Gender Justice and the Judiciary

By | December 27, 2021
Gender Justice and the Judiciary

Last Updated on by Admin LB

Gender Justice and the Judiciary: The willingness of the judiciary to interpret laws in harmony with ideals of the constitution and keeping in mind the demands for justice provides hope towards gender justice and the elimination of gender-based discrimination.

Introduction

Gender Justice can be defined as the just distribution of power between all the genders of the society in which all of them are valued and placed on equal footing in the society and are capable of pursuing their human rights and freedoms.[1]

‘Gender’ is a socially constructed concept of the division of roles between men and women that the society has ascribed to them, often imposed through stereotypes of ‘masculinity’ and ‘femininity’. While sex implies the biological and physiological configuration of a person. [2]

Women have for ages been viewed as the weaker sex in almost all societies and their gender roles are ascribed according to the mental image of the society, which views them as inferior to men. They are put in unequal power positions to the other half of the population that is, men due to various social, economic, educational and cultural factors etc. This perception of ‘men’ as the superior not only put women but other ignored genders in a weaker position to them.

These stereotypes of men being the master and women being the slaves are also legitimized through certain penal legislation such as the ban on homosexuality, anti-abortion laws etc., that not only project men as ‘dominant ones’ but also restrict the autonomy of women over their dignity, mind, body and economic resources.

The subordinate position of women is elevated by a host of factors such as illiteracy, the economic dependence of women over their male counterparts. However, the progressive constitutional provisions, the international conventions and treaties and the changing ideology and outlook of the society have increased the demand for a more balanced society.

The Constitution elucidates these values enshrined in various articles. Article 14 provides for the equality of all citizens. Article 21 provides for the right to a dignified life, Article 51A(e) renounces practices derogatory to women. The Directive Principles of the State Policy provide for equal pay for equal work via. Article 39(d). Article 42 provides for state provisions for securing just and humane conditions of work and maternity relief. [3]

Further, legislations such as the Medical Termination of Pregnancy Act (1971), Dowry Prohibition Act (1961), Prohibition of Child Marriage Act (2006), Sexual Harassment of Women at Workplace Act (2005) also aim at creating a secure environment for women and address some of the major concerns.

The judicial system in India has also played an important role in the interpreting of laws in a manner that uphold the rights of women. Judgements have recognized not only in letters but also in spirit the rights of women to equality, freedom and respect.

These judgements can be divided into the following categories:

  1. Sexual Justice
  2. Economic Justice
  3. Religious Justice

Sexual Justice

Sexual protection includes the right to bodily integrity, the right to feel safe in any given environment, the right to justice against exploitation of one’s body.

In Vishaka and others v. State of Rajasthan (1997)[4], the Supreme Court held that sexual harassment of working women at her place of employment amounts to violation of the right to gender equality and the right to life and liberty as opposed to the values laid down in Articles 14,15 and 21 of the Constitution. The Court in line with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) passed certain guidelines known as the Vishaka Guidelines to protect women from sexual harassment at workplace. This case led to the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

In Vinod Soni v. Union of India (2005)[5], the petitioners challenged the PCPNDT Act as a violation of liberty to choose the sex of the child. The High Court negated these contentions and held that the right to life did not include the right to sex selection.

In Vijay Sharma v. Union of India (2008)[6], the PCPNDT Act was challenged on the ground that parents having children of one sex should be allowed to use pre-natal or post-conception diagnostic techniques to have a child of the opposite sex. The Bombay High Court opined that sex selection was against the spirit of Law and the Constitution as it affects the dignity of woman and undermines their importance.

Thus, the very fact that the court upheld the validity of prohibition of sex selection implies a positive step towards efforts in eradication of female infanticide and homicide and preference of a male child over the female.

In Dr Mangla Dogra and Others v. Anil Kumar Malhotra (2011)[7], the High Court and Supreme Court both upheld the right of a woman to undergo an abortion without the consent of the husband as an adult woman had an unimpeachable right to give birth or terminate the pregnancy. Similarly, in the High Court on its own motion v. State of Maharashtra, the court upheld the right of women over their body and their consequent right to choose or not choose motherhood.

In Tukaram v. State of Maharashtra (1979)[8], popularly known as the ‘Mathura rape case’ the judgement of the court was criticized for holding the absence of bodily injuries or non-use of force by the victim was sufficient to rule out rape. This led to an amendment in the definition of rape under Section 375 of IPC, and even the slightest touch of the penis to the vagina was held to be sufficient to constitute rape, ejaculation and erection of penis were no longer seen as necessary to constitute the offence of rape.

In Lillu @ Rajesh and Anr. v. State of Haryana (2013)[9], the Apex court held that sole testimony of the prosecutrix is enough to record a conviction. Further, the fact that the prosecutrix was habitual to sexual intercourse cannot give anyone else the license to rape her.

In Mukesh and Anr v. State of NCT Delhi (2012)[10], also known as the Nirbhaya Case, several amendments were introduced in all three statutes by way of the Criminal Amendment Act 2013, recognizing various forms of sexual abuse, including intercourse by objects or other body parts etc. as constituting rape. It also introduced sexual harassment, stalking, voyeurism, disrobing as sexual offences.

In Joseph Shine v. Union of India (2018)[11], the court derecognized adultery as a criminal offence. Further, in Independent Thought v. Union of India (2017)[12], sexual intercourse with a girl below the age of 18 years, even if she was the wife was criminalised as rape.

Economic Justice

In C.B. Muthamma v. Union of India (1979)[13], the court declared the Indian Foreign Service (Conduct and Discipline) Rules of 1961 as unconstitutional as it required a woman to obtain the permission of the Government before solemnizing the marriage and could be removed from office anytime after marriage. In Air India v. Nargesh Mirza (1982)[14], the Supreme Court struck down the provisions of the rules which stipulated termination of services of an air hostess on her first pregnancy as the same were arbitrary.

In Richa Mishra v. State of Chhattisgarh (2016)[15] age relaxation was given to the petitioner on the ground that

“There is a bidirectional relationship between economic development and women’s empowerment defined as improving the ability of women to access the constituents of development in particular health, education. Earning opportunities, rights and political participation.”

In Secretary, Ministry of Defence v. Babita Puniya and Ors (2020)[16] the court directed the government to ensure that women officers in the army be granted permanent commission.

Religious Justice

The court in Indian Young Lawyers Association and Ors v. The State of Kerala and Ors (2018)[17] allowed the entry of women in Sabrimala temple and held that they could not be discriminated against on the basis of menstruation. In Pratibha Ranu v. Suraj Kumar (1985)[18] the court held that Stridhan is the property of a married woman and has to be placed in her custody.

In M. Ahmed Khan v. Shah Bano Begum (1985)[19] the Supreme Court granted Muslim women the right to maintenance under Section 125 of CrPC. In Shayara Bano v. Union of India (2017)[20] the court declared Triple Talaq as unconstitutional.

Conclusion

Therefore, an analysis of the various decisions of the judiciary in India reflects a determination to move from gender discrimination towards gender equality. Even though this shift has been a gradual one and there have been attempts to achieve equality in its true sense by putting all genders on a similar platform, the road to achieving complete gender equality is still a long one.

But the willingness of the judiciary to interpret laws in harmony with ideals of the constitution and keeping in mind the demands for justice provides hope towards gender justice and elimination of gender-based discrimination.


[1] GENDER JUSTICE » IILS Blog, Available Here.

[2] WHO, Gender and health, Available Here.

[3] Constitution of India

[4] AIR 1997 SC 3011

[5] 2005 Cri LJ 3408 (Bom)

[6] AIR 2008 Bom 29

[7] 2012 CIVILCC 1401

[8] 1979 AIR 185

[9] MANU/SC/0369/2013

[10] (2017) 6 SCC 1

[11] 2018 SCC OnLine SC 1676

[12] (2017) 10 SCC 800

[13] 1979 AIR 1868

[14] AIR 1981 SC 1829

[15] AIR 2016 SC 753

[16] (2020) 7 SCC 469

[17] Writ petition (civil) no.373 of 2006

[18] AIR 1985 SC 628

[19] 1985 (3) SCR 844

[20] (2017) 9 SCC 1


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