PROVISIONS RELATED WITH GENDER EQUALITY IN INDIA

Shruti Tripathi

INTRODUCTION

Judiciary play a very vital role in interpreting any Statute and then apply law. India is a country where gender inequality is very common in society and law play a very important role in neutralizing gender inequality. Law neutralize this issue by providing various provisions in the Constitution of India by providing rights for equality among all its citizens. Law helps individuals by providing various rights for equality in society like right to equal opportunity at work place, give equal salary for equal work, equality of status, etc.

The honorable courts also interpret law and acknowledged right for equality like equality of status, dignity, faith, choice, etc.

CONSTITUTION PROVISIONS RELATED WITH EQUALITY

The Constitution of India provides equality among all its citizens by mentioning various articles in the Preamble, Fundamental Rights, Fundamental Duties. Some articles related with equality are-

1. Article 14- It us one of the most important Fundamental Rights related with equality among all. This article talks about “Equality before law”, means by this law mandate state to ensure equality among all and to refuse any kind of discrimination among its citizens on the grounds of race, religions ,caste, sex and place of birth.
2. Article 15- (1) This article talks about that state shall not discriminate its citizens on the grounds of caste, race, religions, sex, place of birth or any of them.
3. And no citizens can be discriminated on any ground mentioned in the article for subject to access shops, hotels or on any public places.
4.  And also  not discriminated for using public wells, tanks or any public property law.
5. Article 16- (1) This article talks about “Equality of opportunity related with public employment” means that by this article law ensure equal opportunity to all its citizens in matter related with the employment under the state.

(2) This clause talk about that no citizens shall be discriminated on the grounds of sex, religions, caste, race, descent, place of birth, resident or any of them to any of the employees under state.

• Article 39 (a)- This Article says that every citizens have equal rights to live their livelihood.
• Article 39 (d)- This article says to pay equal to every employees according their work and not discriminate on the basis of sex.
• Article 39 A- This article promotes justice for equal opportunity and to serve free legal aid to assure favorable situation and circumstances for providing justice to every citizens.
• Article 52- This article ensure and mandate State to provide fair and reasonable working conditions for every citizens.
• Article 46- This article ensure and mandate the State to provide academic and monetary benefits to Schedule Castes and Schedule Tribes and other backwards classes for upgrading them and to ensure their status equal to the other upper classes.
• Article 47- In this article, Government is responsible for primary responsibilities which were crucial items for the society, and it is must for social change. It applies at health care sectors, safeguarding duties of government, etc.
• Article 51 (A) (e)- This article promotes nature of mutual friendship among the country persons.
• Article 243 D (4)- This article give more opportunity to women’s by reserving 1/3 seats to total number of jobs for women candidates. This more opportunity should be given to women for ensuring their upgradation in society. In previous time, men were dominant in society and women’s doesn’t have their great full position, so for ensure upgradation of women’s in society, government provide this opportunity for women’s.
• Article 243 T (4)- This article provide administration posts to Schedule Castes and Schedule Tribes in municipality.

STATUTORY PROVISIONS

Crimes under Indian Penal Code, 1860- In Indian Penal Code, 1860, there were some provisions which is related with the crimes committed with women’s. These provisions were made specially for women’s because in society most of the heinous crime were committed against women and in previous years , men’s were dominant in society, so they commit a crime and women’s were not able to take actions against them. After enactment of Indian Penal Code, 1860, women’s get some power to raise there voice against man who commit crime and get punishment for their act. Some provisions are-

1. Section 376 ( Rape)- This section says that if any man commit rape, then he is punishable with rigorous imprisonment as per term described, but not less than 10 years and which may extend for life imprisonment and with fine.
2. Section 363- 373 (Kidnapping and Abduction)- Kidnapping means taking away any person without their consent. Usually for some political reason, ransom, etc.

According to Section 359 of Indian Penal Code, 1860, there are 2 types of kidnapping-

Kidnapping from India- According to Section 360 of IPC, 1860, any person takes away beyond the boundaries of India without his/ her consent or of a person who is legally authorized by the court to consent on behalf of that person.

     Essentials-

• Take away a person beyond the boundaries of India.
• Without his/her consent.

Kidnapping from lawful guardian- According to Section 36q of IPC, 1860, taking away a minor under age of 16 years in case of male and 18 years I case of female, or any person who is of unsound mind or a person who is keeping out of the lawful guardian without their (lawful guardian) consent.

Exception- A person who take away a child or a person take in a good  believes that he is his/her guardian.

Essentials-

• Take away .
• A child or a unsound mind person.
• Out of keeping of lawful guardianship.
• Without consent of such guardian.

Punishment- According to Section 363 of IPC, 1860, if any person commit this offence, he shall be liable for imprisonment of either of description for a term which may extend to 7 years or fine or both.

According to section 362 of IPC, 1860, if any person go from one place to another by means of force or any deceitful means, it is said that abduct of person.

• Section 302, 304B (Dowry death)- This section talks about death of a women within 7 years of her marriage by husband or their relatives in the matter related with demand of dowry.
• Section 354 (Molestation)- When any man assault any women by criminal force with the intention to outrage her modesty, he shall be liable for imprisonment as per description and which may extend to 10 years or fine or both.
• Section 498 A (Cruelty by husband or their relatives against women)- When husband or their relatives commit cruelty against women either physically or mentally, they should be liable for imprisonment for term of 3 years and with fine or with both.
• Section 509 (Sexual Harassment)- When any men’s gesture, words or act are made with intention to modest woman, he shall be liable for imprisonment of term which may extend to 1 year or fine or both.

SPECIAL PROVISIONS FOR SAFETY OF WOMEN’S

Some special provisions were also enacted for the safety of women’s for their safety, like-

1. The Hindu Marriage Act, 1955- Some provisions of this act help women’s to take an action against her husband like on the some grounds they are able to file a case for divorce and take alimony amount from her husband, if she us not able to take care of herself.
2. Hindu Succession Act, 1956- This Act provide that both male and female members of family have equal right to take ancestral property in equal parts.
3. Equal Remuneration Act, 1976- This Act provide equal payment of equal remuneration to male and female workers without any discrimination, by this they provide equal status of males and females in society.
4. Dowry Prohibition Act, 1961- The main objective of this act was to prohibit dowry system in India and also to protect women’s from physical as well as mental cruelty committed by her husband or their relatives for demand of dowry. And this also provide equal status to males and females in society.
5. Factories Act, 1986- This Act was enacted to regulate the work culture and factories suitable environment for their workers. Also by this act works have get safety at work place and get same amount of money for same work done by men without any kind of discrimination.
6. The Protection of Women from Domestic Violence Act, 2005- This Act was enacted for protection of women from the domestic violence committed by husband or by their relatives. If women’s were facing any kind of cruelty they have one weapon with her to stand for her dignity, right, etc by this act.
7. Prohibition of Child Marriage Act, 2006- This Act is very important because in previous time, children were get married. And women’s have no right and male members are dominant, so most of the times females are not aware about their marriage. And girl child were married with the man who is 10-20 years elder with her.
8. The Medical Treatment of Pregnancy Act, 1971- This Act talks about the conditions of pregnancy of women’s. Many women’s were get pregnant by rape committed against her. So this kind of pregnancy is not acceptable by anyone with the view of social status or reputation. All this kind of pregnancy related matters were issued under this Act.

CASES

Vaisakha & others vs State of Rajasthan & Ors, [AIR 1997 SC 3011]

In this case Supreme Court held that gender equality should be established by Fundamental Rights under Article 14, 19, 21 of the Constitution of India. And sexual harassment at work place is a violation of these Fundamental Rights. In the absence of any domestic law for these kinds of crime, suggestion is taken from the International Covenant. And in this case several guidelines were passed for the workers and employers to ensure work culture and environment at factories.

Shayara Bano vs UOI, [AIR 2017 9 SCC 1 (SC)]

This case is also known as Triple Talak case, in thi case Supreme Court held that only by saying three times talak, talak doesn’t take place. Some rules were also made. And after talak, husband is responsible to maintain his wife.

Air India Etc. vs Nergesh Mirza, [1981 AIR 1829, 1982 SCR (1) 438]

In this case, Indian airlines had laid down some rules which violent provision of Article 14 of the Constitution of India. The provision of Indian airline laid down that the air hostesses will not marry in initial 4 years of joining and they will loose their job if they were get pregnant and the retirement age for females were 35 years, until extended by the manager on their own discretion, whereas, there were no such provisions for male members.

The Supreme Court held that the conditions laid down by the Indian airlines are clear cut violation of Fundamental Rights which was mentioned under the Constitution of India. And new guidelines were made in this case.

Hariharan vs Reserve Bank of India

In this case, Mrs. Geeta Hariharan  was wife of Dr. Mohan Ram and they had son Rishab. Mrs. Geeta apply for a bond in RBI on name of her son, who is minor and signed as his guardian. RBI sent back an application with the advise that application must be signed by his father or Mrs. Geeta is to produce guardianship certificate. RBI was in the opinion that father is considered as a natural guardian of Hindu minor child and mother is the guardian but after father.

Mrs. Geeta challenged the Constitutional validity in the Supreme Court on the grounds that right to equality is violated under Article 14 and q5 of the Constitution of India.

Supreme Court held that both father and mother are the natural guardian of minor child. They said that whosoever is capable to take care of child with proper care and with the interest of child.

INTERNATIONAL COVENANTS

 International Covenants were also there who talks about the gender equality.  Some are-

1. Universal Declaration of Human Rights (UDHR)- This play a very important role for human rights with any discrimination on the basis of sex, religions, race, caste, sex, etc. Everyone should be treated equally. And also in the Covenant term ‘everyone’ is used instead of men, which shows that UDHR treat each and everyone equally.
2. International Protocol for Civil and Political Rights (ICCPR)- In this every  human right which are mentioned in this Covenant which was guaranteed includes right to life, freedom, etc. ICCPR doesn’t not discriminate on the basis of sex.
3.  International Covenant on Economic, social and culture rights (ICESCT)- This Covenant includes all kind of right such as right to work, trade, marrisge, etc.
4. Condition on the Elimination on discrimination against women (CEDAW)-  This act also not discriminate on the basis of sex, inequality.

BARRIERS TO ACCESSING JUSTICE

1. Financial cost- This is one of the most important point, that due to financial cost of the Court, mean of the people were not able to transportation expenses which delay or fail to seek legal remedy.
2. Lack of information- Women’s do not have a proper access to inform about their rights and she also have legal remedies for the cruelty which has been committed against her.
3. Lace of sources- Even women’s who have information about there rights, they not take any action against the cruelty which were faced by her and given by her husband or their relatives, only because of shame, fear, lack of sources, etc
4. Judicial structure- It should be gender sensitive because people who are working in the judicial structure thinks that marriage relayed matters are family or private matter.
5. Lack of proper jurisdiction- Due to lack of proper jurisdiction in a legal institution, gender inequality in society takes place.

RECOMMENDATION

1. Women have to be empowered and encouraged to stand for their rights.
2. Creation of Committee which inform women’s about there rights and help to them for taking an action against the cruelty.
3. Develop more law for abolishing discrimination, especially on the basis of gender.
4. Legal language must be clear and easy, from which layman’s were also able to understand it in easy manner and without any confusion.
5. Make gender specific provision to fill the gaps between the genders.
6. Government have to come with more schemes, plans, funds, welfare, etc to promote gender equality.

CONCLUSION

Gender inequality is a social evil that takes place from a long time. Judiciary have power to interpret ate laws in such a manner by which the equality must be ensured. Indian Judiciary help women’s for taking there rights and showed that discrimination is a punishable offense under the Act. . Law helps individuals by providing various rights for equality in society like right to equal opportunity at work place, give equal salary for equal work, equality of status, etc.