ADEQUACY OF THE CONSTITUTIONAL PROVISIONS IN ACHIEVING GENDER MAINSTREAMING – A CRITICAL APPRAISAL    

Abstract

Human Rights play a vital role in all the countries of the world because it does not discriminate on the basis of gender. It includes both men and women. The Indian Constitution has always prioritized gender mainstreaming.  It has granted equality to women in each and every sector. It prohibits discrimination against any citizen on the basis of religion, race, caste, sex or place of birth. The following article discusses about constitutional provisions in achieving gender mainstreaming in India.

Introduction-

Gender mainstreaming has always been a burning issue not only in Indian sub-continent but also across the world scenario. Gender disparity has always created hurdles in achieving gender equality. Gender mainstreaming refers to the process of bringing gender related issues altogether into the mainstream of the society.

The main goal of Gender mainstreaming is to ensure gender equality, as a primary goal, in each and every area of social and economic development.

It is a method in which both women and men are equally concerned and experience an integral dimension in the design, implementation, monitoring and evaluation of policies and programs in various fields like political, economic, societal. It ultimately benefits men and women equally.

What Gender Mainstreaming Involve?  

Gender Mainstreaming involves various activities like-

  1. Strengthening and forging the political will, to achieve gender equality at different levels – local, national, regional as well as at global levels.
  2. Integrating gender perspective into a single planned action program which includes analysis, development, implement, monitoring and evaluation of such policies and programs.
  3. Gender Mainstreaming also plays a vital role in the growth of institutionalized collection and use of sex-disaggregated figures in statistical analysis, to reveal how various policies affect men and women differently.
  4. Aggravating the number of women in the decision-making process of the government.
  5. Further, it acts as a tool for gender awareness, gender analysis and decision making. For senior managers and other personnel along with it, it ensures that they have understood the importance of integrating gender perspective in their works.
  6. Lastly, gender mainstreaming has been contributing to the planning process of the ministry of the government, in the socio-legal matters and most importantly in administering justice from the root level. For example- The Indian Government has also decided to introduce a separate unit specially to dedicate for the improvement of the status of women in different states. This unit was likely to be set up under the women and child development ministry and its state counterpart.  The work of this unit shall be to have a track of the progress women are doing in every field. It shall also join hands with government’s think tank and NITI Aayog and along with that it shall also introduce a gender-based index which shall rank all the states accordingly promoting gender mainstreaming.

COUNTRIES PROMOTING GENDER MAINSTREAMING

Finland has a separate unit that promotes gender equality. In the year 2019, a report was released on the Global Gender Gap Index of the World Economic Forum for last 11 years in row which was topped by Iceland. The criteria of the gender-mainstreaming included four key areas i.e. health, education, work and politics, The top five places after Iceland was captured by Norway, Finland, Sweden and Nicaragua respectively. India is in 108th position and  not even found under top 100. In 2020, the rank of India decreased to 112. Similarly, in the Global Gender Gap Index Report 2021, India has secured 140th rank among 156 countries and has been considered as third worst performer in South Asia.

Gender Mainstreaming under the Indian Constitution

Gender mainstreaming and Gender equality are two different concepts but they are totally relatable to one another. Gender equality can be a part of Gender mainstreaming, but it cannot be replaced as Gender mainstreaming in any of the sector.

Our Indian Constitution, since its enforcement, has been a flag bearer of gender equality which is the very first step towards gender mainstreaming.

The main and only difference between both of them is that gender equality focuses on empowering women in India and gender mainstreaming focuses on equalizing women with men in India by making them involved in every process of the government.

CONSTITUTIONAL PROVISIONS ACHIEVING GENDER-MAINSTREAMING

Some safeguards have been formed by the government in order to maintain gender equality and create gender mainstreaming.

These safeguards are also called as constitutional safeguards and it is classified into five parts under the constitution of India: –

1.Right to Equality –

It is the very first and most important fundamental right found under Part III of the Indian Constitution. Article14 and 15 of the Constitution clearly ensures equality to women as it is said under article 14 that everyone is equal before the eyes of law, which also means on the basis of gender.

Similarly, Article 15 guarantees zero discrimination on the basis of caste, religion, race, gender(sex), place of birth or any of them.

Only on the basis of above-mentioned factors a person whether man or women cannot be subjected to any kind of disability, liabilities, restriction or condition with regards to accessing into shops, restaurants, public places etc.

Even under article15(3) it has also been mentioned that Nothing in the article shall prevent the state from making any special provisions to women or children.

2.Right to Equal opportunity –

It guarantees equality of opportunity to all citizens in the matter relating to employment an appointment under the respective state government of India.

It is the duty of the state to ensure that no right have been violated in the basis of caste, religion, color, gender, creed etc.

Equal opportunities should be found in every sector of employment such as-

  • Equality of opportunity for access as to the job promotion evolution of performance getting rewarded.
  • Right to work is the most important factor and the primary thing under right to equal opportunities which should be deprived for the women.
  • Article 16 guarantees equal opportunities in the employment sector as well in any appointment made by the state. No person shall be deprived on any basis. Woman are also included and they cannot be deprived of the same just because of the gender.

3. Right to Adequate means of Livelihood-

Standard living means adequate living having access to avail the basic facilities of health, wellbeing, housing, food, clothing, medical facilities should be provided to every person. This also shows the gender mainstreaming by including both men and women.

4. Right to Get Reservation in Local Bodies-

Even a constitutional amendment in 1993 brought reservations for women in local government to empower them by giving them the responsibility of the legislation process from ground level.

5. Right to humane condition of work-

It is directly linked to the right to live with human dignity irrespective of the nature of work. The central and state government should make such laws that provide the right to just and humane condition of work for both men and women.

Important Case Laws relating to Gender Mainstreaming

In the case of Vineeta Sharma Vs Rakesh Sharma[1],  the Supreme Court held that the daughter would have equal coparcenary right in their Hindu undivided family by their birth and cannot be deprived of their inheritance, even if they were born before 2005 amendment to the Hindu Succession Act,1995.

Similarly, in the case of The Secretary Minister of Defence Vs Babita Puniya and Ors. (2020)[2], the Apex court held that all women army officers can be made eligible for getting permanent commissions along with granting them to be in commanding roles. This case paved a new way for the women in army as its equalized women army officers with their male officers when it came to the part of rank, promotion, allowance, benefits and ranks and promotions.

In the case of Joseph shine Vs Union of India (2018)[3], the Apex court decriminalized the concept of adultery under Section 497 of the Indian Penal Code and declared that a woman has the right to exercise her sexual freedom in personal zone. CJI Deepak Mishra observed that Sec. 497 only gives the husband to the right to prosecute his wife’s lover but does not give any right to the woman if her husband commits the same offence. He observed that Section 497 treats a woman as a mere property of her husband.

Indian Young Lawyers Association V. State of Kerala (2018)[4]This particular verdict is proved to be one of the landmark judgments of the Apex Court of India regarding gender mainstreaming at the place of worship. CJI. Dipak Mishra heading the bench opened the doors of the Sabrimala temple to the entire women community. The Sabrimala temple used to obey an old age tradition of not allowing the girls and women between the age group 10-50 by stereotyping menstruation.

The Supreme Court held that the restriction on the entry of women inside the temple is a clear violation of right to worship as well as right to equality as mentioned under Article 25(1), 21, 19, 15 and 14 of the Indian Constitution. Therefore, the restriction is purely unconstitutional. Along with that it also struck down Rule 3(b) of the Kerala High Hindu Places of Public Worship Act and declared it as unconstitutional.

In the Sabrimala temple case (Indian Young Lawyers Association v. State of Kerala), Several protests and agitation were found in the state of Kerala due to this judgment pronounced by the Supreme Court, yet it was widely accepted with open hands by the majority people across India.

Mary Roy vs. The State of Kerala[5]– This case encouraged the repeal of the Cochin and Travancore Succession Acts. Here, the petitioner Mary Roy approached the court as her constitutional right to equality was violated. She filed a case to restore and get equal rights in succession but the lower court denied her request. Further, she approached the Kerala High Court against the decision of the lower court, however the High Court was in her favor. After a legal battle of 8 years, she acquired the possession of her father’s property, but she was subject to harassment by her brothers. As a result of this, she decided to knock the doors of the apex court of India. The main issue before the Court was that the Travancore Act, was violating the provisions of Succession Act of 1923, discriminating women on the basis of gender and depriving them from getting their father’s property.

In this case, the Supreme Court was in favor of the decision of the Kerala High Court and held that daughters are entitled to 1/3rd share of her father’s property, and no discrimination should be made between sons and daughters as it clearly violates Article 14 and 15 of the Indian Constitution.

SUGGESTIONS

This Article would further put forth certain suggestions to implement gender mainstreaming in a country like India and the list of suggestions are as follows: –

  • Using Gender- sensitive language – While addressing in any platform, using uch language shall equalize both women and men;
  • Equal access to and utilization of services should be given to women as it is given to men;
  • Women shall be equally involved in the decision-making process of the government;
  • Providing ample amount of education and employment to the women;
  • Establishment of more numbers of NGOs to eradicate Gender Inequality;
  • Recognition of Domestic Violence as a Public Health Concern;

Mobilizing communities through awareness on Gender Mainstreaming.

CONCLUSION

India is yet to be a gender-neutral nation but there’s no doubt in considering it as a Gender Mainstreaming country. In the ancient times, women were subjected to several harassment, torture and brutality, but the contemporary situation has changed. Now women are being equalized with man. From the Shayara Bano case to Sabrimala temple case, we can clearly visualize the position of women in the country.

CREDITS: Ashima Mishra, B.A.LLB (Honors)University Law College, Utkal University, Bhubaneswar

REFERENCES

  1. Vineeta Sharma v. Rakesh Sharma, AIR (2020), SP No. 17661767 (India).
  2. Secretary, Ministry of Defence v. Babita Puniya, (2020) Civil Appeal No. 1210.
  3. Joseph Shine v. Union of India, (2019) 3 SCC 39: (2019) 2 SCC (Cri) 84.
  4. Indian Young Lawyers v. State of Kerala, (2017), W.P No. 373 of 2006.
  5. Mary Roy v. State of Kerala, AIR 1011, (1986) SCR (1) 371.
  6. Dr. J.N. Pandey, Constitutional Law of India, 55th Edition,2018

 


[1] AIR (2020), SP No. 17661767 (India).

[2] (2020) Civil Appeal No. 1210

[3] (2019) 3 SCC 39: (2019) 2 SCC (Cri) 84

[4] (2017), W.P No. 373 of 2006.

[5] AIR 1011, (1986) SCR (1) 371.

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