This article is written by Tanya Manglic, a student at Symbiosis Law School, Noida. In this article, she discusses about Gender Equality Under the Constitution.
Table of Contents
Introduction
Every citizen of India has been given certain rights to protect their interest in the society against any violence which are put into effect by the courts with subject to some limitations. Among these fundamental rights, there is a right to equality granted to every citizen who protects them from discrimination and other gender equality issues which they face due to ill mind of the society. It discards the biasness toward the individuals and a right to stop the unfair treatment on the basis of caste, race, class, sex and religion. This practice of inequality can be seen in every corner of society i.e. the workplace, among the families, religious places etc.
The right to equality given by the court is subject to exclude the practice of discrimination in the employment field, the abolition of untouchability and the abolition of titles for the equality of prospect. This is the major privilege given to every citizen in the society, which is also being mentioned under Article 14, 15, 16, and 17 of the constitution of India to highlight the major problems of gender inequality. This is the superior right which has been given to them as it is imperative that they have an easy access to the court to exercise their equality rights.
Equality forms the part of basic structure of the constitution of India under:
Article 14
Article 14 specifies that, ‘the State shall not deny to any person or the citizen of the society equality before the law and equal protection of laws shall be given within the territory of India’. This article is the embodiment of the rule of law in our constitution. There are two expressions which are used in Article 14:
- Equality before the law, and
- Equal protection of the laws.
The expression ‘equality before law’ has its root in the English Common Law. It means that equals law shall be equal and all these laws shall be equally administered. The expression ‘equal protection of laws’ has its source or its origin in Section 1 of the 14th Amendment of the U.S. Constitution. Article 14 applies to ‘any person’ including any of the company, association, unions, citizens, non-citizens, natural persons as well as legal persons.
Exception to the Rule of Law
The rule of law does not prevent to certain classes of persons from these special rules. For example, Article 361 is an exception which provides that the President or the Governors or the Rajpramukhs shall not be answerable to any court for the exercise with subject to their powers and duties of office. This is the reason that Article 14 do not states that the same laws should apply to all people because all people are not the same by nature, acquirement or circumstances, in the same position. This article prohibits class legislation which makes improper discrimination by conferring particular privileges upon a class of person by overruling under this article.
Article 15
This article prevents the state from discriminating against any citizen of India or violating their equal rights on the basis of race, caste, religion, class, or sex etc. There should be certain provisions that need to be made by the state authority for the benefit of the women in the every field or the children for the social and educational welfare and for the backward class of citizens like scheduled tribes and scheduled classes.
Initially, there were only three clauses under Article 15 but later on by the way of First Constitutional Amendment Act, 1951 and Ninety Third Constitutional Amendment Act, 2005, clauses (4) and (5) were introduced. Under this article 15(3) it is stated that “Nothing in this article shall prevent the State from making any special provision for women and children”. Similarly (4) reads that “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes”.
Article 16
Under this article, it has been mentioned that equal opportunity should be given to every citizen in matter of public employment. Certain provisions should be laid down to provide employment by creating job opportunities for the public and appointment procedures for the jobs in the government offices. The citizens should not be denied from their rights; however the state shall not be prevented from laying down the requisites qualifications and skills for the recruitment in the government services. The state prohibits any kind of discrimination in the workplace under this law. Clause (4) of article 16 reads that the state should reserve an adequate number of seats for backward classes in the government office services for their easy recruitment and providing secured jobs.
In the case of N M Thomas v State of Kerala Article, the Supreme Court held that this preferential treatment to backward classes is reasonable and rational nexus with the object in view as it is valid.
Article 17
This article exhibits the progressive and amendatory vision of the makers of constitution. Under this article, certain laws are mentioned which states or prevent the practice of untouchability and also specific actions are to be taken as it considers the untouchability a penal offence. It can also be determined as one of the earliest or a manual efforts made in the direction of social reforms to remove this injustice. Since the Article envisage the practice of untouchability which still exist in the modern society to be a punishable offence, the legislative authority enacted the Protection of Civil Liberties Act, 1955 previously known as the Untouchability (Offences) Act, 1955 to proclaim punishment for untouchability and other ill-practices connected with it. The word untouchability has not been defined or mentioned either under Article 17 or the Protection of Civil Liberties Act, 1955 but it is used to demonstrate the social disability historically been seen in the mind of certain class of people.
Article 29
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
There is slight change actually which puts a small and specific fetter on this broad right mentioned under Article 29, states that alright, the smaller and socially backward people can put forward their own culture by means of educational institutions. Along with this, 29(2) states that nobody will be denied from entering into a state run educational institution because of their religion, race, etc. This article mainly focus on the group of people.
Now, the difference is:
- Article 15 protects all citizens whereas Article 29(2) offers specific protection against a state run institution that denies this right.
- There, the difference is that Article 15 prohibits all discrimination on any ground. Whereas Article 29 provide this specific recourse to only few of the non-admission into educational institution.
Gender Sensitive Society
Gender equality in India is a topic of great concern as it deals with the rights of women and men which has been continuously infringing by the people of society because of their mentality towards the other citizens and so has been the matter of several landmark decisions. Likewise, the case Mary Roy v. State of Kerala where the Supreme Court took twenty years to make a decision over the facts given but at the end the judgement was in favour of the plaintiff. Since Independence, the Indian family law has been attacked several times because of the gender bias towards the women rights. Due to this societal behaviour, women put the step forward for their rights because of the great importance given to the precedent of the Indian legal system. In this case the woman fights for the opposition in the matter of the inheritance law where the daughter had been denied to give the property of his father as it is the injustice of gender.
After the passage of time, when the Indian Succession Law, 1865 was in force the lack of laws concerned with the Syrian Christians the courts were divided into two important subject whether or not to apply the principles set in this Act, as the full bench finally holding no proof of a particular custom. The women community asked to make the increase in the litigation, as there were no rules and provisions stated under the question of property matters and inheritance over the father’s transfer of land, security which needed to be modified as it was revealed that Travancore Christian Succession Act (TCSA) was invalid since 1951 onwards.
In India, there are several groups of people who believe or have faith in their religious personal laws and for these laws India is reluctant to reform as being a secular state. Now in current world these laws are forming a debate between certain groups over their rights as, RPLs in various matters gives women the lesser opportunity than men and fewer rights which is now the biggest concern of the Indian government as they want to prevent gender inequality under the constitution of India. In the past, feminists questioned the edges of differences with the women on the basis of race, caste, religion, sexuality and stated that they should be recognised and accounted in the Indian law. In this context there is no denial that domestic violence exists. In India, these personal laws are taking so much of space and striking down the rights of women. Due to these conditions it had been demanded to remove the religious personal laws and just the family law should exist.
The constitution of India does not only provide the provisions for the inequality but also gives the right to religious freedom and right to minority. If the Indian society wants to follow up the Orthodoxy of universal rights, then they need to contextualize the laws and formulate some different rights which are being demanded by the weaker sections.
Cases
In this landmark case of Madras the caste based discrimination on reservations were struck down by the court, which is against the Article 16(2) of the constitution. The subject is concerned with regard to admission of students in Engineering and Medical colleges of the state, the province of the State of Madras had issued an order which, there were fixed number of seats reserved for the particular communities. Then the notice was issued which stated that Article 29(1) protects the language, culture and script of a particular section of the citizens. Whereas clause (2) of the same article guarantees the fundamental rights to its individual citizens of the society. The citizen cannot be denied on the basis of these grounds religion, caste, class, race and language etc. But if any of the students do not have the requisite qualifications for taking the admission in the state college and is also denied the admission on the given grounds then his complaint cannot be heard at the infraction of the article mentioned above. This case was resulted under the First Amendment of the constitution of India.
Petitioner 1 was the Hollywood make-up artist and hairdresser. She submitted an application to R-5 association to issue her a membership card to work there as a make-up artist and hairdresser. The association refused the application submitted by the petitioner 1 and told her to remove the word make-up artist from her application. If she still performs as the make-up artist then she will be fined of Rs 26,500. After being denied from the work, she filed a complaint with R-6, Federation of Western India Cine Employees. On the receipt of reply, it was mentioned by R-6 that they were allowed to work as make-up artist and hair stylist. Thereafter, R-5 intimidated the federation that the decision taken by them do not bind as it is against the association rules to provide female worker the work of make-up artist.
Therefore, the court held that there can be no discrimination solely on the basis of gender. Equality cannot be achieved in any field if the women will not be given equal opportunities. It was also stated that registrar of the Trade Union should not allow or see that no other trade union should make any such provision which is inconsistent to the Act. The writ petition filed by the respondent under Article 32 of the Constitution of India reveals with highlighting the prevalence of gender equality in the film industry which in actual sense compels to comprehend whether the fundamental rights and gender equality have been actualised despite the number of legislations and progressive outlook in the liberal exterior there is a façade in the society which is uncurtained.
Conclusion
The principle of equality has been embodied in our constitution as a symbol to denote the laws which are made for the citizen to have the power of this democratic India. In an incredibly diverse society like India, where for every wrong there is a law set which describes the values like social justice, equality, liberty and fraternity cultivated by the Constitution act as the binding force. The Indian legal executive has been working on these matters and keeps on maintaining these guiding principles for the aggregate headway of the general public and guaranteeing equity to each person. Our visionary ancestors easily gave us the different social orders on the planet needed to battle and shed blood for the citizens who are suffering from these equality crisis.
For instance, the Indian Constitution gives us the privilege to cast a ballot similarly paying little mind to sex with dissimilar to numerous dynamic western nations where ladies needed to fight against to get this right. They ensured that the new India will be free from the dull shadows of the past. Not only against the women in the society but also against the men has gender equality taken place. There are men advocacy group who complains against the legislation that makes laws for discriminating by making special laws and provisions for women. There are activist petition that shows there is no evidence to prove that the domestic violence faced by men is less than that faced by women. The rights of equality should be granted not only to the women but certain laws should be made to protect the men against violence.
