Role Of Indian Legal System In Protecting Gender Equality In India

“A gender equal society would be one where the word ‘Gender’ does not exist: where everyone can be themselves” -Gloria Stenham.

Gender inequality stems from the perception that one individual gender is superior to others.

As a result, the inferior gender is denied equal rights and protection merely on this basis. Gender equality is desirable in order to defend the interests of the 'inferior ' gender. India is unquestionably a patriarchal society, with the belief that males are superior is strongly embedded in people's mindsets. It is difficult to break out from this mentality since subsequent generations get moulded and cultured in this setting. Although women have been fighting for equal rights for a long time, their efforts have only just begun to bear fruit. Some, if not all, of their concerns and opinions, are being factored in and welcomed.

Women are no longer what they once were, in the sense that they are no longer what the 'society' wants them to be. Gender equality entails recognising the rights of the 'inferior' gender and empowering them with legal recourse against any unjust means of exploitation. The majority of these significant developments can be traced to a robust legal system that served as the foundation for upholding gender justice and shielding women from exploitation. In many instances, the legal system has acknowledged and defended women's rights, serving as a cornerstone for the success of numerous gender equality movements. It is almost certain that individuals are steadily breaking free from their entrenched mindsets in order to hear out concerns and contemplate gender equality. This progressive outcome is the consequence of a near-perfect legal and progressive legal system coupled with the commitment of the women to make their voices count, confirming that we are on the correct course.

On a fundamental level the Indian Constitution guarantees robust protection of women’s rights. Article 14 guarantees equality before law and equal protection under the law. Article 15 outlaws discrimination solely based on sexuality, although Article 15(3) authorizes the state to create special provisions for the protection of women and children. Article 16 promises equal opportunity in terms of employment to all citizens. Article 39 mandates equal payments to men and women for the same work done and Article 42 mandates ensuring proper work conditions for women with maternity relief.Furthermore Article 51(A)(e) , which is a part of Fundamental Duties, denounces actions which are derogatory and affects the dignity of women. The 73rd and 74th amendment to the constitution provided for reservation of not less than 1/3rd of the seats in the central and state governments. This also extended to the local governing bodies such as municipals and panchayats as defined under Article 243.

The strong constitutional framework is adequately supplemented by a progressive judiciary and numerous statutory provisions which enhance the social status of women and protect them from being exploited. These include the

1. Equal Renumeration Act, 1976 (Promises equal pay for equal work done irrespective of sex)

2. The Prevention of Sexual Harassment (PoSH) at Workplace Act,2013 (protects women from being abused in workplaces)

3. Criminal Law Amendment Act ,2013 (facilitated inclusion of new offences against women and enforced harsher punishment for the same)

4. Maternity Benefit Act,1961 (provided Paid maternity leave for mothers with fewer than two surviving children has been increased from 12-26 weeks . Working mothers who have adopted a child under the age of three months were also given the option of taking 12 weeks of maternity leave from the day of receiving the child, as well as the option of working from home after completing 26 weeks, in accordance to employer's agreement)

5. The Factories Act,1948 (provides for proper working conditions to protect women)

6. Employee’s State Insurance Act,1948(allows special maternity insurance benefits fro working women)

7. National Rural Employment Guarantee Act,2005(prioritises women while providing unskilled wage employment for 100 days.

8. Protection of Women from Domestic Violence Act 2005

9. Indecent Representation of Women (Prohibition) Act 1986(deals with the issues of prostitution and dignity of women)

Several pertinent judicial rulings have positively impacted the social status of women.On an

International, Level Gender equality was addressed in the United Nations Convention on the

Elimination of All Forms of Discrimination Against Women (CEDAW) being approved in 1979, and ratified by India in 1993. These guidelines have guided the Indian Courts in making appropriate decisions.

The Supreme Court in Vishaka v State of Rajasthan[1] recognized the gross exploitation of rights women by sexually harassing them in the workplace. The court ruled that such a harassment constitutes a violation of gender equality, right to life and right to liberty guaranteed under Constitution. The Court continued by stating that the spirit of the fundamental rights granted by the Indian Constitution is comprehensive enough to include all forms of gender equality, which included the protection against sexual harassment and gross abuse. By creating awareness of and accountability for sexual harassment in Indian workplaces, the Vishaka judgement seems to have had a deep impact on the general populace.This case led to the laying down of the “The Vishaka Guidelines” which prompted the legislature to formulate a legislation protecting women from sexual abuse in workplace. The Prevention of Sexual Harassment (PoSH) at Workplace Act(2013) , established as a result stands testimony to the fact that judicial activism can spur legislative actions. The women were given sufficient protection against sexual harassment under this Act

In M/s Mackinnon Mackenzie and Co. Ltd. vs. Audrey D'costa and other[2]the Supreme Court relied on the legal protection granted under the Equal Remuneration Act to address the issue of differences in the salaries of male and female stenographers. The employer's request that only women be appointed as confidential stenographers and be assigned to a distinct class was denied. The court held that the fact that only women work as confidential stenographers is not a valid argument to justify the inequality, as it is the management that appointed them in such a manner.

"Women are neither specifically qualified to be Confidential Stenographers, nor are they barred from performing the task allocated to male Stenographers because of their gender. Even if the institution has a pattern of appointing women as Confidential Stenographers, this practise cannot be relied on to deny them the equal remuneration owed to them under the Act.", the court held.

In Vineeta Sharma vs Rakesh Sharma,the Supreme Court ruled that daughters, regardless of whether they were born before the 2005 amendment to the Hindu Succession Act, 1956, shall have equal coparcenary rights in the Hindu Undivided Family(HUF) and cannot be excluded from inheriting property, thereby confirming gender justice.

The Supreme Court in Air India v. Nargesh Meerza[3] ruled that the conditions set by Air India, which compel a female airhostess to retire at 35 years of age/bearing a child/getting married, were disparaging and discriminatory exclusively on the basis of sex. They were eventually invalidated, safeguarding women's rights. In Laxmi vs Union of India4, the Supreme Court, in response to an upsurge in acid assaults on women, urged the governments to outlaw the unlicensed sale of acids throughout the country and to impose stiffer penalties for such heinous crimes.

More recently, the Supreme court in Sayara Bano v Union of India[4], declared the Triple Talaq to be unconstitutional and passed a Triple Talaq Bill(2018) in the parliament proscribing all forms of Triple Talaq. The court held that practice grossly violates the Right to equality and hence unconstitutional The Triple Talaq Bill makes declaration of talaq a cognizable offence, attracting up to three years' imprisonment with a fine.

By a 4:1 majority, the Supreme Court in permitted entry of women of all age groups to the

Sabarimala temple, holding that 'devotion cannot be subjected to gender discrimination'.[5]

Another ground-breaking judgement delivered by the Supreme Court addressed the Equal

Protection of Transgender persons. The Supreme Court in National Legal Services Authority(NALSA) vs. Union of India [6] the ‘Nalsa Judgement’), declared transgender individuals distinct from binary genders, as the ‘Third Gender’ under the Indian constitution and directed the government to include them as a third gender for the purposes of laws enacted by the State and the Central government. It granted them the Right to Self Determination upholding their right to dignity. The Indian legal framework's failure to recognise the Third Gender has resulted in continuous deprivation of equal protection under the law and pervasive socio-economic discrimination in society and Indian businesses. The Indian parliament adopted the Transgender Persons (Protection of Rights) Act, 2019 in response to the Nalsa verdict. The act provides for a robust protection of transgender rights by Prohibition of discrimination against Transgender individuals, Recognition of identity, Welfare measures, Rehabilitation and right of residence, Obligations on Establishments, Offences and penalties. The Act also provides for a National Council for Transgender Person to address the grievances in the most effective manner.

However, there are some shortcomings to the legal system. With India's jurisprudence for women having progressed this far and holding such immense potential, one glaring exception sticks out. The judicial reluctance to apply sex equality principles to personal legislation is out of place. To differing degrees, the personal laws of all of India's religions have included sex-based inequalities to the detriment of women. However, in the family court, they are frequently permitted, even if the laws are bent (sometimes to the breaking point) to create an approximation or appearance of gender equality as a consequence.

Ultimately, the Indian legal system has made significant contributions to addressing the issue of gender equality. However, the impacts of the contribution are not felt in a timely manner. There is an upsetting, and it exists as a result of the society's thinking. Personal religious laws have a direct impact on people's mentalities, and hence the social position of women and transgender individuals cannot be restored unless and until the conflicts with personal law are addressed to result in a gender neutral legislation.

Education is another direct technique to confront the public's unfavourable mindset. Proper education may help future generations see the need for and advocate for significant social reforms, with the help of the legal system. The government has been giving due attention to the education aspect .

In 2001, the Government of India enacted a National Policy for Women's Empowerment in order to achieve gender justice and equality. Several state governments have also enacted legislation aimed at empowering women. Efforts are being made at both the national and state levels to establish efficient institutional machinery to handle women's concerns. Furthermore, the Ministry of Human Resources Development established the Department of Women and Child Development in 1985. Since 2006, it has been elevated to the status of a full-fledged Ministry of Women and Child Development, with the goal of furthering the cause of women and children. State Departments of Women and Child Development and State Commissions for Women are key governmental agencies that advocate for gender issues at the state level. Women's Cells and gender budgeting efforts have been established in a number of ministries and institutions. Aside from specialised commissions and committees focused on gender issues, the Planning Commission analyses government programmes and policies for women on a regular basis.

India should work harder to fulfil its pledge to the G20 to significantly reduce gender inequities, and a robust legal system may contribute immensely to this.

[1] Vishakha and others v. State of Rajasthan ,(1997 )(6) SCC 241. [2] M/s Mackinnon Mackenzie and Co. Ltd. vs. Audrey D'costa and other,(1987) AIR 1281 SCC (2) 469. [3] Air India v. Nargesh Meerza ,AIR 1981 SC 1829. 4Laxmi vs Union of India, (2014) 4 SCC 427 [4] Sayara Bano v Union of India, AIR 2017 9 SCC 1 (SC) [5] Indian Young Lawyers Association V. The State Of Kerala ,(2019) 11 Scc 1. [6] National Legal Services Authority(NALSA) vs. Union of India, AIR 2014 SC 1863.



This article is written by Vikram Krishnan of Tamilnadu National Law University.






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