Empowering Equality: Gender Justice In The Indian Constitution

Paper Details 

Paper Code: RP-VBCL-07-2024

Category: Research Paper

Date of Publication: April 20, 2024

Citation:  Ms. Suparna Banerjee & Mr. Saurav De, “Empowering Equality: Gender Justice In The Indian Constitution", 1, AIJVBCL, 112, 112-124 (2024), <https://www.vbcllawreview.com/post/empowering-equality-gender-justice-in-the-indian-constitution>

Author Details: Ms. Suparna Banerjee, Assistant Professor in Law, Kolkata Police Law Institute, Kolkata, West Bengal, India &

Mr. Saurav De, Assistant Professor in Law, Dr.Ambedkar Government Law College, Puducherry, India.

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ABSTRACT

The Indian Constitution in order to achieve gender justice in India, has bestowed a number of rights on women. The Preamble to the Constitution assures equality and dignity for every individual including women. The ideals of economic, social and political justice enshrined in the Preamble seek to ensure equality in terms of payment of dues, non-discrimination in matters of polity, caste, status and wealth. Some of the Fundamental Rights enshrined in Part III pave the way for giving women equal employment opportunities, ensuring positive discrimination in their favour, giving them the right to work with dignity and prohibiting immoral trafficking of women. The Directive Principles of State Policy also further the cause of gender justice like Article 39(a),(d),(e), 42. As a fundamental duty enshrined in Article 51A (e), every citizen should give up practices derogatory to the dignity of women. Articles 243D and 243T provide reservation of not less than 1/3rd seats for SC, and ST women for the Panchayat and municipal election. New Article 239AA that focus on the reservation of seats for women in the Legislative Assembly of Delhi. Articles 330A & 332A have been inserted to reserve seats for women in the LokSabha and the Legislative Assembly of each state. The Government of India in collaboration with some of its departments has implemented several schemes like BetiBachaoBetiPadhao, GATI, Mahila Shakti Kendra. The NEP 2020 has specific schemes targeting female education like the SamagraShiksha 2.0 and the setting up of the Kasturba Gandhi BalikaVidyalayas also seek to reduce gender gaps at the school level. Additionally, fostering awareness campaigns to challenge societal norms and stereotypes will contribute to creating a more inclusive and just society for all genders.

Keywords: Gender Justice, Equality, Social justice, Constitution of India.

“Another considerable group- half of Indian humanity is the ‘weaker’ gender. The Constitution shows benign bias towards them. Social justice holds them dear. Notwithstanding all this, the stark reality is that over 300 million Indians labour under gender injustice, with dowry burnings and gang rapes and discriminatory wages insatiably escalating.”- V.R.KRISHNA IYER.J.

INTRODUCTION

One of the critical issues faced by society today is the issue of gender inequality. It is a global problem encompassing several areas be it at the workplace or home. Women continue to suffer emotionally, physically and financially due to the prevalence of this problem. To counter the issue of gender inequality, the idea of providing gender justice has become popular in recent times. Gender justice is a phenomenon that ensures the complete realisation of rights, opportunities and responsibilities for all genders. It seeks to understand and eliminate the underlying cause of the problem.[1]

INDIAN CONSTITUTION AND GENDER JUSTICE

(a)   Preamble

On January 26, 1950, the Indian Constitution went into effect. It is the supreme law of the nation. The framers of the Constitution have set out the ideals and the object of the Constitution in the Preamble. The ideal of a democratic nation has been laid down in the Preamble in which all the people have an equal right to vote and the right to be elected by a person of any gender. This ideal gives women the equal right to vote and the right to be elected at par with men. The concept of a secular nation envisages the fact that a woman has the freedom to practice and profess any religion in the same way a man has. Social, economic and political justice are also the key features of the Preamble. Political justice means that there should be no discrimination between men and women in political matters. Equal pay for equal work is an intricate feature of economic justice. The ideal of social justice can be achieved by the abolition of all kinds of inequalities. One of the objects of the preamble is to ensure the dignity of an individual which includes women. This objective can be achieved if people from all genders get equal access to the fundamental rights enshrined in the Constitution. Men and women alike are entitled to have equal status and opportunity at all times and all levels. The Constitution of India in the Preamble has perfectly enshrined the principle of gender equality through the use of the terms ‘Justice’, ‘Equality’, ‘Liberty’ and through the ideals of a socialist, secular and democratic nation.[2]

(b)   Fundamental Rights and Gender Justice

The right to equality and non-discrimination is a gender-neutral right and its application to unequal circumstances especially in the case of women is quite difficult. Therefore, protective discrimination in favour of women is permissible under the Constitution of India to achieve justice as the preamble provides for securing "justice-social, economic and political”.[3]The Constitution of India in Part III lays down a list of fundamental rights. These fundamental rights are available to all the citizens of the country irrespective of their status, race, religion, sex etc. Men and women enjoy these rights equally. In order to promote the cause of gender equality the Constitution lays down a few fundamental rights which provide protective discrimination in favour of women.[4]

Equality is one of the ideals mentioned in the Preamble to the Constitution. This right to equality is guaranteed under Articles 14-18 of the Constitution. Article 14 incorporates the right to equality and states that the state shall not deny to any person equality before law or equal protection of laws within the territory of India. The principle of equality before law refers that the law should be equally administered among equals. Women are considered to be physically weaker as compared to men so different legislations have to be enacted for them to give them special protection. It is to be noted here that Article 14 permits reasonable classification and prohibits class legislation. Article 14 prohibits discrimination on the grounds of sex. In Air India vNargeshMirza,[5] regulations prescribing the compulsory retirement of air hostesses from service on attaining the age of 35 years or on their first pregnancy whichever occurred earlier was held to be discriminatory and struck down by the Supreme Court. The Court adjudged the regulation as unreasonable and violative of Article 14.

Article 15 enlarges the scope of equality as provided in Article 14. Article 15(1) states that the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(2) states that no citizen shall on the grounds only of religion, caste, caste, sex or place of birth or any of them be subjected to any disability, restriction or condition concerning access to shops, public restaurants, hotels or the use of wells, tanks, bathing ghats, roads maintained wholly or partly out of state funds or dedicated to the use of the general public. Article 15(3) provides that the state can make special provisions for women and children and as such it would not be violativeof Article 15(1) and (2). In DettaTreya v State of Bombay,[6]the Bombay High Court held that reservation of some percentage of seats to women in women’s college is not unconstitutional and it is accepted by the Constitution under Article 15(3) as protective discrimination. In Suresh Kumari v State of Haryana,[7] the Supreme Court accepted that the special procedure for women under the Criminal Procedure Code, 1973 was protective discrimination under Article 15(3) and not violative of gender equality.

Article 16 is a special application of the rule of equality enshrined in Article 14 with regard to the opportunity for employment or appointment to an office under the State. Article 16(1) specifically states that there shall be equality of opportunity for all citizens in matters of employment or appointment to any office under the State and Article 16(2) prohibits discrimination between citizens on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them with respect to employment to any office under the State. These provisions clearly imply that a woman has the same rights as a man in matters relating to employment under the state and no discrimination shall be made by the State in this regard. In Vijay Lakshmi v Punjab University,[8] the matter related to the appointment of a lady principal or a lady teacher in a woman’s college. The Supreme Court held that there could be a classification between males and females for certain posts. Such categorization cannot be described as arbitrary or unreasonable. If separate colleges or schools for girls are justified then rules providing appointment of lady teacher or principal would be justified.

Article 19(1)(g) allows every citizen whether male or female to carry on any profession, trade or business. In Vishaka v State of Rajasthan,[9] the Supreme Court laid down guidelines to be followed in every workplace by all employers to prevent sexual harassment of working women at their workplace. The guidelines would protect the fundamental rights of working women under Articles 14,19, and 21 of the Constitution.

Article 21 guarantees to every person the right to life or personal liberty which can be deprived only by a procedure established by law. The right to privacy is an integral part of the right to life and liberty as enshrined in Article 21 of the Constitution. In State of Maharashtra v Madhukar Narayan Mandikar,[10] the Supreme Court observed that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.

(c)    Directive Principles of State Policy and Gender Justice

The Directive Principles of State Policy are fundamental for the governance of the country and the state can apply them in making laws for the country.[11] Article 39(a) clearly states that the state shall direct its policy towards ensuring that all citizens shall have the right to an adequate means of livelihood. This means that both men and women equally have the right to an adequate means of livelihood.Article 39(d) also stipulates that the state shall ensure equal pay for equal work for both men and women. In Randhir SinghvUnion of India,[12] the Supreme Court held that the directive principle of equal pay for equal work is a constitutional goal and capable of being enforced even though it is not a fundamental right.Under Article 39(e) the state is directed to take measures to protect the health and strength of the workers (both men and women).

Provisions ensuring the welfare of women have been enshrined in Article 42 which imposes an obligation on the state to make provisions for securing just and humane conditions of work and for maternity relief. Some of the legislations that have been enacted to give effect to this provision are the Maternity Benefit Act 1961, Employee’s Compensation Act 1923, Employees State Insurance Act 1948, Minimum Wages Act 1948.

Through the insertion of Article 44 which incorporates the principle of the Uniform Civil Code, the framers of the Constitution have tried to mitigate the condition of women belonging to some religions where they face discrimination in civil matters as compared to women of other religions where the situation is relatively better. In SarlaMudgal v Union of India,[13] a Hindu husband was married under Hindu Law and he converted to Islam to get married for a second time. There was no legislation to incorporate the provisions of the Uniform Civil Code so the Supreme Court directed the Government to report the measures taken for the implementation of Article 44 for maintaining the integrity of women.

(d)   Fundamental Duties and Gender Justice

The Fundamental Duties enshrined in Part IV A of the Constitution also contain provisions for upholding the dignity of women. Article 51A (e) imposes a duty on the citizens of the country to renounce practices derogatory to the dignity of women. The Supreme Court in Indian Young Lawyers Associationv The State of Kerala,[14]held that our conversations with the Constitution must be restructured to evolve both with the broadening of the content of liberty and dignity and the role of the Court as an enforcer of constitutional doctrine. The basic principle which must guide any analysis in this area is the dominance of the values of liberty, equality and fraternity as instruments in achieving individual dignity. Once individual dignity assumes the character of a shining star in the constellation of fundamental rights, the place of religion in public places must be conditioned by India's unwavering commitment to a constitutional order based on human dignity. Practices that are destructive of liberty and those that make some citizens less equal than others can simply not be countenanced. To treat women as children of a lesser god is to blink at the Constitution itself. Among the fundamental duties of every citizen recognized by the Constitution is to renounce practices derogatory to the dignity of women. In speaking to the equality between individuals in matters of livelihood, health and remuneration for work, the Directive Principles speak to the conscience of the Constitution. To allow practices derogatory to the dignity of a woman in matters of faith and worship would permit a conscious breach of the fundamental duties of every citizen. We cannot adopt an interpretation of the Constitution which has such an effect. Our inability to state this as a matter of constitutional doctrine is liable to lead us to positions of pretence or, worse still, hypocrisy. If we are truly to emerge out of the grim shadows of a society that has subjugated groups of our citizens under the weight of discrimination for centuries, it is time that the Constitution is allowed to speak as it can only do: in a forthright manner as a compact of governance, for today and the future.

(e)    Constitutional Provisions and Political Representation of Women

Articles 243D(3) and 243T(3) of the Constitution provide that not less than one-third of the total number of seats to be filled by direct election in each Panchayat/ Municipality (including the number of seats reserved for women belonging to the SC/ST) shall be reserved for women, and such seats may be allotted by rotation to different constituencies in a Panchayat/ Municipality. In K.Krishna Murthy v Union of India,[15] the Supreme Court held that electing representatives to govern is neither a fundamental right nor a common law right but a special right created by the statutes or a political right or privilege and not a natural absolute or vested right. The nature and purpose of reservation in the context of local self-government under Articles 243D and 243T is quite different from that of education and employment under 15(4) and 16(4). The objective of Articles 243D and 243T is to pursue the idea of substantive equality rather than formal equality in the matter of political representation at the grassroots level.

New Article 239AA that focus on the reservation of seats for women in the Legislative Assembly of Delhi. Articles 330A and 332A have been added to reserve seats for women in the LokSabha and Legislative Assembly of every state respectively.

GOVERNMENTAL SCHEMES AND PROJECTS TO PROMOTE GENDER EQUALITY IN INDIA

The provision of gender equality as enshrined in the Constitution is one of the 5th goal out of the 17 goals of the Sustainable Development Goals which was adopted by the United Nations. In view of the achievement of this goal, the Government of India, has launched several schemes and policies. Some of the policies may be enumerated as follows[16]-

(a)    National Policy for the Empowerment of Women- This policy was launched in the year 2001, for the development and empowerment of women. It seeks to ensure the overall development of women giving them an equal role to play in the policy-making of the country, strengthening the legal system to eliminate all forms of discrimination and violence against women, trying to bring about a change in the societal attitudes and practices by active involvement of both men and women.

(b)   GATI(Gender Advancement for Transforming Institutions)- it is an initiative of the Department of Science and Technology that seeks to promote gender equality in science and technology. Launched in the year 2000, GATI seeks to encourage more women to participate in science, technology, engineering, medicine, and maths at all levels.

(c)    Mahila Shakti Kendra- this scheme was launched in the year 2017. It aims to empower rural women by giving them opportunities for skill development and employment.

(d)   BetiBachaoBetiPadhao- this policy was launched in 2015 by the Government of India to deal with the issue of declining child sex ratio. Its main object is to prevent gender-based sex selective elimination, to ensure the survival and protection of the girl child, and to educate the girl child.

(e)    RashtriyaMahilaKosh- it is an autonomous body set up in the year 1993 with the object of ensuring the socio-economic empowerment of women. It provides micro-credit to poor women to support their livelihood and income-generating activities in concessional terms in a client-friendly procedure to bring about their socio-economic development.

(f)    Pradhan MantriMatruVandnaYojana- this yojana came into effect in the year 2017. It provides Rs 5000 in 3 instalments to pregnant women and lactating mothers for the first live child in the family.

(g)   Pradhan MantriUjjwalaYojana- this scheme came into force in 2016. Its objective is to ensure the availability of clean cooking fuel like LPG in rural and deprived households. The empowerment of women and the protection of their health by providing free-of-cost LPG cylinders is the main aim of this scheme.

(h)   Mahila e-haat- this scheme was launched in 2016. It is a direct online marketing platform that provides technological support to women entrepreneurs/NGOs and self-help groups to showcase their products/ services that they make or provide. The basic aim is to make women financially independent.

(i)     One stop centre scheme- this scheme was set up in 2015 to support women victims of violence in private and public spaces. It seeks to provide assistance to women by facilitating emergency and non-emergency access to services like medical, legal and psychological.

(j)     Ujjwala Scheme- Launched in 2016 the scheme seeks to prevent trafficking of women and to rescue and rehabilitate victims of trafficking for commercial sexual exploitation.

(k)   Women helpline scheme- the scheme came into effect in the year 2015. It provides a 24-hour emergency response to all violence-affected women in public and private spheres.

(l)     Stand up India- it is a scheme set up in 2016 to provide finance to SC/ST/ Women entrepreneurs by providing them bank loans from 10 lakh- 1 crore. The loan is provided to at least 1 SC or 1 ST and at least 1 woman per bank branch to set up a Greenfield enterprise in the manufacturing or trading sector.

(m) Skill Upgradation and Mahila Coir Yojana- this is a training programme launched in 1994 to empower women by providing subsidised spinning equipment after proper training for skill development. The trainees are given a stipend of Rs 10,000 per month.

(n)   Scheme for Adolescent Girls- this scheme was launched in 2010 and it covers girls between the age groups of 11-18 years of age and provides them health, nutrition education, life skills education, socio-legal issues and related matters.

NEP 2020 AND GENDER EQUALITY

The National Education Policy 2020 sought to achieve gender equality in education with the partnership of states and local community organizations. This policy seeks to ensure that there is a 100% enrolment for girls in schools by 2030 and 50% enrolment in higher education by 2035. It aims to decrease gender gaps and improve the leadership capacity of girls. Various steps can be taken to increase women’s access to schools like gender inclusion fund, formula-based and discretion funding of gender inclusionary projects at school levels, and creation of special education zones. A gender inclusion fund has to be created to build the nation’s capacity to provide equitable quality education for female students. The discretionary funds will enable the states to support and make effective community-based interventions that address localized and context-specific barriers to girls’ access to participation in quality education. NEP 2020 has also recommended the creation of Special Education Zones to ensure education for socially and economically disadvantaged groups. This policy also suggests the creation of Targeted Scholarships to be made available to students from socially and economically disadvantaged groups inclusive of gender.[17]

The newly amended Maternity Benefit Act 1961 will be implemented to provide crèche facilities for women educators. To reduce the gender disparity among teachers in rural areas alternate mechanisms will be introduced for the recruitment of women teachers with due regard to merit and qualification. This policy also suggests that in order to reduce the gender gap in school education, Kasturba Gandhi BalikaVidyalayas which are residential schools from class VI to XII for girls belonging to disadvantaged groups like SC/ST/OBC/BPL/ Minority are sanctioned in educationally backward blocks.As on 30.06.2023, a total of 5639 KGBVs have been sanctioned in the country with the enrolment of 6.88 lakh girls. The task of up-gradation of the KGBVs was started in the year 2018-19 and till the year 2022-23, a total of 357 KGBVs have been approved for up-gradation to Type-II (class 6-10) and 2010 KGBVs have been approved for up-gradation to Type-III (class 6-12).[18]

SUGGESTIONS AND CONCLUSION

The global index for gender equality shows that India at present is at position 135 out of 146.[19] The Indian Constitution has tried to incorporate provisions that address the issue of gender inequality. On the other hand, the Government has also tried to put that law into practice by implementing policies and schemes that seek to reduce the disparity and discrimination between the sexes. As a result of these policy initiatives like the Mahila-e-Haat increased participation of women in the economy is possible.  This has resulted in reducing poverty and improving the standard of living of the people because women who are also a part of the family have become financially independent. Schemes like Mahila Shakti Kendra enable the Government to increase women’s participation in the decision-making process of the country and ensure gender equality in political representation. The National scenario is much better today as compared to the past as women work in every sector of the country. They also occupy managerial and top positions.

Having said this, it is also to be noted that there are still several areas that need to be looked into to address the problem of gender injustice. People often believe that education is a great tool to eliminate gender inequality. However, issues like enrollment, biased curriculum and lack of proper access in the field of education promote gender injustice. In educational institutions, the teachers/mentors can rightly help in changing the attitude of male students thereby creating a more inclusive environment for all genders. Male and female students alike should get equal access to education, especially in rural areas. An increased access to resources and facilities for both boys and girls can help tackle this issue. There is also a need to eliminate gender bias in learning materials. This includes ensuring that the language used or images shown represent both sexes equally. It is also necessary to provide training to the teachers/employees so that they become more gender sensitive.

At the local and national levels as well as in the private sector, efforts are required to bring in gender equality. Due to the governmental schemes and policies, there is an increased participation of women in the public sphere but there is also the need to enforce it through affirmative actions. Indian tradition and culture have played an equally important role in enhancing the problem of gender inequality. A patriarchal mindset and the need to have a male child to perpetuate the family lineage also result in increased gender discrimination in the country. It is in our homes that the root of the problem starts. There is a need to change the attitudes of parents and children alike. Similarly the prevalence of the dowry system also aggravates the problem. It disempowers women, making them helpless. A strict enforcement of the laws and the need to understand the gravity of the problem with sensitivity is the need of the hour. Gender equality is essential for all all-around development of our nation at all spheres and levels whether it is political, economic, ethical or moral. An inclusive approach is to be maintained to achieve gender justice.

[1]Mohit S. Shah, ‘Quest of Gender Justice Need of Realistic & Sensitive Judicial Approach’ (2015) 16(2) Nyaya Deep 3.

[2]Narender Kumar, Introduction to the Constitutional Law of India (2ndedn, Allahabad Law Agency 2019) 19-25.

[3] Kristin Kalsem and Verna L. Williams, ‘Social Justice Feminism’ (2010) 18 UCLA Women's Law Journal   131; Sandra Fredman, ‘Making Equality Effective: Proactive Measures and Substantive Equality for Men and Women in the EU’ (2010) 2 European Gender Equality Law Review 7.

[4] J.K. Das, Human Rights Law and Practice (2ndedn, PHI Learning Private Limited 2022) 383.

[5]AIR [1981] SC 1829.

[6] AIR [1953] Bombay 311.

[7] [1995] (4) Crimes 643 cps 14.

[8] AIR [2003] SC 3331.

[9] AIR [1997] SC 3011.

[10] AIR [1991] SC 207.

[11]Constitution of India, Article 37.

[12] AIR [1982] SC 879.

[13] AIR [1995] SC 1531.

[14][2019] 11 SCC1.

[15] [2010] 7 SCC 202.

[16] Sourced: https://blog.ipleaders.in/government-policies-for-gender-equality-in-india/accessed on 11 December 2023.

[17]Ankita Gupta, ‘National Education Policy and Gender Inclusion’ (2022) 4(5) International Journal of Advances in Engineering and Management 1489.

[18]Punyashil S. Tembhurne, ‘National Education Policy 2020 And Gender, Women’s Education’ (2023) 10(7) Journal of Emerging Technologies and Innovative Research 238.

[19]  Source: Https:// www.statista.com . accessed on 11.12.2023.