GENDER JUSTICE IN THE INDIAN CONSTITUTION
After Independence, the architects of the Indian Constitution wanted to introduce reforms and were keen to establish an egalitarian society. To achieve this end they used law as an instrument to check gender discrimination, and unfavorable social environment. While drafting the Constitution, they were sensitive to the problems faced by society in general. The Preamble, which highlights the essence of the entire Constitution, clarifies that Equality is one of the objectives of the Indian Constitution:-
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JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity o
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, The Preamble reflects the ideals and aims of the people. The Preamble starts by saying that we, the people of India, give to ourselves this Constitution. The source of the Constitution is thus traced to the people of India, irrespective of gender, caste, community, religion or sex. The Preamble contains the goal of equality of status and opportunity to all Indian citizens. This particular goal has been incorporated to give equal rights to all genders in terms of status as well as opportunity. The Constitution of India has done a magnificent job in laying down the framework which ensures gender justice in the supreme law of the country. It contains various provisions, which provide for equal rights and opportunities for all genders. The principle of gender equality is enshrined in the Indian Constitution in its Fundamental Rights, Fundamental Duties and Directive Principles. 1. FUNDAMENTAL RIGHTS (PART III)
Part III of the Constitution consisting of Articles 12-35 is the heart of the Constitution. The architects of the Constitution were conscious of the unequal treatment and discrimination meted out to the fairer sex from time immemorial and therefore included certain general as well as specific provisions for the upliftment of the status of women.
Article 14 - Equality before Law. The State shall not deny to any person equality before the law or the equal Protection of the laws within the territory of India.
Article 15 - Prohibition of discrimination on grounds of religion, race, cast, sex, or place of birth. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and palaces of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children Article 15(1) prohibits gender discrimination and Article 15(3) lifts that rigour and permits the State to positively discriminate in favor of women to make special provisions to ameliorate their social condition and provide political, economic and social justice. Article 16 - Equality of opportunity in matters of public employment.
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. (2) No citizens shall, on grounds only of religion, race, cast, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the state. The Constitution, therefore, provides equal opportunities for women implicitly as they are applicable to all persons irrespective of sex.
Article 21 - Protection of life and personal liberty. “No person shall be deprive of his life or personal liberty except according to procedure established by law
Article 23 - Prohibition of traffic in human beings and forced labour. (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
2. DIRECTIVE PRINCIPLES OF STATE POLICY (PART IV)
Article 38 requires the State to secure a social order in which justice- social, economic and political for the promotion of welfare of the people. It requires the state to strive to eliminate inequalities in status, facilities and opportunities. Clearly the intention of the architects of the Constitution was to ensure that equality would not only be of opportunity but in reality.
Article 39 puts down the principles of policy to be followed by the state which include that the state should direct its policy towards securing the right to an adequate, means of livelihood , that there is equal pay for equal work, that the health and strength of workers- men and women , are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
Article 42 requires the state to make provisions for securing just and humane conditions of work and for maternity relief
Article 46 requires the state to promote with special care the education and economic interest of the weaker sections of the citizen. Clearly then the objective is to strive towards a gender just society.
3. FUNDAMENTAL DUTIES (PART IV-A) In part IV-A of the constitution incorporated through 42nd Amendment Act, 1976, our natural obligation to renounce practices derogatory to the dignity of women has been elevated to the status of fundamental duty by article 51-A. The Equal emuneration Act, 1976, the Maternity Benefit Act, 1961, the Dowry prohibition Act, 1961 and the Immoral Traffic (Prevention) Act, 1956 are some of the enactments which owe their existance to the above mentioned provisions of the Indian Constitution.
4. LEGAL PROVISIONS THROUGH LEGISLATION To uphold the Constitutional mandate, the States have enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities. Numerous amendments have also been carried out to keep pace with the emerging requirements. The acts are as follow:1. The Plantation Labour Act, 1951 2. The Family Courts Act, 1954 3. The Special Marriage Act, 1954 4. The Hindu Marriage Act, 1955 5. The Hindu Succession Act, 1956 with amendment in 2005 6. Immoral Traffic (Prevention) Act, 1956 7. The Maternity Benefit Act, 1961 (Amended in 1995) 8. Dowry Prohibition Act, 1961 9. The Medical Termination of Pregnancy Act, 1971 10. The Contract Labour (Regulation and Abolition) Act, 1976 11. The Equal Remuneration Act, 1976 12. The Criminal Law (Amendment) Act, 1983 13. The Factories (Amendment) Act, 1986 14. Indecent Representation of Women (Prohibition) Act, 1986 15. Commission of Sati (Prevention) Act, 1987 16. The Protection of Women from Domestic Violence Act, 2005 17. The Prohibition of Child Marriage Act, 2006, etc. Protection of Property Rights and Equal Treatment in Employment
Economic empowerment is a necessary fulcrum of empowerment. They have laid emphasis on said conception and interpreted the provisions to elevate the status of women and to empower them. In Yeshaswinee Merchant, the Court had held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. The Constitution does not prohibit the employer to consider sex while making the employment decisions where this is done pursuant to a properly or legally chartered affirmative action plan. Reservation of seats for women in election to local bodies The Parliament has succeeded in its efforts to provide for reservation of seats for women in elections to the Panchayat and the Municipalities.Reservation of seats for women in Panchayats and Municipalities have been provided in Article 243D and 243T of the Constitution of India. Parts IX and IXA have been added to the Constitution by the 73rd and 74th Amendment Acts.
SPECIAL INITIATIVES FOR WOMEN
1. National Commission for Women: In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc. 2. Reservation for Women in Local Self -Government: The 73rd Constitutional Amendment Acts passed in1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas. 3. The National Plan of Action for the Girl Child (1991-2000): The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child. 4. National Policy for the Empowerment of Women, 2001: The Department of Women & Child Development in the Ministry of Human Resource Development had prepared a “National Policy for the Empowerment of Women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.
THE THIRD GENDER
According to one estimate, India has about two million transgender people. These people live on the fringes of society, often in poverty, ostracized because of their gender identity. They weren't always sidelined. Members of the transgender community have played a prominent role in Indian culture and were once treated with great respect. They find mention in the ancient Hindu scriptures and were written about in the greatest epics Ramayana and Mahabharata. They played an important role in medieval India as well, in the royal courts of the Mughal emperors. Although no Central legislation in India has openly recognised the third gender, gendersensitivity within the Indian bureaucracy has taken a small step, with “eunuchs” being given the option to enter their sex as 'E' instead of either 'M' or 'F' in passport application forms in 2005. Later in 2009, India's Election Commission gave those recognising themselves as ‘transsexuals’ an independent identity by letting them choose their gender as "other" on ballot forms, and by allowing them to contest the Lok Sabha Elections- in 2014. Four transgender candidates contested
the
elections,
two
of
them
from
major
seats-
Varanasi
and
Amethi.
It was in April, 2014 that a landmark judgment by the Supreme Court of India created the "third gender" status for hijras or transgender. Earlier, they were forced to write male or female against their gender which denied them the right of equality before the law and equal protection of law guaranteed under Article 14 and violated the rights guaranteed to them under Article 21 of the India Constitution. The Supreme Court ordered the government to give them educational and employment reservation as OBCs, but little has been done towards fulfilling that.
