ROLE OF INDIAN LEGAL SYSTEM IN PROTECTING GENDER EQUALITY IN INDIA  

It is time that we see gender as a spectrum instead of two sets of opposing ideals.

-Emma Watson, Actor

ABSTRACT

The following research paper illustrates about Gender Inequality in India and how the Government and Judicial System of India are formulating its policies and schemes to curb the evil of Gender Inequality. India is a developing country with more than 1 billion population. In the past years India has seen a enormous rise in terms of economic, military developments, etc. But, India still lacks somewhat behind in social development. Here, social development is the promotion of a sustainable society that is worthy of human dignity by empowering marginalized groups, women and men, to undertake their own development, to improve their social and economic position and to acquire their rightful place in society. Gender discrimination has been prevalent for many years in the country and it is to date. Gender inequality in India means health, education, economic and political inequalities between men and women. Here, the Indian Legal System plays a important role in balancing the equality in India. Men and women both face issues in accessing justice but anyhow women often have to face additional barriers. The Constitution of India tried to deliver gender Justice through a number of constitutional measures like the Preamble, Fundamental Rights, DPSP and these ideals are implemented through various schemes and policies by the Indian legislature. This can be seen by the Sati Abolition Act (1829), Widow Remarriage Act (1856) enacted during the British period and then to the Dowry Prohibition Act (1961) post independence. Though a number of positive initiatives have been taken from time to time to attain gender parity, a lot is yet to be done as India still lacks behind in Global Gender Gap Index published by World Economic Forum. Hence, this paper also analyses several provisions which have been included in our Indian Constitution for protecting and preserving the rights of women and for safeguarding their interests.

KEYWORDS

Gender inequality, exploitation, disparity, Judiciary, Constitution, Government

INTRODUCTION

Law plays a major role in every citizen’s life. One of the basic functions of the law is to provide fundamental rights and freedoms to the people. Law helps an individual by providing them the right to enjoy their life lawfully and to live as free and autonomous agents of society. Though there are a number of provisions that deal with the gender equality but the situation is not hidden from anyone of us. Disparities can impact both men and women but women are lagging behind men in many fields. Women are denied their rights over the assets in their name which restricts

 their decision-making power in the household and economic opportunities. Law needs to take into contemplation how differences in women’s and men’s social, economic, and legal rights affect the way they experience law and justice in their lives. The Indian Constitution has appointed the Judiciary to play a greater role in the protection of the fundamental rights of the Indian people. The duty of the judiciary is to understand and assess the law and while implementing the law, the principles of equality and justice are taken into consideration. The Constitution of India provides various provisions to ensure equality, some of the major provisions include

Article 14- It mandates state not to discriminate against any person, and to ensure equal protection of law and equality of law.

Article 15- 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 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 42 – It mandates the State to provide for the arrangement of fair and reasonable working conditions and maternity assistance.

Over a period of time, at the global level too institutions have take massive incentives to ensure gender justice worldwide. The Article 1 of the United Nations Charter aims at “to achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedom for all without any distinction as to race, sex, language and religion.”

RESEARCH METHODOLOGY

This paper is of descriptive nature and the methodology for preparing this paper is obtained through secondary sources like newspapers, research papers, digital resources, etc. for the purpose of data and information collection.

REVIEW OF LITERATURE

The judiciary is capable of bringing important changes in the society when the judiciary operates without gender bias and supports gender equality. As per statistics in the couple of years, we have seen a drastic fall in measures and policies to reduce gender inequality. The Global Gender Gap Index 2019-2020, published by the World Economic Forum, assesses the amount of gender-based disparities in economic participation and opportunity, educational achievement, health and

survival, and political empowerment. The report highlights the extremely low level of women’s economic involvement.[1] Owing to this and to ensure proper implementation of the constitutional provisions and to further safeguard women, many statutory enactments are passed which include some of the provisions of Indian Penal Code that specifically provide for women centric laws. For instance, rape, kidnapping, sexual harassment, dowry death, trafficking of girls, etc. During Vedic era though women enjoyed some form of social status by participating in Sabha’s and Samiti’s, their position degraded in the later Vedic period. During British rule also the position of common women was no less than a servant, though few of them took active part in freedom movement of the nation. Hence, post – independence the makers of Indian Constitution and the democratically elected government took up time to time initiatives in establishing a gender parity in the Indian Society.

According to the National Family Health Survey(NFHS)[2], India’s overall sex ratio has risen from 991 in 2015–16 to 1020 in 2019–21. India’s GDP has expanded by roughly 6% in the last decade, female labor force participation has dropped from 34% to 27%. But the wages gap between men and women has not changed over the period of time. In white collar jobs there is still seen a gender wage discrepancy. First, let’s understand and see the reasons for the gender inequality seen in India.

Illiteracy : Gender discrimination has arisen because of lack of female education. Most of the Indian territorial part is rural, and there are instances where the female child is not given the chance to complete her education. Gender disparities in enrolment in schools can be found throughout the state at all levels. As they stay illiterate, they are not able to understand their rights and authority in the society.

Poverty : The Indian society also being patriarchal in nature traditionally treats women as a second sex. The economic condition of women is no better and they are usually financially dependent on the male counterpart. Women’s poverty is linked to a lack of economic opportunity, as well as a lack of access to economic resources like loans, land ownership, and inheritance, and a lack of adequate education and support services, and their limited participation in decision-making.

Societal Mindsets :  In both rural and urban India, women spend a great amount of time in doing unpaid domestic chores in order to support their families. The overall mindset of a society has a huge impact on gender inequality. Gender beliefs go deep, and despite the fact that progress can be accomplished through laws and structural changes, there is often opposition after worthwhile improvements.

But over the years, a significant change has been observed among citizens nationwide, as we see that more and more females are getting educated at least to a secondary level and in the urban areas almost every women is not economically dependent.

Judiciary’s Role in overcoming Gender Inequality

The judiciary can bring important changes in society when the judiciary operates without gender bias and supports gender equality. In some countries, an active judicial system has laid down directives and principles in the absence of laws. For example, the Supreme Court of India not only declared sexual harassment unlawful under the Constitution but also laid down guidelines for all institutions until the sexual harassment act was adopted by the Parliament. The inclusion of women in judiciary has a positive result as some women judges bring forward their experience and forefront initiatives on gender in the judiciary. The judiciary through the policy of judicial review reviews the constitutionality of the acts and laws of the government. It also protects the basic guidelines and provisions mentioned in the Constitution so that they are not violated. In the past years, the judiciary has passed many important decisions to ensure gender justice.

The case of Vishaka and Ors. v the State of Rajasthan and Ors[3], which is a landmark judgement, Bhanwari Devi, an activist who tried to stop the illegal act of child marriage was gang-raped by her employers which led to an incitement among activists and NGOs and a woman’s rights group named ‘Vishaka’, the petitioner, decided to file a PIL stating the necessity of enactment of legislation about sexual harassment of women at the workplace. The Supreme Court held that gender equality can be established through fundamental rights guaranteed under Article 14, Article 19, and Article 21 of the Indian Constitution. In addition, the Supreme Court ruled that due to the absence of sexual harassment laws in India, the International Conventions must be taken into account. As a result, the Court issued specific instructions for employers and other responsible individuals in the workplace to follow in order to ensure gender equality and the safety of women at work. According to Article 141 of the Constitution, these regulations were to be regarded as laws. After this, the Vishakha guidelines were passed until the legislation has not passed an act.

Further, the case of Joseph Shine v. Union of India[4], another landmark judgement that deals with gender inequality. The petitioner filed a writ petition challenging the constitutionality of Section 497 of IPC which deals with adultery and claimed that this section is discriminatory based on gender and that it crushes the dignity of a woman. It was stated that the provisions of adultery as mentioned in section 497 of IPC are violative of Articles 14, 15 and 21 and hence the section must be struck down. The five judge bench stated that it was unconstitutional since the very basis for criminalizing adultery was the assumption that a women is considered as the property of the husband. The said Section violated the rights to privacy as well as the liberty of women by discriminating against married women and perpetuating gender stereotypes.

In the case of Air India v Narghesh Meerza[5], Indian airlines had laid down some provisions which were held violative of Article 14 of the Constitution of India. The Regulations postulated that Air Hostesses had to – retire upon turning thirty-five years of age but this was extendable to the age of forty-five, at the discretion of the Managing Director, they had to retire if they got married within the first four years of service and/or on their first pregnancy. Corresponding conditions did not exist for Air Flight Pursuers. Only men could be appointed as Air Flight Pursuers while only women could be appointed as Air Hostesses. The Supreme Court made this case one of the first landmark cases in the Indian equality jurisprudence concerning sex discrimination. The Supreme Court held that the termination of service on the first pregnancy clashed 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.

The case of Mohammed Ahmed Khan v Shah Bano Begum[6], the Supreme Court of India had directed 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. The court further held the section 125 of the CrPC is to applied to all irrespective of religions and the husband is accountable for the maintainability for his divorced wife.

Impediments to accessing Justice

• Inadequate representation of women in the judiciary and legal systems aggravates the issue of gender inequality in society.
• Women do not have a proper access to information about their rights as well as how to seek legal remedies. This a result of lack of educational opportunities for women.
• Lack of appropriate legislation for resolving inequalities against women. For example, despite laws framed against sexual harassment in the workplace, women are still subject to verbal and sexual abuse.
• Further, women who are educated as well as aware about their rights are still not able to seek justice due to fear and lack of confidence. They fear to sue their own family member or are suppressed to not disclose anything happening inside the family.
• Discriminatory laws restrict the rights of women in terms of decision-making like unequal inheritance entitlements or unequal rights in marriage or family matters related to land or company deals.

Moving further; like the Judiciary of the nation, the Government has also played a vital role by introducing schemes for ensuring gender equality and emancipation of women. These schemes focus upon their overall socio-economic upliftment of conditions.

Kishori Shakti Yojana – The initiative helps adolescent females between the ages of 11 and 18 and attempts to teach them life skills, nutritional and health knowledge, and socio-legal awareness, among other things.

Beti Bachao Beti Padhao – This scheme has the objective to address the declining Child sex ratio and related issues of empowerment of women and uplifting women in the sphere of education.

Mahila E-Haats: This serves as a unique direct online digital marketing platform for women entrepreneurs who wish to take their creativity and shape it into a business.

The Legislature of the nation has also brought many acts for the empowerment and protection of women in order to ensure gender equality.

• Abolition of Sati Act, 1829 which was implemented during British rule in India in order to stop the brutal practice of self demolition.
• Dowry Prohibition Act, 1961 which punishes the practice of dowry with imprisonment for a term not less than 5 years.
• Muslim Women (Protection of Rights and Divorce) Act, 1986 which grants maintenance to Muslim women after divorce and not until the period of iddat only.
• The Maternity Benefit Act, 1961 and amendment to this act in 2017 which provides maternity relief to women.
• The Surrogacy (Regulation) Act, 2019 which made commercial surrogacy punishable under law.
• Also, specific provisions in the personal law have been drafted in order to give maintenance to women which can be seen in section 24 and section 25 of the Hindu Marriage Act.

SUGGESTIONS

Gender inequality has been a highlighting issue which has been going on for decades now. As compared to the earlier period we now have many incentives for women, many constitutional efforts are taken pre and post independence to lessen the problems faced by women. However, the crimes committed against women are still on the high rise. Despite Supreme Court’s direction given to the states to make laws regarding the regulation of sale of acid, but still there is not a strict to ban acid sale in India. Also, the issues of honor killings, property rights of women, representation of women in workforce still needs attention. The society needs to be made aware and it is very important to make change in the mindset of the society. Earlier, women were deprived of education but the efforts made by some amazing personalities like Savitribai and Jyotiba Phule, Gandhiji, etc ; changed the fate of women in a better direction. Small steps need to be taken at first for eliminating gender inequality in the nation. Initiatives can be taken by improving the access of women to legal aid services, outreach programs, recruitment of women decision makers in the judicial sector, encouraging women to get involved in social activites which can bring a change in the society. It is important to address the fact that not only women, even men are target of gender inequality, and not only men even LGBTQ community are subjected to such inequality. There are a number of cases of inequality against other sections of the society, and it should be accepted that society is still not ready for such blunder as the laws in this respect are not strict and are very dilute. Indian Legal system should step up once again and bring laws that are gender neutral, be it men, women, transgender.

CONCLUSION

“Yatra Naranthya Pujyathe Raman The Tatra Devatha” has been in our Indian culture where a girl is worshipped as a goddess on one hand and the other hand, they are not given equal status in society to live a life with dignity. Discrimination is a social evil that should be curbed at all times. The judiciary has known that women’s empowerment is the most essential means through which a country’s development can flourish. The judiciary has to step up and interpret the laws in such a way as to uphold the principle of equality. More initiatives need to be taken in order to bring a significant change in the mindset of the society. Today, numerous programs and legislations have been developed and are being developed to address the issue of  gender inequities in India but what is necessary is the ongoing monitoring and tracking of these programs execution.

REFERENCES

•  Role of judiciary in maintaining a gender-just world, iPleaders. Available at: https://blog.ipleaders.in/role-of-judiciary-in-maintaining-a-gender-just-world/ (Accessed: November 12, 2022).
• Juris Centre (2022) Role of the Indian legal system in protecting gender equality, Juris Centre. Available at: https://juriscentre.com/2022/07/01/role-of-the-indian-legal-system-in-protecting-gender-equality (Accessed: November 12, 2022).
• Role of Indian judiciary in neutralizing gender equality Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-6663-role-of-indian-judiciary-in-neutralizing-gender-equality.html (Accessed: November 12, 2022).
• Role of Indian legal system in protecting gender equality, India Legal. Available at: https://www.indialegallive.com/laws-research-indepth/role-of-indian-legal-system-in-protecting-gender-equality/ (Accessed: November 12, 2022).
• Role of the Indian State and Judiciary in ensuring Gender Justice: A Paradigm shift in the nature of Policy Making and Pro- active role of the Judiciary PRITAM JYOTI PEGU,ARKIDA YASMIN Ph.D Research Scholar, Deptt. of Political Science, Gauhati University Faculty of Political Science, NEF College, Lokhra, Guwah

                                                                                                         Submitted by

                                                                                                              Avni Bhayani

                                                                                                    2^nd year B.L.S. LL.B

                                                                     Pravin Gandhi College of Law, Mumbai

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[1] Juris Centre (2022) Role of the Indian legal system in protecting gender equality, Juris Centre. Available at: https://juriscentre.com/2022/07/01/role-of-the-indian-legal-system-in-protecting-gender-equality/ (Accessed: November 12, 2022).

[2] What does NFHS-5 data tell us about state of women empowerment in India Down To Earth. Available at: https://www.downtoearth.org.in/blog/economy/what-does-nfhs-5-data-tell-us-about-state-of-women-empowerment-in-india-80920 (Accessed: November 12, 2022).

[3] AIR 1997 SC 3011

[4] 2019) 3 SCC 39 : (2019) 2 SCC (Cri) 84, 27-09-2018

[5] AIR 1981 SC 1829

[6] AIR 1985 SC 945