Legal

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This Blog is written by Kashish Batta from University of Petroleum and Energy Studies, Dehradun. Edited by Karan Dutt.

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INTRODUCTION

Women of India have been treated differently since time immemorial. Even after independence, women were discouraged from doing many things and were regarded as carers of the house. This type of inequality prevailed despite so many goddesses being worshiped in the country. Even today, even though there is a great improvement in gender equality compared to what it was before independence, society’s mentality towards this is still lacking somewhere.

Inequality and discrimination reside in people’s mindsets and how they deal with it. Gender equality which is there that is considered as human right but there are certain gaps in accessing the opportunities and also in the decision-making power for women and men. Empowering women is an important aspect of bringing about gender equality. Giving equal opportunities to women and guaranteeing them the same share of rights helps not only to achieve gender equality, but also in a wide range of development goals.

HISTORY

Gender equality implies that whether there are women or men, girl or boy they all must enjoy the same rights, resources, opportunities and protections. It does not require girls and boys, or women and men, to be equal, or to be treated exactly the same (UNICEF). Gender prejudices and inequalities exist in society in different forms and levels. It has existed for centuries and has prompted countries around the world to draft legislation to reduce this injustice through positive action and positive discrimination. There are differences in the workplace (working conditions, wages, sexual exploitation, etc.), at home (unequal distribution of work, domestic violence), access to health and education, property rights, during marriage or entrepreneurship or there is access to credit and a host of other areas. The path to reducing these inequalities and promoting a level playing field has therefore made it necessary to provide them with legal protection. But the path was not that easy as women’s lives were predominantly controlled by males (although to a large extent this is true even until now) who wanted to keep them subjugated.

One of the earliest known movements advocating women’s rights was perhaps that of the Shakers, which was an evangelical group that practiced gender segregation and strict celibacy. They were practitioners of gender equality. This movement took hold in America in the second half of the 18th century and put gender equality into practice. Gender equality movements reaped further ground after World War II. The United Nations and other international agencies have adopted several conventions that promote gender equality. In India, the emancipation and elevation of women began during the British rule. Although the British were initially reluctant to interfere with the social and religious mores of different religious communities, several social reformers such as Raja Ram Mohan Roy, Eshwar Chandra Vidyasagar and Jyotiba Phule have fought for women’s rights and their education and have tried to put an end to the evil customs and traditions of society. Their continuing struggles forced the British government to abolish Sati (immolation of widows), allow widows to remarry, ban child marriages and reduce illiteracy of women. The unequal social structure that favors sons over daughters considers women as a commodity and property of the male. The result was unjust inheritance and property laws, deeply rooted social belief in the inferiority of women, illiteracy, lack of adequate health care, neglect, disparity in power structures, discrimination in the workplace, harassment by the husband and in-laws and many other unfair practices in degrading the position of women in society.

CONSTITUTIONAL PROVISIONS RELATED TO GENDER EQUALITY

Gender inequality has always been and always will be a social issue in India, unless there is a desire to change it from within, on the part of both men and women. Race, color, caste, creed, religion or sex do not allow us to treat people differently. But as women have historically been discriminated against by patriarchal society, various laws have been enacted in the country that help women and fight injustice. The Constitution of India is considered as the Supreme Law. The provisions here that protect women’s rights are Articles 14 and 15 which guarantee the equality and non-discrimination of Indians, among others, on the basis of sex. Article 16 guarantees equal opportunities in public employment regardless of gender. This article also has a clause that allows the state to take affirmative actions for women such as reserving seats and seats for them in government jobs. The 73rd and 74th amendments to the Constitution ensured the reserve of seats for women in rural and urban local authorities to give them greater political voice and power. Article 51A protects the dignity of women by obliging every citizen of the country to renounce practices that are detrimental to the dignity of women. The various gender laws enacted in the country have tried to address the practices that have blocked women in society. These practices have their roots in ancient social customs and traditions that kept women inferior to men and exploited them throughout their lives. Women were exploited at home, outside the home and in the workplace. They were denied access to education and adequate health care. Equal opportunities at work have also been denied, such as lower working conditions and unequal wages. They also denied property rights. Their safety outside the home has always been threatened. Without a dowry, it is still difficult to find a spouse for her. Rape, harassment, sexual abuse, domestic violence, immoral trafficking: women face the most heinous atrocities and crimes across the country. Therefore, gender laws in India have sought to include provisions to address these vital socio-political issues.

OTHER STATUTES

• Equal Remuneration Act, 1976– Under this law, the employer must give equal pay or pay to men and women for the same work. No employer can, during the recruitment, training or transfer phase, for the same job, or for the work performed, can discriminate between men and women.

• The Criminal Law Amending Act, 2013– The 2013 law amending criminal law entered into force on February 3, 2013 on the recommendation of the Report of the Verma Committee. This law which is there has introduced some new crimes such as acid assault, sexual-harassment, voyeurism, stalking, all of which are incorporated into the Indian Penal Code.

• Sexual Harassment Of Women In The Workplace Act, 2013– The issue was first brought to light in the Vishaka case in 1992, where sexual harassment of women in the workplace was discussed and legislation passed for women. Harassing women in the workplace violates the fundamental rights of women guaranteed by Articles 14, 15 and 21 of the Indian Constitution.

• The Women’s Reservation Bill– The Women’s Reservation Bill or 108th Amendment Bill of the Constitution is a pending bill in which India plans to reserve 33 percent of all seats in the lower house of the Indian Parliament, the Lok Sabha, and in all state legislative assemblies for women. The Upper House of the Parliament has not yet voted on this bill.

• The Hindu Act Of Succession, 1956- Under the Hindu Succession Act of 1956, a certain amendment was made in 2005 which led to the removal of the discriminatory provisions. Under the law, women are granted ownership of all assets acquired before or after the signing of the law, abolishing their “limited owner” status.

• The Maternity Allowance Act, 1961– In 2017, an amendment was made to the Maternity Benefit Act of 1961. Under the Act, paid maternity leave for employees with fewer than two surviving children, from the original twelve (12) weeks to twenty-six (26) weeks, has been extended. The amendment also provided that working mothers who adopted a child under the age of three months could take 12 weeks of maternity leave from the date of the child’s reception and also allow mothers to work from home after completing 26 weeks in based on their way of working and the consent of the employer.

• The Special Marriage Act, 1954– The Special Marriage Act of 1954 provides for a special form of marriage regardless of the religion or faith the other party believes. This law replaced the Old Act of 1872.

• Dowry Prohibition Act, 1961– This law prohibits the payment or acceptance of the dowry as consideration for the marriage. The person who demands the dowry can be punished with imprisonment for up to six months, with a fine of up to 15,000 or the amount of the dowry, or imprisonment of up to 5 years.

CASE LAWS

• Vishaka v. State of Rajasthan (1997)- In this case, the court established the “Vishaka Guidelines” which are later converted into the Sexual Harassment of Women in the Workplace Act, 2013. This case concerns a Bhanwari Devi woman who was gang raped by five men as revenge. on her for leading to end a child’s marriage and to fight against the male ego in Rajasthan which was part of her job. The court found that sexual harassment constituted a clear indication of the rights under Articles 14, 15, 19 and 21 of the Indian Constitution.

• Air India v. Nargesh Meerza (1981)- In this case, the Supreme Court made an included reading of Article 14 and it was decided that employment cannot be denied to any person for reasons of sex. For the onboard services, the emphasis was on the height of youth, appearance and glamor quotient of the employees. An airline called Air India has ruled that hostes should retire if the age of 35, conceive a child, or marry earlier. These conditions were derogatory and offensive and therefore challenged in court and subsequently annulled.

• Laxmi v. Union of India (2015)- Amid the escalating acid attacks, the Supreme Court has been called upon to issue directives and suggest ways to prevent such attacks. The court authorized governments of both levels to ban the unauthorized sale of acids nationwide. This decision paved the way for the enforcement of stricter penalties for those involved in such crimes.

• Vineeta Sharma v. Rakesh Sharma (2020)- In this case, the Supreme Court ruled that the daughters have similar rights in the Hindu undivided family by birth and cannot be excluded from the agreement that they were born before the 2005 amendment to the Hindu Succession Act, 1956.

CONCLUSION

The Indian Constitution has made equality a fundamental right of all citizens of this country. Since the entry into force of the Constitution, society and values have evolved, but there are still some flaws. Some people still see a child as a burden on the family. The government, the Supreme Court and other authorities have repeatedly implemented various measures to prevent discrimination, but this still does not change the superficial thinking of people who even consider the practice of female feticide. Because of all of this, achieving absolute gender equality in a country like India continues to be a huge challenge.

REFERENCES

(1) https://indiankanoon.org/

(2) https://www.jstor.org/

(3) https://www.drishtiias.com/

(4) https://economictimes.indiatimes.com/

(5) https://indianexpress.com/article/cities/mumbai/gender-inequality-can-be-reduced-by-giving-equal-opportunities/

(6) https://indianexpress.com/article/cities/mumbai/gender-inequality-can-be-reduced-by-giving-equal-opportunities/