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.
- Exploitation- The action or fact of treating someone unfairly in order
to benefit from their work.
- 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.
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.
- 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.
- International Covenant on Civil and Political 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.
- 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.
- 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
- 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
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.
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
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.
was also important for its clear statement of reproductive 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.
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)
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.
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
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 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.
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
It mandates the State to not segregate towards any
person on the sole basis of sex, ethnicity, race, nationality, caste, or any of
It 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.
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.
It mandates the State to aim its approach against
equally reserving the right to a decent medium of living for men and women.
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.
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.
It mandates the State to provide for the arrangement of
fair and reasonable working conditions and maternity assistance.
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.
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
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):
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.
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:
- The Crimes Identified Under the Indian Penal Code (IPC)
- Rape (Sec. 376 IPC)
- Kidnapping & Abduction for different purposes (Sec. 363-373)
- Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
- Torture, both mental and physical (Sec. 498-A IPC)
- Molestation (Sec. 354 IPC)
- Sexual Harassment (Sec. 509 IPC)
- Importation of girls (up to 21 years of age)
- The Crimes identified under the Special Laws (SLL)
Although all laws are not gender specific, the provisions of law affecting women
significantly have been reviewed periodically and amendments carried out to keep
pace with the emerging requirements.
- Some acts which have special provisions to safeguard women and their
- The Employees State Insurance Act, 1948
- The Plantation Labour Act, 1951
- The Family Courts Act, 1954
- The Special Marriage Act, 1954
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956 with amendment in 2005
- Immoral Traffic (Prevention) Act, 1956
- The Maternity Benefit Act, 1961 (Amended in 1995)
- Dowry Prohibition Act, 1961
- The Medical Termination of Pregnancy Act, 1971
- The Contract Labour (Regulation and Abolition) Act, 1976
- The Equal Remuneration Act, 1976
- The Prohibition of Child Marriage Act, 2006
- The Criminal Law (Amendment) Act, 1983
- The Factories (Amendment) Act, 1986
- Indecent Representation of Women (Prohibition) Act, 1986
- Commission of Sati (Prevention) Act, 1987
- The Protection of Women from Domestic Violence Act, 2005
- Special Initiatives for women
- 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,
- 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.
- 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
- 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.
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&
.,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
In the case of Mohd. Ahmed Khan vs Shah Bano Begum And Ors,1985
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
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 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
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.
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
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.
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
- Constitution of India, 1950- Professional's Bare Act, 2020
- Indian Penal Code, 1860- Professional's Bare Act, 2021
- Constitution of India, 1950- Professional's Bare Act, 2020