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November 01, 2018 Thursday 03:51:15 PM IST

Thou shalt not discriminate

Cover Story

Though we use the term gender keeping in mind the distinction between a man and a woman, it is almost mistaken as sex. Sex is a biological factor contributing to the male and female distinction which is easily identifiable.  However, gender is a social concept, which is based on sex. 

This means that there are certain concepts attached to both the sexes which are mostly manmade and not natural. It may also be said to be a conditioning.  For example, there are certain jobs which everyone feels is capable of being done only by men such as driving heavy vehicles, that too at night. (it is true that there was a time when driving even a bicycle was only considered as a man’s domain). Lifting of heavy loads, working in tough weather, trucking, and many things which require physical as well as mental strength is considered as a man’s job. Women on the other hand are considered as fragile, gentle, soft – both physically and mentally. This is the reason why even the Law has exempted women from working in factories.  

Thus, women are more associated with taking care of domestic affairs, cooking, cleaning, baby care, music, dance, etc. Even in dance, there are distinctions based on sex.  While the vigorous dance is attributed to men as Thandava, the gentle version of it is attributed to women as Lasya. Cruel deeds are mostly associated with men. That is why butchering, murder, housebreaking, etc. are more said to be done by men.

   In a nutshell, in all activities around us, there is a division based on sex -- which is called gender. The problem with this division is that it is artificial.  In reality, the other way around is very much possible.  Though cooking is said to be the domain of women, when it comes to mass-level cooking, such as cooking for marriage feast, the task is executed by men.  Similarly, women have proved to be good drivers, even in the case of heavy vehicles. This undoubtedly shows that there are limited avenues where people are capable of performing by virtue of being man or woman.  Being pregnant is naturally possible only for a woman. That is not a notion, or a socially generated role, but a naturally created role. So, if men or women are denied the opportunity to do things on the basis of their gender, it will be against their very nature.  This is because both can prove who they are, and what they are capable of doing, only if opportunity is given. 

A man may fail in driving a vehicle, when a woman may succeed in it.  A woman may prove to be a failure in taking care of her child, while a man may prove to be a success in the same. This is because, it is a capacity of the individual, and not of the sex to which he or she belongs.

   Thus, it will be unjust if a woman, who wants to do something, is denied the opportunity, only because she happens to be a woman. Same is the case with man. This is called discrimination.  The international laws as well national legislations are now progressing towards elimination of such discrimination. But, as the practice is more prevalent against women, discrimination is always understood as discrimination against women. Let us now look at the International Human Rights Law in this regard.

International Human Rights Law

  The Universal Declaration on Human Rights (UDHR), in its opening Article, says, “All human beings are born free and equal in dignity and rights”. It also stipulates that everyone is entitled to all the rights under this Declaration without distinction as to race, sex, language, etc. This means that men and men, women and men, and women and women should not be discriminated. That means, intra-sex and inter-sex discrimination shall not be there. The International Covenant on Civil and Political Rights (ICCPR) reiterates the same in a more emphatic manner thus: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” 

   These documents, in general, are intended to protect human rights of all the people. There is a special convention exclusively for protecting discrimination against women and that is the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the General Assembly of the United Nations on 18th December, 1979, which entered into force on 3rd September, 1981.  This Covenant aims at discrimination against women in her social, political, educational, employment, and marital life. It also aims at empowering the women’s mental as well as physical health. As per this Covenant, discrimination means “any distinction, exclusion or restriction made on the basis of sex, which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”  This, in a way, is a facet of equality – rather equal opportunity. Thus, the State parties will only ensure that equal opportunity is given to women at par with men -- and no positive action is thus envisaged to empower women in educational, political, social, cultural, and vocational field.

Indian Legal Scenario

   When it comes to the legal scenario in India, the concept is more positive. On the one hand, the Constitution of India prohibits discrimination on the basis of sex, and allows the State to take positive measures for women and children.  The following two Articles of the Constitution of India are worth mentioning.

Article 15(1): “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Article 15(3):  (3) Nothing in this article shall prevent the State from making any special provision for women and children.

   Reading these two together the end result is that on the one hand, the State shall prohibit all discrimination against women, and the State is also empowered to provide special measures to women to uplift them.  In furtherance of this Article various legislations are made for protecting women.

  Also, in the Directive Principles of State Policy (DPSP) in the Constitution of India, there are various provisions for ensuring equal pay for equal work for both men and women, for maternity benefit, and protection in the case of widowhood. There are various provisions in the Indian Penal Code prescribing harsh punishment for offences, especially sexual offences against women.

   There are various landmark legislations to protect women such as Protection of Women from Domestic Violence Act, Indecent Representation of Women (Prohibition) Act, Equal Remuneration Act, Maternity Benefit Act, Prohibition of Sexual Harassment of Women at Workplace Act, Dowry Prohibition Act, etc. There are also various schemes of the Government in the field of education to women such as Kasturba Balika Vidyalaya, National Programme for Education of Girls at Elementary Level, Mahila Sangha, Rashtriya Madyamik Shiksha Abhayan, etc. For the economic empowerment of women, there are various schemes such as Rashtriya Mahila Kosh, National Mission for Empowerment of Women, Rajiv Gandhi Scheme for Empowering Adolescent Girls (RGSEAG), “SABLA”.

Judiciary and gender equality

Apart from these, there are various landmark judicial decisions which go a long way in protecting discrimination against women.  In C.B. Muthamma v Union of India (1979 AIR 1868), rule 8(2) of the Indian Foreign Service (Conduct & Discipline) Rules, 1961 which read as …

 “ a woman member of the service shall obtain the permission of the Government in writing before her marriage is solemnized. At any time after the marriage, a woman member of the Service may be required to resign from service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service."

And, Rule 18 (4) of the Indian Foreign Service (Recruitment Cadre, Seniority and Promotion) Rules, 1961, which says,

 “No married woman shall be entitled as of right to be appointed to the service,” were under challenge. The Court cautioned the Government on the need to overhaul all Service Rules to remove the stain of sex discrimination.

  In  Vishaka v State of Rajasthan (1997), the Supreme Court considered sexual harassment at workplace as a violation against the dignity, equality and right to life of women. The Court made a law as there was no law in this area, till the law is made by the Parliament.  As a consequence, the Prohibition of Sexual Harassment of Women at Workplace Act was enacted.

   The right to property of women like that of men was also recognized in Madhu Kishwar v State of Bihar (1996), and Masilamani Mudaliar  v Idol of Swaminathaswamiswamin Athataswami Thirukoil (1996)

    Gender equality is most affected in the area of personal laws.  Personal laws are laws governed by the religion. This works in the area of marriage, divorce, maintenance, adoption, and succession to property. Though the judiciary has taken many initiatives in bringing in the concept of equality in these areas also, there are various areas, especially in the case of Muslim women’s right to property, which is not equal to that of men, where the Court adopted a hands-off doctrine saying that it is an area in which the Court will not interfere and that  the Parliament alone can have solution by enacting a uniform civil code.  

  However, in the case of maintenance to Muslim women, which was confined to the iddat (3 lunar months) period, was extended beyond that through various decisions like Mohd. Ahmd. Khan v Shah Bano Begum (1985), and Danial Latifi v Union of India (2001). Triple talaq was also held not to be a valid form of divorce in Shayara Bano v Union of India (2017), Shameem Ara v State of U.P.(2002),  and Iqbal Bano v State of U.P. (2007).

 Of late, the Supreme Court of India has delivered some judgments in favour of women much against the religious practice, condemning them as discrimination based on gender. Allowing the women between the age group of 10-50 to enter the temple of Sabarimala, the Supreme Court in Indian Young Lawyers Association v State of Kerala (2018 September) held: A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship. The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.


  Thus, the legislations, and judicial decisions are very much in favour of women.  Due to the social disadvantages they suffered, the law is so much in their favour that the laws can be misused against the men to their detriment.  But the social situations prevailing in most parts of our country are so pathetic that women are not even aware of the laws, and the schemes that protect them or empower them. A substantial change in the mindset of men as well as women is needed now, as women themselves tend to believe that their role is limited within the four walls of the house. It is true that women, with her patience and love, alone will be able to maintain a healthy environment and manage the affairs of the house, thanks to her multi-tasking skills. But, if she wants to go beyond the four walls and to extend her capabilities for nation-building, or for her economic or political empowerment, nothing should stand in the way.

   It is here that the need for educating women and men, especially the rural populace, is underlined.  Such an act, or awareness-building, should not result in the women considering men as their enemies or vice versa.  What is required is peaceful co-existence between women and men, and not exclusion of men or women. Then only we can say that we achieved GENDER EQUALITY. The test is -- are all happy? And not, are women happy!


(The writer is Director of School of Legal Studies, Cochin University of Science and Technology)

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