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AN ANALYSIS OF GENDER JUSTICE FOR WOMEN IN INDIA: TRACING THE DEVELOPMENTS FROM PAST BY: SHWETA SINGH
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AN ANALYSIS OF GENDER JUSTICE FOR
WOMEN IN INDIA: TRACING THE DEVELOPMENTS FROM PAST
AUTHORED BY: SHWETA SINGH
College: Chanakya National Law
University, Patna (Bihar)
Designation: LL.M
Abstract
The early Vedic Era is said to be the golden age for women's rights,
whereby in “Taittiriya Samhita,” men and women are depicted as two wheels of a
cart, exhibiting equality between both in society. During ancient times, unlike
other cultures, there was no restriction on women’s education in India. There
are numerous accounts of learned women in ancient texts.
In the present paper, the researcher shall examine the status of gender
justice in India with reference to women. Much like other societies across the
world, Indian society was and is still plagued by the menace of patriarchy.
However, this has not always been so.
The findings highlight the necessity for a holistic approach to gender
justice, encompassing legal reforms, social interventions, and cultural
transformations. The study aims to analyse the historical trajectory of gender
justice in the nation, seeking guidance for policy initiatives and advocacy
efforts that promote gender equality and women's empowerment in India.
Keywords: Gender Justice, Empowerment, Evolution, Patriarchy, Equality.
INTRODUCTION
Law and justice are two words that
run interchangeably with each other. From the very beginning, law has been used
as a tool to achieve a “just society”; a society where “each is given
what is due to them”.[1] With
the passage of time the notion of justice developed and one such facet of
justice is Gender Justice.
Anne Marie Goetz defines gender
justice as “the ending of and if necessary, the provision of redress for
inequalities between women and men that result in subordination of women to
men. These inequalities may be in distribution of resources and opportunities
that enable individuals to build human, social, economic and political capital.
Or, they may be in conceptions of human dignity, personal dignity and rights
that deny women physical integrity and capacity to make choices about how to live
their lives”.[2]
Where Gender Justice is concerned with having choices independent of the sex to
which the person belongs, Gender injustice would mean when that person’s choice
isn’t independent and is restricted because of sex. So, Gender Justice would mean
having a free will and a right to choose hence, the core idea is right of
self-determination.[3]
As we can see in the previous
paragraph Gender Justice runs parallel to feminism and hence, is more often
confused with gender equality. Gender equality might be a tool for achieving
gender justice but it can’t be said to be gender justice in itself as for a
society to be just society it has to be a gender equal society. Yet society can
sanction a male for making feminine choices and opting for feminine role.
The term should also not be confused
with empowerment as these norms of the society not only causes injustice to
women but also to men. For instance, the pressure put on male to earn
livelihood for their family puts pressure on the male child to earn which leads
them to drop out of school and go out and work at an early age. Therefore, when
we talk about empowerment it wouldn’t just mean women empowerment but all
genders alike for the society to be a just society.
In the present paper progress will be
traced across four parameters with regard to women. They are-
i.
Equality
in Education
ii.
Equality
in Inheritance
iii.
Equality
in Representation and Participation of women in workforce
iv.
Gender
based violence.
GENDER
JUSTICE IN INDIA
Indian society is still plagued by
the menace of patriarchy but in Vedic era men and women were depicted as two
wheels of the same cart showing equality between both.[4] However Manu dictated that a woman shouldn’t
be allowed to be independent. Her dependency is earlier on her father, then her
husband and after he passes away on her son.[5]
Therefore, gender inequality between men and women lies central to issue of
gender justice in India.
i.
Equality in education
During ancient time there was no
restriction on women’s education instead Panini mentions numerous accounts
where female used to study Vedas and there were female teachers too. However,
the privilege was limited to women belonging to well to do families. Where men
were allowed to continue their education after marriage women were not allowed
to do so. So, there existed some disparity in access to education for women in
ancient India.
Gender inequality in literacy rate
can still be seen in 21st century. NSO survey mentions that female literacy is
70.3 percent in comparison to male literacy which is 84.7 percent. Government
has taken steps to level the gap by providing reservation to female in
educational institutions alongside they have launched various schemes. Some of
the important schemes such as CBSE Udaan scheme[6]
was launched by CBSE in which they provided free course material to girls and
online resources for 11th and 12th in collaboration with Ministry of Human
Resource Development and Government of India. Other important schemes related
to education are Balika Samriddhi Yojana, Mazi Kanya Bhagyashree scheme etc.[7]
ii.
Equality in Devolution of Property
Evidence can be seen that women
acquired property in ancient India in form of Gargivachaknavi competing for
cows or the wives acquiring husbands’ property by partition in Yajnavalakya.[8] If
the husband dies without a son, then widow would get the property and there
were also evidence of joint ownership of property and maintenance. Women only
had right on Stridhana but was not considered a coparcener in joint family
property in early Vedic period. Then came two schools of law that dictated the
devolution of joint family property which were Dayabhaga school and Mitakshara
school. Where the Dayabhaga school allowed women to be coparcener Mitakshara
school did not allow women to be a coparcener or a karta in HUF.[9]
Later daughters started having equal
right in self-acquired property of their parents after the commencement of
constitution but still did not get equal coparcenary right in Hindu Succession
Act,1955.[10] After
the 2005 amendment women were given equal coparcenary right and she was also
allowed to be a karta in HUF.[11]
In Vineeta Sharma v. Rakesh Sharma court further cleared the ambiguities
and said that amendment will have retroactive operation to the effect that even
if the father died before the amendment women will be coparceners.[12]
iii.
Equality in Representation and Participation of Women in Workforce
First female Prime Minister of India
was elected in 1966[13]
and first president in 2007[14]
still India ranks 127th in global ranking of women. Female
representative currently accounts for less than fifteen percent in both the
houses of parliament. The government for the first time introduced Women
Representation Bill in 1996 which sought to reserve 33 percent of seats for
women in Lok Sabha and state Legislative Assemblies. However, the Lok Sabha was
dissolved and the bill lapsed subsequent to which the effort was made again in
2008 however the bill lapsed again owing to the dissolution. Via, the 128th
Amendment Bill, 2023, the Women Reservation Bill, 2023 has been successfully
passed from the both housed of the Parliament of India. Nearly, one-third of
all seats has been reserved for women in Lok Sabha, State Legislative
Assemblies and the Legislative Assembly of the National Capital Territory of
Delhi. Additionally, this reservation will also extend to the seats reserved
for SCs and STs in Lok Sabha and State Legislative Assemblies. Article 243D of
the Constitution mandates that not less than one-third of the seats reserved
for SCs and STs should be reserved for women.[15]
The participation of female labour
force went down from 31.59 percent to 25.1 percent in 2022.[16]
This can be attributed to the disparity in education and lack of job catering
to the requirement of the women. To do away with the situation and for
increasing the participation of female workforce Government of India amended
the laws to provide better condition for women according to their needs. One
such instance is Maternity Benefit Amendment Act, 2017 which provides that
every institution having 50[17]
or more female employees to have a creche facility in addition to providing
paid maternity leaves for women of 26 weeks.[18]
Government has provided better security facilities to female employees working
in night shift under the Factories Act, 1948.
For the first time, female oriented
bill has been sanctioned i.e. Digital Personal Data Protection Bill, 2023 where
the word “she” instead of “he”, for the first time it acknowledges women in
Parliamentary law-making. This indeed is a positive approach taken by
legislation showing equal representation of women providing law making power to
them.[19]
This is a optimistic approach taken in political landscape where the women has
given platform to voice their concerns and advocate for policies that address
women’s issues. It is an essential component of women’s socio-economic and
political empowerment.
However, this passage of the bill
requires strongly political will and bipartisan support. This has historically
faced resistance from some political parties, which also raises its timely
implementation by the parameters set by the present Bill passed by Parliament
of India.[20] The
bill needs to more collaborative effort, reflecting the commitment of all
parties to gender equality in politics.
iv.
Gender Based Violence
“Gender based violence refers to any
type of harm that is perpetrated against a person or group of people because of
their factual or perceived sex, gender, sexual orientation or gender identity.”[21] It means a person becomes more prone
to danger just because of belonging to a particular gender which they would not
have been had they belonged to a different gender. Crime against women in India
increased by 15 percent in 2021. Most of the crime are registered under the
head ‘rape’, ‘kidnapping’ ‘abduction’ ‘assault on women to outrage her
modesty’ and ‘cruelty by husband or his relatives’. Government has
tried to make the policies more women friendly so that legal system is more
accessible to them. The fear of women even within the four walls of her
household shows the state of affairs. Due to friendlier policies of the
government justice has become accessible for women. One such instance is
section 113B if Indian Evidence Act where the burden of proof shifts upon the
accused to prove that it was not a dowry death.[22]
Crime rate has yet not decreased owing to the poor enforcement of statutes.
CHALLENGES
TO ATTAINING A GENDER JUST
LEGAL
SYSTEM
Our constitution guarantees equality
before law and equal protection of law to all persons.[23]
The equality that is mentioned in constitution is not mere ‘diceyan’
equality but equality with equity whereby the state has been given power to
take affirmative action for the benefit of women and children. Therefore,
Article 14 and Article 15 are the foundation upon which a gender just society
can be built. The effort of government has yielded result which is clear from
the results where from not having any share in ancestral property to having
been made karta of the family. From 9 percent literacy to 70.3 percent
literacy, we can see the position of women have improved. In spite of the
commendable achievement India still lags behind in achieving a gender just
society. Few of the challenges are:
a) Lack of awareness among masses
No law can ever be effective
till the society recognises it as unjust and sanctions it. Most of the people
are not aware of the general encroachment and violence that amounts to
injustice. A large amount of population including women are not aware about
their own rights. And hence, most of the women are not able to raise their
voice against the injustice that is happening to them and even are not able to
take the benefit of scheme that has been enacted for them by the government.
Lack of awareness is thereby one of the challenges in achieving a gender just
society.
b) Poor enforcement of statutes
Whereby the biggest tool
in hand of a person to do away with injustice is law, the entire process is
defeated if it becomes tiresome and long for the person. When statutes are not enforced
effectively it creates loopholes for individuals ultimately weakening the
fabric of the society therefore, robust enforcement is important for upholding
justice. The victim is firstly the victim of assailant and secondly it is the
victim of legal system. Therefore, most of the women do not even report the
crime.
In 2021, government
introduced a bill seeking to raise the legal age of marriage of women which was
reviewed by a committee of 30 male members and one female member[24]
in spite of its being so closely related to women interest just one woman was
involved in the whole process.
c) High rate of gender-based violence
There can be many reasons
for gender-based violence but in India it can be attributed to patriarchal and
sexist view which leads to psychological trauma, perpetuating gender
inequality, impeding socioeconomic development. The sexist views legitimise the
infliction of violence on women. Factors such as long and delayed court process
makes it easy for women to endure it rather than fight against it. Comments
such as rape happens because of women’s clothing[25]
contributes further to justification for such violence where victim is blamed
for her own situation.
d) Lack of POSH Complaint Committees in
Parliament
There was serious lack of
women in legislative houses of the country which makes their voice go unheard
and unnoticed. Sexual harassment of women at workplace is a huge concern which
leads women to not join the workforce. This issue was noticed by the Supreme
Court in 1996 itself whereby to curb the menace the court issued direction to
the government to enact statute to prevent the sexual harassment at workplace.[26]
Despite the direction of the Supreme Court government did not enact any law for
sexual harassment for a decade. In 2013, when the statute Sexual Harassment of
Women at workplace (Prevention, Prohibition and redressal) was passed the
government did not give any heed to check the efficacy of the statute. This is
the position of government when the country is witnessing a continuous dip in
female participation in labour force for several years.[27]
CONCLUSION
Gender justice stands for a just and
equitable society for everyone and it prohibits all sorts of discrimination
that takes place on the grounds of gender. Historically, women have faced all
sorts of discrimination on the grounds of gender. Earlier, they were not
allowed to have a share in ancestral property and were not even allowed to
continue with her education after marriage. Manu even went on to say that women
were inferior to men and they must always be kept in state of dependence on man
for all her life. The commencement of constitution paved a way for the women to
have equality along with equity as a right guaranteed to her by the
constitution. In this light the present paper analysed achievement of state
towards the goal of gender just society for women across 4 parameters –
I.
Education
II.
Right of Inheritance in Ancestral Property
III.
Representation in State Legislative Assemblies and
Participation in workforce
IV.
Gender based violence
Remarkable to note that the state has
made significant effort in providing equitable and just society for the women
by launching welfare policies and enacting laws relating to welfare of the
women in all the above fields. One big instance of the effort can be seen in
field of education where the literacy rate has increas3ed remarkably from 15 to
70.3 percent. In the field of personal law women now have equal right over the
ancestral property as that of men. Government has also made effort towards
making the justice delivery system more friendly for women so that the crime
does not go unreported. Various laws such as Dowry Prohibition Act, 1961 along
with its corresponding amendment in section 304B of Indian Penal Code, 1860 and
section 113B of Indian Evidence Act, 1872, Sexual Harassment of Women at
Workplace (Prohibition, Prevention and Redressal) Act, 2013, Criminal Law
Amendment Act, 2013, etc were passed to make justice more within the reach of
women.
These achievement presents a bright
picture of a just society still there are few challenges that have prevented
the state from the realisation of goal of a just society for women in India.
Women’s representation in parliament and legislative assemblies was not up to
the mark till now which led patriarchal society to adjudge the interest of
women without understanding their problems. Recently, this has been changed via
bringing the reservation bill for the women giving them tool to voice their
concern and take part in nation building. A big drawback was lack of
representation is the voices of the women go unnoticed as can be seen in the
case of sexual harassment. The government of India did not recognise it as a
serious concern till 2013 despite the continuous dip in women participation in
labour force and even in current scenario have turned a blind eye to the issue.
The government still is not checking the efficacy of these statutes and does
not maintain any record on the problem.
Since 1990s the participation of
women in workforce has also seen a dip to a big extent. The insufficiency to a
certain level can be blamed on increase in gender violence along the same time
frame. Further the matter suffers from poor enforcement of these laws even if
they are enacted the increased crime raises a question on the effectiveness of
these laws.
In conclusion it can be said that
India has made significant progress in few areas for giving a just society for
the women and at the same time it still lags behind on certain aspects and has
a long way to go in other areas. One way of improving the women workforce would
be opting for a hybrid model whereby women are allowed to work from home and
their presence is not essential and they will not be within the reach of the
perpetrator which will help women not to drop out of the job after marriage and
building a sense of security among them. Hence adopting creative measure along
with strict enforcement of laws would help India finally attain a just and
equitable society for women.
BIBLIOGRAPHY
1. PRIMARY SOURCES:
A. CONSTITUTION AND STATUTES-
1. Constitution of India, 1950.
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[1] David
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2017), <Justice (Stanford Encyclopaedia of
Philosophy)>
accessed on 3 March 2024.
[2] Anne Marie Goetz, ‘Gender Justice
Citizenship and Entitlements’ in Maitrayee Mukhopadhyay and Navsharan Singh
(eds), Gender Justice, Citizenship and Development (Zubaan, an imprint
of Kali for Women 2007).
[3] Neal Devins ‘Gender Justice and
Its Critics’ (1988) 76CLR1377 < Gender Justice and Its Critics
(jstor.org)>
accessed on 3 March 2024.
[4] Sonal Malik, ‘Status of Women in
Vedic Period’ (2022) 6 Journal of Positive School Psychology 5693.
[5] George Buhler (tr), ‘The Law of
Manu- The Sacred Books of the East’ (25edn Oxford: Clarendon Press 1886).
[6] ‘UDAAN-CBSE SCHOLARSHIP PROGRAM’ (Transforming
India) <UDAAN-CBSE Scholarship Program -
Transforming India (mygov.in)>
accessed on 4 March 2024.
[7]‘Balika Samriddhi Yojana’(Social
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Government of Meghalaya (megsocialwelfare.gov.in)> accessed on 4 March 2024.
[8] Priya Darshini, ‘Proprietary
Rights of Women in Ancient India (600
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ANCIENT INDIA (600 B.C. – 100 A.D.) on JSTOR> accessed on 4 March 2024.
[9] Jatar and Paranjape (n 9) 100.
[10] D Halder and K Jaishankar,
“Property Rights of Hindu Women: A feminist Review of Succession Laws of
Ancient, Medieval and Modern India” (2008) 24 Journal of Law and Religion 663.
[11] The Hindu Succession (Amendment)
Act,2005 (Act No. 39 of 2005), s 3 (2005 Amendment).
[12] Vineeta Sharma v. Rakesh
Sharma, (2020) 9 SCC 1.
[13] ‘Former Prime Ministers of India’
(PMINDIA) < Prime
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[14](Smt. Pratibha Devi Singh Patil)
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[15] https://www.iasexam.com/way-forward-with-the-women-reservation-bill-2023-a-critical-analysis/
[16]Ministry if Statistics &
Programme Implementation, ‘Periodic Labour Force Survey (PLFS) – Annual Report
(July, 2020- June, 2021)’ (14 June 2022<https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1833855> accessed on 4 March 2024.
[17] Maternity Benefit Act, 1961 (Act
No. 53 of 1961), s 11A.
[18] Ibid, s5(3)(A)(i).
[20]
https://www.iasexam.com/way-forward-with-the-women-reservation-bill-2023-a-critical-analysis/
[21] ‘What is Gender-based violence?’ (Council
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(coe.int)>
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[22] Indian Evidence Act 1872 (Act No.
1 of 1872), s 113B.
[23] Constitution Article 14.
[24] ‘Parliamentary panel on marriage
age has only one woman MP’ The Hindu (New Delhi, 22 January 2022) <Parliamentary panel on marriage age
has only one woman MP - The Hindu>accessed
on 6 March 2024.
[25] Nagarjun Dwarkanath, ‘Rape
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clothes: BJP MLA on Priyanka's 'right to wear bikini' remark - India Today> accessed on 6 March 2024.
[26] Vishakha and others v State of
Rajasthan, (1997) 6 SCC 241).
[27] Ministry of Statistics &
Programme Implementation (n 34).
Article Information
AN ANALYSIS OF GENDER JUSTICE FOR WOMEN IN INDIA: TRACING THE DEVELOPMENTS FROM PAST BY: SHWETA SINGH
Authors: SHWETA SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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