Gender Justice

Conceptual Connotation

"Sex" refers to the biological and physiological

characteristics that define men and women.
Justice refers to fairness, fair play, equity,
impartialness etc.
Equality- Absence of discrimination
"Gender" refers to the socially constructed roles, Equity-special considerations to be taken
behaviours, activities, and attributes that a given society
considers appropriate for men and women. Behavior that Fairness- no bias, partiality etc.
is compatible with cultural expectations is referred to as
gender-normative; behaviors that are viewed as
incompatible with these expectations constitute gender
non-conformity.
Sex & Gender
Sex and Gender are not interchangeable. The first refers
to the physical or physiological differences between
males and females- the primary & secondary
characteristics that define them.
Gender refers to the social or cultural distinctions
associated with being a male or female.
Gender identity is the extent to which one identifies
as being either masculine or feminine. Generally, one is
seen to identify with ones sex. But there may be
instances where individuals identify with the role that is
the opposite of their biological sex. Such people are
usually identified as transgendered.
How do this self-identification
happen?
men will be men and boys will be boys- justifies
certain kind of behavior?
Based on script written by society
Society expects women & men to behave according to
the expectations of their respective gender roles.
It is learned through a process known as socialization-
teaching people to behave according to social norms.
Socialization

Socialization is a process by which people learn to

behave in a particular way as dictated by societal
values, beliefs and attitudes.
It occurs through 4 major agents- family, education,
peer groups and mass media. Sometimes religion too
plays a role.
Through the process, a sort of Gender stereotyping
happens. Gender Stereotyping involves over
generalization about the attitudes, traits or behavior
patterns of women or men. eg. Riding a bike is a
masculine activity; women are too weak or timid to ride
a bikes.
What is Gender Justice?
Gender justice entails ending the inequalities
between women and men that are produced and
reproduced in the family, the community, the market
and the state.
It means that no one may be denied justice or
discriminated only because of ones gender (sex).
It also requires that mainstream institutions from
justice to economic policymaking are accountable for
tackling the injustice and discrimination that keep too
many women poor and excluded.

Why Gender Justice

Gender inequality is the most serious and pervasive form of
discrimination in the world. While this affects everyone, it is women
and girls who face the most discrimination as a result of gender
inequality.
Women form the majority of those living in poverty. They have
fewer resources, less power and less influence in decision making
when compared to men. They are exposed to various forms of
violence and exploitation and experience further inequality because
of their ethnicity, age, race, class, marital status, sexual orientation
and (dis)ability.
Transforming gender and power relations, and the structures, norms
and values that underpin them, is critical to ending inequality.
Challenges
For most women, rights are denied and violated within families,
clans and communities.

Access to law is usually controlled by family and community.

Legal processes too expensive for most women.

The State is both a violator of rights and the protector / enforcer.

Rights protectors and enforcers (police, govt. officials, doctors,

judges) are themselves socialized in values of inequality
Achieving Gender Justice
Expanding women-friendly public services: to meet women
and girls rights to education, health and food;
Guaranteeing land and jobs for women: ensuring the right
to a decent livelihood, through access to economic assets;
Increasing womens voice in decision-making: full
participation of women in society, starting from autonomy in
the household, to voice in all political processes at
community, national and international levels; and
Ending violence against women and girls: a scourge that too
many women and girls face in daily life, stunting their
opportunities, curtailing their mobility and denying them
rights.
Indian Society
Vedic Period
Women enjoyed fair amount of freedom and equality.
Participated in all spheres of activity like men- studied in
Gurukuls, underwent Upanayana, participated in art,
music, dance and even warfare; performed religious
duties alongside men.
Absence of Purdah system, equal rights in selecting
partners, polygamy a rare event and dowry unknown
except for royals; remarriage of widows;
Period of feminine glory based on liberty, equality and
cooperation.
Later Vedic Period
Status of women suffered a setback
Restrictions on rights and privileges- birth of daughter
was unwelcome; education to women denied;
Upanayana prohibited; vedic studies discouraged;
womens participation in religious ceremony
discouraged;
Evil of pre-puberty marriages set in.
Subservience of women established, especially through
Manusmriti.
Yet, law recognized the right to property, particularly
stridhan.
Medieval & British Period

With invasions, position of women deteriorated.

Women were put behind veil, movements restricted;
sati, child marriage, female infanticide, dowry,
polygamy, devadasi system thrived.
British regime brought in a change education and
western influence brought in new ideas of liberty,
equality, respect;
Two movements contributed to the position of women-
Social reform Movement (19th century) and Nationalist
Movement (20th century).
Sati, ill treatment of widows, widow remarriage, child
marriage, denial of property rights, education, temple
prostitution etc.
Independent India
The drafting of the Constitution enshrining the principles of
equality, liberty and social justice formed the basis.
The framers emphasized on emancipation of the female
sex, elimination of inequalities, protection from exploitation
and promotion of opportunities and interests (economic) for
women.
In 1971, the Committee on Status of Women (CWSI) in India
was constituted. Its report Towards Equality indicated-
majority of women are still very far fro enjoying the rights
and opportunities guaranteed to them The social laws
have remained unknown to the large masses of
women( Same exercise repeated in 2001 by NCW)
Women- Facts & Figures (Census)
Males Females
Gender Composition 1000 933

Literacy Rate 75.3% 53.7%

Economic 51% 25%

Participation

Main workers 76.7% 23.3% Majority in rural areas

employed
predominantly in
cultivation &
agricultural labour

Health 39 42 Infant Mortality

Rate(IMR)
 Males Females Male female
(Rural) (Urban)
Daily Wages 322.28 201.56 469.87 366.15
(Regular/Salaried)
Casual 149.32 103.28 182.04 110.62
Political Participation 62 (elected in 11.9%
Lok Sabha) (Rajya
11.4% Sabha)
8% in State 4% in
Assemblies State
Councils
Participation in Judiciary 2 out of 30 58 out of
judges (SC) 609
judges in
HCs
UNDP Factsheet
2006

Gender Inequality Index (GII) Rank 129 ( out of 146)

Index of Political Participation & .625

decision Making Power

Index of Economic Participation and .546

decision making power

Index of Power over Economic .319

Resources

Gender Gap in Literacy 16.68

Violence against Women
Crimes 2010 2011 2012 2013 2014
Rape 22172 24206 24903 33707 36735

Kidnapping 29795 35565 38262 51881 57311

/abduction
of women
Dowry 8391 8618 8233 8083 8455
Deaths
Cruelty 94041 99135 106527 118866 122877
Assault 40613 42968 45351 70739 82235
 International
Developments
 Securing Womens Legal
equality & rights- Comm.
1945-1962 of Human Rts., Comm.
on Status of Women,
UDHR
Govts. responded to UN
by adopting Laws and
programs on Womens
United Rights; Dec. on
Nations 1963-1975 Elimination of
Discrimination against
Women, 1967; 1975- Int.
Womens Year
UN Decade for Women;
CEDAW 1979; World
Conferences held in
1976-1985 Mexico (1975),
Copenhagen (1980),
Nairobi (1985)- series of
action programs
Strengthened
Institutions and
1986-Till date support for womens
rights
International Developments
The Preamble of the UN (1945)
Universal Declaration of Human Rights
International Covenant on Civil and Political Rights, 1966 &
International Covenant on Economic, Social and Cultural
Rights, 1966
CONVENTION ON THE POLITICAL RIGHTS OF WOMEN, 1953
DECLARATION ON THE ELIMINATION OF DISCRIMINATION
AGAINST WOMEN 1967
CEDAW- International Bill of Rights for Women
DECLARATION ON THE ELIMINATION OF VIOLENCE AGAINST
WOMEN, 1993
Beijing Platform for Action 1995
United Nations Millennium Charter
2000.
Certain fundamental values be essential to international relations:
Freedom Men and women have the right to live their lives and raise their
children in dignity free from hunger, fear of violence, oppression or injustice.
Equality The equal rights and opportunities of women and men must be
assured.
Solidarity Global challenges must be managed in such a way that costs and
burdens are distributed in accordance with the basic principles of equality and
social justice.
Tolerance Human beings must respect one another in all their diversity of
belief, culture and language.
Respect for nature Prudence must be shown in the management of natural
resources.
Shared responsibility Responsibility for managing worldwide economic and
social development as well as threats to international peace and security must be
shared among nations of the world, with the UN playing a central role.
Constitutional Guarantees
Constitution is the basic document of the country,
having a special sanctity , which sets the framework
and principal functions of the Govt. and declares the
principles governing their operation.
Preamble Reflects the ideals and aspirations of the
people of the country. Starts as We, the people of
India. Source traced to Men and Women , irrespective
of caste, community, religion etc.
Ideals or Values identified in Preamble- Justice, Liberty,
Equality
Fundamental Rights
Basic rights or Human rights which are the entitlement
of every man, woman and child because they are
human beings.
These are enforceable in Courts of Law.
Valsamma Paul v. Cochin University (1996), SC held that
human rights are derived from the dignity and worth
inherent in human beings. The human rights of the girl
child are inalienable, integral and indivisible part of
universal human rights. The full development of
personality and fundamental freedoms of women and
their equal participation in political, social, economic
and cultural life are concomitants for national
development, social and family stability and growth-
Equality
Lady, C.B. Muthamma IFS, denied promotion. Infact she was
discouraged from joining foreign service and had to give an
undertaking that if she married she would resign from service. IFS
Rules 1961.( C.B. Muthamma v. Union of India 1979)
An air hostess challenged the Air India regulations which required
her to retire at the age of 35 or on pregnancy in case of
marriage(whichever occurred earlier). ( Air India v. Nargesh Mirza
1981)
Charu Khurana, a make up artist and hair stylist wanted to get a
card from the Federation of Western India Cine Employees Assn..
She was refused the same as make up artist since only male
members are allowed that job. (Charu Khurana v. Union of INDIA
2014).
 Sec 497 IPC allows the husband to bring action against
another man for adultery with his wife but does not
allow a woman to bring action against another woman.
(Sowmithri Vishnu v. Union of India 1985)
Reservation of seats for women to the extent of 30%
made in State services by AP Govt.is valid.( Govt of AP
v. P.V. Vijayakumar 1995). The State can also establish
educational institutions only for women.
 Art 14- EQUALITY BEFORE LAW AND EQUAL
PROTECTION OF LAWS
Art 15- STATE NOT TO DISCRIMINATE ON GROUNDS
OF ..SEX
Art 16- EQUALITY OF OPPORTUNITY FOR ALL RELATING
TO EMPLOYMENT
Thus, these articles ensure equality and prohibit gender
discrimination.
Art 15(3)- Allows positive discrimination in favour of
women to make special provisions to ameliorate their
social conditions and provide political economic and
social justice.
 Art 14- does not mean that all laws must be general in
their character or application.
Same laws need not apply to all persons.
The varying needs of different classes of persons may
require separate treatment.
Test of reasonable classification.- intelligible differentia
& have a rational relation to the object sought to be
achieved.
Cannot be arbitrary, artificial or evasive.
The right to marriage of choice

Freedom to marry a person of ones choice

The right to marry a person of ones choice, if he is a major,
outside ones caste is guaranteed under Article 19 of the
Constitution.(Ashok Kumar Todi v. Kishwar Jahan 2011)
A young woman, 27 years and graduate, left her brothers house
and got married to one Brahma Nand, a businessman. The
brothers lodged a case of abduction, upon which the sisters of
Brahma Nand were arrested. The brothers on hearing of inter-
caste marriage went to house of BN and beat him up, locked
him, took forcible possession of the crops and illegal possession
of the shop.(Lata Singh v. State of UP (2006)
Freedom of
Profession/choice/expression
Bombay Police Act prohibited holding of dance
performance of any type in beer bars/eating houses,
other than 3-5 star hotels. Challenged as being violative
of Art 19.(Indian Hotel and Restaurants Assn. v. State of
Maharashtra 2013)
Sec 30 of the Punjab Excise Act prohibited the
employment of women in hotels and bars serving liquor.
(Anuj Garg v. Hotel Assn. Of India 2008).
The right to live with dignity

Art 21- No person shall be deprived of his life or

personal liberty except according to procedure
established by law.
The terms are of widest amplitude and covers a variety
of rights which go to constitute the personal liberty of a
person.
Right to live with human dignity
Right to livelihood
Right to Privacy
Right to Education etc.
Guarantees against arbitrary action of the State.
 In a case, the petitioner husband requested the court that his wife
be directed to undergo medical checkup to ascertain her virginity
(Zahida Begum v. Mushtaque Ahmed 2006; Surjit Singh v. Kanwaljit
2003).
Can a roving enquiry of the paternity of a child be allowed?(Goutam
Kundu v. State of WB 1993).
A LIC questionnaire sought information about the past pregnancies
and other intimate details to avail of its policies. (Neera Mathur v.
LIC 1992)
Art 21 includes a womans right to make reproductive choices,
including right to refuse to participate in sexual activity or insistence
on use of contraceptive methods. It also includes a womans
entitlement to carry a pregnancy to its full term, to give birth and
raise her child. (Suchita Srivastava v. Chandigarh Adm 2010)
 Even a prostitute has a right to privacy under Article 21, and no person
can rape her just because she is a woman of easy virtue. ( State of
Maharashtra v. Madhukar Narayan Mardikar 1991)
A Bangladesh national was raped in Railway Yatri Niwas by employees of
the Indian Railway. The question was whether she was entitled to
compensation for violation of her life and dignity. (Railway Board v. v.
Chandrima Das 2000).
Victims of rape are often subjected to a test, popularly known as two
finger test to determine whether she has been subject to physical
violation.
Lillu @Rajesh v. State of Haryana AIR 2013 SC 1784- the two finger test
and its interpretation violates the right of rape survivors to privacy,
physical and mental integrity and dignity. Thus, this test, even if the report
is affirmative, cannot ipso facto, give rise to presumption of consent.
Medical procedures should not be carried out in a manner that constitutes
cruel, inhuman, or degrading treatment and health should be of paramount
consideration while dealing with gender-based violence.
The right against exploitation
Art 23- Prohibits traffic in human beings and beggar or
any other form of forced labour
Traffic refers to the selling and buying of men and
women like goods.
Sec 370 IPC defines it as the recruitment,
transportation, harbouring or receiving a person for the
purposes of exploitation. It is effectuated by threat,
force, inducement, fraud, abuse of power etc.
Exploitation includes physical exploitation, sexual
exploitation, slavery, servitude or forced removal of
organs.
 Begar means involuntary work without payment.
Forced labour refers to making a person to render
service against his will or consent whether with or
without payment. It implies compulsion.
Bonded labour, slavery, immoral trafficking are all
included in this category and Parliament is authorized to
make appropriate laws to penalize these Acts.
So far as women are concerned, Prostitution,
commercial sexual exploitation, domestic labour,
Devdasi system are included in tis category.