Women make up half of society’s population, and it is assumed that women are the best creators. However, it is a cruel reality that women have long been mistreated in every society, including India. The division of labour has mostly resulted from physiological disparities between the sexes, leading to authority resting with the men, culminating in entrenched gender hierarchies, from tribal to agricultural to industrial civilizations to organised states. Discrimination, subjugation, and suppression have all been part of our history.

In India, it is thought that throughout the Vedic Period, women had the same status as men. Women sages and seers are mentioned in the Upanishads and Vedas. However, the condition quickly deteriorated. Sati and child marriage are two examples of historical customs that demonstrate the gender imbalance in Indian society. Domestic violence, trafficking, dowry murders, female infanticide, female foeticide, sexual objectification, assault, and sexual harassment at work are all examples of dysfunctional gender equity that are still prevalent today.

In the present time, women are still being treated inferior to men in various circumstances like at workplace, at home, at school etc and also in varying degrees, like with respect to pay, job opportunities, learning opportunities, basic human conduct towards themselves and so on. Not only women but also the LGBTQI+ community highly suffers from discrimination, inequality and injustice.

Let’s begin with understanding some basic concepts –

1. Sex – Sex is a biological phrase that refers to a person’s genetic and physical identity. It is used to indicate whether a person is male or female. It is made by nature. Sex is globally the same all over the world which means that the biological features of a male and female are more or less same throughout the world.
2. Gender – The socially learned behaviours and expectations associated with males and women are referred to as gender. Gender is socio cultural in nature. The attitude towards a gender and the expectations from it change from place to place and community to community. The differences in gender are not created by nature but by society.
3. LGBTQI+ – it is a short form for Lesbian, Gay, Bisexual, Transgender and Queer or someone who is questioning their sexual identity and Intersex. These are traits that people sometimes are born with or sometimes identify themselves as they grow up. These are forms of sexual identity and in the present time are yet to be accepted by everyone globally.

TREATMENT OF WOMEN AND GENDER DIVERSE PEOPLE IN INDIA

Women’s engagement in public life is increasing in a tradition-bound country like India, which is fully dominated by men. Men and women are treated equally under the law. Women, however, are still mistreated in society despite legal protection. Rape, acid assaults, inequitable treatment, and other types of violence against women exist, and they not only violate their fundamental rights but also foster gender inequality.

Women lack economic resources and are completely reliant on men for survival. Women’s employment is frequently confined to the home realm; she was required to perform all housekeeping duties, which were both unpaid and unrecognised. Many women are returning to work in modern times, but they must face a double burden. Furthermore, because she is considered less productive than her counterpart, she is the last to be considered and the first to be fired. Her overall social and familial standing has been low and ignored.

Not only are women denied equality, but so are members of the LGBTQI+ community. While homosexuality is seen as a disease, the LGBTQI+ community faces grave human rights violations, including violations of the right to equality and the right to a dignified life. Physical, social, and psychological violence is perpetrated against members of the LGBTQI+ community as a result of homophobic, transphobic, biphobic, and lesbian activities.

Supporting the fact that every human deserves to be treated with dignity and respect and has a right to life, courts and the judicial system have begun to recognize and support their existence with revolutionizing judgments. Since every country is bound by its laws and legal system, the decisions of the judiciary which uplift the female and LGBTQI+ community can help the society in acknowledging and respecting them and their way of life.

PROVISIONS OF LAW THAT SUPPORT AND PROTECT WOMEN AND LGBTQI+

Respecting women and the LGBTQI+ community and to protect them from cruelty and harm, there are legal provisions that can do the same. Not only that but amendments in the provisions have been brought to make the life of women and other genders easier and more respectable.

1. Article 14 of the Constitution – Article 14 guarantees equality before the law, or equal protection under the law. As a result, the equality granted here is two-fold: equality before the law means that the state will not discriminate between two citizens; in the eyes of the law, everyone is equal. Equal protection of the laws, on the other hand, allows the government to engage in positive discrimination in order to put all citizens on an equal footing. It allows the government to create specific arrangements for disadvantaged groups of society, such as affirmative action and special status for women, among other things.
2. Article 15(1) of the Constitution- Article 15 (1) expressly forbids discrimination on the basis of sex, stating, “The State shall not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth, or any combination of these factors.” This does not exclude the government from taking affirmative action in women’s favour. The State has the ability to provide specific provisions for women and children under Article 15(3).
3. Article 16 of the Constitution – Article 16 guarantees equal opportunity for all in areas relating to public employment or nomination to public office, and it expressly prohibits discrimination based on gender. ‘No citizen should be ineligible for, or discriminated against in respect of, any employment or office under the State solely on the basis of religion, race, caste, sex, descent, place of birth, residence, or any of them.’
4. Article 19 of the Constitution – The right to freedom of expression includes the ability to express oneself by words, attire, action, or behaviour. Article 19 recognises the ideals of privacy, self-identity, autonomy, and personal integrity as essential rights that apply to both transgender and non-transgender people.
5. Article 21 of the Constitution – The right to a dignified existence is guaranteed by Article 21. With respect to this the court said that “The meaning and content of fundamental rights provided in the Indian constitution are of sufficient amplitude to embrace all dimensions of gender equality, including the avoidance of sexual harassment or abuse,”.
6. Article 39 of the Constitution – Article 39 guarantees that both men and women have the right to an equal means of subsistence, as well as equal remuneration.
7. Article 42 of the Constitution – Article 42 guarantees reasonable and humane working conditions as well as maternity leave.
8. Sec. 376 IPC – Rape
9. Sec. 363-373 of IPC – Kidnapping & Abduction for different purposes
10. Sec. 302/304-B IPC – Homicide for Dowry, Dowry Deaths or their attempts
11. Sec. 498-A IPC – Torture, both mental and physical
12. Sec. 354 IPC – Molestation
13. Sec. 509 IPC – Sexual Harassment

The legislature also has provided us with several enactments and bills to safeguard the rights of women and LGBTQI+:

1. The Employees State Insurance (ESI) Act, 1948 – The Act’s goal is to provide certain benefits to employees in the event of illness, maternity, or workplace injury. The Act applies to all factories and any other business to which an appropriate authority can extend the Act’s provisions after one month’s notice. Section 46 of the Act, which deals with employee benefits, provides for periodic payments to a covered woman in the event of confinement, miscarriage, or illness resulting from pregnancy, confinement, or premature birth of a child.
2. The Maternity Benefit Act (MB Act), 1961 – While the ESI Act covers insured women earning up to INR 21,000 per month, the MB Act covers all women working in factories, mines, stores, and other commercial establishments with ten or more employees. The MB Act does not have a wage ceiling.
3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – The Act’s goal is to protect women from sexual harassment at work, as well as to prevent and address sexual harassment, as well as to address matters related to or incidental to sexual harassment.
4. Women’s Reservation Bill- The Women’s Reservation Law is a pending bill that would amend the Indian Constitution to reserve 33% (one-third) of all seats in the Lok Sabha, Parliament’s Lower House, and all state legislative assemblies for women. In the Lok Sabha and legislative assemblies, one-third of the total number of seats allotted for Schedule Tribes and Scheduled Castes will be reserved for women from those categories. On March 9, 2010, the Rajya Sabha passed the measure.
5. The Transgender Person’s (Protection of Rights) Bill, 2016 – This Bill was scheduled for passage during the 2016 winter session of Parliament with the goal of expanding the scope of gender justice in India, however it has yet to be enacted. Transgender people have been given legal recognition as well as anti-discrimination protections. Certain educational and health-related entitlements have been established. Section 4 of the Bill has a provision for self-perceived gender identity; under Section 4, a person who identifies as a transgender person may file an application with a District Magistrate for the issuance of a certificate of identity as a transgender person. The Supreme Court’s decision in NALSA versus Union of India provided the foundation for transgender people’s rights.

INTERNATIONAL MOVEMENTS FOR GENDER JUSTICE

Gender discrimination and injustice have been a matter of concern and hurt, not only in India, but also in various other parts of the world. This has led to various movements, big and small, in various countries, fighting and protesting for the rights of women and gender diverse people. Some of them being –

1. Long-time activists Frank Kameny and Barbara Gittings spearheaded the first gay rights marches in Philadelphia and Washington, D.C. in 1965, as the civil rights movement won new legislation against racial discrimination. On June 28, 1969, guests of the popular Stonewall Inn in New York’s Greenwich Village fought back against persistent police raids of their local bar, marking a watershed moment in homosexual emancipation.
2. Taiwan became the first country in Asia to allow same-sex marriage in May, following years of advocacy by LGBTQI+ rights activists. Members of Taiwan’s parliament began submitting same-sex marriage legislation in 2003, but they were frequently rejected, and amendments to the law bounced back and forth between the legislature, judges, and voters until 2018.
3. On April 3, 2011, 3,000 women (and men) marched through Toronto’s streets in what was dubbed the Slut Walk. Angry by a Toronto police officer’s ill-advised comment that women shouldn’t “dress like sluts” if they didn’t want to be assaulted, protestors gathered to protest blaming rape victims for their own assaults. More than 50 satellite walks have taken place around the world to date, including Boston, London, New Delhi, and Sydney.
4. A group of Saudi women defiantly demonstrated with their cars in June 2011. While driving may not appear to be a radical act, these women risked jail since Saudi Arabia is the last country in the world that prohibits women from driving. The demonstration was mostly organised through social media, and despite the lack of a picture op, it received worldwide notice. Though this isn’t the first time Saudi women have spoken out against the prohibition, a group did so in 1990, the recent attempts appear to be making progress. Instead of arresting a woman who was pulled over by the police, the officer issued her a traffic ticket.
5. The White Ribbon Campaign claims to be the world’s greatest movement of men and boys working to prevent violence against women, having grown to over 60 nations in reaction to the Montreal Massacre of 1991. In an effort to engage and inspire men into good change, it includes education, outreach, and institutional support. Wearing a white ribbon represents a promise to never perpetrate, condone, or keep silent in the face of violence against women.

THE JUDICIARY SYSTEM’S APPROACH TOWARDS GENDER JUSTICE.

The judicial system is supposed to not discriminate people on the basis of sex, gender, caste, religion etc. and so is also duty bound to provide equality, fairness and justice to all. To achieve this the judiciary has laid down several landmark judgments in support of gender justice and protection of women and gender diverse people from inequality and harassment.

1. Vishaka & Ors. v. State of Rajasthan & Ors[1]

The Supreme Court of India handed down a major decision in 1997. As a result of this case, some criteria for dealing with situations of sexual harassment of women at work were enacted.

The Supreme Court in its judgment defined Sexual Harassment as an unwanted or uninvited action including – Physical touch or conduct; or showing of pornography; or use of sexually derogatory words; or asking for sexual favours; or any other unpleasant verbal or non-verbal conduct of sexual nature.

Furthermore, because there are no laws in India prohibiting sexual harassment, the Supreme Court held that the International Conventions must be considered, and as a result, the Court issued certain guidelines for employers or any other responsible person in the workplace to follow in order to ensure gender equality and the safety of women at work. Article 141 of the Constitution required that such guidelines be treated as law. Some of them as dictated by the court were –

1. When sexual harassment occurs, the employer should take proper action against the perpetrator by submitting a report with the appropriate authority.
2. Every employer’s organisation must form a suitable Complaint Committee, which is responsible for resolving victim complaints in a timely manner.
3. The Committee will be led by a woman, and half of its members will be female.
4. Mary Roy v. State of Kerala[2]

The Supreme Court of India issued a historic judgement in 1986, recognising the rights of Christian women in intestate successions.

The Supreme Court ruled that no personal law can be considered superior to the Indian Constitution. The Act’s provisions discriminate against women, infringing on the right to equality granted by Article 14 of the Indian Constitution.

In addition, the court concluded that Chapter 2 of Part V of the Indian Succession Act, 1925, rather than the Travancore Succession Act, 1916, should be applied in circumstances of intestate succession in Travancore.

• Latha Singh v. State of Uttar Pradesh[3]

The Supreme Court allowed a writ petition brought by a girl seeking the right to marry a person of her own choosing of her own will in this landmark 2006 decision.

Inter-caste marriage is not prohibited by the Hindu Marriage Act or any other law in the country, according to the Supreme Court. The caste system is nothing more than a roadblock in the country’s development and advancement.

• C.B. Muthamma vs. Union of India[4]

Rule 8(2) of the IFS (conduct and discipline) rules, 1961, was challenged in this writ petition, which stated that unmarried women must obtain permission from the government before marrying and may be asked to quit at any time if her family life is compromising her work efficiency.

The Supreme Court ruled that IFS seniority and promotion standards are unconstitutional and in violation of Article 15. The court stated that this rule contains discrimination against women. If a woman member of the service’s family and domestic obligations are likely to obstruct her ability to perform her duties effectively, a male member may face a similar scenario. The Supreme Court also urged the government to review all service rules and eliminate discriminatory practises in service legislation.

• Shayara Bano v. Union of India[5]

This case, also known as the Triple Talaq case, was decided by the Supreme Court in 2017 and declared unlawful the practise of Muslim husbands taking divorce by reciting talaq three times. The husband repudiates his wife by reciting talaq three times in a sentence without her consent, which is known as talaq-e-biddat. Furthermore, the divorce was final and irreversible under the practise.

The petition was heard by a five-judge bench of the Supreme Court. The practise of triple talaq was declared unlawful on August 22, 2017 by a 3:2 majority of the judges. According to the court, triple talaq is not a fundamental religious practise under Islamic law, and hence declaring it unconstitutional does not violate Article 25 of the Constitution.

The state cannot take away an individual’s vital religious practise, according to Article 25 of the Indian Constitution. If, on the other hand, the practise is arbitrary in character and not vital to the religion, it is not covered by the Article. According to the Hanafi School, the activity is immoral and goes against the basic precepts of Quorum. It means that the practise itself is prohibited by Shariat and by law.

The Court also cited its decision in the case of Shamim Ara[6], in which it was decided that the practise of triple talaq is contrary to religion and law, and that it cannot be sustained just because it is practised by the general public.

The court ruled that the practise violates Article 14 of the constitution’s right to equality because the woman has no say in the divorce and is taken without her agreement. The relationship ends on the husband’s whims, in violation of Articles 14 and 21 of the Constitution. As a result, the practise is unlawful.

• Voluntary Health Association of Punjab vs. Union of India, 2013[7]

Supreme Court issued guidelines for the effective implementation of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

• Nargesh Meerza vs. Air India[8]
• In this case, an Air India air hostess challenged the airline’s service rules prohibiting air hostesses from marrying within four years of joining the company. Air hostesses will also lose their jobs if women become pregnant, and will retire at the age of 35, according to the rules.

The court declared the rules to be arbitrary and unconstitutional, holding that while whether a woman would continue in service after bearing children or find it difficult to care for her children is a personal matter, the provision terminating an air hostess’ services on the first pregnancy is not only manifestly unreasonable and arbitrary, but also contains a constitutional violation.

• Naz Foundation v. Government of NCT of Delhi[9]

This is a landmark decision in which the Supreme Court declared Section 377 of the Indian Penal Code, 1860, to be unconstitutional because it violated Articles 14, 15, 19, and 21 of the Constitution by criminalising consensual intercourse between two adults.

The Delhi High Court ruled in favour of the Naz Foundation, declaring Section 377 unconstitutional to the extent that it prohibits consensual intercourse between two homosexual adults, citing violations of Articles 14, 15, and 21 of the Constitution. The Court found that Section 377 was discriminatory against LGBTQI+ people and so violated Article 14 of the Constitution.

Discrimination based on sexual orientation, according to the Court, is also a violation of Article 15 and Article 21 of the Constitution. As a result, Section 377 is null and void. It is vital to clarify, however, that Section 377 is only repealed in the case of consensual intercourse between same-sex adults. It means that the contested Section still applies to non-consensual intercourse between minors.

• National Legal Services Authority (Nalsa) Vs. Union of India[10]

The National Legal Services Authority of India (NALSA) brought this case to officially acknowledge those who do not fit into the male/female gender dichotomy, such as those who identify as “third gender.”

This was a landmark ruling in which the Supreme Court for the first time legally recognised “third gender”/transgender people and examined “gender identity” in depth. Under the Constitution and international law, third-gender people have fundamental rights, according to the Court. It also instructed state governments to create measures to ensure that the rights of “third gender”/transgender people be realised.

The Court upheld everyone’s right to self-identify as male or female. It further said that hijras and eunuchs have the legal right to identify as “third gender.” Gender identity, the Court said, does not refer to biological features, but rather to “an innate impression of one’s gender.” As a result, it was decided that no third-gender people should be subjected to any medical or biological tests that might infringe on their right to privacy.

The Court construed Article 21 of the Constitution’s definition of “dignity” to embrace diversity in self-expression as allowing a person to live a dignified life. It enshrined one’s gender identity within the scope of Article 21’s fundamental right to dignity.

Furthermore, it was highlighted that the Constitution’s right to equality (Article 14) and freedom of expression (Article 19(1)(a)) were worded in gender-neutral words (“all persons”). As a result, transgender people would have the right to equality and freedom of expression. As a result, the Court determined that transgender people had fundamental rights under the Constitution’s Articles 14, 15, 16, 19(1)(a), and 21. In addition, the Court used key international human rights treaties as well as the Yogyakarta Principles in order to recognise transgender people’s human rights.

To combat stigma against the transgender population, the Court ruled that public awareness campaigns were essential. It also ordered the federal and state governments to adopt a number of steps to help the transgender community, including:

1. Including provisions in all papers for the legal recognition of “third gender”.
2. Recognizing third gender people as a “socially and educationally backward class of citizens” who are entitled to educational and public job reservations.
3. Taking initiatives to develop community-based social welfare programmes.

CONCLUSION

The right to equality entrenched in Article 14 of the Indian Constitution applies equally to both men and women. Reality, on the other hand, paints a bleak image of prejudice against women and members of the LGBTQI+ community. Gender justice has become more important as a result of the denial of equality to women and the LGBTQI+ community.

Gender equity emphasises that all humans, men and women, are free to develop their particular capacities and make decisions free of stereotypes, rigid gender roles, political, and other prejudices. Their various goals should be regarded equally, and they should be treated properly based on their individual requirements. However, the legislation can only go so far. All segments of society must contribute to this transformation, and NGOs, the media, and people’s representatives must play key roles. Gender justice is true equality among humans, in which neither a man nor a woman is superior.

The Supreme Court has been instrumental in establishing gender equality. PIL has established a strong legal foundation for women and the LGBTQI+ community to fight for themselves and to ensure that they have equal rights to males. The Court has addressed concerns such as workplace sexual harassment, denial of property rights, acid attacks, rape, and other issues that are not just discriminatory but also inhumane.

The presence of legislation, on the other hand, does not mean that it will be implemented consistently or that it will eliminate the vast inequities that currently exist. According to the latest National Crime Records Bureau (NCRB) data (The WIRE), an average of 87 rape cases were reported per day in India in 2019. (NCRB, 2020). The crimes and harassment against the LGBTQI+ community are not even noted particularly and therefore such incidences are over looked and the people of the gender diverse community suffer in silence. This needs to change and India, as a country made of diverse people needs to step up. As a result, it is critical for the government and civil society to work together to satisfy India’s gender justice needs.

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[1] AIR 1997 SUPREME COURT 3011

[2] 1986 SCR (1) 371

[3] (2006) 5 SCC 475

[4] (1979) 4 SCC 260

[5] (2017)9 SCC 1

[6] Shamim Ara v. State of U.P. & Anr [MANU/SC/0850/2002]

[7] 2013 (1) SCALE 383

[8] 1981 AIR 1829

[9] 160 Delhi Law Times 277

[10] (2014) 5 SCC 438

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Author: Thithiksha Padman from Amity Law School, Delhi.

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