Indian Constitution & The Principle of Gender Equality

By Krithika Jamkhandi

The author is a 4th-year law student at Bishop Cotton Womens Christian Law College

Introduction

India is a country with a multi-cultural, multi-religious, and multi-lingual vibrancy as well as a colossal diversity of its own. The earliest society that came into prominence in the Indian subcontinent was the Indus Valley Civilisation, which happened to flourish on the banks of the holy river Sindhu, as known to all. The idealism of the Rig Vedic profession and occupation has been preserved to today’s date. It dictates our social structure, norms, etiquette, and moral order, which, to all intents and purposes, has been amalgamated into Indian culture.

Modern times have made sure to usher in towering changes in the Indian social and economic system. This is the era of burgeoning globalization and liberalization, which gives rise to high-identity-bearing political ends. Furthermore, it poses a truthful look at dividing issues. The very fabric of this deeply unstable complex makes it vital to remember the unjust socio-legal discrimination against certain classes. In a narrower partisan sense, the discourse has put unprecedented pressure on the theory of equality.

The constitutional algorithm behind it:

We usually fail to realize the organic biological mechanism that reflects the ethical dilemma in the inner realm of “Gender Equality.”Margaret Thatcher once said, “There is no such thing as society. “There is a living tapestry of men and women… and the quality of our lives will depend upon how much each of us is prepared to take responsibility for ourselves.”[1] Apparently, the new age of the 21st century revolves around the exigency of reducing inequality between genders and promoting a more equal place for all.

Philosophically, equality is a dynamic criterion. The Indian constitution envisages Article 14 as its substrata. It acts as a harbinger of transformation that aims at removing and minimizing the existing inequalities, both in public power and individual empowerment. Consequently, this fundamental right in the constitution of India is believed to be a positive right to treat any person as an equal before the law and not as a mere negative right. The core essence of the law is that one is obligated to point oneself to the right to equality. On the concept of legal equality, a renowned British jurist said, “With us, every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without any legal justification as any other citizen.”[2]

The state covers citizens, non-citizens, and also the transgender community in its ambit of rendering equal protection.[3] This opens up a new towpath to pledge and acknowledges the intersectionality of different genders. It is critical that we understand the intersectional overlay in order to identify and assist marginalized groups.

Here are deep waters. The underlying principle of this certain right denies uniform treatment of all groups. Hence, there is a “reasonable classification” that will aid the propagation of the

“Equals must be treated equally whilst unequal’s differently” objective. However, it is left to the wide discretion and judgment of the courts to determine the variety of classes of people and their occupations.

Unfortunately, there is an absence of intelligible differentia, which is the proximate cause of damage to the object of legal equality.

Article 15(3) clears the terrain and makes it impermissible to impose unjust legal discrimination on women and children. The state may enact special provisions for these two categories of people. It fills the vacuum, helps attain an egalitarian society and favours women. This article must be broadly interpreted and applied subject to the condition listed in Indra Sawhney v. Union of India that the reservation should not exceed the 50 percent limit laid down.

In the well-marshaled case of Vishaka and others v. the State of Rajasthan and others, the petition was filed for the enforcement of the rights of working women under Articles 14, 19, and 21. The serious bone of contention in this case was regarding an incident of alleged brutal gang rape of a social worker in a village in Rajasthan. Gender equality encompasses multifarious facets of protection from sexual harassment and the right to work with dignity, which are innately basic human rights. Article 51 (c) gives the state the authority to enact laws to put international conventions and norms into effect in order to combat evil. By virtue of this, these instruments become meaningfully applicable so long as they do not come into conflict with the fundamental rights and the harmonious spirit of the nation.

It is a divinely ordained fact that women are built differently as opposed to men. Giving birth to a child is a significant, organic, and enabling characteristic in a woman. In the current social milieu, there are quantified parameters that facilitate just and humane conditions of work and maternity relief for female workers in an industrial set-up mandated by the Maternity Benefit Act, 1961.

Discrimination can take various forms, ranging from gender to age, as well as being well-intentioned or malicious. We look at some of the UK’s most serious and high-profile cases.

Discriminatory behaviour, regardless of its disguise, is always destructive, which is why an increasing number of people are taking a position against it and taking employers and entire organisations to court or the employment tribunal.

As Ruth Bader Ginsburg said, “Women belong in all places where decisions are being made, and it should not be that women should be an exception.” There is an unconscious bias that further breeds populist resentment.

Elevation of a woman’s social position:

The Constitution (Seventy-third) Amendment Act, 1992 was enacted to address the imperative need to ensure that economically weaker sections such as Scheduled Castes, Scheduled Tribes, and women get a fair chance in the Panchayat Raj institutions. This bestows certain authoritative powers on those who lack financial resources and are inadequately represented [article 243 (T)(d)]. From this position of power, a wide amplitude of upliftment schemes has reached the favoured people.

The government provides monetary benefits to women in order to empower them. These include property tax exemptions, stamp duty exemptions, cheaper home loan interest rates, and home credit subsidies, among others. Under the Sukanya Samriddhi Yojana, women can open an SSY account for a girl child under the age of 10. As a parent or legitimate guardian, they can store up to 150,000 and procure a proper return of 8.5% until the youngster is 21 years of age. Both the interest and the maturity amount are tax-exempt.

In a 4:1 decision, the court decided that Sabarimala’s prohibition of women and girls from ages 10–50 violated the central privileges of women and girls, and the rule of law was violated. Lawyer J Sai Deepak had argued before the bench that if the deity of the Sabarimala Shrine can be taxed as a legal person, he also has rights under Articles 21, 25, and 26.[4] Deepak added that it was not about men against women; it was about men against men and women against women. Indu Malhotra, the lone dissenter, saw that in a mainstream nation, it was not for the courts to meddle in issues of religion, and the equivalent should be left to those who were practising the religion.

Men, women, and boys must all work together to change the way females are valued. It will need to activate a wide range of social groups. The rights of all Indian girls and boys will be realised only when society’s perceptions alter.

Empowering girls necessitates a concerted effort and partnership. Providing girls with the services, safety, education, and skills they require in everyday life can lessen the hazards they encounter and allow them to fully develop and contribute to India’s development.

In their daily lives, girls have a particularly difficult time obtaining life-saving tools, knowledge, and social networks. Access to programmes designed exclusively for females, with a focus on education and life skills development, reducing violence, and addressing the needs and contributions of girls.

Constructive ramifications:

Economic participation and opportunity, educational attainment, health and survival, and political empowerment are the four major aspects, and progress toward closing these disparities over time is being tracked. Iceland remained the most gender-equal country in the Global Gender Gap Report, 2020, released, followed by Norway, Finland, Sweden, and Nicaragua.

Out of 153 nations worldwide, India is rated 112th in the World Economic Forum’s Global Gender Gap Index 2020. India launched the National Mission for Women’s Empowerment (NMEW) in 2010, mandated to promote coordination of all programmes related to women’s welfare and their socio-economic development across all ministries. The government is leading specific initiatives focused on gender equality and other programs, not just for girls and women, but to increase access to clean water and sanitation.

For the sake of safeguarding women through a legislative lens, the National Commission for Women Act, 1992, set up a statutory body whose objectives are:

a) To investigate and review all matters related to the guarantees provided to women by the Constitution and other laws;

b) To submit a report on the work done for these guarantees to the central government.

c) Make recommendations to the federal or state governments on how to effectively implement such safeguards.

d) Review women’s-related legislation and point out deficiencies.

Deal with relevant authorities on illegal cases against women.

Investigate complaints and take action on them.

f) Strive for women’s rights.

g) Alleviate women’s suffering and ensure their welfare and relief.

h) Request additional research or investigation into specific issues or situations.

Participate in the planning process of women’s socio-economic development.

A different story has happened in the past ten years. The 17% gender gap recorded in the parliamentary elections in 1957 was reduced to just over 1% in the 2014 election. This explains why the recent surge in states considering or passing bills against female voters is testimony to this discovery, such as various states’ alcohol bans, widow’s pensions, and policies for girls’ education.

Women make up 34% of India’s entire workforce of 4.1 million individuals, according to the Indian IT industry association, the National Association of Software and Services Companies (NASSCOM). NASSCOM Vice President K S Vishwanathan said, “In India, around one-third of IT employees are women.”

The incertitude of whether equality stifles diversity:

There is an offbeat inconsistency that makes some women demand the same equal status as men. This is a sign of how the common rhetoric of “all men are trash” is being put forth, which chokes the fight for gender justice and equity. Regardless of the countless number of efforts that try to curb femininity as well as individuality, there is a synthesis between the need and importance to bring off a sea of change. It is notable that women are underrepresented in STEM fields such as science, innovation, design, and math.

The Apex court has seen that Section 497 of the Indian Penal Code (IPC) isn’t viable with standards of sex fairness. In the PIL of Joseph Shine, his advocate, Kaleeswaram Raj,[5] said a four-judge SC bench had in 1954 maintained the legitimacy of Section 497 on the ground that Article 15 of the Constitution allowed unique laws for women and children. He said at the present time, it was unfathomable that a man having sex with one more lady without her significant other’s assent or conspiracy would be indicted and face a prison term of as long as five years, while the lady, in spite of being an equivalent accomplice in the wrongdoing, would go without any consequence.

One of the most difficult conundrums is the influence of political overtones. Women have left no stone unturned in the spheres of valour, diplomacy, leadership and the judiciary. They have repeatedly demonstrated that they are not afraid to forge new paths.

The Indian Constitution gives out detailed rules for achieving gender equality in the country. If women are left behind, a country’s march toward progress can never be successful. No other branch of government could help make this de-jure equality a de facto reality. At this point, it is critical to provide light on the practical judicial stance toward women.

Because of its strong customs and various cultures, achieving absolute gender justice in India is difficult. The dismal situation of females in our society can be attributed to poor law enforcement, deep-seated sexism, lack of financial dependency, and knowledge among women. Several non-governmental organisations, human rights defenders, the United Nations, and other government institutions have spoken out against gender intolerance. Simply put, every welfare state must ensure that all genders are treated equally.

The Indian judiciary, on the other hand, creates the discourse on gender justice and continues to revise it based on internationally accepted norms. All human rights infractions have been addressed by the courts, which have ordered the government to take action. They have no choice but to stick to the Constitution and avoid going to court.

Conclusion:

Sadly, gender inequality is ineradicable, but there is a way in which we can collectively strike a balance and look towards achieving a positive attitude and spirit in society. As SDG 5 aims at empowering women and promoting the very idea of gender impartiality, there is a shift in the paradigm which has sprung fruitful results. The fact that several waves of feminism are known to have occurred at different times and in different regions makes it difficult to pinpoint exactly when they occurred. However, it is commonly acknowledged that the first wave of feminism began in the eighteenth century and lasted, in some estimates, until the franchise, and in others, until the 1960s. It was explicit in its goals and comprehensive in its promises. The demand for equal legal rights defined the claims of first-wave feminism, from Mary Wollstonecraft to the Campaign for Women’s Suffrage. Equal rights, not separate rights. Obviously, the right to vote. But there’s also the right to file for divorce, to have equal guardianship of children, and to inherit equally.

Maybe the time has come to acknowledge that disparity is a quality of human life. In the best-case scenario, people can attempt to moderate it, although it won’t ever disappear totally.

Table of cases;

State of W.B v. Anwar Ali Sarkar, AIR 1952 SC 75, 79: 1952 SCR 284

Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1

State of Gujarat v. Ambica Mills Ltd., (1974) 4 SCC 656, 678

Tigner v. Texas, 84 L Ed 1124: 310 US 1417 (1940)

Bibliography:

Sandra Fredman, “From Deference to Democracy: The Role of Equality under the Human Rights Act, 1998.”

ILO Equal Remuneration Convention, 1951 (no.100).

Steven Pinker, “The Blank Slate: The Modern Denial of Human Nature, 2003.”

‘When women thrive’ report, Mercer, October 2016.

Olive Schreiner’s Woman and Labour (1911).

Susan Faludi, “Backlash: The Undeclared War Against Women, Vintage, 1992.”