CONSTITUTION IMPERATIVES ON GENDER JUSTICE

“When there is oppression, the only self-respecting thing is to rise and say this shall cease today,
because my right is justice”
- Sarojini Naidu

India is one of the largest democracies that is inhibited by various religious communities. The
Indian Constitution aims at providing equality, fraternity, liberty and dignity to every citizen
irrespective of their gender. Article 14 of the Indian constitution guarantees equality before the
law, whereas Article 15 outlaws all forms of discrimination. Religious discrimination is a type of
discrimination that occurs when people are discriminated based on their religion, race, caste, sex,
and birthplace. Article15(3) allows the government to establish extraordinary arrangements.
Article 16 is in favour of women and children and it ensures that all citizens have equal access to
opportunities in a job or an appointment to a position. Women's dignity is important. In addition,
article 243(D)(3) establishes a system for reserving seats in every Panchayat for women. Article
243(D)(4) makes a comparable reservation of administrative offices. Article 243, Panchayat
Chairpersons for the purpose of reserving seats in a municipality and Article 243 T (4) for
reservation of rights in Chairpersons' offices in municipalities for ensuring women's equality and
fairness. 1

Gender Justice is often used interchangeably with ideas of gender equality, gender equity,
women’s rights and women’s empowerment. It all started with sex-selective abortions, and it's a
practise with a long history in the workplace. It is one of the most horrific and heinous forms of
gender-based violence. The Medical Council of India (MCI) passed The Pregnancy Termination
Act of 1971, as well as the Techniques for Prenatal Diagnosis (Regulation) and Prevention of
Misuse Act two empowering Acts that safeguard the woman's childbearing function and allow
prenatal screenings and abortions for women who are pregnant for unspecified reasons2.
Nonetheless, the sex of the foetus is determined, and sex-selective abortions are performed
among a quarter of a million people, according to estimates. Every year, 6.7 million abortions are
conducted by illegal providers in India and it leads to a high rate of maternal morbidity and

1
GEOGRAPHY and YOU,
https://geographyandyou.com/legislations-for-enabling-gender-justice-in-india/ (last visited Nov.
1, 2021)
2
Sneha Rao, The Medical Termination of Pregnancy (Amendment) Act, 2021- Progressive But
Not Far Enough, LIVE LAW (2 Oct, 2021, 9:19 AM)
https://www.livelaw.in/know-the-law/medical-termination-of-pregnancy-amendment-act-2021-a
nalysis-drawbacks-182913
mortality starting with the sex-selective abortion3. Gender-based violence is the worst and most
cruel. Here is an all-around lack of commitment and motivation to implement these laws in
India, forced abortion, sex identification, and sex selective abortions are rampant, resulting in an
alarming gender gap and the failure of the laws enacted for curbing these practices.

Media is not only an important means of communication, but it is also recognised as a source of
information. It protects the public interest and helps to shape gender roles in the minds of young
people. However, the representation of women in a negative light is on the rise, women are being
portrayed in a negative light as if it were a commodity. The Indecent in India Women's
Representation (Prohibition) Act, 1986 states that any type of portrayal of is prohibited which is
indecent via advertisements, novels, and pamphlets4. According to the definition of the term in
Section 2 “Indecent representation of women” that implies any type of representation of women
in an improper manner which is likely to be insulting or demeaning to women and can deprave,
corrupt, or harm the public morality or morals. The Act does not effectively address issues
involving electronic communications; the media, the internet, and mobile phones are all
examples of this. Conviction rates are low in practise, and the legal safeguards are ineffective.
The interpretation of certain portions leaves a lot to be desired to the judges' subjective nature.
Women's cybercrime is a relatively new phenomenon of gender violence has taken on a new
shape with the help of The Information Technology Act that was signed into law in the year
2000, India placed a strong emphasis on women's rights, cyber-stalking protection, pornography,
slander, and e-mail spoofing are just a few examples and e-mail harassment, morphing, to
mention a few5.

Out of the many crimes prevalent in society, rape is one of the most heinous crimes because it’s
not just an attack on the body of the person but also the soul.The Indian Penal Code, 1860, and
the Criminal Law Amendment Act, 2013 both make rape a criminal offence in India 6. Despite
the existence of strong legal restrictions, the number of rape offences continues to rise. Rape is
the most serious form of violence against women, with approximately 93 Indian women being
3
Suchitra S Dalvie (2008) Second Trimester Abortions in India, Reproductive Health Matters,
16:sup31, 37-45, DOI: 10.1016/S0968-8080(08)31384-6
4
ADV. MA Safee, Indecent Representation Of Women (Prohibition) Act, 1986 An Overview,
LEGAL SERVICE INDIA
5
Indira Sharma, Violence against women: Where are the solutions?, Indian J Psychiatry. 2015
Apr-Jun; 57(2): 131–139. doi: 10.4103/0019-5545.158133

6
Soibam Rocky Singh, Explained: The laws on rape and sexual crimes, THE HINDU
(December 08, 2019 00:02 IST),
https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30
233033.ece
raped every day, a new case of rape is registered every 22 minutes, according to the National
Crime Records Bureau. Despite the shift in public opinion, society still stigmatises rape
survivors, assigns blame, and engages in character assassination of the victim lady rather than
punishing the perpetrator. Despite Section 114A of the Indian Evidence Act of 1872, which
establishes a presumption of lack of consent in some rape proceedings, conviction rates remain
low7.

A married woman faces domestic violence, dowry demands, and various other forms of
matrimonial offences. The Protection of Women from Domestic Abuse Act of 2005 establishes a
civil law remedy for women who are in an abusive, violent relationship or who are victims of
domestic violence8. However, family members either resist or dissuade women victims from
filing a complaint under this law because of the traditional conservative value system and
reporting these crimes to the police station under the guise of family reputation and prestige
carries a stigma. Dowry is one of the social evils that leads to exploitation, harassment, and
violence, in addition to domestic violence. Indian women are discriminated against if their
family fails to provide an adequate dowry. There is an issue: a sharp increase in dowry-related
cases carries on unabated. Bride price or dowry exists throughout India, resulting in exploitation
and oppression, a woman is harassed if she brings less dowries or a "groom price”. To outlaw the
demand , as well as the giving and taking of, Dowry Prohibition Act of 1961is here, which
makes it a crime, although the law isn't clear ill-implemented, and there aren't many situations
where a document filed under this Act, and if a document is filed, the the number of convictions
is modest and absurdity in the act's interpretation violates the fundamental purpose of the Act 9.
Owing to the spirit and intent of this enactment it has yet to produce any deterring impact in the
heads of the criminals.

In the Supreme Court judgement it was ruled that the daughter can claim equal share in paternal
property irrespective of when she was born and if her father was alive or not at the time of the
2005 amendment to the Hindu Succession Act,1956. In India women were not given equal rights

7
Bhartiya Stree Shakti, Tackling Violence Against Women: A Study of State Intervention
Measures, https://wcd.nic.in/sites/default/files/Final%20Draft%20report%20BSS_0.pdf

8
Kaur, R., & Garg, S. (2008). Addressing domestic violence against women: an unfinished
agenda. Indian journal of community medicine : official publication of Indian Association of
Preventive & Social Medicine, 33(2), 73–76. https://doi.org/10.4103/0970-0218.40871
9
MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
https://wcd.nic.in/act/dowry-prohibition-act-1961 , (Last Visited Nov. 12, 2021)
in property which was quite visible from Inheritance Laws which are governed by religious
backing. 10

Women at the workplace face numerous problems ranging from problems of security, sexual
harassment, safety concerns, wage disparities, non-payment of wages, non-satisfactory childcare
facilities, to name a few. Looking at the workplace through the lens of gender justice, India has
made a number of societal improvements geared toward women's education and economic
development, all of which have aided in their independence and advancement in Indian society.
They are now responsible for new tasks at home and at work. According to the National Sample
Survey Office, women's labour participation rate in 2017-2018 was 23.3 percent. India has
adopted a number of legislation to protect women in the workplace. If we look at the reports
from the National Sample Survey Office, we may see that out of the total workforce of 46.5
crores in India, around 2.8 crore Indians work in the industry, 43.7 crores in the organised sector
sector11. The 2008 Workers' Social Security Act confirms and upholds the values of equality and
justice for women. This is the first of its kind the type of regulation that governs the unorganised
sector as well as the predicament of domestic workers by providing them with social security. In
reality, this law is ineffectual because the bulk of the people who work in the unorganised sector
are unable to realise the benefits of the market and all advantages of this beneficial Act 12. As a
result, it has made a poor showing, minimum social security and there is no definition of what is
enforceable by law, and the institutional powers to ensure effective implementation of its
provisions are not detailed.

Adultery has been in the news since a recognised timeline. The provision stated in section 497 of
IPC states that only a man who had consensual sexsual intercourse with the wife of another man
without his consent will be punished under this offence. Now according to the Supreme Court of
India adultery can only be grounds of divorce and not a criminal offence, meaning no man or
woman will be jailed13. Since this provision was arbitrary and penalises only man who had

10
Hena Singh, Swati Parashar, Supreme Court order on coparcenary rights is enormously
welcome, THE INDIAN EXPRESS (August 20, 2020 8:53:12 am),
https://indianexpress.com/article/opinion/columns/women-right-to-property-gender-equality-supr
eme-court-6561773/
11
ANNUAL REPORT,
http://mospi.nic.in/sites/default/files/publication_reports/Annual_Report_PLFS_2018_19_HL.pd
f (last visited Nov 10, 2021)

12
ABC of women workers’ rights and gender equality,
https://www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/publication/wcms_
087314.pdf (last visited Nov 12, 2021)

13
Soutik Biswas, Adultery no longer a criminal offence in india, BBC INDIA (7 September
2018), https://www.bbc.com/news/world-asia-india-45404927
sexual intercourse with the wife of another man which makes it discriminatory in nature. Woman
cannot be punished as an abettor instead man was considered to be a seducer. And, only the
husband can complain against adultery and the adulterous man’s wife had no such right. The
provision does not protect the sanctity of marriage it only protects the proprietary rights of the
husband.

A women is always compared to an angel, a men is always compared to a bold character then
why not a transgender can be called as an angelic bold person! Simply existing as a human being
is insufficient to qualify as a holder of innate rights. The purpose of the written document known
as the constitution is to enshrine legally on paper all of an individual's inherent rights, not to
enshrine the right to choose whom they apply to. Transgenders are persons who are born with
either male or female anatomies, but who experience gender expression, identity, or behaviour
that is different from their natal sex. People who identify as transgender or genderqueer try to
express their gender identity in a variety of ways. Some use their behaviour, dress, or mannerism
to live as the gender they believe is appropriate for them. They reject the traditional
understanding of gender, which is divided into male and female, and instead identify as
transgender or genderqueer. They have their own rights under the Indian Constitution, and the
Supreme Court has granted them recognition as "Third Gender" and supplied them with various
social measures. The Supreme Court of India, in National Legal Services Authority v. Union of
India & Ors. [Writ Petition (Civil) No.400 of 2012(NALSA)], issued a court ruling by a divided
bench of Justices K.S. Radhakrishnan and A.K. Sikri. Along with the masculine and female
genders, the third gender was defined14. The Court has demolished society's binary gender
framework of 'man' and 'woman' by recognising a wide range of gender identities. The case of
Navtej Singh Johar v. Union of India concerns the decriminalisation of Section 377 of the Indian
Penal Code, which stated that "voluntarily carnal intercourse against the order of nature with any
man, woman, or animal shall be punished with imprisonment for life, or with imprisonment for
ten years with a fine." The petition claims that Section 377 of the Indian criminal code violates
the right to privacy, equality, freedom of speech, and discrimination protection15. The
Transgender Person (Protection of Rights) Act of 2019 protects their rights by enabling
educational institutions supported or recognised by the government to provide education,
recreational facilities, and sports to transgender people without prejudice.

14
A Sikri, National Legal Ser.Auth vs Union Of India & Ors , INDIAN KANOON (15 April,
2014) https://indiankanoon.org/doc/193543132/
15
LEGAL SERVICE INDIA,
https://www.legalserviceindia.com/article/l392-Whether-Section-377-of-IPC-Constitutionally-Va
lid.html (last visited: 23 nov, 2021)
The 1956 Immoral Traffic Prevention Act, as reformed in 1986, is now gender-neutral
legislation16. The Act now covers both male and female sex workers, as well as people with an
ambiguous gender identification. Both male and hijra sex workers became criminal subjects as a
result of the legislation, which provides the police with a legal backing for arresting and
intimidating of transgender sex workers.

Gender equality and complete women's empowerment will not be achieved solely by enacting
gender-based laws, rules, policies, and regulations. Regular research and studies should be
conducted to keep track of their implementation. To address the current discriminatory practises,
appropriate measures should be taken. There should be a strong push to improve women's, men’s
and transgender’s conditions. This can be accomplished with the active and honest participation
of all parties involved. Finally, in order to bring gender justice, it is critical to raise awareness
about women-empowering laws, transgender rights and policies. If the constitution has provided
us with the rights, it's our duty to exercise it irrespective of what gender we are. And keep
progressing as a social animal and keep reforming our rights and attain justice in every way.

16
SCC ONLINE BLOGSPOT,
https://www.scconline.com/blog/post/tag/immoral-traffic-prevention-act/ (last visited: 24 Nov,
2021)