This article is written by Saswata Tewari from the University of Petroleum and Energy Studies Dehradun. This article focuses on the significance of the judiciary in curbing gender disparities in society and gives a detailed summary of all the barriers to justice and suggests actions that can be taken to uphold the principle of gender equality.
Table of Contents
Law is omnipresent and it impacts different aspects of people’s lives. The significance of law and rights in affecting people’s lives is increasing with the expansion of the legal domain into public and private spheres. Law helps an individual by providing them the right to enjoy their life lawfully and to live as free and autonomous agents of society. Disparities in access to rights are redressed through rules and institutions established or resulting from such rules, be they social or legal. However, these disparities affect both men and women but women are lagging behind men in many fields. These inequalities could be refusing women the right to acquire, manage, and dispose of assets in their name which restricts their financial opportunities, economic productivity, and bargaining power in the household. Law needs to take into contemplation how differences in women’s and men’s social, economic, and legal rights affect the way they experience law and justice in their lives.
Both men and women often face alike issues in accessing justice but anyhow women often have to face additional barriers.
The judiciary as a change agent for gender equality
The judiciary can bring important changes in society when the judiciary operates without gender bias and supports gender equality. The decisions given by the judiciary becomes a norm for all the people in the society through established mediums of state-citizen engagement and the influence of the court goes beyond those who come in direct contact with them. However, it is not always that the judiciary is effective in upholding gender equality as a majority of people may not be influenced by the judicial decisions for instance customary laws might govern a lot of people.
It is the foremost duty of the courts to decide cases by interpreting the constitution and uphold gender equality in such decisions. Courts have the right to strike down legal provisions that promote discrimination based on gender such as the unequal rights inheritance of properties.
Countries, where the judiciary takes cognizance of enforcement of rights, have laid down guidelines in the absence of any domestic law. The Supreme Court in Nepal had instructed the Nepalese government to issue a new bill before the Parliament in consultation with women’s groups and sociologists and by studying the laws in different countries. The Supreme Court of India had declared sexual harassment unlawful under the Indian constitution and international conventions and had also laid down directives and guidelines which should be observed in all the workplaces and other organizations until legislation concerning the sexual harassment was adopted by the parliament.
Rules and regulations
The rules and regulations that direct the court procedures are usually drafted by the judiciary itself. These rules can provide a gender-sensitive environment and contain provisions such as permitting a woman who has been subjected to sexual violence to testify in private chambers, waiting for areas for victims, confidentiality, and privacy of the victims, and simple evidence requirements. These rules provide a comfortable and nondiscriminatory environment for women.
Gender balance in the judiciary
The judiciary needs to show that the discriminatory norms against women are non-existent in the appointment of judges. The equal representation of both genders on the bench will influence the gender-responsiveness of the courts and women judges will contribute to the diversity and representativeness of the courts. Women judges will have a better understanding of the grievance of women and will help in establishing gender equality.
Physical access and resource allocation
To get justice physical access is crucial and policies that focus on increasing the number of courts or judges or creating mobile courts may prove beneficial to women more than it is to men as it is usually women who suffer from restricted mobility and limited time. Court fees also hinder the redressal of women for their grievances.
Role of Indian judiciary in neutralising gender equality
The Indian Judiciary has an important role to play in empowering women and establishing gender fairness in a country where gender disparity is prevalent in almost all sectors of society. The Indian Judiciary through his judicial decisions has helped women to get her what is due to her as a matter of right and has shown that discrimination against women in Indian society won’t be tolerated at all.
The work of the judiciary is to interpret and apply the laws laid down in the constitution. The main objective of the laws is to give justice to the aggrieved. The legislature can draft the legal provisions but the judiciary must implement the laws in such a way that it can give justice to all keeping in mind the principles of equity, justice, and good conscience. The judiciary examines all the provisions and then implements them in the proper places for the development of society.
The Indian Constitution through the judiciary has protected women from injustice. The Constitution of India has always uplifted the rights of women. The constitution has laid down provisions for safeguarding their rights and also allows for making special laws for women such as the Dowry Prohibition Act 1961, the Medical Termination of Pregnancy Act 1971, the Immoral Traffic (Prevention) Act, 1956, the Maternity Benefit Act 1961, Indecent Representation of Women (Prohibition) Act, 1986. Specific provisions have been drafted in the personal law to give maintenance to women under section 24 and section 25 of the Hindu Marriage Act, 1955 and Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and these provisions are also available under the Parsi Marriage and Divorce Act, 1936 and the Indian Divorce Act, 1869. Maintenance to Muslim women have been granted under the Muslim Women (Protection of Rights and Divorce) Act, 1986.
The judicial decisions given by the Indian Judiciary has affected and brought a lot of important changes in the usual norms of the society.
In the case of Air India Etc. vs Nergesh Meerza, Indian airlines had laid down some provisions which were held violative of Article 14 of the Constitution of India. The provision stated that the air hostesses will not marry for their first four years of their joining and shall lose their jobs if they become pregnant and shall retire at the age of 35 unless it is extended by the managing director at his discretion. The Supreme Court held that the termination of service on the first pregnancy conflicts Article 14 and the extension of the job by the managing director also violates the principle of equality established by Article 14 because this provision gives unrestrained authority in the hands of one person.
In the Dharwad District PWD Employees Association case, the Court held that there shall be no discrimination based on gender between the workers and they should be paid fairly according to their work and that the Article 39(d) of the Indian Constitution provides for payment of equal consideration both men and women workers for equal same work or work of a similar nature and Article 16 provides that there shall be equal opportunity for all citizens in matters of employment.
In the case of Shah Bano Begum, the Supreme Court of India had commanded the parliament to frame a uniform civil code concerning the liability of a Muslim husband to give maintenance to his divorced wife who is not able to maintain herself after the iddat period and held that the section 125 of the Code of the Criminal Procedure, 1973 will be applied to all husbands irrespective of religions and the husband will have to maintain her divorced wife.
In the Vishakha vs. State of Rajasthan case, the Supreme held that gender equality can be established through fundamental rights guaranteed under Article 14, Article 19, and Article 21 of the Indian Constitution and sexual harassment at a workplace is a clearcut violation of these fundamental rights which in turn violates the principle of gender equality and in absence of any domestic law to address the evil of sexual harassment, assistance can be taken from International Conventions and Statutes as long as it does not conflict the interests of any domestic law or the Constitution of India. Guidelines were set which were to be followed by the employers to ensure a fair, safe, and comfortable working environment for the employees, especially to women.
Common areas of concern for women
Law has a crucial role to play in upholding gender equality in society and it needs to contemplate how differences in women’s and men’s social, economic, and legal abilities impact the way they experience law and justice in their lives, and how their daily lifestyle considerably shapes patterns of their life.
The absence of legal security and the prevalence of unequal legal provisions in the field of family, property, personal status laws restrict women’s access to legal justice. Economic, social, psychological, educational factors also contribute to the restricted access of women to legal justice. When the judicial institutions are accessed they further limit the access of women because of biases, lack of gender sensitivity, and limited capacity.
Perceptions of gender roles are implanted and accepted by both men and women who find the theories of equality and human rights foreign and threatening to their established social order in which they already know their roles.
Barriers to accessing justice
- Discriminatory law restricts women’s ability to make choices and restrain their access to a wider range of opportunities. For example unequal inheritance rights, unequal rights and responsibilities in marriages, laws which require women to obtain the consent of their spouses for travel or employment.
- Lack of proper laws to address specific inequalities against women. For example, despite having rules laid down against workplace harassment, women tend to face verbal, physical, and sexual harassment in workplaces.
- Women do not have the proper access to information about their rights and entitlements as well as how to seek legal remedies. Usually, they are also excluded from involving over issues external to the household such as land and business negotiations.
- The Financial costs involved in court cases such as the court fees and transportation expenses result in delay or failure in seeking legal redress.
- Women who are aware of their rights are still not able to seek justice due to dependency, shame, or fear. Women tend to care for their relationships and are reluctant to sue a spouse or a family member.
- The judicial structure may be gender-biased or deprived of gender sensitivity. For instance, people in judicial institutions think that marriage related matters are private and not within the jurisdiction of the institution.
- Lack of proper judges and judicial institutions to address gender inequalities in society. The limited capacity of judges and legal structures adds to it.
- The law has to be developed to address all the discriminatory and gender-biased provisions. This can be achieved by legal assessments, revising laws, temporary special measures, outreach programs, special funds, and appointment of women in judicial institutions.
- Women have to be empowered, both individually and collectively to make them able to claim their rights. Recruitment of women decision-makers in the judicial sector, opening up spaces for women to speak up and negotiate, increasing the capacity of women groups can be considered to enable women to get involved in the social activities and address the reasons perpetuating the gender inequality.
- Judicial mechanisms have to be enhanced and tailored to address all the barriers to accessing justice by women. Initiatives can be taken such as proper handling of women’s grievances, improving the access of women to legal aid services, creating gender strategies, plans and mechanisms, and gender sensitivity training and skills-building initiatives for the people involved in judicial institutions.
- The legal language in-laws should be clear and specific as ambiguous laws open the doors to discriminatory norms.
- Gender-specific provisions have to be created to fill in the gender gaps that exist in law enforcement as using gender-neutral language can sometimes create the same problems as unambiguous laws. Gender-specific law sets the standards and creates a conceptual clarity to implement the law.
Discrimination based on gender is a social evil that should be curbed at all times. The judiciary of a nation has to step up and interpret the laws in such a way to uphold the principle of equality. Constitutional efforts have to be made to empower the state of women in our society and amend all the existing laws which restrain women from making choices and accessing all the opportunities in life. Governments have to introduce programs, schemes, funds, and welfare policies that should focus on the social, economic, and educational empowerment of women. Initiatives have to be taken to make a change in the mindset of society.
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