This article has been written by Parijat Banchhor, final year law student. Pursuing B.A,LL.B(H) from Amity University Raipur Chhattisgarh.
Introduction
“I ask no favor for my sex. All I ask our brethren is that they take their feet off our necks.” –Ruth Bader Ginsburg U.S. Supreme court justice
Gender relation is a wide Concept ,where how gender is constructed through relationship and interaction between group and individual. “As time goes on our history, Our present, Our future evolve, revealing persistent inequality.” As we moving on with the time and perspective on our past ,recognize with future we come to know that injustice, inequality ,discrimination evolved from many dimension. The socio-legal range of Phenomena , between the “masculine” and “feminine’’ is based on behaviour and roles given by the society. Society views that human as deviant based on their conditions and make the rules or expect them to follow a certain path. The gender division is long lasting concept between men and women they cover a range where women and men discriminated in various forms. Discrimination is well known issue for women, as they face many obstacles in various stage of their lives. Common example as we seen unequal pay, limited career advancement opportunities ,societal expectations around care giving household duties . On the other side men often encounter discrimination connect to rigid gender norm as well this include masculinity emotional expression ,or societal pressure to be primary bread winner.
Achieving equal justice for both men and women in dispute is a complex issue influenced by various dynamic factors. Societal Biases often shapes perceptions leading to stereotype that can favor of one gender to other. For example women are commonly perceived as victim in domestic violence, rape, mental harassment, while men might seen as aggressor, resulting is biased treatment within in legal system. Preamble to the Constitution, which guarantees gender justice, aims to ensure social, economic, and political fairness for all citizens, including women as well as men.
“Manu smriti presents a confused and contradictory view of women’s rights. It teaches that a woman should always regard her husband as a god and a man should view his wife as an essence of a goddess. It also teaches that a girl should obey and seek protection from her father as a young lady, her husband as a young woman, and her son as a widow. Additionally, the book states that “a woman must never seek to live independently” and that “where women are revered, the gods rejoice; but where they are not, no rite bears any fruit.” The Vedas , ancient sacred text of Hinduism ,present a complex sometimes contradictory view of gender roles and justice. Vedic text and commentaries tend to emphasize male dominance in religious and social dimension. The major concept is Ardhanarishvara ,a Hindu god Shiva and Paravati ,offers a perspective on gender equality rooted in ancient Indian philosophy .
JURISPRUDENTIAL FOUNDATION OF GENDER JUSTICE
Natural and Gender justice
Natura law is a sometimes called higher law for good reason which is beyond human law . Natural law have their source in divine command, human nature, or the order of nature itself. Depending upon which dimension we are adopting of natural law as we know This unchanging and universal higher law is contrasted with human-made law, human-made law that governs the behavior of a particular group of people at a particular time. Natural law theorist has covered both human law as well natural. Human law, which governs people’s conduct, aims to guide behavior in an ethical manner as well as to direct it. The belief that the direction given by law must be toward purposes that are actually desirable or rationally valid is what distinguishes the natural law stance; law must lead behavior toward the common good.
The concept of gender justice is constructed by human, shaped by social ,cultural and historical factors it is not direct proponaite to natural law. However we might say that the principal of equality and fairness which under goes to gender justice are derived from natural law. The connection between human-made law and natural law While the fundamental principle of justice may be a part of natural law, natural law is the same for all laws, regulations, and orders.
LEGAL POSTIVISM AND GENDER JUSTICE
Jeremy Bentham and John Austion has given the legal Positivism school According to John Austin, “the existence of the law is one thing its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is another enquiry.”[1]
Positive school focuses on the validity of laws based on their enactment by legitimate authority ,Separate from the moral or social concern. This can be upholding existing power structures, including those gender inequality .The positivism talks about formal equality ,which not come under gender inequalities that gender justice ,rooted in moral and ethical consideration ,seeks to overcome through substantive equality.
Feminist jurisprudence
“Feminist Jurisprudence is a philosophy of law based on the political, economic and social equality of the sexes. It is an school of legal thoughts that encompasses so many issues as well as theories of legal issues. By analyzing the connections between gender, sexuality, power, individual rights, and the legal system as a whole, feminist jurisprudence assesses and critiques the law”.
Liberal feminism
Liberal feminism is an individual form of feminist ideology which focuses on an individual’s capacity to uphold their actions and decisions. Its main focus is on giving women the same legal and political rights as men. According to liberal feminists, society wrongly assumes that women are inherently less intelligent and physically strong than men. Liberal feminists often believe that women are unable to participate in public politics and economics because of societal and legal barriers. Due to their underlying similarities, liberal feminists insist that men and women be treated equally and that liberals adhere to their own ideals of equality and universal human rights.
Radical feminism
A particular form of feminism known as radical feminism aims for a major reshaping of society in which male dominance is abolished in all spheres of society, including the social and economic. Radical feminists challenge established social standards and systems in an effort to free everyone from an unfair society, which they regard as essentially a system of masculinity in which males rule and oppress women. This involves difficult the idea of gender roles themselves, educating the public about issues like rape and violence against women, and refusing the objectification of women for sexual interests.
Postmodern feminism
The third phase of feminism, which was influenced by the concept of postmodern took into consideration the diverse experiences of women who belonged to different racial, social class, and ethnic backgrounds. As a result, postmodern feminists rejected the notion that all women had the same difficulties. Particular issues are related to their particular history and should be considered as such. There are some similarities between black feminism and postmodern feminism. Postmodern feminists discuss many forms of feminism, such as Dalit and black feminism. They also have concepts that are similar to postcolonial feminism. Intersectionality and postmodern feminism are strongly related concepts. According to the concept of intersectionality, many racial, ethnic, and social classes interact to produce various forms of discrimination against and oppression of women.
Constitutional Provision Related To Gender Justice
The Indian Constitution enshrines the proposition of gender parity in its Directive Principles, Fundamental Duties, the Preamble, and Fundamental Rights . The Indian Constitution not only grants women equal rights, but it also gives the Center the authority to take concrete steps to address inequality on behalf of women. “In the framework of an equal polity, our policies, growth strategy, programs, and initiatives have all been designed to help women in a variety of ways. In order to provide equal protection for women, the Central Government has also ratified a large number of international human rights treaties and agreements. However, not many individuals are aware of these clauses. Everyone has to be aware of their rights and what to do if they are violated, especially those who are being taken advantage of.”
The provisions that the Indian Constitution provides to combat gender inequality. The constitutional provisions are the following:
“It mandates the State to not refuse to any individual, parity before the law or the impartial safeguard of the laws within the country of India. The ‘equality before the law’ process discovers a spot in all penned documents that ensures universal rights that all people, regardless of birth, ethnicity, gender or race, are alike before the law.“ Equal protection of laws” means impartial safeguard of laws for every individual within the region of India.”[2]
Article 15(1) – “It mandates the State to not segregate towards any person on the sole basis of sex, ethnicity, race, nationality, caste, or any of them.”[3]
Article 15(3) – “It mandates the State to prepare some special arrangement to benefit children and women. So, it declares that even though the state won’t segregate anybody, they can make exclusive provisions just for children and women for securing their stakes. At the other hand, Article 15(3) supports discussions at promoting women and children by laws such as Children\’s Sexual Harassment Act, the Domestic Violence Act, Workplace Harassment Law, Sexual Abuse Legislation (Nirbhaya Act), the Amendment to the Hindu Succession Act, and so on. This also tackles restrictions on wife\’s allowance, marital rape, Food Protection Bill restrictions.”
Article 16 – “It mandates equal opportunity for all in events concerned to education or allotment to any office within the State for all people. Article 16(1) and (2) lay down guidelines concerning equal opportunities for public-sector jobs. Nevertheless, it is specified in Article 16, Clause 3, that the said article shall nowhere preclude Parliament from passing any legislation establishing any provision of residency within that State or territory of the Union to people appointed to any office within that State, prior to recruitment or allotment to any office within that State. Article 16(4) of the Indian Constitution requires that facilities be reserved for the benefit of the deprived class of people within the State.”[4]
Constitutional Perspective
Article 39(a), Article 39(d) and Article 39A: Ensuring Economic Justice and Legal Aid
Article 39A “emphasizes the promotion of justice based on equal opportunity, ensuring that no citizen is denied access to justice due to economic or other disabilities. These articles collectively work towards establishing economic justice and equal opportunities for women.”
Article 42 and The Maternity Benefit Act, 1961
“Enacted by Article 42, The Maternity Benefit Act, 1961, underscores the State’s commitment to ensuring just and humane conditions of work and maternity relief for women. This provision is a testament to the Constitution’s concern for the health and well-being of women in the workforce.”
Fundamental Duties and Respect for Women
Article 51A(e) “of the Constitution underscores the moral obligations of every citizen to renounce practices derogatory to the dignity of women. This provision plays a critical role in fostering a culture of respect and dignity towards women, urging citizens to eliminate practices that demean or discriminate against women.”
Landmark judgements
Vishaka vs state of Rajasthan[5]
The case found that sexual harassment in the workplace violates women’s fundamental rights and is a form of discrimination against them. It gave women a tool to combat sexual harassment and a legal framework to confront it. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 was based on these guidelines .The goal of the case was to give women a safe and harassment-free workplace. It recognized that a nation’s prosperity and progress depend on women’s employment involvement. The Vishakha case gave women the confidence to report sexual harassment and pursue justice for their complaints. It contributed to raising awareness of the problem and educating individuals about workplace sexual harassment.
Mohd. Ahmed Khan v. Shah Bano Begum[6]
The Supreme Court decided that all citizens were equally covered by Section 125 of the Code of Criminal Procedure, regardless of their religious beliefs. The court made it clear that Muslims were also included by Section 125(3) of the Code of Criminal Procedure. It was underlined that Section 125 would take precedence over Muslim Personal Law in the event of a conflict .In the Shah Bano case, the Supreme Court came to the conclusion that a Muslim husband’s duty to support a divorced wife who couldn’t sustain herself went beyond the Muslim Personal Law’s iddat period. Because it left a divorced wife unable to sustain herself, the court concluded that this Muslim law provision was cruel or improper.
The court further declared that the husband’s payment of Mehar, which is a sum given upon divorce, was insufficient to release him from his obligation to support his wife.
Joseph shine vs Union of India[7]
“The Supreme Court struck down Section 497 of the IPC on the grounds that it violated Articles 14, 15 and 21 of the Constitution. The five Judge Bench unanimously, in four concurring judgments, held that the law was archaic, arbitrary and paternalistic, and infringed upon a woman’s autonomy, dignity, and privacy. Section 198(2) of the CrPC which allowed only a husband to bring a prosecution under Section 497 of the IPC was also struck down as unconstitutional.”
Navjot Singh vs Union of India[8]
The Court maintained that every member of the LGBTQI community in India has the right to equal citizenship. In order to exclude consenting sexual relationships between adults, whether they are between people of the same sex or not, it read down Section 377. Bestiality, sexual acts against children, and non-consensual sexual activity against adults will all still be covered by Section 377.
Legislative measures
These include legislations such as-
“The Criminal Law (Amendment) Act,” 2018, “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013‟, “The Protection of Women from Domestic Violence Act, 2006‟, “The Dowry Prohibition Act, 1961‟,EQUAL REMUNERATION ACT, 1976.
Challenges to Gender justice in India
Men and women both in India face gender justice issues, which need for a complete approach for developing a more just society. Concerns for women include inequality in politics and leadership positions, violence, economic inequality, and discrimination. They frequently deal with having little access to chances for employment, healthcare, and education. whereas men struggle with the pressure from society to take on the role of primary caretaker, which can result in stress and often-overlooked mental health problems. In family courts, they can encounter discrimination and the social shame attached to expressing feelings or asking for treatment.
Strong social standards and stereotypes affect people of all genders, limiting their options for social positions, careers, and personal expression. Men may face false charges in cases of domestic violence or dowry, while women deal with safety concerns and harassment at work. Men have to deal with expectations by the masculine structure of society, which mostly disadvantages women.
LGBTQ+ people experience additional forms of discrimination and legal difficulties. All genders are impacted by economic inequality, health inequities, and unequal access to resources, though often in different ways. Legal changes, legislative changes, education, and awareness campaigns that question gender norms and advance equality are necessary to address these concerns. The intention is to establish a society in which everyone, regardless of gender, has equal access to opportunities, is free to express themselves, and may livewithout thinking about discrimination or violence.
Recommendations for Strengthening Gender Justice
In order to improve the jurisprudence of gender justice in India, a comprehensive strategy is required. Adopting an integrated legal framework that takes into account the interactions between gender and caste, religion, and economic status is one way to do this. To guarantee fair processes, the courts needs to go through a thorough education about gender process. Implementing a “Uniform Civil Code” could advance gender equality in personal laws while recognizing diversity. Enforcement measures for gender-related laws need to be strengthened. Certain laws should be rendered gender-neutral to acknowledge that both men and women can be criminals or victims, and legal expression should be expanded to encompass a variety of gender identities and sexual beliefs. It is necessary to reinforce workplace jurisprudence in order to handle pay equity, harassment, and discrimination. Equal rights in marriage, divorce, inheritance, and child custody should be maintained by family law reforms. The lawful
In order to deal with gender-based online crime and issues of digital justice, the legal system must also change. Important efforts include expanding access to legal aid, encouraging public interest litigation on gender problems, promoting gender-sensitive alternative conflict resolution, and ensuring different gender representation in legislative and judicial appointments. These steps can help develop a more effective legal system that handles the complex issues of gender justice in contemporary India, along with continuing legal study and compliance with international norms.
Conclusion
Strengthening gender justice jurisprudence in India requires a comprehensive approach that addresses the complex interplay of social, legal, and cultural factors affecting all genders. This involves looking at a Uniform Civil Code while honoring diversity, embracing an intersectional legal framework, and enforcing comprehensive gender sensitization in the judiciary. Reforming employment and family laws, creating strong cyber laws, expanding legal definitions to be more inclusive, and increasing up enforcement of current laws are important steps. It’s also critical to support gender-sensitive ADR, guarantee varied representation in legislative and judicial processes, and conform to international norms. The objective is to establish a more equal legal system that promotes a society in which everyone, regardless of gender, has access to opportunities, is free to express themselves, and lives without violence or prejudice. India may make progress toward realizing its constitutional promise of equality and dignity for all by attending to the demands and difficulties faced by all genders.
[2] Article 14 of the Constitution of India 1950
[3] Article 15 (1) of the Constitution of India 1950
[4] Article 16 of the constitution of India 1950
[5] Vishaka & Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241.
[6] Mohd. Ahmed Khan v. Shah Bano Begum Indian Law Reports 1985 Supreme Court 556.
[7] Joseph Shine v. Union of India Supreme Court of India 2018 SCC 3
[8] Navjot Singh Sidhu v. Union of India Supreme Court of India AIR 1995 SC 1285
