Gender inclusivity in Indian Laws: Prasoon Shekhar

GENDER INCLUSIVITY IN INDIAN LAWS

Author: Prasoon Shekhar

ICFAI Law School, Dehradun

ISSN: 2581-8465

ABSTRACT

In a country like India, a patriarchal mindset has been prevalent since history. Women have always been considered inferior to men and gender differences in education and beyond are very much prevalent leading to a great inequality among the genders. Framers of the Indian Constitution have kept these things in mind and many provisions were incorporated for their treatment at par. Many provisions for providing special status to women to provide them at equality with men have also been incorporated. The legislature has also played a great role by passing several laws as per the need of time in order to remove the inequalities and also punish the offenders promoting discriminations on various occasions. Even though importance was given some emphasis for bringing them at par, ‘third gender’ did not get much importance and they still feel excluded from the mainstream. Few laws were brought for excluding them in the mainstream, but these laws have many problems and also do not find proper implementation. In the present paper, we are going to analyze various laws for gender inclusivity in India.

KEYWORDS

Gender inclusivity; Equality; Discrimination; Indian Laws; Third gender; Women.

INTRODUCTION

Gender inclusivity is a concept that supports mere equality. Its basic concept is that all the people irrespective of their gender are treated at par. It talks of the promotion of gender equality including empowerment and active participation of all the genders in social, economic, political, and cultural life. Policies need to be made for mainstreaming the dominant genders.

Women have suffered great injustices since ages in India. Practices like Sati were the things that the females had to face at that time. In sati, a widowed woman voluntarily or by force was made to end their life on her husband’s pyre. This practice was practiced among the Hindus and as per records of British East India Company, the number of known occurrences between 1813 to 1828 was 8135 whereas few other sources suggest the number between 1815 to 1828 as 7941[1]. In recent times, a woman has to face miseries due to dowry and domestic violence is still very much prevalent. People of the third gender face many more problems with regards to basic education, health care services, and other things. They have to face numerous incidents of discrimination and inappropriate behaviors towards them.

The Government of India has come up with many gender-specific laws and provisions in existing laws in order to promote gender inclusivity. Though many people oppose it and demand gender-neutral laws but it needs to be considered that Article 14 i.e, Right to Equality provides equality before the law which refers to the equal treatment of the equals. But in a country like India, the women and ‘third gender’ have faced by many miseries and special provisions are required to bring them at par else they will forever remain out of the mainstream. In the words of Colin Gonslaves, Senior Advocate: “The Law should be discriminatory for women and if it is a little discriminatory against men, it doesn’t matter. Positive discrimination in favour of women and against men is constitutionally permissible.”[2]    

STATEMENT OF PROBLEM

This paper tries to analyze the effectiveness of gender-inclusive laws in the Indian perspective. The researcher has tried to answer the following questions:

  • What constitutes gender-inclusive?
  • What are the various dimensions of gender-inclusive laws?
  • What are the effects and consequences of gender-inclusive laws?

AIMS AND OBJECTIVE

The research aims to give an exhaustive idea of the present laws in India supporting gender inclusivity and the need for effective implementation and more reforms in Indian laws for promoting equality among different genders.

HYPOTHESIS

  • There is a great need of addressing the gender discrimination prevailing in India against females and the third gender community.
  • There must be effective implementation of the presently available laws for achieving the goal of gender equality.
  • There is a great need for policies/ specific laws in order to answer the concern of gender inequalities.

METHODOLOGY/ APPROACH

In the present paper, the researcher has followed the “Deduction Method” also referred as top-down approach. The paper has been written after analyzing and analyzing opinions of various experts expressed through books, Article, magazines, Journals, and the Judgments of the Indian Courts.

SHORT LITERATURE REVIEW

Smriti Sharma in her article “Achieving Gender Equality – What works and what doesn’t” analyzes the phenomenon of discrimination against females in India and why there is a need to become women at parity for becoming a global growth leader.

Sunil Mohan, in his book “Towards Gender Inclusivity – A STUDY ON CONTEMPORARY CONCERNS AROUND GENDER (May, 2013)”, analyzed things like violence, gender, gender identity, gender neutrality, trans reservation, anti-discrimination etc. and aimed to promote discussion on issues of gender and raise public consciousness on this topic.

Anne Mikkola, in his discussion paper “Role of Gender Equality in Development – A Gender Review”[3] , analyzed the importance of gender equality and how plays a great role in the development, growth and improving their lives.

GENDER, GENDER INCLUSIVITY AND GENDER EQUALITY

As per World Health Organization, “Gender refers to the roles, behaviours, activities, attributes and opportunities that any society considers appropriate for girls and boys, and women and men. Gender interacts with, but is different from, the binary categories of biological sex.” It depends on how a person sees herself/ himself – a man, a woman, having no gender or a gender whose identity is lying within the ambit between of man and women.

Generally, people consider gender and sex as the same things such as a man and woman. But they aren’t exactly the same. Sex refers to the biological aspects of a human being identified by anatomy, produced by hormones, chromosomes and their interactions. They are assigned by birth and are generally male or female. But we often ignore the people of transgender community whose sexual organs are often unambiguous.

Gender Inclusivity talks of bringing all the genders at par so that there is no discrimination among them. It also talks for measures of promoting active participant and empowerment of dominant genders so as to bring them into mainstream. The government has come up with many gender-specific laws in order to promote the dominant gender and many policies are also being framed for the same. One Third of the seats in Panchayats and Urban Local Bodies have been reserved for the women and there is a plan to do the same in State Assemblies and in the Parliaments. 

If we talk of gender equality, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) also referred as International Bill of Rights of Women was adopted by the United Nations General Assembly in 1979. Discrimination against women is explicitly defined in the Convention and it forms up national plans to put an end on such discrimination. If we refer to UN Sustainable Development Goals, Goal 5 talks of Achieving Gender Equality and Empowering All Women and Girls. As per the report, women’s around the world only 25 percent in National Parliaments, and 36 percent in local governments in 2020.

CONSTITUTIONAL PROVISIONS

In India, the key provisions for promoting equality and gender inclusion have been enshrined in the Constitution of India. In many of the democracies established before India became independent, women did not have their basic right to vote. In the United Kingdom the women got their right to vote in 1918 whereas, in the United States of America, women got this right in 1920. The right was given to women after more than two centuries in the case of UK whereas a century in the case of United States of America after holding of the first election.

The constitution of India provided a special emphasis on promoting gender equality as the provisions were put in fundamental rights of the Constitution. Some of the provisions for the same were placed in the Directive Principles of State Policy. It paved the way for enactment of many laws for achieving the key objective. The key provisions are as follows:

  • Article 14: This article is the personification of the  Rule of Law in the Indian Constitution. It provides that every person within the territory of India should be provided with equality before law and equal protection before the law. The term ‘equality before law’ denies the States to discriminate between individuals. The term ‘equal protection before law’ provides for equal treatment of the equals. (J) P N Bhagwati in the case of Bachan Singh v. State of Punjab[4], observed that the fabric of the Indian Constitution was permeated by rule of law and rule of law prohibits arbitrariness.
  • Article 15: It prohibits any kind of discrimination in accessing public place, shops, hotels and other public places on the grounds of caste, sex, race, religion and place of birth. Clause 3 provides that states can make special provisions for: women and children. It has been provided for the gender inclusion of women.

In the case of Yusuf Abdul Aziz v. State of Bombay[5], Yusuf Abdul Aziz challenged adultery on the grounds of violation of Article 14 and 15 of the Constitution. He contended that the for such offence only a man can be convicted and women even acting as abettor cannot be convicted.  Court took the reference of 15(3) inserted in order to provide protection to women and the law was upheld.

  • Article 16: It provides for equal opportunities to be given to the citizens in matters of public employment. It prohibits any kind of discrimination on the ground of sex.

However, despite the provisions, it is not still a reality. Recently in the month of February, the women have achieved a great justice from the apex court wherein, it held that women have the right to equality in the army with their male counterparts.

  • Article 39: It provides for securing equal opportunities of livelihood for both man and women and equal pay for equal work for both genders.

For promoting equal pay for equal work, The Equal Remuneration Act was passed in 1976 to prevent discrimination on basis of gender and for providing equal remuneration to both men and women.

  • Article 42: It provides for just and humane conditions of working place and things like maternity benefits. These provisions are of great help to women to provide support to work.
  • Article 51(A)(e): It provides for renouncing the practices which are derogatory to the dignity of women.   

Principle of equality has been embodied in the Constitution of India to treat all the genders at par. Courts also from time to time have expanded these principles in order to promote gender equality.

PROVISIONS OF INDIAN PENAL CODE

These are various type of crimes defined under the IPC for which both the men and women can be held liable, but there are certain specific crimes provided against women which are as follows:

  • Section 304B: This section provides for dowry death. It has been one of the most sinful acts prevalent in the Indian Society where the wife/ married women are forced to request their parents/ guardianship to furnish a demand of dowry and on not doing so or not getting the desired dowry, women are made to suffer cruelty and sometimes even they are killed.
  • Section 354: It deals with the offence of outraging the modesty of women by assault. It is also referred to as molestation. This section aims to provide protection to women from any indecent behaviour which insults her modesty.
  • Section 354A: It was inserted through the Criminal Law (Amendment) Act, 2013, in order to protect the women from the offence of sexual harassment.  A person for committing an offence of making physical contact involving unwelcome overtures or a demand/ request of sexual favour or showing pornography against the will of women and making sexually coloured remarks is liable under this section.
  • Section 354B: An act or abetment like using criminal force in order to compel her to be naked or disrobe her comes within the purview of this section. It is also a gender-specific offence and only men can be held liable under this section.
  • Section 354D: It punishes the offence of stalking where a person tries to contact women despite her not having any interest. It has two offences: firstly when a man tries to continuously contact her despite her disinterest and secondly when a person monitors her by means of the internet or any other electronic communication, then he may be held liable under this section.
  • Section 376: It provides for punishment for the offence of committing rape. It provides that the offence can be committed against women only. Rape is defined under section 375 of the penal code. In simple words, it can be understood as ravishment of women by the use of force, fear or fraud. It not only causes physical injury to the victim but causes a great mental scar. 
  • Section 498A: This section was inserted in order to deal with the offences of cruelty and ill-treatment of women by husband or his relatives wither for demand of dowry or lead to her suicide or causing of grave injury. This section was inserted keeping in mind a big problem in present society but as of now, it is the most misused provision in case of broken marriages.
  • Section 509: An act of insulting the modesty of women without using any such physical force comes under the purview of this section. It provides for insulting of modesty by means of any word or gesture or act affecting the privacy of women. It is also referred to as ‘eve-teasing section’.

Despite the number of provisions present in the laws in order to protect and safeguard women, crimes against women are increasing day by day. Promoting social ethics and moral values along with making stringent punishments for committing such acts is the need of the hour.

OTHER CRIMINAL LEGISLATIONS

There are many special provisions passed by the legislature in order to safeguard and protect the women from discrimination and sufferings. Some of them are as follows:

Prevention of Women from Domestic Violence Act, 2005

The Act basically covers four types of abuses:

  • Physical Abuse: It is the use of physical force against women due to which she suffers any bodily injury or hurt. Threat of causing hurt is also covered under this part.
  • Sexual Abuse: It refers to any forced, unwanted sexual activity. It includes hurting her during sex, calling her by sexual names etc.
  • Emotional Abuse: It is a type of mental abuse which can be caused by various ways like insulting her, criticizing her continuously, name calling, blaming etc.
  • Economic Abuse: It includes act of the husband of not giving enough money required to maintain her and his children. It includes activities like forcing women not to take any type of employment etc.

In the case of Bhartiben Bipinbhai Tamboli v. State of Gujrat[6], scope of DV Act was discussed and court observed that domestic violence was rampant in India and even women has to face someday or the other in their life. However, due to social stigma and attitude of women, very less number of women approaches courts.

The major reliefs available to aggrieved under this Act are

  • Protection Orders: to protect the aggrieved and her relatives from any kind of violence committed by the respondent,
  • Residence Order: in order to ensure that the aggrieved women have a place to reside at and if she for any reason cannot reside at shared residence, the respondent has to pay for it.
  • Monetary Orders: It deals with financial compensation for the losses incurred to the aggrieved due to the act of domestic violence of the respondent.
  • Custody Orders: It allows for temporary grant of custody of the child to women or any person on his behalf. Respondent can be prohibited from visiting the child if it is harmful for interests of child.
  • Compensation Orders: Respondent may be directed to provide compensation to the aggrieved for any losses incurred to her as a result of Domestic Violence.

Dowry Prohibition Act, 1961

The act prohibits any kind of giving or taking of dowry at the time of marriage. Dowry includes any property, cash and jewelry demanded in connection to the marriage. The act also imposes a duty on the parties to the marriage to make a list of gifts and presents including a description of the present, the approximate value of the present, the person who gave it, the relation of the person with bride and bridegroom. Also, if the dowry is given at the time of the wedding, it imposes a duty to the person who has been given dowry to give it to the bride at the time or within three months of the marriage.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Around 16 years after the judgment in Vishaka and Others v. State of Rajasthan and Others[7], where the court observed the gravity of sexual harassment in cases of working women, the government came up with a law on this.

The object of the Act was to provide protection to women from sexual harassment at workplace and provide protection and mechanism for redressal of matters related to sexual harassment. The Act makes mandatory for any employer to from an Internal Complaints Committee and for active participation of women, it mandates that one half of the members recommended to ICC are women. The act also provides for resolving of complaint by Local Complaints Committee at every district where companies do not have ICC due to less than 10 workers.

LAWS RELATING TO THIRD GENDER

Hon’ble Supreme Court in the case of National legal Service Authority v. Union of India[8], did an exhaustive review of the rights available to the people of the transgender community and compared the same to the rights available to them in India. After the said judgment, the apex court declared transgender as the ‘third gender’ for the purpose of laws made by the center and the state. The court observed that non-recognition of the third gender has resulted in denial of equal protection of law provided under Article 14 and also resulted in socio-economic discrimination in the society. The court has issued directions to the central and state governments in order to take measures for their betterment.

As a result of the judgment, Transgender Persons (Protection of Rights) Bill was introduced in the Lok Sabha in 2016, however it could not become law. Recently in 2019, again Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha and it was passed.

The Act provides for the following:

  • Prohibition of discrimination against individuals of transgender community in educational institutions, employment, right to healthcare, right to movement, right to purchase/ rent property etc.
  • Recognizing their identity: A transgender person has to submit an application before the District magistrate along with the relevant documents in order to obtain certificate of identity. Further it they undergo any change in gender, they can again approach the concerned authorities to get a revised gender certificate.
  • Welfare Measures in order to protect the rights and interest of transgender persons. 
  • Non-discrimination in employment and it is mandatory for the establishment to comply with the provisions under this Act.
  • National Council for Transgender Person: It will be headed by Union Minster, Ministry of Social Justice and Empowerment and it will advise the Central government in formulation of policies and plans for welfare of transgender, monitor the impact of those policies etc.
  • Offences and Penalties: A person shall be punished for denying transgender person usage of public place, forcing transgender person to vacate house, harming or putting life of transgender person in danger and compelling to indulge in acts of forced labour.

Though law has been passed by the parliament, it will take a long time to achieve the objectives of the Act. Changing the mindset of people is not a task that will take place by hard and fast rule but it will take good amount of time. Also, organization must educate their workforce about gender inclusivity so that the transgender do not again face problems event being part of organization. Also, laws like POSH need to be made for trans community which will be of great help.

CONCLUSION AND SUGGESTIONS

In summary, the researcher through this paper has tried to summarize many provisions and statutes for promoting gender inclusivity and gender equality in India. The different parts in the research paper give an understanding of constitutional provisions, provisions in the Indian Penal Code and several other legislations in India.

The paper highlights that the number of laws passed by the parliament in order to provide safety and protection to women with an ultimate aim to treat them at par with men. Despite that, the number of crimes against women is continuously increasing and if the same remains to be the case, the goal of achieving gender equality by means of gender inclusivity will remain to be a distant goal that can never be achieved.

The Conclusion and Suggestions can be summarized as follows:

  • The existence of females and transgender can never be denied in the society. The transgender completely consider them as neglected. We need to work for a society where each and every one considers themselves as worthy. 
  • We must strive for achieving gender equality by means of gender inclusivity through effective implementation of the laws and policies.
  • There is a fear of law to be misused. If we see some specific provisions like 498A of IPC, it has been noticed in the recent times that whenever there is conflict between husband and wife, wife goes for filing petition for 498A to give husband and his family members a lesson.
  • The need of the hour is gender inclusive laws and their effective implementation as such it leads to gender equality. As we take for example, there is ambiguity in laws related to transgender. 

BIBLIOGRAPHY

  1. Sunil Mohan, Towards Gender Inclusivity – A STUDY ON CONTEMPORARY CONCERNS AROUND GENDER, (May, 2013).
  2. Anne Mikkola, Role of Gender Equality in Development – A Gender Review (Helsinki Center of Economic Research, Discussion Paper No. 84, November, 2005).
  3. Linda Heaphy, The Practise of Sati (Widow Burning), available at: https://kashgar.com.au/blogs/history/the-practice-of-sati-widow-burning.
  4. Sonakshi Awasthi, Is India Ready for Gender Neutral Laws?, Indian Express, October 18, 2017.
  5. Teresa Tinklin, Inclusion: A Gender Perspective, Policy Futures in Education, Volume 1, Number 4, (2003).
  6. Isha Prakash, Gender Specific Laws: What the Nation Wants v. What the Nation Needs, Novermber 6, 2018.
  7. Gender-based Laws: a double-edged sword, Livemint, December 15, 2017 available at: https://www.livemint.com/Opinion/OuDS7WADss4JWEyhnb0iDN/Genderbased-laws-a-doubleedged-sword.html.
  8. Smriti Sharma, Achieving Gender Equality – What works and what doesn’t, November 8, 2016.  

[1] Linda Heaphy, The Practise of Sati (Widow Burning), available at: https://kashgar.com.au/blogs/history/the-practice-of-sati-widow-burning.

[2] Sonakshi Awasthi, Is India Ready for Gender Neutral Laws?, Indian Express, October 18, 2017.

[3] Anne Mikkola, Role of Gender Equality in Development – A Gender Review (Helsinki Center of Economic Research, Discussion Paper No. 84, November, 2005).

[4] AIR 1980 SC 898.

[5] AIR 1954 SC 321.

[6] MANU/GJ/0025/2018

[7] AIR 1997 SC 3011

[8] (2014) 5 SCC 438.

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