Gender Justice Through Constitutional Ideology: A Critical Study

Paper Details 

Paper Code: RP-VBCL-12-2024

Category: Research Paper

Date of Publication: April 20, 2024

Citation:  Mr.Avinash Kumar Tiwari, “Gender Justice Through Constitutional Ideology: A Critical Study", 1, AIJVBCL, 197, 197-206 (2024), <https://www.vbcllawreview.com/post/gender-justice-through-constitutional-ideology-a-critical-study>

Author Details: Mr.Avinash Kumar Tiwari, Assistant Professor, Department of Law, Cooch Behar Panchanan Barma University, West Bengal.

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ABSTRACT

In a country like India ensuring the gender justice is always a tuff task. Women and transgender person are subject to various discriminations and struggling for their equal status in the society from longer time period. If we talk about women they are god's most valuable gift to human being. They play a very vital role for us from our birth to whole life in various forms like mother, sister, friend, wife and daughter but unfortunately they were faced various kinds of discrimination and Violation of their rights like deprived from equal educational opportunity, insecurity, female foeticide, sexual harassment, forced prostitution, dowry, Sati custom and many more. If we talk about transgender, they were completely separated from main stream of society. After the independence India made a constitution and accept it as supreme law of the land. Constitution removes all forms of discriminations and established equality in the society. Equality in the public places and in field of employment is a fundamental rights by virtue of art 15(1)(2) & art 16(1)(2). Article 15(3) is special provision which empower state to make any positive discrimination in the favour of women and children if it feel necessary. Part IV of constitution also includes various provisions for promoting gender justice in India like equal pay for equal work. For promoting constitutional ideology of equality various acts is enacted. Judiciary is also issuing various directions time to time in this regard. Despite of these all women and transgender are struggling for equality particularly in village area. This paper critically analyze various provisions of constitutional provisions related to gender justice and it'simplementation. This paper also includes possible suggestions for improving efficiency of law on it.

Keywords:  Gender justice, Discrimination, Violation, Rights

INTRODUCTION

I measure the progress of a community by the degree of progress which women have achieved.

                                                                                                  Dr B.R Ambedkar

At the beginning of civilization women were look with respect specially in India. They were treated as goddess. But as human society developed, they banded towards patriarchy society. The origin of male dominating society begin to deprive women from their basic rights. Women were deprived from educational rights, economical right that decreased their status in society. The culture of India has been built in the concept of male superiority and the lower status of the women.That’s why Women empowerment become core issues of India. For being human they should have all the rights and liberty like man. Women should have all the freedom and control over their life but they are still facing various issues.

Lord Denning said in 1980[1]“A woman feels as keenly, thinks as clearly as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom to develop her personality to the full as a man. When she marries, she does not become the husband’s servant but his equal partner. If his work is more important in life of the community, here’s is more important in the life of the family. Neither can do without the other. Neither is above the other or under the other, they are equals all the national resources, funds means of production, trade, commerce and industries are owned and controlled by menand in the gross national income only a nominal share goes to women. Due to this women become the largest deprived section of the society.  For coming out to this situation article 39 of Constitution has provided for equitable utilization of the country’s resources and means of production. Article 39 direct state to arrange for equal pay for equal work.[2]

Equality can not be established in such citation. There can be no equality amongst unequal. Due to man monopoly on economical resources Women can not obtain economic justice, social justice and political justice. The income of women cannot increase so long as they remain in the deprived class if citizens and men continue to hold economic power. In India the situation of gender justice is a complex one, as a result of the country’s large size and tremendous diversity, India's status is a developing country, sovereign, secular, democratic republic, and its historically it was a former colonial territory.

The Constitutional ideology of India is to secure social and economical justice to all but Women are still subject to economically weak and socially handicapped. Economic inequality and dependence of woman on man make the promise of economic justice a farce and social justice pretence. The Constitution guarantees equality of opportunity and status of men and women. It allows the state to make positive discriminations in the favour of women. For upliftment of women general and special provisions can be made. The various acts are enacted for protection of women rights and their upliftment.

GENDER JUSTICE – A CONSTITUTIIONAL IDEOLOGY

To achieving these objectives, the Constitution guarantees certain fundamental rights like right to equality, freedoms such as freedom of speech, protection of life and personal liberty etc. Along with these rights some negative rights as the prohibitions of discrimination, abolition of untouchability guaranteed.Women are also the beneficiaries of these rights like men. Article 14[3] ensures equality before law and Article 15 prohibits any kinds of discriminations on public places.  Article 15(3) empowers the State to make any special provision for women and children if it is necessary[4].  This provision has enabled the State to make any positive discriminationfor women, particularly in the field of labour legislation like the Factories Act, The Maternity Benefit Act, Minimum Wages Act, Mines Act etc. The Protection of Women from Sexual Harassment on Working PlacesAct, The Dowry Prohibition Act,Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16 (2) forbids discrimination in the field  of  public employment of office under the State, on the grounds only of religion, race, caste, sex descent, place of birth, residence or any one of them.

The Directive Principles of State Policy enunciated in Part IV of the Constitution embody the major policy goals of a Welfare State. They concretize, together with the chapter on Fundamental Rights, the constitutional vision of a new Indian Socio-political order. The Directive Principles are declared as non-justiciable, but nevertheless fundamental in the governance of the country and the state is charged with a duty to apply these principles in making laws. Article 38 directs the State to secure a just social, political and economic order, geared to promote the welfare of the people. Art. 39 (b)(c) and (f) provide for the distribution of ownership and control of material resources of the community for the common good, prevention of concentration of wealth and means of production to the common good, prevention of concentration of wealth and means of production to the common detriment, and protection of childhood and youth against exploitation and moral and material abandonment. Article 40 provides for organization of village Panchayats to promote self-government. Reservation of seats for women in Panchayats and Municipalities have been provided in Articles 243-D and 243-Tof the Constitution. Article 41[5]deals with right to work, education and public assistance in cases of unemployment, old age, sickness, disablement and other types of undeserved wants. Article 43[6] provide for provision of work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure, of social and cultural opportunities, and the promotion of cottage industries. Article 44 provide for uniform civil code. Article 45[7] provide for free and compulsory education for all children up to the age of 14 and Article 47[8] provide for raising the level of nutrition and the standard of living of the people and improvement of public health.

The Dowry Prohibition Act, 1961, has enacted to prohibit all kinds of practices related to dowry. The Protection of Women from Domestic Violence Act, 2005 has enacted to eradicate all kinds of domestic violence against women. The Maternity Benefit Act, 1961 (amended in 2017) has enacted to regulate the employment of women for a certain period before and after the birth of their children. The Medical Termination of Pregnancy Act, 1971, clarifies the grounds when a pregnancy can be terminated. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (amended in 2003, 2020, and 2021) has enacted to restrict sex determination tests of a fetus. It minimises the chances of female feticide. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has enacted to provide protection against sexual harassment of women at workplace. The Commission of Sati (Prevention) Act 1987 and Immoral Traffic (Prevention) Act 1956 enacted to remove Sati custom and trafficking from our society. On 28th September 2023 governmental of India has taken a very good step to reserve the seat in lower house of parliament, state legislative assembly and NCT Delhi for women through one hundred sixth amendment in the constitution of India.

ROLE OF INDIAN JUDICIARY IN PROTECTION OF WOMEN RIGHTS

            Women consist half of the population of nearly every country and no country can develop by ignoring them. From centuries the position of women is very low in our society. They are socially, educationally and economically handicapped. They can not participate in social activities equally as men. That’s why, along with constitutional provisions, several Acts are enacted to empower women in India. We can realise the positive effect of these efforts. Now women’s are acquiring the higher posts like, President, Governor, Prime Minister, Chief Minister, Indian Administrative Services, judicial services etc. but this is not applicable about all the women in India. Specially those who belongs to the village areas or uneducated, they are still facing various challenges and discriminations. Judiciary as being guardian of Indian citizens plays a pro-active and significant role in the protection of women’s rights in India. It reflects through various judgments of the court.

 Judiciary secures women rights through judicial interpretation in the following manners:

Protection of women rights in the field of employment:

In the Air India v.NargeshMeerza& others[9] Supreme Court establish equality between male and female employees.

In Randhir Singh v. Union of India[10] and People Union for Democratic rights v. Union of India[11],

InKalyanParishadv. State of U.P[12] apex court passed order to enforce the constitutional goal of “equal pay for equal work” incorporated in Article 39(d), Article 14 and Article 16 of the Constitution.

In the Vijay Lakshmi v. Punjab University[13] Supreme Court observed that State is empowered under Article 15(3), 16(2), and 16(4) of the Constitution to give preference to women in government jobs where the situation more suited to women. Further court decided that allotment of seats in educational institutions, buses etc. for women is not gender discrimination but it is positive discrimination keeping in view of the weak physical structure of women. In Budhadev Karmaskar v. State of West Bengal[14]honourable Supreme Court through accepting it as profession observed that sex workers are also be entitled to live a dignified life according to Article 21 of the Constitution. In Gaurav Jain v. Union of India[15] honourable apex court held that children prostitutes have an equal right to opportunity care and protection.

The Supreme Court issued an important observation on May 2022 that prostitution is a legal profession and sex workers must be treated with dignity. No criminal action can be taken against consenting sex workers.

 In State of Maharashtra v. Madhukar Narayan[16] the apex court held that the prostitute has also right to privacy under Article 21 of Indian Constitution.

In State of Punjab v. Gurmeet Singh[17] Supreme Court passed order for strictly prohibiting the rape and observed that rape is not merely a physical assault- it is offence distractive of whole personality of victim. A murderer destroy the physical body of the victim but a rapist degrade a very pure soul of helpless female. Supreme Court held that a victim of rape is also eligible for claiming the compensation, even if she is a foreigner.[18]

Recognizing Guardianship rights for Women

In GithaHariharan and Others  v. Reserve Bank of India and Others[19]Supreme Court in the interpretation of section 6 Hindu Minority and Guardianship Act held that even mother can be a legal guardian to her children even father is alive or not.

In ABC v. The State (NCT of Delhi)[20]the apex court held that unwed mother is not bound to disclose the name of child’s father, and she need not to take any consent from father. She would have all the guardianship rights under Guardianship Act.

Equality in the regard property right between men and women and other rights of women:

In Pratap Singh v. Union of India[21], Vineeta Sharma v. Rakesh Sharma[22]Supreme Court in Delhi Domestic Working Women’s Forum v. Union of India[23], BodhisathwaGautamv. Subra Chakraborty[24], court stated that women have the same right to life, dignity, respect like other citizens, Rape is crime against fundamental and human rights.

 Protecting women dignity through right to privacy:-

In Lillu @ Rajesh and others v. State of Haryana[25] case Supreme court declare two finger test as cruel, inhuman or degrading treatment and clearly violate the privacy right of women.

In Surjit Singh Thindv.Kanwalji Kaur[26] Court held that virginity test of women is clear violation of her right to privacy. Along with it women have right to choose her life partner according to her will decided by Supreme Court in  Lata Singh v. State of U.P.[27]

 Protection against sex - selective abortion :-

In CEHAT v. Union of India[28]Supreme Court observed that determining the sex of foetus and female foeticide is offence against right to life of women.

 Abolished discrinatory triple talaq right of Muslim husband:-

In Shayara Bano v. Union of India[29] Supreme Court struck down the practices of triple talaq which abridge right to equality under Article 14 and right to freedom under Article 19 from Muslim women.

Protecting the women’s dignity by preventing virginity test of women:

Panjab and Hariyana high court protects the dignity of women by helding the examination of women's virginity is violation of her right to privacy which is guaranteed under art 21 of the Constitution of India[30].

Protection of women’s from sexual abuses on working places:

In the Vishakha case honourable Supreme Court showed it's concern about position of women on working places and issued a complete guideline for protection women rights by which they can work their dignifiedly. Through this judgement court imposes duty on the employer to protect the women from sexual abuses on working places Later on Central Government pass an act in this regard[31].

 Women's Right to reproductive choice:

Honourable Supreme Court while interpreting Article 21 declared that, women dignity and bodily integrity must be respected. Further stated that women has right over her own body and her right to reproduction. Right to reproduction includes right to carry her pregnancy to its full term and to give birth[32].

CONSLUSION

At last we can say that there are various provisions included for securing gender justice. Women could not acquire the equal status in developing country like India till right now. Their struggle against injustice is going on. This is the reason why Judiciary as well as various NGO, women organization is working to empower the women. The main reason discriminations, torture, and exploitation against women is due to their lower status in society. In India along with constitution and Judiciary played the important for gender justice. It requires making awareness among the society, which changes the mindset of patriotic society towards women. We can achieve gender equality and gender justice in society through empowering women.

[1]Lord Denning, The Due Process of Law, p 194, 195 (Butterworth’s London) 1980.

[2] PM Bakshi, Commentary on the Constitution of India 370 (Universal Law Publishing, Delhi edn 2nd, 2016)

[3]Art. 14 Constitution of India 1950

[4] M.P. Jain, Indian Constitutional Law 937 (Lexis Nexis, Gurgaon edn 17thrpt 2016)

[5] Constitution of India 1950

[6] Ibid

[7] Ibid

[8] Ibid

[9] (1981) 4 SCC 335

[10] AIR 1982 SC 879

[11] AIR1982 SC 1473

[12] AIR 1992 SC 1695

[13] AIR 2003 SC 3331

[14] 2022 SCC Online SC 704

[15] (1997) 8 SCC 114

[16] (1991) 1 SCC 57

[17] (1996) 2 SCC 384

[18]Chairman, Railway Board v. Chandrima Das AIR 2000 SC 988

[19] AIR 1999, 2 SCC 228

[20] AIR 2015 SC 2569

[21] AIR 1985 SC 1695

[22] (2020) 9 SCC 1

[23] (1995) 1 SCC 14

[24] (1996) 1 SCC 490

[25] AIR 2013 SC 1784

[26] AIR 2003 P&H 353

[27] (2006) 5 SCC 475

[28] AIR 2003 SCC 3709

[29] AIR 2017, 9 SCC 1

[30] Surjit Singh thind vs Kanwaljikaur AIR 2003 P&H 353

[31]Vishakha v. State of Rajasthan AIR 1997 SC 3011

[32]Suchita Srivastava v. Chandigarh Administration AIR 2010 SC 235