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Gender Justice and it’s various forms under Constitutional Law

Introduction

Justice Nariman observed in Sabrimala review petitions case that the “Constitution is our holy book.”[i]Our constitution makers had great ideals and virtues, which they have effectively incorporated into the Indian constitution. A brief look at the Indian Constitution reveals that it strives for higher values of equality, justice, and liberty, and it is remarkable to see how thoughtful the makers were when they laid provisions that will not only achieve immediate goals and also be effective in the long run. Constitution Makers believed in the complete eradication of all social evils and therefore made the constitution flexible so that it could meet the growing demands that will arise in the future. One of the noblest features of our written constitution that we Indians can be proud of is the provisions laid out for ensuring gender justice. However, what exactly is gender justice?

Gender Justice and Status of Women

Gender justice, in the simplest of terms, is a human right where every female has equal rights in social, political, and all spheres of life.[ii] In essence, gender justice is not only about women’s equal rights, but it is the equal treatment of both genders in all aspects of life. Scholars have acknowledged time and again that a society where there is no equality is a society where there will be no progress. Only when both genders work in complete synergy and harmony will there be phenomenal development. Gender justice is needed for a peaceful and sustainable world[iii]. The development of a country is judged by the way it treats its women.

However, even then in the society of today that is most often referred to as ‘Modern Society’[iv], a stark reality that lingers around the corner is that even now, an aspect of patriarchy still exists, where women are still seen as objects and where they don’t have equal social, economic and political status and opportunities. In the olden times, it was perceived that if you wish to hurt a male, hurt a female close to him and mostly hurt her character and inner dignity, which often took the form of rape. This demonstrated that women did not have any independent existence; they were often considered an entity that a male possessed. Agatha Christie in her novels has described the existing mindset regarding women in England at that time and how they were a subject of ridicule if they spoke for themselves. Books like ‘Pride and Prejudice’ and ‘Jane Eyre’ throw light on the condition of women in the early times and how they were expected to behave in a certain manner.  Women have been subject to unequal treatment since civilized society came into existence, and this is true when it comes to law[v]. These were the chief reason why the drafters of our constitution laid such immense importance on the provisions of gender justice and those empowering provisions can be found in the sections of fundamental rights, the fundamental duties, the directive principles of state policy, and the preamble.[vi]

Various Forms under Constitutional Law

Preamble:

The objectives that have been stated include the word ‘EQUALITY’; it seeks to provide equality in matters of life irrespective of the fact whether an individual is a male or a female.

Fundamental Rights[vii]

Article 14[viii] provides the right to equality, and in essence, it is the right to equality before the law. In the eyes of the law, no gender is superior, and hence gender justice is secured. Article 15[ix] provides that there will be no discrimination based on gender, and Article 15 (3)[x] provides that the state shall make laws for the empowerment of women and children paving way to end all forms of discrimination based on gender. Article 16[xi] provides that all genders will have equal opportunities for public employment. Women are encouraged by various organizations to apply for government jobs. (Notification of UPSC CSE has a footer encouraging female aspirants to apply)[xii]

Directive Principles of State Policy[xiii]

The directive principles of state policy may not be binding on the governments, but they serve as a guideline while formulating public policies and hence seek to secure gender justice.

Article 39 (a)[xiv] requires the government to direct its policy to ensure decent living standards for both men and women. Article 39 A[xv] is again of utmost importance as it gives the right to free legal aid, ensuring equal justice opportunities. Article 42[xvi] provides for just and humane working conditions and maternity relief which goes a long way in ensuring gender justice to both males and females. Article 47[xvii] makes it the government’s responsibility to raise the level of  nutrition and public facilities like health.

Fundamental Duties[xviii]

With rights come duties, and therefore the constitutional makers also made gender justice a fundamental duty of every citizen of India. Article 51 A (e)[xix] makes it a duty for every citizen to renounce the practices that are derogatory to the dignity of a woman. This duty instills a sense of equality and respect for the opposite gender and perfectly embraces gender justice.

Other Articles and Legislatures

The process of decision making is only democratic when all the stakeholders have a say in it. Empirical studies done during the Covid times showed that women leaders were more successful in controlling the impacts of COVID-19 as compared to their male counterparts.[xx]  India, the world’s largest democracy, secures equal rights to all citizens in terms of voting and makes provisions for fair representation of women in decision-making bodies. Article 243 D and Article 243 T make provisions for reserving seats in the local bodies’ elections .

The legislations that are enacted in the country value the spirit of the constitution, and therefore many laws have been enacted that seek to ensure gender justice in the society. Some of those are:

  • Immoral Traffic (Prevention) Act, 1956
  • Maternity Benefit Act, 1961 (Amended in 1995)
  • Dowry Prohibition Act, 1961
  • Medical Termination of Pregnancy Act, 1971
  • Equal Remuneration Act, 1976
  • Pre conception and Pre natal Diagnostic Techniques
  • Prohibition of sex selection Act, 1994 (Amended in 2003)
  • Prohibition of Child Marriage Act, 2006
  • Indecent Representation of Women (Prohibition) Act,1986
  • Protection of Women from Domestic Violence Act, 2005
  • Sexual harassment of women at workplace Act, 2013

Way Forward

Gender Justice is enshrined in the Indian Constitution in various forms, which has made strides in achieving gender equality in our society. We all need to understand that gender parity does not mean that men and women have to be identical but it means that their roles and skills need to be respected, and they should be given equal rights and opportunities. Lately, the laws made have somewhat become women-centric, and demands have been made to have ‘gender neutral’ provisions[xxi].

The constitution serves as the epitome for securing gender justice in our society but the real change will occur only when each one of us starts respecting the opposite gender because everything initially starts in mind. If the mind wants gender equality, then we shall have it, and our constitution will show the path to achieve that.


[i] LiveLaw News Network , ‘”Constitution Is Our Holy Book’ : 12 Top Quotes From Justice Rohinton Nariman’s Judgments’ available athttps://www.livelaw.in/top-stories/justice-rohinton-nariman-supreme-court-judge-top-quotes-179392  (last visted on August 14th , 2021).

[ii] Oxfam America , ‘ Gender Justice’ available at :https://www.oxfamamerica.org/explore/issues/women-and-gender-justice/gender-justice/  (last visted on August 14th , 2021).

[iii] United Nations , ‘Goal 5: Achieve gender equality and empower all women and girls’ available at : https://www.un.org/sustainabledevelopment/gender-equality/ (last visted on August 14th , 2021).

[iv]Krishna Kumar , ‘Modernization’ , Britannica Encyclopedia (1999) available at : <https://www.britannica.com/topic/modernization/Modern-society-and-world-society&gt; (last visted on August 14th , 2021).

[v]  Susan Brownmiller , Against Our Will-Men, Women, and Rape  ( Ballantine Books; Reprint edition 11 May 1993).

[vi] Ananya Karnwal , ‘CONSTITUTIONAL PROVISIONS FOR GENDER EQUALITY: MUST KNOW FACTS’ available at : https://www.probono-india.in/blog-detail.php?id=85 (last visted on August 14th , 2021).

[vii] The Constitution of India, part III.             

[viii] The Constitution of India, art. 14.

[ix] The Constitution of India, art. 15.

[x] The Constitution of India, art. 15 (3).

[xi] The Constitution of India, art. 16.

[xii] UPSC 2021 Notification available at :https://www.upsc.gov.in/sites/default/files/Notice-CSP-2021-Engl-04032021N.pdf&nbsp; (last visted on August 14th , 2021).

[xiii] The Constitution of India, part IV.

[xiv] The Constitution of India, art. 39(a).

[xv] The Constitution of India, art. 39 A.

[xvi] The Constitution of India, art. 42.

[xvii] The Constitution of India, art. 47.

[xviii] The Constitution of India, part IV A.

[xix] The Constitution of India, art. 51 A (e).

[xx] Jon Henley , ‘Female-led countries handled coronavirus better, study suggests’ available at :https://www.theguardian.com/world/2020/aug/18/female-led-countries-handled-coronavirus-better-study-jacinda-ardern-angela-merkel (last visted on August 14th , 2021).

[xxi] Srishti Ojha, ‘ ‘Men’s Lives Matter’: Law Students Move Supreme Court Seeking ‘Gender Neutral’ Provisions On Sexual Offences’ available at : https://www.livelaw.in/news-updates/mens-lives-matter-law-students-move-supreme-court-seeking-gender-neutral-provisions-on-sexual-offences-179516 (last visted on August 15th , 2021).

The Author, Rushaan Raana Samuel, is a 2nd Year Law Student pursuing B.A., LL.B from GITAM School of Law.

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