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Legislations On Gender Equality.
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LEGISLATIONS ON GENDER EQUALITY.
AUTHORED BY: DR. KHUSHBOO
Designation- Assistant Professor (Law) at Amity
University Punjab, Mohali.
ABSTRACT
Women constitute almost half of the
world’s population. Their contribution at all levels of the social milieu is
immeasurable. Erstwhile treated as a weaker sex, women have fought for their
rights, overcome barriers and become force to be reckoned with. Today, women
form a dominant proportion of the workforce in any field. From holding together
a household to running business empires and becoming nation builders, their
role in all aspects of a civilized society cannot be emphasized enough. Despite
their pivotal role in the world, women in general are not treated equal to men
in various aspects. Patriarchal ways of life render women at a socially
disadvantageous position. In terms of education, healthcare and overall growth
they often get ignored. Deprived of even the most basic necessities, women are
often forced to live a life of subjugation and prejudice. Women often face bias
at the workplace particularly in male dominated spheres and in unorganized
sectors. There is a significant gap in the distribution of income and resources
and the same is evident from the fact that women are often paid less than their
male counterparts. This goes against the basic principle of “equal pay for equal
work”. Such inequalities have been prevalent since long and are deep rooted to
the extent that they have almost taken the shape of an accepted norm. Over
time, such differences have gotten ingrained in our social systems and sprouted
various problems such as “Female Foeticide, Sexual Offences against Women,
Domestic Violence, Sexual Harassment at Workplace, Dowry Offences” etc.
Keys
Words : women, rights, bias ,inequality
INTRODUCTION
Women constitute almost half of the
world’s population. Their contribution at all levels of the social milieu is
immeasurable. Erstwhile treated as a weaker sex, women have fought for their
rights, overcome barriers and become force to be reckoned with. Today, women
form a dominant proportion of the workforce in any field. From holding together
a household to running business empires and becoming nation builders, their
role in all aspects of a civilized society cannot be emphasized enough. Keeping
that in mind, one would assume that discrimination against women would now be a
thing of the past. But that is not so. Despite their pivotal role in the world,
women in general are not treated equal to men in various aspects. Patriarchal
ways of life render women at a socially disadvantageous position. In terms of
education, healthcare and overall growth they often get ignored. Deprived of
even the most basic necessities, women are often forced to live a life of
subjugation and prejudice.
Women often face bias at the
workplace particularly in male dominated spheres and in unorganized sectors.
There is a significant gap in the distribution of income and resources and the
same is evident from the fact that women are often paid less than their male
counterparts. This goes against the basic principle of “equal pay for equal
work”. Such inequalities have been prevalent since long and are deep rooted to
the extent that they have almost taken the shape of an accepted norm. Over
time, such differences have gotten ingrained in our social systems and sprouted
various problems such as Female Foeticide, Sexual Offences against Women,
Domestic Violence, Sexual Harassment at Workplace, Dowry Offences etc.
In the year 2002[1],
1878 cases were registered under the Dowry Prohibition Act, 1961 and 794
incidents of dowry deaths. The Dowry Prohibition Act [2]was
enacted an early as possible as 1960 but still this problem exists in our so
called civilized society. The modernization of tradition from 19th
century onwards did not help to improve things till date. Custom is still the
same and the constitutional rights and privileges have been able to create only
an illusion of equality, liberty and dignity of women. Discrimination, degradation
and drudgery depict the deplorable situation of women. The changing social
structure instead of controlling gender violence has helped in
institutionalizing women values and belief systems.
PROVISIONS UNDER INDIAN CONSTITUTION
Preamble
The significance of three concepts of
Liberty, Equality and fraternity in the preamble, it is liberty of thought
expression, belief, faith and worship, equality of status and of opportunity
and to promote among all fraternity assuring the dignity of individuals. Dr. Ambedkar
observed “in his closing speech said,the principles of liberty, equality and
fraternity are not to be treated as separate items in a trinity. They form a
union of trinity in the sense that to divorce one from the other is to defeat
the very purpose of democracy. Liberty cannot be divorced from equality;
equality cannot be divorced from liberty. Nor can both be separated from
fraternity. Without equality liberty would produce the supremacy of the few
over many. Equality without liberty would kill individual initiative.”[3]
As Dicean concept rule of law in
Britain. Justice Thommen in Indra Sawhey
v. Union of India[4]
the constitution of India guarantees the Right to equality through 14 to 18 “
Equality is one of the magnificent corner- stones of Indian democracy. Article
14 has been given a highly activist magnitude in recent years by the courts and
thus it generates a large number of court cases. In Badappanavar v. State of Karnataka[5]
it is stated that equality is a basic feature of the Constitution of India and
any treatment of equals unequally or unequals as equally will be violation of
basic structure of constitution of India.
Fundamental Rights
Article 14 states that: The State
shall not deny to any person equality before law or equal protection of laws
within the territory of India. In Faridabad
C.T Scan Centre v. D.G.Health[6]
Services we are a country governed by rule of law. Our Constitution confers
certain rights to citizens. Every person is entitled to equality before law and
equal protection of the laws. Article 15 specifically bars “ the State from
discriminating against any citizen of India on grounds only of religion, race,
caste, sex, place of birth or any of them. Article 15(3) the State is not
prevented from making any special provision for women and children.”
The Constitution insists on equality
of status to females and it negates gender bias. With the virtue of Article
15(3) State is permitted despite of Article 15(1) to make special provision for
women. Article 15(3) recognises the fact that the women in India have been
socially and economically handicapped for centuries they cannot participate in
the socio-economic activities of the nation on a footing of equality. Reason
behind Article 15(3) is to eliminate this socio-economic backwardness of women
and to empower them in such a manner as to bring about effective equality
between men and women .Sole objective of Article 15(3) is to strengthen and
improve the status of women. This article makes clear that State may
discriminate in favour of women against men it may not discriminate in favour
of men against women.[7]
Article 16 and 14 are closely
interconnected Article 14 applies to all persons, “citizens as well as non
citizens whereas Article 16 applies only to citizens and not to non citizens.
This Article guarantees equality of opportunity to all citizens in matters
relating to employment or appointment to any office under the State. According
to Article 16(2) no citizen can be discriminated against or be ineligible for
any employment or office under the State on the grounds only of religion, race,
caste, sex, decent, place of birth or residence or any of them”.
In the case of Apparel Export Promotion Council v. A.K. Chopra[8]
court held that An incident of sexual harassment of a female at the place of
work, amounts to violation of her fundamental right to gender equality under
Article 16(2).
Directive Principles of State Policy
Article 39(d) of the Indian
Constitution is provision relating to principal of gender equality.[9]Article 42 requires the State to make
provisions for securing just and human conditions of work and for maternity
relief. U.P.S.E Borad v. Hari Shankar[10]
Referring to Article 42 and 43 the Supreme Court has emphasized that the
Constitution express a deep concern for the welfare of the workers. The courts
may not enforce Directive Principles as such but they must interpret laws so as
to further and not hinder goals set out in Directive Principles.
Article 47 obligates the State to
regard as among its primary duties the raising of the level of nutrition and
standard of living of its people and the improvement of public health. In
particular the State is to endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and drugs
which are injurious to health. Lately the Supreme Court has read Article 47and
21 together and has culled out there from the obligation on the state to
provide better health services to the poor.[11]
The Constitution 42nd
Amendment Act, 1976 breaks new ground by introducing the concept of fundamental
duties of Indian citizens in the Constitution. Part IV consisting of Article
51A has been added to Constitution which talks about renouncing practices
derogatory to dignity of female. Despite all these provisions the position of
women is still very sympathetic. She is not treated well by her in laws, family
members and discarded in the every field of the society. Only reason behind
such is non-implementation of the laws. Very little effort has been made by the
State to curb violence despite of having legislations and bye-laws. Lack of
awareness among women is the main cause of non-accessibility of these rights.[12]
POSITION OF
WOMEN UNDER OTHER LEGISLATIONS
Dowry Prohibition Act, 1961
The dowry system is prevailing in the
Hindu community since ages. Bride is considered as bringing fortune to the
family not by way of dowry but on account of the grace the lady carries with
and around her. The implied ideology governing dowry was that it was a means of
pre-mortem inheritance for girl from her parents wealth. Under Mitakshara
system a woman was not entitled to share in the parental wealth and the system
of bestowing the daughter with handsome dowry seemed to have been introduced to
overcome this restriction. According to Webster’s New Dictionary dowry means
the money, goods or estate which a woman brings to her husband in marriage.
Dowry in today’s society is a deep rooted social evil in the community at
large. The parents of bride and their relations out of affection and good
intention used to provide the couple something. The dowry system began at the
time when the girls were generally not very much educated and even if they are
educated they were unwilling to take up gainful employment. There was yet
another reason for such customary gifts as daughters was not entitled to a
share in the joint family properties when she had a brother. Present time the
dowry system has taken the ugliest form now it has become the only
consideration for settlement of marriage. It is now prevalent in upper, middle
as well as lower class.
The object behind enactment of the
Dowry Prohibition Act, 1961[13]
was explained in Bachni Devi v. State of
Haryana[14]
the object of the Act was to prohibit the giving and taking of dowry and the
protection of married woman against cruelty and violence in the matrimonial
home by her husband and her in laws. The mere demand for dowry before marriage,
at the time of marriage or any time after marriage is an offence.
Demanding, giving, taking or
agreement to give or take dowry, no doubt, are all invalid as per section 3, 4,
5 of the Dowry Prohibition Act, 1961. But, if in violation of such provisions
dowry is given and received the consequence is that the receiver is bound to
transfer the property to the woman and he is a trustee, until such transfer for
the woman.
In this Act term dowry has been
explained and inclusive definition is given as it contemplates that dowry means
property or valuable security must be given in consideration. It should be
given or agreed to be given by one party to a marriage to the other party to
the marriage or by parents or any other person, at or before or (any time after
the marriage).
Section 3 of the Act explains giving
or taking dowry and mention penalty of the offence. Section 4 makes demanding
dowry an offence. It is a penal provision which lays down that if any person
makes demand for dowry whether directly or indirectly from parents or other
relatives or guardians of a bride or even bridegroom it amounts to offence
under this section which is punishable as per the terms provided therein.
Section 5 makes agreement for giving or taking dowry shall be void. According
to section 7 of the Act offences committed under the Act are cognizable
offences and no court inferior to that of Metropolitan Magistrate or JMIC shall
try offences either on its own knowledge or on police report or on complaint
sued by an aggrieved person. Section 8 of the Act declares offences committed
under the Act as cognizable, non-bailable and non-compoundable.
Immoral Traffic (Prevention) Act, 1956 [15]
Undoubtedly the prostitution is the
oldest profession in the world and it prevails throughout the world. This
profession is being carried out in all civilized countries though it is prohibited.
Factors like unemployment, greed for luxury, population explosion and sex mania
etc are responsible for this evil. In Vishal
Jeet v. Union of India [16]Supreme
Court said that prostitution always remains a running score in the body of
civilisation and destroys all moral values. The Immoral Traffic (Prevention)
Act, 1956 contains sections as well as provisions are supplemented by the rules
framed there under. Aim of the Act is to curb and abolish traffic and
prostitution of women, children as an organized means living.
In this Act, word prostitution is
explained as sexual exploitation or abuse of persons for commercial purposes.
Brothel includes house, room, conveyance or place or portion which is used for
the purpose of prostitution for the gain of another person or for mutual gain
of two or more prostitutes. Section 3 of the Act makes provision for punishment
regarding any person who keeps or manages or assigns such keeping or manages a
brothel. Section 4 punishes a person who lives on the earnings of prostitution
partly or wholly.
All the offences committed under this
Act are cognizable, without affecting the provisions of Code of Criminal
Procedure.The constitutional mandate under Article 23[17]
is prohibition of trafficking and all forms of trafficking in human beings
including prostitution and beggary. India being signatory to International
Convention for the Suppression of Traffic in Persons and exploitation, 1950
passed central laws on trafficking.
Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994
As earlier scientific techniques are
not much advanced and it was not possible to determine the sex of the child,
killing of female child took the form of adding opium to infant’s milk or by
suffocating the infant. Now scientific and medical techniques were used for
killing female foetus which directly affect male -female ratio.
The main objectives of the Acts are:-
I.
Prohibiting the misuse of Pre-natal diagnostic
techniques for determination of sex of foetus leading to female foeticide.
II.
Prohibiting advertisements of the techniques for
detection or determination of sex.
III.
Regulating the use of techniques only for the specific
purposes of detecting genetic abnormalities or disorders.
IV.
Permitting the use of such techniques only under
certain conditions by registered institutions.
V.
Providing punishment for violation of the provisions
of the Act.
VI.
Providing deterrent punishment to stop such inhuman
acts of female foeticide.
Centre for Enquiry into Health and Allied Themes v. Union of India Supreme Court moved in to stop
illegal sex determination and directed all states to confiscate ultra-sound
equipments from clinics that are being run without licences. The Health
Secretaries of Punjab, Haryana, Delhi, Bihar, UttarPradesh, Maharashtra,Gujrat,
Andhra Pradesh, Kerala, Rajasthan and West Bengal were present to explain the
steps taken to implement PNDT (Regulation and Prevention of Misuse) Act, 1994.
Section 6 of the Act, Prohibits
Genetic Centres, Laboratories and Genetic Clinics from conducting any Pre-
natal diagnostic technique tests, including Ultra-Sonography for determining
the sex of a foetus. Section 5 of the Act and Section 6 both prohibit the
determination or communication of sex of the foetus.
The seriousness of the offence
committed under this Act is reflected by section 27 which makes every offence
under this Act cognizable, non-bailable and non-compoundable. Section 28 of the
Act specifies that no court other than that of Metropolitan Magistrate or JMIC
shall try any offence under this Act.
Sexual Harassment of Women at Workplace Act, 2013
As we know now a day’s woman try to
become independent then new form of crimes emerges sexual harassment at the
workplace. Sexual harassment is recognised as violation of women’s bodies may
extends to harm dignity and honour of women. The Government of India ratified
the CEDAW. The Declaration on Elimination of Violence Against Women states 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 occuring in
public or private life. Vishakha v. State
of Rajasthan gender equality
includes protection from sexual harassment and right to work with dignity which
is universally recognised basic human right. The common minimum requirement of
this right has received global acceptance. The International Conventions and
norms are therefore of great significance in the formulation of the guidelines
to achieve this purpose.
The Sexual Harassment Act was enacted
with the objective of providing women protection against sexual harassment at
workplace and for the prevention and redressal of complaints of sexual
harassment. It is
violation of fundamental right of a woman to equality as guaranteed under
Article 14 and 15 of Constitution of India and her right to life and to live
with dignity as per Article 21.
Medical Termination of Pregnancy Act, 1971
The objective of this Act
is to provide for the termination of pregnancy by registered medical
practitioners where its continuance would involve a risk to the life of the
pregnant woman or would cause grave injury to her physical or mental health or
where there is substantial risk that if the child were born it would suffer
from such physical or mental abnormalities as to be seriously handicapped.
Where the pregnancy is alleged to have been caused by rape or as a result of
failure of a contraceptive used by married woman or her husband it would be
presumed to constitute grave injury to the mental health of the pregnant woman.
The Act contains eight sections dealing with various aspects like the time,
place and circumstances in which a pregnancy may be terminated by registered
medical practitioners legally.
National Commission for Women Act, 1990[18]
The object of the Act was to
constitute a National Commission for Women and to provide for matters connected
or incidental thereto. The National Commission for Women was constituted under
the Act on 31 January 1992 to exercise powers and perform functions assigned.
I.
Investigates and examines all matters relating to the
safeguards provided for women under Constitution and other laws.
II.
Presents the Central Government annually and at such
other times as the Commission may deem fit, reports upon the working of those
safeguards.
III.
Makes in such reports recommendations for the
effective implementation of those safeguards for improving the conditions of
women by the Union or any State.
IV.
Looks into complaints and takes suo motu notice of
matters relating to:-Deprivation of women’s rights. Non-implementation of laws
enacted to provide protection to women and also to achieve the objective of
equality and development.[19]
[1] National Crime Record Bureau
Report 2002.
[3] In constituent assembly on
November 25, 1949.
[4] AIR 1993 SC 477.
[5] AIR 2001 SC 260
[6] AIR 1997 SC 3801.
[8] AIR 1999 SC 625.
[9] “Article 39 (d): It states equal pay for equal work
for both men and women”.
[10] AIR 1979 SC 65.
[11] Kirloskar Brothers Ltd v. Employees State Insurance Corp., (1996) 2
SCC 682.
[12] Article 51 a (e) of Indian
Constitution: “to promote harmony and
the spirit of common brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women”.
[13] (Act No.28 of 1961).
[16] 1990(3) SCC 318.
[17] Article 23 of Indian Constitution:
Prohibits the traffic in human beings and forced labor such as begar. The
Human Trafficking is the illegal trade in human beings for the purposes of
commercial sexual exploitation, prostitution or forced labour.
[18] Act No. 20 of 1990.
[19] Dr. Anjani Kant, Law Relating to Women and Children,
Central Law Publications, Allahabad, 2006.
Article Information
Legislations On Gender Equality.
Authors: DR. KHUSHBOO
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/19
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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