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The judicial approach towards gender justice in India

The judicial approach towards gender justice in India with a critical analysis of the role of judicial education in achieving gender justice.


Abstract.


The issue of gender justice has been debated over for a long time and is still one of the biggest human rights challenges. Although gender equality is a fundamental human right and is essential for a peaceful and developed society, achieving gender equality is still an unfinished business. In India, deeply-rooted cultural institutions play a major role in perpetuating gender inequality. The Indian courts often act as activists for people and a profound Indian Constitution create hope for achieving gender justice. The concept of judicial education has come up for enabling judiciary to carry out its functions with utmost competency. However, judicial education and training has its own challenges. In this paper, the researcher has looked upon relevant constitutional safeguards available to women in India as well as legislations introduced for betterment of women’s position. The researcher further looks upon the need for judicial education, especially with respect to gender equality, and the challenges faced by the aforementioned method such as alleged intrusion upon independence of judiciary, paternalistic and contradictory stands taken by judges in various cases, and inadequate addressing of issues related to gender discrimination. In addition, this paper provides suggestions for tackling those challenges for getting closer to the goal of achieving gender justice and doing away with the age-old beliefs and practices which are harmful for development of law as a whole.


Keywords: Gender, equality, justice, judiciary, education, women, discrimination, paternalistic.


Table of contents.



Heading Page number

Introduction 4-5

Constitutional safeguards for women in India 5-6

Legislations for benefitting women in India 7

Importance of and challenges to judicial education

for achieving gender justice 7-9

Suggestions and Conclusion 9-10


Introduction.

“Just as it is impossible for a bird to fly with one wing, a nation would not march forward if the women are left behind”. Women and girls represent half of the world’s population and also half of its potential. Gender equality is essential to achieve peaceful societies, with full human potential and sustainable development. Achieving gender equality and empowering the women and girls is the unfinished business of our time and one of the greatest human rights challenge in contemporary world.

‘Gender’ refers to the social roles of men and women, and boys and girls, as well as the relationship between them in a given society, at a specific time and place. Gender is the key determinant of who does what, and who has power. Gender equality means that both males and females enjoy the same rights, resources, opportunities, and protections.

Discrimination against women and girls is pervasive and a long-running phenomenon that characterises Indian society at every level. Crimes against women show an upward trend. The cultural institutions in India, particularly those of patrilineality and patrilocality play a central role in perpetuating gender inequality. Herein, the importance of judiciary arises. Judiciary is one of the three fundamental organs of the government and judicial independence serves as a foundation for rule of law and democracy and prevents any encroachment upon the rights and privileges given by the Constitution.

For long, the Indian Supreme Court has identified the constitutional culture of India to include protection of minorities’ rights and human rights in general. The concept of judicial education in India for achieving the goal of gender justice is a relatively new one and is facing various challenges. The researcher has, in this paper, further focussed briefly on the various constitutional safeguards for women in India and the women-specific legislations introduced by the Central government. Some relevant case laws have been looked upon. The importance of and challenges to judicial education have been analysed. The purpose is to find out the efficiency of the aforementioned method to achieve gender justice in current times. The researcher hypothesises that although judicial education for achieving gender justice is invaluable, it has to be freed from its internal and external challenges to be made more popular and efficient.


Constitutional Safeguards for women in India.


The Preamble of the constitution of India showcases the open mind of the constitution makers and the general purposes for which they made the constitution. The beginning of the Preamble, “We, the People of India….” includes both men and women. The Preamble wishes to render equality of status and opportunity to every man and woman and assures dignity of individuals which includes the dignity of women.


Part III provisions- This part of the Indian Constitution includes the articles 12-35 which relate to the Fundamental Rights, which are often considered as the ‘heart of the Indian Constitution’. These rights represent the basic values cherished by the people of this country and they are calculated to protect an individual’s dignity and create conditions for the proper development of every human being’s personality.


Some provisions focussing specially upon women are:-


Art. 14It provides for equality before law and equal protection of law to everyone. This article permits a classification based on intelligible differentia and a reasonable nexus of the differentia with the object to be achieved. The aforementioned article has also been used for justifying equal pay for materially equal work. This article has also been invoked to prohibit sexual harassment of working women on grounds of violation of gender equality.


  • Art.15 – It provides for non-discrimination on the grounds of religion, race, caste, sex, place of birth etc. All the laws are to be applied equally to both men and women. Art. 15 (3) enables the state to make special provisions for women and children. It is a ‘positive discrimination’ for the reason being that women are placed at an disadvantaged position in struggle for subsistence due to performance of maternal functions and physical structure and their physical well-being becomes an object of public interest.


  • Art. 16Provides for non-discrimination on grounds of race, caste, religion, sex, place of birth/residence etc. while providing public employment. Articles 15 and 16 do give prohibit any discrimination but not any preferential treatment for women, which is a positive measure in their favour.


  • Art. 21 Provides for right to life and personal liberty. The Supreme Court has upheld the right to privacy for even a woman of easy virtue. Right to life includes right to live with dignity, not mere animal existence.


  • Art. 23Provides for right against exploitation and trafficking of human beings.


Part IV provisions- Includes the articles 36-51 which are known as the Directive Principles of State Policy. They are fundamental for the governance of the country, are non-justiciable, and are based on the concept of ‘welfare-state’. Some relevant provisions are:-


  • Art. 39 (a) – Right to adequate means of livelihood for both men and women.


  • Art. 39 (d) – Equal pay for equal work for both men and women.


  • Art. 42 - State has obligation of securing just and humane conditions of work and provisions for maternity relief. This doesn’t infringe art. 15.

Article 51-A (e), which is a part of Fundamental Duties of citizens, imposes a duty to renounce practices derogatory to women.


Legislations for benefitting women in India.


In view of the aforementioned constitutional safeguards, the Central government of India has passed various legislations from time-to-time, focussing on the betterment of the women. Some of the most relevant ones are:-

  • The Protection of Women from Domestic Violence Act, 2005- Provides for the duties of shelter homes, police, magistrates, protection officers etc. Also, provides for the procedure for obtaining order of relief (Chapter IV) such as protection orders, residence orders, compensation orders etc.

  • The Indecent Representation of Women (Prohibition) Act, 1986- Came into existence for dealing with any vulgar or obscene description of women primarily in print media. Provides for the powers of police/any competent authority to enter and search for any suspicious objects. Provides for penalties in cases of violation.

  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013- In consonance with the Vishaka guidelines. Provides for constitution of Internal Complaints Committee in the workplace to address issues of sexual harassment. Lists down the duties of employer. Provides for process of making a complaint and conducting an enquiry. In consonance with Art. 21 and Art. 42 of the constitution.

  • The Immoral Traffic (Prevention) Act, 1956- Provides for punishments and penalties for keeping a brothel, living on earnings of a prostitute, procuring a person for prostitution, seducing/soliciting for purposes of prostitution etc.

  • The Criminal Law (Amendment) Act, 2013- Came into existence after the infamous Nirbhaya gang rape incidence in 2012. Introduced several new provisions in the Indian Penal Code, 1860 regarding acid attacks, sexual harassment, rape etc.


Importance of and challenges to judicial education for achieving gender justice.

The legislative provisions for the betterment of the position of women are fraught with anomalies and loopholes. The complexities faced by the victims of gender inequality for registering complaints and the prolonged duration for investigation render even the seemingly well-drafted legislations ineffective.


Judicial education is becoming integral to the standing of judiciary. The changing roles of women, the increasing recognition of plurality in communities, a need for judiciary to provide and demonstrate social accountability, and the need for judiciary for reflecting the shift in prevailing social values are some important factors for introduction of judicial education on gender and ethnic awareness.


Judicial education has been embraced to provide an acceptable means of balancing the need for accountability against that of judicial independence and the argument is that education enhances independence rather than intruding upon it.


The principal goal of judicial education is to promote change through development. Education is an agent of change which is promoted through effective learning as it can equip judiciary institutionally to cope up with challenges faced by the courts. Since the 1960s, there had been a lot of criticisms of various professions on grounds of incompetence, malevolence etc. and such criticism has come from internal members of profession, mass media, government etc. So, all the professions, including judiciary, have to carry out their duties at highest possible standards of competence and within this context, the idea of continuing professional education evolved.


However, educating judges about gender bias is very sensitive issue. It has been argued that accountability to a wider public will compromise with the independence of judiciary. This becomes a trump card whenever any innovation in judiciary is proposed.Also, the application of this education is not always as desired. The divide of public and private sphere of law, secretively entered into by the courts, has often been hypocritical. In India, the Supreme Court issued a direction to set up an All India Institute for training of higher officers of the judiciary.


Indian judiciary has received many opportunities to give gender justice a real recognition but hasn’t taken much advantage of these opportunities. Indian courts often adopt a protectionist mode for gender justice issues. It’s often argued that this protectionist mode was applied for only some years after commencement of constitution.


In the Shah Bano Begum case, the apex court didn’t adequately address the issue of gender discrimination which was the very reason for challenging the Quranic practises. In the Shayara Bano case (triple talaq case), the former Chief Justice of India J.S. Khehar interpreted Quran in a way which declares men as protectors and having a duty to maintain their women. The whole issue comes down to the courts being favourable to males, and not gender-neutral as they are thought to be.


Suggestions and Conclusion.


The judiciary has given many ‘progressive’ judgements for the betterment of position of women. As a result of some of those, the government has also been forced to adopt favourable legislations of women. However, the judiciary has also faced a lot of criticism due to its contradictory stands in various cases and also its role regarding the poor records of case disposal in the cases of violence against women.


Endeavours should be made to assess what improvements can be discerned in terms of judicial behaviour and performance. There has to be effective development of educational response through judicious employment of resources to complaints of unequal treatment which in turn, warrants scrutiny and encouragement.


Women judges can be increasingly appointed for changing the long-established demographics of the courts and leading to modernization and reform. The court’s diverse composition may help in customary practices becoming less entrenched.

A lot depends on the judge’s individual appreciation of issues at stake and the willingness to change.


The fight for obtaining gender equality is far from being over. Indian constitution is profound and explicit on equality, and Indian courts are activists for people. India is a fertile ground for achieving gender justice.

It’s high time that we see gender as a spectrum instead of two sets of opposing ideals.


About Author

RITWIK GUHA MUSTAFI

Ritwik Guha Mustafi is a 2nd year law student (BA.LL.B) in School of Law, Christ University Bangalore. The author has previously published two research papers, one essay, and one case comment in different journals and websites. The author has also attended two International conferences on Criminal Law and Gender Justice respectively. The author has also interned in Ranchi District courts, Jharkhand High Courts, and 5th Voice website. He is interested in criminal and corporate law

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