CONSTITUTIONAL RIGHTS OF WOMEN AND GENDER INEQUALITY

CONSTITUTIONAL RIGHTS OF WOMEN AND GENDER INEQUALITY

This Article is written by Upasana Pujari student of Presidency University, Bangalore. The article discusses the Constitutional Rights of women and gender inequality matter in detail and the various laws related to the same.

 

INTRODUCTION

Gender inequality is concerned with the two different sex in this world who are unequally treated which affects the individual’s lifestyle and the differences caused are not from biology but also from psychology and cultural norms that ultimately empower one group from the other.

The point is that gender inequality exists only in the case of women however this is also faced by men in this modern era. Thus, in the process of circumstances of gender inequality men are also in the same race. Rape, sexual assault, or mental harassment is not only in the case of women but also with men. Gender discrimination victims mostly suffer from harassment which leads them to depression and the other members of the society closely linked like their family, friends, and so on also suffers. India is famous for its vast variety of cultures which is mostly originated from some of the other holy books but none of them has ever differentiated between the gender. Nonetheless, in the Quran, it is quoted that men and women are part of the same race. The humans make a wide bridge between the sexes.

CONSTITUTIONAL PROVISIONS FOR SAFEGUARDING THE RIGHTS OF WOMEN

Article 14 of the Indian Constitution says that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This Article is applicable to all whether citizens or non-citizens and uses two different phrases i.e., equality before the law and the equal protection of the law. The former states that all are equal in the eyes of law and the latter states that laws are equal for all. Article 14 of the Constitution ensures equal protection and hence imposes a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes so that everyone including the transgender may also enjoy equal protection of laws and nobody is denied from such protection. Article 14 does not restrict the word ‘person’ and its application only to male or female. The expression is gender-neutral and evidently refers to human beings.

Discrimination on the grounds of sexual orientation or gender identity, therefore, impairs equality before the law and equal protection of the law and violates Article 14 of the Indian Constitution. The main purpose of using this article is to state that if the constitution is viewing everyone in equal eyes then why we the people are discriminating it just on the basis of this biological discrimination which has no point also. The special protection is given to women in our society by the government just to bring them in the same line and help to raise their heads high and walk in the same race as men putting their shoulders equally.

IMPORTANT CASE LAWS

There is a famous case of Anuj Garg v. Hotel Association of India (Appeal (civil) 5657 of 2007)in which Section 30 of Punjab Excise Act,1914 was challenged because the act was banning employment of women in bars and hotels which is ultra vires of Article 14 of the Constitution of India. SC held that such restriction violates Article 14 because it is just discrimination rather it is the duty of the State to create a scenario of safety for women to inspire them for discharging their duty freely and such unequal consequences of sex differences should be eliminated.

Article 15(1) states that The State shall not discriminate against any citizen on the grounds of religion, race, caste, sex, and place of birth or any of them.” Article 15 is just the general application of the principle embodied in Article 14. If any law which discriminates on the above-stated grounds will be declared as invalid. Article 15 (3) is one of the exceptions laid down in clause 1. It says that nothing in Article 15 shall prevent the State from making any special provision for women and children. Article 15(3) is specially drafted for empowering the State to make special provisions for them. Under Article 42 women workers can be given special maternity relief and a law to this effect won’t infringe Article 15(1). Moreover, Article 15(1) provides reservation of seats for women in educational institutions.

In Permit Singh v State of Punjab(CRL.L.P. 38/2012)the petitioner was elected as Panch for the reserved seat of Scheduled Castes (women) and cannot be elected again as Sarpanch because it is the reserved seat of Scheduled castes and not for Scheduled Caste (women). The court nominated her as a candidate for Sarpanch stating that such classification is violative of Article 15(1) and Scheduled Caste includes both men and women equally.

Article 15 and 16 prohibits discrimination on the basis of sex recognizing that sex discrimination is a practice from ancient eras. The Constitution-makers gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude of treating people differently on the basis of gender. The discrimination on the ground of sex under Article 15 and 16 is on the ground of gender identity.

Article 15 and 16 prohibits discrimination on the basis of sex recognizing that sex discrimination is a practice from ancient eras. The Constitution-makers gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude of treating people differently on the basis of gender. The discrimination on the ground of sex under Article 15 and 16 is on the ground of gender identity.

ARTICLE 16

Article16 guarantees against discrimination are limited to employment and appointment under the State. Article 16 (1) states that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.” Article 16 (2) states that “No citizen shall on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” Clauses 1 and 2 of Article 16 lay down the general rule of equality of opportunity or appointment under the State and that no citizen can be discriminated against or ineligible for any employment or office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence. In Air India v. NargeshMeerza (1981 AIR 1829, 1982 SCR (1) 438)the petitioner challenged the validity of regulations under which the Air Hostesses will be retired at the age of 35 years and can’t marry till four years of their job or pregnancy. The court declared it as violative of Article 14, 15, and 16 of the Constitution and invalidated these regulations. In Randhir Singh v Union of India,( 1982 AIR 879, 1982 SCR (3) 298 ) it has been held that equal pay for equal work although not expressly declared to be a fundamental right is clearly a constitutional goal under Article 14,16 and 39(d) of the Constitution and can be enforced by the courts in cases of unequal scales of pay based on irrational classification.

ARTICLE 19

Article 19 (1) especially gives the freedom of speech and expression. This is also applicable to all. This can be specially used by the women to speak about their problems and the constitution is ever ready to help them out. Article 16 (1) and (2) is providing employment opportunities and Article 19 (g) is providing the freedom to practice any profession or to carry on any occupation, trade, or business of own choice. Article 21 says that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This article can also be used by women if their personal liberty is infringed. Every person has the right to live their own life in their own way and conditions and no one has the right to control it. Article 21-A is inserted in the Constitution by the eighty-sixth Amendment Act,2002 as a fundamental right which is the right to education. It is an important article for all children and especially females because our society is treating improperly just because of a lack of education. Education is the main key to success so that must be a fundamental right also. The most provision in our constitution is Article 32 which gives the power to all to move to the court if their fundamental rights are hampered.

CONCLUSION

The fundamental rights were enshrined for the betterment, welfare, and safety of the people only. Women are also living in this same society and they have equal rights as men. It’s high time and learns to fight for their own self at least not anyone else. Constitution gave us identity so we should also accept that and utilize it. This will firstly start when every woman gets educated which is also provided in the statute. This social stigma of gender inequality will vanish when this topic won’t be a matter of discussion anymore. The day when we can see that these discussions are over that will be declared as the day of gender neutrality. Everyone talks about women empowerment, their rights, education, laws made for them to take a stand for themselves then the question of reputation arises, ‘what the society will think’? we are being educated and then told to be quiet. This becomes another greatest problem for this social stigma of gender inequality to continue for so long time. It’s time to move ahead and think bigger rather than stick ourselves with old and unsocial practices. Also, with this, we need to take a pinch of caution and make the laws such that they become gender-neutral and do not lead to outraging the modesty of a man as well.

REFERENCE

1. Constitutional law of India- Dr. J. N. Pandey

2. Women’s Right in India- Dr.NarasimhaRao

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