This article on ‘Critical Analysis of Gender Equality‘ was written by Priyal Kumari, an intern at Legal Upanishad.
The article focuses on the position of gender equality in India by highlighting the laws formulated for gender equality and its position of it in the present scenario.
In India, the existence of a patriarchal society has always rushed to a gender-biased position of men and women in society from eternity. Society always privileged men over women with unequal opportunities for them. The men were given the status of the head of a family and women as the nurturer of it. Comparatively, there were more restrictions on women than on men.
What is gender equality?
Time is evidence for the prevalence of great gender inequality. In several Indian states, this inequality was witnessed in Haryana and Rajasthan where a girl child was prevented from taking birth, and education and was the victim of child marriage in the name of traditional customs. Unfortunately, despite such strict favored laws for women, it still can be seen in these states.
Today, we talk about women empowerment and gender equality but still, some people are unaware of its true sense. As a layman, we understand gender equality as the equal status of men, women, children, and transgenders on the same level with equal opportunities outside. That each gender shall be given equal rights and decision-making powers. But is it actually achieved in the true sense?
Laws upon gender equality
Before Independence, the condition of women in society was worst creating a dire need for women’s equality. After Independence, several laws were enforced and implemented to favor the same. The Indian Constitution eased the conditions by raising gender equality. It can be clearly depicted in the preamble, Part III, and Part IV of the Indian Constitution which contains Fundamental rights and duties along with DPSPs. The constitution guarantees women equality and encourages the Indian states to take adequate steps for the same.
Constitution and gender equality
The Indian Constitution is the basis of all the other laws that exist in India. No law can be formulated which violates any of the constitution’s fundamentals. When we see our Indian Constitution, every individual whether national or alien is provided certain rights that they exercise on their behalf. These rights contribute to forming gender equality across the nation.
Several articles of the Indian Constitution like A.14, A.15 & 15(3), A.16, A.39(a), 39(b) & 39(c), and A.42 are of paramount importance in respect of gender equality.
A.14 establishes the equality status by denoting that every individual is equal in the eyes of the law and no state can deny it. Further, A.15 eliminates discrimination amongst individuals on the basis of religion, race, caste, place of birth, and sex.
This article abides by the state to form women-specific regulations for women. A.16 establishes equality among every citizen of the nation with respect to employment opportunities. By A.39, it is the duty of the states to ensure that both men and women are provided with equal rights and opportunities in all aspects of life-based on their needs and demand. Lastly, A.42 incorporates the provision for adequate working conditions for all.
Other Special Statutes
Over time, as society changed, laws were formulated to reach the demand of society. To encourage healthy and justified empowerment, several other acts were formulated in accordance with the constitution.
- The Equal Remuneration Act, of 1976
The main objective of the act was to give equal remuneration to both men and women in course of their employment. There shall be no discrimination while the recruitment, transfer, or training of any employee on the grounds of sex.
- Sexual Harassment of Women at Workplace Act, 2013
Sexual harassment against women was recognized for the first time in the Vishakha case, in 1992. Where the SC gave guidelines for the sexual harassment of women in the workplace considering it as against the constitutional provisions of A.14,15 and 21. After, this case, the above act was formulated in 2013.
- The Women’s Reservation Bill
According to this bill, about 33% of the total seats in Parliament, Lok Sabha, Rajya Sabha, and State assemblies got reserved for women.
- The Hindu Succession Act, of 1956
As per this act, females were provided with ownership over all the property which is acquired before or after the act. Recently, with the amendment of 2005, the daughter of the coparcener will have equal rights over the property of the coparcener since birth in the same way as that of the son in a HUF.
- The Maternity Benefit Act, of 1961
Within this act, paid maternity leave is granted to women employees. In 2017, the act was amended which provided that the paid maternity leave for more women employees with less than two children will be given for 26 weeks and can work from home after 26 weeks too. Further, a working woman adopting a child of fewer than 3 months can take 12 weeks of maternity leave from employment from the date she receives the child.
- The Indian Penal Code, 1860, and the Criminal Amendment Act, 2013
With the change in the status of women, crime against women prevailed. There were a number of cases of rape, molestation, sexual harassment, and torture registered which incorporated the need for separate laws to protect women’s dignity in the outside world.
Indian Judiciary had played a major role in protecting the women’s position in the nation by safeguarding the existence of laws favoring it. Some of the landmark judicial decisions are:
- Vishaka v. State of Rajasthan (1997)
The case was the landmark decision providing guidelines against sexual harassment. In this case, sexual harassment was first recognized in India, and the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was formulated. In this case, the court decided that the act of sexual harassment is against A.14, A.15, A.19, and A.21 of the Constitution.
- Laxmi v. Union of India (2015)
The case holds a history of the acid attack. In this case, the acid attack was taken seriously for the first time. In this case, the court ordered the central government to formulate separate laws for an acid attack in IPC, 1860 to prohibit the non-licensed sale and purchase of acid. Further, the extent of punishment was also extended.
- Vineeta Sharma v. Rakesh Sharma (2020)
The case relates to the rights of a daughter in her coparcener property. This right was recognized in Hindu Succession Amendment Act, 2005 and the court interpreted that the daughter holds equal coparcenary rights as that of the son in HUF property since birth irrespective that whether they were born before or after the enactment of the act.
- Air India v. Nargesh Meerza (1981)
In this case, SC held that no employee can be denied employment on the basis of sex. The court struck down the policy of Air India where it was mentioned that air hostesses above 35 yrs whether pregnant or getting married shall retire from employment on the grounds that it is against equality.
Analysis of the existing position of gender equality
Gender Equality amongst, men, women, children, and transgenders are of huge concern in India. India has always been a country with a patriarchal form of society where women were always kept below men. The societal behavior was such that even if the women thought of getting independent, were drowned back in the reality of their existence. The condition remained the same throughout the British period.
Today, we can observe that there exist several individual laws regarding the concerned acts happening in the surrounding that violates the basic rights of an individual. It can be determined that no doubt the laws have been made which target gender-based offenses and discrimination, yet there exists gender inequality in several forms.
As per Census 2011, only 48% of girls are accounted for the total child population in India. Of this 48%, many girl children are victims of child trafficking, child marriage, and child labour. Over 12.15 million children are married in India and are below 16 yrs of age. According to the NCRB report of 2018, over 51% of children are victims of child trafficking out of which 80% are girls. Further, UNICEF reported that over 223 million girls below 15 yrs of age are victims of child marriage.
These reports of the governmental authorities highlight the position of law which were made to initiate gender equality in the nation. It is clearly visible that the laws have appallingly failed to fulfill their objectives to promote gender equality across the entire nation. Not only India, but other countries across the world like the US, UK, France, etc have also failed to achieve gender equality across their nations
Conclusion and suggestions
From the above analysis, it can be seen that the hold on gender equality is quite weak and needs to be strengthened across all the countries of the globe. The same can be done if the countries improve their employment as well as financial services. Further, the nations shall extend the severity of the punishments for those causing gender-based offenses. The awareness campaign shall be conducted against gender and sexual violence.
It is finally concluded that although laws exist and the government had made all possible attempts to maintain harmony and equality in the country, nothing is of use if people of the country are not aware of such laws and their rights with respect to their equality status. The same will continue to exist till the mindset of the people is immersed into a patriarchal being.
- Alexander Durai Raj, K.S Shobha Jasmin. (n.d.). Gender Equality in India: An Analysis. International Journal of Pure and Applied Mathematics. https://acadpubl.eu/hub/2018-120-5/1/36.pdf.
- Smriti Sharma. 1st December, 2016. Achieving Gender Equality in India: What works and What doesn’t. United Nations University. https://unu.edu/publications/articles/achieving-gender-equality-in-india-what-works-and-what-doesnt.html.
- What does Gender Equality Mean? Human Rights Career. https://www.humanrightscareers.com/issues/what-does-gender-equality-mean/.
- Global Annual Results Report 2020: Gender Equality. UNICEF. https://www.unicef.org/reports/global-annual-results-2020.