Open Access Research Article
GENDER DISCRIMINATION AND GENDER JUSTICE
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Article Details
GENDER
DISCRIMINATION AND GENDER JUSTICE
AUTHORED BY - LALITHA. S. &
DR. AMIT ANAND
ABSTRACT
Gender Discrimination and Gender
Justice in India remains a pervasive issue globally, with India being no
exception. This research paper undertakes to examine the complex interplay
between gender discrimination and the pursuit of gender justice within the
Indian context and legal system. This paper researches into the gender
discrimination within the Indian society and the existing legal frameworks,
cultural norms, and societal attitudes, which perpetuate gender inequalities
and hinder the realization of gender justice. Moreover, the research explores
legal cases that lead to reform and also which plays an important role in
challenging discriminatory practices and advancing gender justice agendas.
GENDER EQUALITY
Gender equality concerns each and
every member of the society and forms the very basis of a just society and
hence, the issue of “Gender Justice” is of enormous magnitude and mammoth
ramification engulfing as all-embracing and illimitable canvas. In the midnight
of 15.08.197, when India awoke to life and freedom, most of its 170 million
women scarcely knew what the “Trust with Destiny” was all about. Victims of
poverty, ignorance and oppressive social institutions and they hardly knew
their destiny and who controlled it. However, the stalwarts who lead India to
its independence were aware that if the new India of their dreams was to become
a reality and not remain only a figment of imagination it would need social
engineering on a massive scale, in respect of the backward and oppressed
sections of the society and above all, its women. Swami Vivekananda had aptly
remarked “Just as a bird could not fly
with one wing only, a nation would not march forward if the women are left
behind."[1] The
crucial question that arises for deliberation is: "Have the women been
able to reap the benefits provided for them under the Constitution of India?
The answer, unfortunately, is not encouraging. There is still a long way to go
to achieve the goals enshrined in the Constitution. In spite of special
constitutional guarantees and other legislations, crimes against women in the
form of child marriages, rape, dowry, practice of Sati, trafficking of the girl
child, prostitution domestic violence and sexual harassment are on the
increase. The review of the disabilities and constraints on women, which stem
from socio-cultural institutions, indicates that the majority of women are
still very far from enjoying the rights and opportunities guaranteed to them by
the Constitution. Justice K. Ramaswamy has also stated: "Indian women have
suffered and are suffering discrimination in silence. Self sacrifice and
self-denial are their nobility and fortitude and yet they have been subjected
to all inequities, indignities, inequality and discrimination. There are
decisions of Supreme Court under Articles 15(4) and 16(4) that reservations in
favour of SC, ST and OBC categories could not exceed 50% or could not be 100%
do not apply to a special provision in favour of women under Article 15(3) of
the Constitution.[2] Writing
of a sensuous letter to a female employee, expressing love to her, admiring her
qualities and beauty, and extending unsolicited help. Besides, sexual advances
were also alleged. Held, that female employee's grievance ought to have been
looked into according to the directions given in Vishaka v. State of Rajasthan[3]
difficult concept, legal right in its strict. Legal right is a sense is one
which is an assert able claim, enforceable before Courts and administrative
agencies, in its wider sense, a legal right has to be understood as any
advantage or benefit conferred upon a person by a rule of law; there are legal
rights which are not enforceable, though recognized by the law; there are
rights recognized by the International Court, granted by International Law, but
not enforceable; a legal right is capacity of asserting a secured interest
rather than a claim that could be asserted in the Courts.[4] It
includes not only rights conferred by statute but also those which may be
claimed independently of any statute.[5] A legal right may be defined as an advantage
or benefit conferred upon a person by a rule of law. Immunity in short is no
liability. It is an immunity from the legal power of some other person. The
correlative of immunity is disability. Disability means the absence of power.
Legal right means the right vested in a person and is available against a
person who is under a corresponding obligation and duty to respect that right
and has to act or for bear from acting in a manner so as to prevent the
violation of the right. Human rights-Definition
of. Human rights are rights of humans relating to their life, liberty, equality
and dignity. Said term would not apply to individual rights of parties even
against State arising under contract. "human rights" means the rights
relating to life, liberty, equality and dignity of the individual guaranteed by
the Constitution or embodied in the International Covenants and enforceable by
Courts in India. Fundamental rights of women. The fundamental rights are
regarded as fundamental because they are most essential for the attainment by
the individual of his intellectual, moral and spiritual status. As per Justice
P.N. Bhagwati: "These fundamental rights represent the basic values
cherished by the people of this country since the Vedic times and they are
calculated to protect the dignity of the individual and create
conditions in which every human being can develop his personality to the
fullest extent. They weave a pattern of guarantees on the basic structure of
human rights and impose negative obligations on the State not to encroach on
individual liberty in the various dimensions”. The recognition of violence
against women as a human rights violation and the implementation of legal and
policy measures to make this recognition a reality, have been pivotal goals of
the international movement for women's human rights But the extensive efforts
of women's human rights advocates, especially around the UN World Conference on
Human Rights (Vienna 1993), many concrete commitments to tackle violence
against women as a human rights abuse now exits at the international level. The
UN defines violence against women as “Any
act of gender-based violence that results in or is likely to result in,
physical sexual or psychological harm or suffering to women including threats
of such acts coercion or arbitrary deprivation of liberty, whether occurring in
public or private life”.[6]
Hence, human rights not only know no boundaries but are non- discriminatory on
the basis of sex. The office of High Commissioner of Human Rights attaches
importance to practical and creative measures to realize the human right of
women-civil, cultural, economic, and political and social rights. Report of the
UN Secretory General on violence against women, points that there can be no
human rights without women's rights. The Constitution of India provides many
safeguards to women and their rights. Preamble to the Constitution, fundamental
rights and directive principles of State Policy from the very essence of the
Constitution. Article 14 declares equality before law.
Article 15 prohibits discrimination on ground of sex. Therefore there is
prohibition against discrimination amongst other things on the ground of sex in
any provision under State. Various laws were passed for the protection and
safeguard of women and their rights like Hindu Marriage Act, 1955. Hindu
Succession Act, 1956. Hindu Guardianship Act, 1956, Dowry Prohibition Act, 1961
Maternity Benefit Act, 1951. Equal Remuneration Act. 1976. Sexual Harassment at
Workplace Act, 2001. In spite of legal provisions, the position of women
remains lower in the India social order. They are subjected to physical assault
which go against the basic human right. Rape and other sexual offences shatter
the life of a women. Despite so many laws and safeguards the case of rape and
dowry deaths are increasing and violence that are violation of human rights. An
extreme from the violation of human rights in the burning of young married
women by husbands and in-laws for not satisfying their excessive dowry demands.
A large number of these cases are reported as suicides or accidents. In India,
6.200 dowry deaths were reported in 1994. That is an average of 17 married
women were killed daily when their families to make dowry payments to the
husbands family (Moore, M. "Consumerism Fuels Dowry Death Wave," The
Washington Post, 17.3.1995). In 2000, the proportions of women who reported
attempted or completed forced sex with an intimate partner were: Brazil 10 per
cent Japan. 6.2 per cent, Peru 46.7 per cent the Thailand 29.9 per cent. In
1995-1996 the proportions of women reporting ever being physically assaulted by
an intimate partner were Egypt 34 per cent, Paraguay 10 per cent and USA 22 per
cent. (The World Report on Violence and Health (2002), World Health
Organization). A survey in Barbados revealed that one in three women was
sexually abused during childhood or adolescence. In Canada, 62 per cent of
women murdered died at the hands of an intimate male partner. In Costa Rica, 49
per cent of a group of 80 battered women reported being battered during
pregnancy, 7.9 per cent reported miscarriages as a result. Further, Part
IV of the Constitution from Articles, 3 to 51 contains what may be described as
the active obligation of the State. These Directives Principles are ideals
which are based on the concept of 'Welfare State and they fix certain goals;
social and economic; for immediate attainment by the Union and State
Governments while formulating a policy or enacting a law. According to Article
39(a), the State shall direct its policy towards securing that the citizens men
and women equally, have the right to an adequate means of livelihood. Under
Article 39(d), the State shall direct its policy towards securing equal pay for
equal work for both men and women. It imposes an obligation upon the State to
make provision for securing just and humane conditions of work and for
maternity relief. Some of the legislations which promoted the objectives of
this Article are the Workmen's Compensation Act, 1923, the Employees State
Insurance Act, 1948, the Minimum Wages Act, 1948, the Maternity Benefit Act
1961, the Payment of Bonus Act, 1965, and the like. In the case of Dattatraya
v. State of Bombay[7], the
Court held that legal provisions to give special maternity relief to women
workers under the Article 42 of the Constitution does not infringe Article
15(1). It is now a well-accepted proposition in most of the jurisdictions that
monetary or pecuniary compensation is an appropriate and indeed an effective
and sometimes perhaps the only suitable remedy for redressal of the established
infringement of the fundamental right to life of a citizen by the public
servants. Social Justice means is that as two
parties, if a deal is made without serious detriment of the other, then the
Court would with the weaker section of the society.
SOCIAL JUSTICE
Social justice is the
recognition of greater good to larger number without deprivation of accrual of
legal rights of anybody. If such a thing can be done, then, indeed, social
justice must prevail over any technical rule. It is response to the necessities
of time and situation in order to do greater good to a larger number even
though it may detract from some technical rule in favor of a party in
administering justice, whether social or legal jurisprudence has shifted
away from fine spun technicalities and
abstract rules to recognizes human beings and human needs and if this can be
full filed without depravation of legal rights of any party concerned, courts
must lean towards that if the High
Court, in the facts and circumstances of a case, has towards that, it is
improper for the Supreme Court in exercise of the discretion vested under
Article 136 of the Constitution to interfere with that decision. Justice,
social economic and political, is the preamble to our Constitution.
Administration of Justice can no longer be merely protector of legal rights but
must, whenever possible, be dispenser of social justice.[8]
CONCLUSION
Whether, male or female,
whether men or women, whoever are good in physical and mental health only can
achieve success in life and equality in society under law.
Article Information
GENDER DISCRIMINATION AND GENDER JUSTICE
Authors: Lalitha. S., Dr. Amit Anand
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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