Critically Evaluation of Gender

Justice in India and Status of

Women in Indian Democratic
System
by Simranjit Kaur Gill
I Introduction
Women, like men are both born and made. Still in almost all societies in the
world, we find scathing attack against women. In different situation women
have given good and bad names for instance, either she has been seen as Devi
or as property or slave of Men but never given equal status as men. In India it
is centuries old practice of male domination where women have given status
of second class citizen. The Constitution of India guarantees equal of
opportunity and status and women. It directs that women shall not only have
equal rights and privileges with men but also that the state shall make
provisions-both general and special for the welfare of women . Despite the
above constitutional guarantee, women have been subjected to deprivation,
brutality and extortion, thus still women are fighting for their right and here in
this paper I have tried to throw light on some issues related to gender justice
in India and Indian democracy which required,
First, women's political rights with politics being broadly defined to include
everyday concerns ̬ are an integral and inseparable part of their human rights;
and human rights, in turn, are a fundamental aspect of any democratic
framework.
A second argument for linking gender and democracy is that in a democracy
the points of view of the different groups involved must be taken into account
in formulating any decision or carrying forward any strategy. In other words,
democracy must be inclusive of the opinions and perceptions of women as
well as men. This argument is also used to justify the need to bring minorities
into decision-making processes.
Finally, perhaps the single most important rationale for linking democracy and
gender is that women effectively constitute half the world's population, and
half of each and every single national population. Women's studies and the
amalgamation of practical experiences repeatedly have pointed out that
women are not and should not be considered a minority. Indeed, women are as
much a "minority" as men are in such a context. To conceptualize issues and
develop policies which will affect, directly or indirectly, citizens' lives without
taking into account the situations, perspectives and realities of all those who
will be affected is no longer credible in today's world.
Taking into account gendered perspectives and involving women and men in
decision-making processes is a sine qua non of any democratic framework.
Hence democracy, by definition, cannot afford to be gender-blind. It must
strive towards equality and representation of women and men in decision-
making processes and in the opportunities to achieve both these goals. But for
the understanding of current situation of women one must have the knowledge
of pre-independent India.

II Women in Pre-Independent India

There are examples from all over the world that the state craft id essentially
male-craft and from centuries women are discriminated by male dominated
society. Although in Vedic period their condition was good and equal to men,
but with the passage of time situation changed and women became property of
her husband.
Manu Consider woman as Slave like suddara, and said she should be under
 2

the control of her father, brother and if married then of husband. He said,
NARI NARAK KA DUAR HAI, and also NARI MUST BE KEEP UNDER
THE CONTROL OF FOOT, she was forced to lead miserable and unwanted
life. Child Marriage, and Sati was rule of Dharma. Women were not allowed
to get education, rich women had right to education but not equal to men.
Although women was need in all religious ritual but seen as nothing more
than a machine who has to give birth the child and work at home as mad of
husband. She was given either status of Devi or slave but not human being
equal to male. Under Muslim ruler condition became worst they were forced
to be under cover, no right to get education, political participation and lead
good life like men. With the time reform were also made as by BUDHA<
MAHAVIR JAIN< and GURUNANAK, by saying SO KIO MANDA
AKHIYE JIT JAME RAJAN . In long history of kingdom in India we have
very few names of women ruler as Raja Sultan and Rani Laxmi Bai only. With
the help of British Ruler social reformer like Rajaram Mohan Rai and many
others made attempt to empower women, and success to stop Sati. But
Women did not get right and status like men.

III Women and Gender Justice in Post- Independent India

Serious attempts were made to elevate the status of women after the
independence of India promise to secure to all its citizen justice-social,
Equality of status and of opportunity; and to promote belief, faith and
worship; Equality of status and of opportunity and to promote among them all:
Fraternity, assuring the dignity of the individual and the unity of the Nation.
As equal citizens of India, women benefit from all rights with men. However,
since the constitution recognized the unequal social position of women, a
special clause/Artical15 (3) empowers the stats to make special provisions for
womenand children even in violation of the obligation not to discriminate
among citizens. This power has been used to enact special laws for the
protection of women workers in factories, mines and plantations and in
addition to provide maternity relief to women workers in the organized sector.
Equality of opportunities in public employment and office under the state is
guaranteed by Artical16. This clause has helped to ensure a significant
position and status to Indian women demonstrated by the increasing number
of women in the public services and in position of power and dignity. The
principle of adult franchise, irrespective of sex, seeks to ensure women’s full
participation in shaping and sharing of power but still women are struggling
for equal status because of male domination in the parliament and other
legislative bodies. If see all high official posts, every where men are numerical
strong then women and if there are women there conditions is very bad, they
suffered lots of harassment at work place, and its very good example can be
given by Vishakha v. State of Rajastan case, where she was rape victim at
workplace. Even in resent case filed in Rajasthan where a constable of
Rajasthan police named Maya Yadav was raped and murdered by cook and
driver of Chehat Poice station on September, 29 2010, in the room where she
was residing from December 2009 because of posting in that Police Station.
Thus what is security of women among common people if a lady constable is
not safe in Police Station?
Women not safe even in law also here I would like to refer Muslim personal
law, where men have given right to merry with five women at one time, even
if he does not have means of livelihood for one wife. But women cannot even
ask for divorce if husband not treat them equally and husband can give her
divorce by just saying talaq, here we can give example of Shah Bano and
Gudia case.
Women are not safe even in custody of police, they raped in police-station, if
women go to police for FIR they asked them such question which forced them
to live without justice. If women are rape victim, proceeding of court is itself
 3

victimization of victim. We have many examples as Imrana, Jasica Lal

Murder, Anaara Gupta and Ruchica abetment of suicide cases.
We have recent case of Priydarshna Mattu who was raped and murdered by
accused but Supreme Court; commute his punishment to imprisonment of life
from death sentence. Another example a brave girl who killed two terrorist in
Kashmir has been harassed by high official of ant terror institution.
Now if see the political participation of women in India is also not good.
Recent reports in India indicating that many women politicians are finding it
difficult to participate in politics, let alone equalize the gender gap that exists,
point to an increasing need to analyse the role that women play in Indian
politics. The latest elections, with its saga of violence and conflicting rhetoric,
further support this need.
"Times of India" report corroborates much of what has been discussed in this
handbook: namely that "domestic responsibilities, lack of financial clout,
rising criminalization of politics and the threat of character assassination" are
making it increasingly difficult for women to be part of the political
framework. Moreover, women politicians point out that even within the
political parties, women are rarely found in leadership positions. In fact,
"women candidates are usually fielded from 'losing' constituencies where the
party does not want to 'waste' a male candidate". Here we would like to
mention women movement which raised voice to empower women in Policy
making and other sectors.

Women Movement and issue of Representation

The demand for greater representation of women in political institutions in

India was not taken up in a systematic way until the setting up of the
Committee on the Status of Women in India (CSWI) which published its
report in 1976. Before this the focus of the growing women's movement had
been on improving women's socio-economic position. The CSWI report
suggested that women's representation in political institutions, especially at
the grass-roots level, needed to be increased through a policy of reservation of
seats for women. In 1988, the National Perspective Plan for Women suggested
that a 30 per cent quota for women be introduced at all levels of elective
bodies. Women's groups insisted that reservation be restricted to the panchayat
(village council) level to encourage grass-roots participation in politics. The
consensus around this demand resulted in the adoption of the 73rd and 74th
amendments to the Indian Constitution in 1993.
In 1995, the question of quotas was raised again, but this time the focus was
women in parliament. Initially, most political parties agreed to this
proposition. But soon doubts surfaced. When the bill addressing this issue was
introduced in the Eleventh Parliament in 1997, several parties and groups
raised objections. The objections focused around two main issues: first, the
issue of overlapping quotas for women in general and those for women of the
lower castes; second, the issue of elitism. Most women's groups felt that the
caste issue was a divisive one for women. Also, many felt uneasy about giving
special privileges to elite women by ensuring seats for them in the parliament,
while they had previously supported quotas for women at the grass-roots level
of the panchayats. To date, the amendment has not been passed by parliament.
However, the current government of the Hindu nationalist BJP has committed
itself to introducing another quota bill for women in parliament. The 39
women representatives in the 1991-1996 Indian Parliament were mostly
middle-class, professional women, with little or no links to the women's
movement. A significant number of them accessed politics through their
families, some through student and civil rights movements, and some as a
result of state initiatives aimed at increasing representation from the lower
castes. Women representatives have thus benefited from this success of the
 4

women's movement. However, there has been limited interaction between

women representatives and the women's movement ̬ one of the important
areas of weakness behind both the effectiveness of women MPs as well as that
of the women's movement. This is, perhaps, the issue that the women's
movement needs to address as part of its expanding agenda for the 1990s. But
this movement fail now the failure of the women’s movement is partly down
to the speed of its early successes, and the speed with which its activists were
absorbed into the establishment - which led to a backlash. Among India’s
middle-class and lower-middle-class women, feminists are perceived to be
unpopular conference-hoppers or political climbers. There is a reluctance to
take “women’s issues”, when they are described as such, seriously. India’s
official feminists talk about dowries, not sexual revolution, and feminism has
ceased to be a living force among women.

IV Conclusion

Today, in India,”women’s empowerment” is a government slogan; it is a

feature of every party manifesto. There is a ministry for women and child
development. There are laws against female foeticide, domestic violence and
sexual harassment in the workplace. The number of working women is
exploding: businesswomen such as Kiran Majumdar Shaw and sportswomen
such as Sania Mirza show that talented, determined women are making it in
every corner of this traditional society - a society that was entirely male-
dominated in 1947 . Yet, in the first decade of the 21st century, Indian women
- seemingly protected by law, celebrated by the media and nursed by activists
- remain second- class citizens, most obviously in rural areas, but in some
senses everywhere.
Crimes against women continue to escalate; female foeticide remains common
even among educated women; stray incidents of sati, or suttee, still take place,
with women either jumping or being thrown on to their husbands’ funeral
pyres. Arranged marriages are commonplace. The father is still the head of the
family. And in the same year that Patil became head of state, Kiran Bedi,
India’s first female police officer, has been denied promotion to the post of
Delhi’s police chief. It seems as though only a certain type of Indian woman is
approved of these days. Meanwhile, for millions of Indian women, it is not
women such as Bedi or Patil who are role models. Instead it is the heavily
made-up and bejewelled women of the soap operas, with their hair full of
sindoor (red powder) and their minds full of domestic politics. Today, these
are the women to be emulated.
Thus I would like to say in simple words in conclusion that although now
there are laws in favour of women as Domestic Violation Act, Dowry Act,
Indian Succession Act, Indian Prohibition of Child Marriage Act, Family
Court Act, Human Rights Act, Special Marriage Act, Muslim Women
Protection in Divorce Act, etc. But still situation is not equal to men. Female
fratricide continue even law prohibited, social and economic reasons, women
take less interest in politics because of reputation, harassment. Girls suffered
harassment in every sector whether it is private or public. Still women are
numerically less in every high official post e.g. in Military and Paramilitary
forces, Politics, Public Sector except Entertainment, where they want women
nothing more than a show piece. Thus I conclude that still there is need of
awareness among the women from grass-root level to top, for the equal status
and gender justice in Indian democracy which is half without it.
 5

Gender Justice
Category: Home \ Constitutional Law
Article: Comparative Study on Gender Justice

Bangles, which are synonymous with women, have been quite

often used as a metaphor for shackles. Not only in feminist
literature, but also otherwise. Gender Inequity has been a
prevalent condition in all cultures surpassing all other
differentiations. Male chauvinism as a state of mind is so well
dissipated that gender stereotypes and sexism exists even in
urban subcultures just as it does, more so, overtly in rural,
rudimentary cultures. Gender dynamics have largely been
deepened by simple dichotomies between the sexes and its
associated products and practices. From tribal to agricultural to
industrial societies to organised states the division of labour has
primarily stemmed from physiological differences between the
sexes, leading to the power resting with the men, resulting in
the established gender hierarchies. We have been gifted with a
history of discrimination, subjugation and suppression.

In India, it is believed that women enjoyed an equal status as

men in the Vedic Period. The education of women held
considerable significance, especially from works of katayana
and patanjali. The Upanishadas and the Vedas have cited
women sages and seers. But the condition declined
considerably afterwards. Historical practices such as Sati,
Jauhar, Purdah and Devdasis, child marriage, are a few
traditions reflective of the gender imbalance in Indian Society.
Though these practices are largely defunct now, due to legal
reform, the essence of the dysfunctional gender equity still is
rampant and manifested today through domestic violence,
trafficking, dowry deaths, female infanticide, female foeticide,
sexual objectification and violence and sexual harassment at
work place.

In ancient Greek and Roman societies women were treated as

inferior to men. Procreation of children has been held to be the
only role for women. Conception was her only purpose. Hence
women were greatly discriminated against. The perception of
women among Christian theologians was highly unfavourable.
Gender inequity continued into medieval societies as
subversive perspective on gender deepened. Under common
law of England, a married woman hardly had any rights; she
had no rights to her property after marriage. In the early history
of the United States, women and children were considered as a
man’s possession. Women began working in industries, the
conditions of work and timings were atrocious but it was until
1910 that the states passed legislations alleviating the
conditions of work. The issue of suffrage is another glaring
illustration of gender prejudice. The struggle for the right to
vote for women in USA and Europe blatantly highlights the
gender intolerance, the politics of power resulting from
dysfunctional gender hierarchies. The movement for woman’s
suffrage started in France in the 18th Century. In USA women
were given the right to vote in 1920, whereas in UK it was in
 6

1928.

Continuing into the 20th Century, gender imbalances gave rise

to Feminist Movements, especially in North America and West
Europe. With fervent movements and growth of awareness,
there arose gradually some liberalisation in social structures
and institutions. Various legal reforms were introduced,
legislations were passed, which helped in alleviating some of
the divides in gender inequity.

Global View on Gender Justice:

Gender Justice, simply put refers to equality between the sexes.
Gender justice is a correlation of social, economic, political,
environmental, cultural and educational factors, these
preconditions need to be satisfied for achieving gender justice.
Globally, gender justice as a cause has gained in strength over
the years, as it has been realised that no state can truly progress
if half of its population is held back.

The struggle for equal rights, freedom and justice has been
made by human rights activists, feminists, NGO’s and through
Government support. Even though considerable progress has
been made in this regard, women are still lagging behind. With
globalisation, there are other complex issues that women face
today along with the elementary issues that have always
plagued women. Consumerism and cultural heterogeneity has
brought in its fold more objectification of women. Apart from
these issues, there are still many cultures in the world where the
condition of women is still deplorable, they still have no
control or right over themselves or their bodies or their
children. The condition is worse in Africa and the Middle East.
Gender Justice refers to harmonising of rights and needs of
women into mainstream society. Justice in this sense means
more balanced behaviour, an end to violence and equal
distribution of social necessities.

Globally, the United Nations has established a strong mandate

for gender justice. The focus on gender equality and gender
justice has been there since the inception of the UN. In 1946, a
separate body was formed to work on the “advancement of
women”. The Commission on the Status of Women worked
from its inception to collect and compile data on women’s
situation around the world, to promote women’s human rights
and raise awareness of, and support for, their contribution to
development. The Decade for Women (1976-1985) and four
world conferences on women (between 1975 and 1995)
contributed significantly to raising awareness and commitment
to gender equality and gender justice. In 1995, the Beijing
Declaration and Platform for Action had been framed for
guiding work at national level. The human rights treaty on
gender equality – The Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) has been
ratified by 185 states and the optional protocol by 90 states.
Since 1995 and the adoption of gender mainstreaming as a
critical strategy for achieving gender equality,
intergovernmental bodies – such as the General Assembly, the
ECOSOC and the Commission on the Status of Women - have
 7

worked to mainstream gender perspectives as an integral part of

all policy areas. At the 2005 World Summit, world leaders
reiterated that “progress for women is progress for all”. The
UNIFEM is another agency of the UN. It is the development
fund for women at the United Nations. It provides technical and
financial assistance to innovative programmes and strategies to
foster women’s empowerment and gender equality. The United
Nations Development Programme (UNDP) also has the Gender
Development Index (GDI). It is an indication of the standard of
living in a country, developed by the UN. It aims to show the
inequalities between men and women: long and healthy life,
knowledge and decent standard of living. India is ranked 128th
in the Gender Development Index, while USA is 12th and UK
is 16th.

Laws in India:
There are various legislations that have been passed in India
with a view to curb the imbalance in gender hierarchy and aid
in women’s empowerment. The constitution of India guarantees
various rights for women in this regard. This can be evidenced
by Part III of the Constitution which deals with fundamental
rights and Part IV which deals with Directives Principles of
State Policy. Article 14 statesthat there shall be equal protection
of the law and equality before the law which means that the
Courts or any Law enforcement agency should not discriminate
between a man and a woman. The right to equality is the
foundation on which other laws are formulated and can be
implemented.

Without the right to equality, the purpose of gender justice

cannot be achieved. Article 15 guarantees the right against
discrimination. The prejudice and bias against women is
rampant an issue to be countered by the right to equality, hence
the right against discrimination. Article 15(3) talks about the
special protection for women. Article 16 provides the right to
equal opportunity in terms of public employment irrespective
of the sex of the person.

This provision aids women to start participating in elections

and the decision making process. In this regard it is important
to mention the 74th amendment, made for the reservation for
women in panchayats. Article 19 guarantees freedom of speech
and expression; to assemble peaceably and without arms; to
forms associations and unions; to move freely throughout the
territory of India; to reside and settle in any part of the territory
of India; to practise any profession, or to carry on any
occupation, trade or business. This fosters the right to equality,
by providing the necessary freedoms needed to live in society.
Article 21 guarantees the right to life, the interpretation which
has been broadened to include the right to live with dignity.
Article 23 guarantees the right against exploitation. It prohibits
traffic in human beings. The Directive Principles of State
Policy form Part IV of the Constitution. Article 38 empowers
the state to secure a social order for the promotion of welfare of
the people. It also states that the state shall strive to eliminate
the inequalities to secure justice- social, economic, political.
Article 39 talks about the certain principles of policy that need
 8

to be followed by the state which are securing adequate means

of livelihood equally for men and women, equal pay for equal
work among men and women, and the health and strength of
workers, men and women are not abused. Article 42 requires
the state to make provision for securing humane conditions of
work and maternity relief. Part IVA was inserted into the
Constitution by an amendment of 1976, this deals with
Fundamental Duties and Article 51A (e) specifically deals with
renouncing practices derogatory to the dignity of women.

Apart from the provisions in the constitution, there are certain

other legislations that were passed specific to the certain issues.
The Dowry Prohibition Act was passed in 1961 which dealt
with the practice of receiving and giving dowry. Dowry has
been one of the age old customs in India and it is one of the
major problems faced by women in rural and urban areas,
dowry deaths are also quite common. Section 304B of Indian
Penal Code deals with the offence of Dowry death; punishment
for which is imprisonment for a term of not less than seven
years or life imprisonment. Despite the legislation, in practice
dowry as a custom continues to thrive. The problem of
domestic violence has been a long standing issue for women.
Section 498 A deals with the crime of cruelty by the husband or
the relatives of the husband. The punishment for which is
imprisonment up to three years and fine. This section defines
cruelty which includes both mental and physical cruelty. This
section was included by an amendment in 1983, by the same
amendment, Section 113A has been added to the Indian
Evidence Act to raise a presumption regarding abetment of
suicide by a married woman. In 2005, The Protection of
Women from Domestic Violence Act was passed. The term
domestic violence was widened enough to encompass all sorts
of physical, sexual, mental, verbal and economic abuse, and it
also gives power to anyone else other than the aggrieved party
to lodge the complaint. The issue of sexual objectification.

and harassment of women, trafficking in women have been

dealt with by specific acts such as the Indecent Representation
of Women (Prohibition) Act, 1986, Immoral Traffic
(Prevention) Act, 1986 and Section 294 of the IPC which
relates to obscenity. For the issue of sati, the Commission of
Sati (prevention) Act was passed in 1987, even though Sati was
abolished in 1829. The Pre-natal Diagnostic Techniques
(Regulation and Prevention) Act was passed in 1994 to curb the
rise in female foeticide. Needless to say that despite this
enactment,female foeticide is rampant. To secure gender justice
for working women, the related enactments are; Maternity
Benefit Act, 1961, Equal Remuneration Act, 1976, Factories
Act, 1948. For enhancing social justice for women, enactments
such as the Hindu Marriage Act, 1955, which made the
marriageable of women 18, now its been amended to 21; The
Hindu Succession Act, 1956 ensures women’s right to inherit
parental property; The Hindu Widow Remarriage Act, 1956
legalised widow remarriage. All the provisions that have been
included in the Constitution and other enactments are reflective
of the aim of gender justice but the implementation of all these
provisions has been challenging. Thus despite the measures
 9

formulated for curbing the gender imbalance, in practice

though, women still continue to face the same complexities. As
per the latest Census the sex ratio in India is 927 females to
every 1000 males and this has been declining for the last four
decades. This is a significant indication of appalling condition
of the women in the country. The sex crimes in the country
have reasonably increased over the years. Patriarchy, lack of
awareness, continuous subjugation, certain deep rooted
traditions and custom, male chauvinism, lack of effective
enforcement, have altogether resulted in the suppressed
condition of women today.

Laws in Europe and America:

As it can be clearly understood from the Gender Development
Index ranks, gender inequity, in the present perspective, in UK
and USA is not as grave as the gender dynamics that exist in
the developing countries. The human right violations with
regard to gender might not be as appalling as in Africa or the
Middle East or South East Asia but there are dichotomies that
exist between men and women in various other aspects. One of
which is particularly in cases of employment and work.

The European Union has been keen on securing gender justice.

Equality between men and women is a fundamental principle of
the European Union under Article 2 and 3(2) of the treaty
establishing the European Community. Articles 21 and 23 of
the Charter of Fundamental Rights of the European Union
prohibit any discrimination on the basis of sex and require
equality between men and women to be ensured in all areas. It
has issued a few directives in this regard to assure gender
equity and empower women. The Equal Treatment Directive
(ETD) is a 1976 directive issued by the council of ministers of
the European Economic Community, now the European Union.
It requires all member states to ensure equal treatment of men
and women with regard to access to employment, vocational
training and promotion and working conditions. Another
directive was issued in 2004, this directive was in relation to
implementing the principle of equal treatment of men and
women in the access to and supply of goods and services.
Another directive was issued in 2006, on the implementation of
the principle of equal opportunities and equal treatment of men
and women in matters of employment and occupation. This
directive aims to consolidate and repeal a number of separate
directives to make the law more transparent. The purpose of
these directives is to curb direct and indirect discrimination on
the basis of sex and also includes within its fold sexual
harassment and otherwise.

The law in UK with regard to gender justice has been closely

modelled on those of the European Union. Sex equality laws
can be found in the Sex Discrimination Act, 1975 and the Equal
Pay Act, 1970, both as amended. The Equal Pay Act covers
everything relating to pay and conditions and the Sex
Discrimination Act covers those areas which fall outside the
purview of the EPA. The EPA implies an equality clause into
the employment contract ensuring that there is no less
favourable treatment than the treatment a comparable person
 10

receives.

The Sex Discrimination Act covers four forms of

discrimination, direct, indirect discrimination, harassment and
victimisation. The Sex Discrimination Act also widens the
scope of the word employment and includes contracts of
service; apprenticeship and personal contracts for execute any
work or labour and related expressions. The Equality Act, 2006,
has a provision creating a public duty to promote equality on
the grounds of gender. The Domestic Violence, Crime and
Victims Act, was passed in 2004 to prevent domestic violence.
This act also covers same sex couples. Recently, a new
legislation has been passed to protect the victims of forced
marriages and to prevent them from taking place; this has been
covered under the Forced Marriage (civil protection) Act, 2007.
It enables people to get an injunction and also third parties can
apply for an injunction on their behalf.

The nineteenth amendment to the United States Constitution in

1920 giving women equal rights as men with respect to voting
was the first constitutional recognition of gender rights. A
significant portion of gender inequity in USA is discrimination
against women in the workplace. One of the foremost issues for
women was the economic status of women. Title VII of Civil
Rights Act, 1964 forbids discrimination on the basis of sex. It
prohibits discrimination by employers on the basis of sex. It
also prohibits discrimination against an individual because of
his or her association with another individual of a particular
sex. Men and women have equal employment rights. The Equal
Pay Act, 1963 guarantees equal pay for women.

Conclusion:
Complete gender justice is complex to achieve typically in a
country like India. The diversity of cultures, subcultures, is vast
and there is a lot of rigidity in traditions and beliefs. Lack of
education, lack of development, poverty, improper enforcement
of the laws, lack of awareness among women, deep rooted
patriarchy, economic dependence of women, all lead to the
subversive condition of women in our society. Gender
hierarchies in Europe and USA are relatively more balanced
than in India. Quite simply, most of their sex equality laws are
mostly centred on employment and workplace. Not only that,
their sex equality laws also explicitly include trans-genders and
the rights have been extended to gay and lesbian communities
which is unprecedented in India. Gender development in any
sphere in any country is a key component of the development
and overall welfare of any state. Various NGO’s and
governmental agencies, UN agencies, activists have been
promoting gender rights and vocal in their protest against
discrimination. . Even though, there has been progress in
securing gender justice, there is still a lot to be done.
 11

Gender Justice

Introduction:
It is a harsh reality that women have been ill-treated in every society for
ages an India is no exception. The irony lies in fact that in our country
where women are worshipped as shakti, the atrocities are committed
against her in all sections of life. She is being looked down as commodity
or as a slave, she is not robbed of her dignity and pride outside her house
but she also faces ill-treatment and other atrocities within the four walls of
her house. They are considered as an object of male sexual enjoyment and
reproduction of children. They are real dalits (downtrodden) of the society.
They are discriminated at two levels, firstly they suffer because of their
gender and secondly due to grinding poverty.

Women are deprived of economic resources and are dependent on men for
their living. Women works are often confined to domestic sphere, she had
to do all house hold works, which are not recognized and unpaid. In
modern times many women are coming out to work but has to shoulder
the double responsibility; one she has to work where she is employed and
secondly she also has to do all the house hold works, moreover, she is last
to be considered and first to be fired as she is considered to be less
productive than her counterpart. Her general status in the family and in
the society has been low and unrecognized.

From the cradle to grave, females are under the clutches of numerous
evils acts as discriminations, oppressions, violence, within the family, at
the work places an din the society.
The root cause of all the evils practices faced by the women are:
(1) illiteracy, (2) economic dependence, (3) caste restrictions, (4) religious
prohibition, (5) lack of leadership qualities and (6) apathetic and callous
attitude of males in the society.

In our society girls are socialized from their tender age to be dependent on
males. Her existence is always subject to men. In her childhood she is
under the protection of her father, after marriage under the protection of
her husband and in old age at the mercy of her sons. The patriarchal
system in India made women to live at the mercy of men, who exercise
unlimited power over them. In order to ameliorate the condition of women
in India Legislature enacted the large volume of enactments and many of
these legislations were enacted in colonial period. Which are as follows:
(1) 1829, Abolition of Sati;
(2) 1856 Widow Remarriage made legal;
(3) 1870 Female infanticide banned;
(4) 1872 inter caste, intercommunity marriages made legal;
(5) 1891 age of consent raised to 12 years for girls;
(6) 1921 women get rights to vote in Madras province:
(7) 1929 Child Marriage Restraint Act was passed;
(8) 1937 women get special rights to property;
(9) 1954 Special Marriage Act was passed;
(10) 1955 Hindu Marriage Act was passed;
(11) 1956 Suppression of Immoral Traffic in Women and Girls Act was
passed;
(12) !961 Dowry Prohibition Act was passed;
(13) 1981 Criminal Law Amendment Act was Passed;
(14) 1986 The Indecent Representation of Women (Prohibition) Act was
Passed;
(15) 1987 Commission of Sati (Prevention) Act was passed.

Apart from these above mentioned laws there are some enactments
pertaining to industry which contain special provisions for women such as:
The Workmen Compensation Act, 1921; Payment of Wages Act, 1936;
Factories Act, 1948; Maternity Benefit Act, 1961; Minimum Wages Act, !
948: Employees State Insurance Act 1948 and Pensions Act ,1987.In
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addition to this, the Constitution of India which is regarded as the supreme

law of the land too gives special protection to women.

The provision which deals with women rights are as follows:-

Article 14 expresses that ?the State shall not deny to any person the
equality before the law and equal protection of laws with in the territory of
India?. Article 15(1) prohibits the State to discriminate against any citizen
on the grounds only of religion, race, caste, sex, place of birth pr any of
them. Article 15(3) permits the State to make special provisions for women
and children. Article 16 provides that there shall be equality of opportunity
for all citizens and they shall not be discriminated on the basis of religion,
race, caste and sex. Article 39(a) of the Constitution provides that the
state in particular direct its policy towards securing that citizen, men and
women equally, have the right to an adequate means of livelihood. Article
39(e) of the Constitution provides that the health and strength of workers,
men and women, and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter avocations unsuited
to their age or strength. Article 51(A)(e) of the Constitution provides that it
will be the duty of every citizen to renounce practices derogatory to the
dignity of women.

Further, Indian Penal Code, Criminal Procedure Code and Indian Evidence
Act too have some provisions which provide protection and a sense of
security to women. Recently the Government's piecemeal approach to
protect women has taken a step forward enacting a law providing
protecting women from domestic violence. With the establishment of
National and State Human Right Commissions and National Commission
for Women, gender issues are receiving greater attention.

The Indian Judicial System has independently and effectively intervened

on the issue of women emancipation. For instance, in C.B.Muthamma V.
Union of India the validity of the Indian Foreign Service (Conduct an
discipline) Rules of 1961 was challenged which provided that a female
employee to obtain a written permission of the Government in writing
before her marriage is solemnized and at any time after a marriage a
women member of the service may be required to resign from service. The
Supreme Court held that such provision is discriminatory against women
and hence unconstitutional. The Supreme Court made it clear that, we do
not mean to universalize or dogmatise that men and women are equal in
all occupation and all situations and do not exclude the need to
pragmatise where the requirements of particular employment, the
sensitivities of sex or the peculiarities of societal sectors or the handicaps
of either sex may compel selectivity. But save where the differentiation is
demonstrated, the rule of equality must govern.

In Air India V Nargesh Mirza, the Supreme Court struck down the provision
of rules which stipulated termination of service of an air hostess on her
first pregnancy as it arbitrary and abhorrent to the notions of a civilzed
society. In Pratibha Ranu V Suraj Kumar the Supreme Court held that the
stridhan property of a married women has to be placed in her custody, and
she enjoys complete control over it, The mere fact she is living with her
husband and using the dowry items jointly does not make any difference
and affect her right of absolute ownership over them. Another landmark
judgement was given by the Apex Court in the case of Gita Hariharan V
Reserve Bank of India[4], in this case the Court interpreted section 6 of the
Hindu Minority and Guardianship Act 1956 and held that the mother could
act as the natural guardian of the minor during the father's lifetime if the
father was not in charge of the affairs of the minor.

In Vishaka and others V State of Rajasthan, the Supreme Court held that
sexual harassment of working women at her place of an employment
amounts to violation of rights of gender equality and right to life and
liberty which is clear violation of Article 14, 15 and 21 of the Indian
Constitution. The Court further observed that the meaning and content of
the fundamental rights guaranteed in the Constitution of India are of
sufficient amplitude to encompass all the facts of gender equality
including prevention of sexual harassment or abuse.
 13

Further Supreme Court in this case said that, as there is no law relating to
sexual harassment in India, therefore the provisions of International
Conventions and norms are to taken into consideration, and charted
certain guidelines to be observed at all work places or other institutions,
until a legislation is enacted for the purpose.

In Apparel Export Promotion Council V A.K. Chopra, again Supreme Court

reiterated Vishka ruling and said that attempts of sexual harassment of
female results in violation of fundamental rights to gender equality
enshrined under Article 14 an d21 of the Constitution. The Court further
stated that international instrument such as the convention on the
Elimination of All Forms of Discrimination against Women and the Beijing
Declaration casts obligations on the state to take appropriate measures to
prevent gender inequalities and protect the honour and dignity of women.

Apart from theses cases there are many other cases in which the Apex
Court had given the judgments, helping to give a dignified status to the
women, for example Madhu Kishwar V State of Bihar, Gaurav Jain V Union
of India, Delhi Domestic Working Women?s Forum V Union of India,
Bodhisathwa Gautam V Subhra Chakraborty.

In spite of having so many enactments dealing with women and judgments

of the Supreme Court protecting women the downtrodden and poor
conditions of women has not been improved and she still faces all types of
atrocities and legislature and judiciary some what fails to provide respect
to women in society.

After independence the founder father of the nation, wanted to reform the
society and were keen to establish an egalitarian society. To achieve this
end they used law as an instrument to check the gender discrimination,
number of laws, were enacted to meet this end but due to strong
patriarchal mentality and unfavourable social environment they failed to
accomplish their goal. The social engineering through law was not fully
achieved, while some rights enshrined under the enactments were
enjoyed and accepted by the society most of them remained only in
papers due to lack of public support. Many evils are still practiced on
women such as bigamy, child marriages are still in practice, dowry
demands are still on rise, and women are still harassed for dowry.
Malnutrition and illiteracy are growing at alarming rate, rape and
molestation have become daily phenomenon, and moreover still we see
women as commodity as one of the songs of the movie depicts her as Tu
cheez badi hai mast mast

It is said that the law without the public opinion is nothing but a bundle of
papers. The gap between the men and women cannot be bridged by just
enacting laws without any public support and opinion as social engineering
laws are different from penal laws which are just related to injuries and
punishment and are deterrent in nature but social engineering laws
enacted to uplift the norms of the society and are progressive in nature
and therefore it should be backed by the will of the people for whom it is
enacted. It is also be clear that centuries old practice can not be
eliminated in one or two days it take much time. And when laws are
enacted to bring radical change in society and are not backed by the will
of the people or laws are ahead of public opinion then it has to face great
resistance and opposition from the conservative thinking of the society
and they are like dead law, which have no effect on society.

In India the most of the laws were not effective as they were ahead of
public opinion and willingness of the people to change the society and give
the women the status of equality in society too lacked, so in order to give
women their respective position in the society strong public opinion should
be created trough education, seminars and by taking the help of various
other instruments of the society such as media etc, so that the people of
the society should get educated about and change their centuries old
thinking and willingly implement the laws enacted for the emancipation for
women.
 14

To improve the status of the women in the society the need of the hour is
that laws should be enacted but they should be backed by strong public
willingness and public opinion because so long as conservative social
thinking remain deep rooted in the society laws will not be able to achieve
their ends. It must be asserted that social reforms is in social thinking,
behaviour and law would be effective only if they are backed by major
section of the society.