. The prejudice and bias against women is rampant an issue to be countered by the right to equality, hence the right against discrimination. Article 15(3) talks about the special protection for women. Article 16 provides the right to equal opportunity in terms of public employment irrespective of the sex of the person.
    This provision aids women to start participating in elections and the decision making process. In this regard it is important to mention the 74th amendment, made for the reservation for women in panchayats.

    Article 19 guarantees freedom of speech and expression; to assemble peaceably and without arms; to forms associations and unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; to practise any profession, or to carry on any occupation, trade or business. This fosters the right to equality, by providing the necessary freedoms needed to live in society.

    Article 21 guarantees the right to life, the interpretation which has been broadened to include the right to live with dignity.

    Article 23 guarantees the right against exploitation. It prohibits traffic in human beings. The Directive Principles of State Policy form Part IV of the Constitution.

    Article 38 empowers the state to secure a social order for the promotion of welfare of the people. It also states that the state shall strive to eliminate the inequalities to secure justice- social, economic, political. Article 39 talks about the certain principles of policy that need to be followed by the state which are securing adequate means of livelihood equally for men and women, equal pay for equal work among men and women, and the health and strength of workers, men and women are not abused.

    Article 42 requires the state to make provision for securing humane conditions of work and maternity relief. Part IVA was inserted into the Constitution by an amendment of 1976, this deals with Fundamental Duties and

    Article 51A (e) specifically deals with renouncing practices derogatory to the dignity of women.

    Apart from the provisions in the constitution, there are certain other legislations that were passed specific to the certain issues. The Dowry Prohibition Act was passed in 1961 which dealt with the practice of receiving and giving dowry. Dowry has been one of the age old customs in India and it is one of the major problems faced by women in rural and urban areas, dowry deaths are also quite common. Section 304B of Indian Penal Code deals with the offence of Dowry death; punishment for which is imprisonment for a term of not less than seven years or life imprisonment. Despite the legislation, in practice dowry as a custom continues to thrive. The problem of domestic violence has been a long standing issue for women. Section 498 A deals with the crime of cruelty by the husband or the relatives of the husband.

    The punishment for which is imprisonment up to three years and fine. This section defines cruelty which includes both mental and physical cruelty. This section was included by an amendment in 1983, by the same amendment, Section 113A has been added to the Indian Evidence Act to raise a presumption regarding abetment of suicide by a married woman. In 2005, The Protection of Women from Domestic Violence Act was passed. The term domestic violence was widened enough to encompass all sorts of physical, sexual, mental, verbal and economic abuse, and it also gives power to anyone else other than the aggrieved party to lodge the complaint. The issue of sexual objectification.

    and harassment of women, trafficking in women have been dealt with by specific acts such as the Indecent Representation of Women (Prohibition) Act, 1986, Immoral Traffic (Prevention) Act, 1986 and Section 294 of the IPC which relates to obscenity. For the issue of sati, the Commission of Sati (prevention) Act was passed in 1987, even though Sati was abolished in 1829.

    The Pre-natal Diagnostic Techniques (Regulation and Prevention) Act was passed in 1994 to curb the rise in female foeticide. Needless to say that despite this enactment,female foeticide is rampant. To secure gender justice for working women, the related enactments are; Maternity Benefit Act, 1961, Equal Remuneration Act, 1976, Factories Act, 1948. For enhancing social justice for women, enactments such as the Hindu Marriage Act, 1955, which made the marriageable of women 18, now its been amended to 21; The Hindu Succession Act, 1956 ensures women's right to inherit parental property; The Hindu Widow Remarriage Act, 1956 legalised widow remarriage.

    All the provisions that have been included in the Constitution and other enactments are reflective of the aim of gender justice but the implementation of all these provisions has been challenging. Thus despite the measures formulated for curbing the gender imbalance, in practice though, women still continue to face the same complexities. As per the latest Census the sex ratio in India is 927 females to every 1000 males and this has been declining for the last four decades. This is a significant indication of appalling condition of the women in the country. The sex crimes in the country have reasonably increased over the years. Patriarchy, lack of awareness, continuous subjugation, certain deep rooted traditions and custom, male chauvinism, lack of effective enforcement, have altogether resulted in the suppressed condition of women today.

    Laws in Europe and America:
    As it can be clearly understood from the Gender Development Index ranks, gender inequity, in the present perspective, in UK and USA is not as grave as the gender dynamics that exist in the developing countries. The human right violations with regard to gender might not be as appalling as in Africa or the Middle East or South East Asia but there are dichotomies that exist between men and women in various other aspects. One of which is particularly in cases of employment and work.

    The European Union has been keen on securing gender justice. Equality between men and women is a fundamental principle of the European Union under Article 2 and 3(2) of the treaty establishing the European Community. Articles 21 and 23 of the Charter of Fundamental Rights of the European Union prohibit any discrimination on the basis of sex and require equality between men and women to be ensured in all areas. It has issued a few directives in this regard to assure gender equity and empower women.

    The Equal Treatment Directive (ETD) is a 1976 directive issued by the council of ministers of the European Economic Community, now the European Union. It requires all member states to ensure equal treatment of men and women with regard to access to employment, vocational training and promotion and working conditions. Another directive was issued in 2004, this directive was in relation to implementing the principle of equal treatment of men and women in the access to and supply of goods and services. Another directive was issued in 2006, on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. This directive aims to consolidate and repeal a number of separate directives to make the law more transparent. The purpose of these directives is to curb direct and indirect discrimination on the basis of sex and also includes within its fold sexual harassment and otherwise.

    The law in UK with regard to gender justice has been closely modelled on those of the European Union. Sex equality laws can be found in the Sex Discrimination Act, 1975 and the Equal Pay Act, 1970, both as amended. The Equal Pay Act covers everything relating to pay and conditions and the Sex Discrimination Act covers those areas which fall outside the purview of the EPA. The EPA implies an equality clause into the employment contract ensuring that there is no less favourable treatment than the treatment a comparable person receives.

    The Sex Discrimination Act covers four forms of discrimination, direct, indirect discrimination, harassment and victimisation. The Sex Discrimination Act also widens the scope of the word employment and includes contracts of service; apprenticeship and personal contracts for execute any work or labour and related expressions. The Equality Act, 2006, has a provision creating a public duty to promote equality on the grounds of gender. The Domestic Violence, Crime and Victims Act, was passed in 2004 to prevent domestic violence. This act also covers same sex couples. Recently, a new legislation has been passed to protect the victims of forced marriages and to prevent them from taking place; this has been covered under the Forced Marriage (civil protection) Act, 2007. It enables people to get an injunction and also third parties can apply for an injunction on their behalf.

    The nineteenth amendment to the United States Constitution in 1920 giving women equal rights as men with respect to voting was the first constitutional recognition of gender rights. A significant portion of gender inequity in USA is discrimination against women in the workplace. One of the foremost issues for women was the economic status of women. Title VII of Civil Rights Act, 1964 forbids discrimination on the basis of sex. It prohibits discrimination by employers on the basis of sex. It also prohibits discrimination against an individual because of his or her association with another individual of a particular sex. Men and women have equal employment rights. The Equal Pay Act, 1963 guarantees equal pay for women.

    Complete gender justice is complex to achieve typically in a country like India. The diversity of cultures, subcultures, is vast and there is a lot of rigidity in traditions and beliefs. Lack of education, lack of development, poverty, improper enforcement of the laws, lack of awareness among women, deep rooted patriarchy, economic dependence of women, all lead to the subversive condition of women in our society. Gender hierarchies in Europe and USA are relatively more balanced than in India.

    Quite simply, most of their sex equality laws are mostly centred on employment and workplace. Not only that, their sex equality laws also explicitly include trans-genders and the rights have been extended to gay and lesbian communities which is unprecedented in India. Gender development in any sphere in any country is a key component of the development and overall welfare of any state. Various NGO's and governmental agencies, UN agencies, activists have been promoting gender rights and vocal in their protest against discrimination. . Even though, there has been progress in securing gender justice, there is still a lot to be done.

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