From Patriarchy to Equity: Transforming Legal Frameworks for Gender Justice in the 21st Century

Introduction

GENDER can also be described as Global, Equality, Neutrality, Diversity, Empowerment, and Respect. It is a socially constructed concept based on the predefined roles, behaviors, and identities that are associated with men, women, or any particular gender as deemed acceptable by society. Gender has been a power relation between men and women. Since time immemorial, gender has been advantageous to men, with women mostly being oppressed, and masculinity held to a higher standard than femininity. Hence, gender is not biological, it is socially constructed and varies between cultures and societies. In the simplest of terms, gender injustice means treating people unjustly based on their gender. From the beginning of history, it was women and transgender people from whom human rights were stolen first, denied equal representation in society, and subjected to discrimination, oppression, and violence within both the family and the workplace.

Gender justice or gender equality entails equal treatment and opportunities for all, regardless of gender, across various fields such as education, employment, healthcare, and politics. It means that everyone is free to pursue what they want without being discriminated against based on gender. However, despite the passage of time, gender has long been tied to power relations, where men are often perceived as superior to women and other genders.

Deeply embedded stereotypes and traditional gender roles are the primary drivers of gender inequality in India. For example, the belief that men are responsible for earning a livelihood while women should manage household duties limits women’s access to economic opportunities, decision-making, and education. As a result, it leads to an unjust distribution of domestic responsibilities, caregiving, and the social norms attached to their gender. Such restrictions make them dependent on men, and their career choices narrow down, especially in science and technology fields, due to a patriarchal society. At the same time, LGBTQ+ individuals and marginalized men from Dalit or Adivasi backgrounds continue to face oppression and discrimination due to their caste, ethnicity, or gender. Gender injustice is one of the many faces of inequality that society as a whole must address, apart from social and economic equality, so that the country or the societies can grow as a whole.

Gender equality has a relentless preference for the fair treatment of all gender identities, including women, men, and transgender persons. This brings about the dignity of women, as they often make up a large part of the population whose needs are ignored and unrecognized. Women are still considered the marginalized and weaker section of society.

As Justice Dr. A.S. Anand observed, “The process of gender justice, broadly speaking, covers the rights of women against exploitation and victimization. Unless we recognize her rights as basic human rights, gender justice would only be ‘lip service’ with no tangible result.”^[1] The framers of the Constitution attempted to incorporate provisions that would bring everyone onto an equal footing. Still, even after 78 years of independence, the idea of equality and justice for all remains as abstract as it was when first enshrined in the Constitution. Empowerment of women is a notion that is often misunderstood and is often reduced to the provision of basic rights such as education, voting, and the right to work. Actual gender justice, on the other hand, is about the equal treatment of all individuals without regard to gender and affording them all the rights granted to men. An egalitarian society is one where all people are considered equal, where justice is not gender-specific, and, more importantly, justice is the norm.

Challenges faced by Women in Indian Society

Right from ancient times, India has always been sensitive to considerations of gender, yet, for centuries, inequalities, discrimination, and injustices based on gender have existed and still exist today. Women in India have always held a low status. As the ancient Manusmriti points out, women were accorded far fewer rights than men. Also, because of the general thought that women are physically inferior, they have been abused. Over time, this unjust treatment has led to a significant decline in their social standing.

The discrimination and violence faced by women have always existed, as in the Mahabharata,  Draupadi was wagered by her husbands in a game of dice without her consent. She protested but still was not spared, as males had already claimed superiority over females, and this has continued to this date. Similar modern-day evils are apparent from the Kolkata incident, the Ujjain rape case, and others. These instances demonstrate that women are unsafe in every setting, be it at work, school, home, daytime, or nighttime. Women’s status in India has not significantly improved and, in many aspects, has worsened. Numerous instances of domestic abuse, sexual violence, trafficking for sexual exploitation, child marriage, and dowry deaths reveal that women still do not enjoy the rights that the Constitution guarantees them. Women are often regarded as mere objects for reproduction, and they mostly have no control over their lives. Women belong to their fathers before marriage, to their husbands after marriage, and to their sons in old age.

Societal gender inequity is one of the vices entrenched in the Indian context, especially among women, and many of them do not get any closer to the rights and opportunities accorded to them. Most of them are poor, uneducated, and disadvantaged people who are not in a position to make major decisions in their households, and they are subjected to men’s authority. In this case, most women lead a life of despotism and marginalization. To achieve gender parity or gender justice, the enhancement of women’s rights is indisputable. However, women should be treated more delicately than men, especially considering the reproductive biological aspects of women. In response to these needs, some alleviation can be achieved, allowing women the same entitlements and opportunities that men enjoy. As Justice V.R. Krishna Iyer stated, “The fight is not for woman’s status but for human worth. The claim is not to end the inequality of women but to restore universal justice. The bid is not for loaves and fishes for forsaken gender but for cosmic harmony, which never comes till woman comes.”^[2]

In India, several factors hinder women from attaining equality, the first being education. Society does not value the education of a girl child, and this leads to many girls losing out on education due to reasons like cultural norms with the belief that she will grow up, get married, and go to her husband’s family. Other barriers include issues of safety, lack of sanitation facilities, and taboos associated with menstruation. Moreover, they also face serious issues when it comes to work, as they tend to earn less than their male colleagues, promotions come late, and they fight hard to earn what men earn. The unending struggles women face are just an illustration of problems related to gender biases that still retard the progress of Indian society.

Challenges faced by the Third Gender in Indian Society

Across the countries of the world, transgender people, also known as third-gender people, face significant discrimination and are deprived of some of the most basic rights because they comprise a weaker section of society. The Universal Declaration of Human Rights (1948), declared by the United Nations General Assembly, recognizes gender justice and gender equality as fundamental human rights.^[3] Positive discrimination exists in various forms but cannot be used as grounds for usurping anyone’s rights based on their gender or gender identity. Unfortunately, such hope remains distant because transgender people are often social outcasts, suffering family abandonment, ridicule, and abuse from society, hence becoming victims of gender injustice. The fundamental rights granted to all citizens in the Indian Constitution also include the right of transgender persons to live with dignity. Nevertheless, these assurances are not always effective, as transgender persons face intolerance and horrendous treatment that violates their social, economic, educational, and health rights purely based on their gender identity.

Employment discrimination, lack of opportunities, and medical neglect are common, especially for transgender people, resulting in deep mental stigma and trauma. Even though some provisions exist for their upliftment, such measures are often ignored in society due to the severe level of gender inequality. Thus, transgender individuals are still not placed on par with other genders. It is now time to eradicate such practices and strive for real gender justice, where the transgender community is not only legally safeguarded but accepted and dignified in society.

Constitutional Provisions for Gender Justice

In order to further promote gender justice and to fill the gaps in society, several constitutional provisions are in place to protect equality and justice.

Preamble: The Preamble of the Constitution of India provides for justice social, economic, and political liberty of thought, expression, belief, faith, and worship, and equality of status and fraternity for all citizens.

• Article 14: Every person is equal before the law, and the law applies equally to the protection of every person, regardless of their nationality, color, sex, or race.
• Article 15: Prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.
• Article 15(3): Allows the state to make affirmative action in favor of women and children to eliminate socio-economic inequalities.
• Article 16: Guarantees that everyone shall have equal opportunity to access public employment and states that no discrimination shall be made on the grounds of religion, race, caste, sex, descent, place of birth, or residence.
• Article 16(4): Allows the reservation of appointments or posts in favor of the underprivileged in public employment.
• Article 21 : Guarantees the right to life and personal liberty to all people, whether citizens or not, which includes the right to live with dignity and cannot be violated except according to the procedure established by law.
• Article 39: Provides that the state shall, in particular, direct its policy towards ensuring that men and women equally have the right to work and means of livelihood.
• Article 39(d): Provides for equal wages for men and women for work of equal value.
• Article 39A: Promotes justice through free legal aid, ensuring that financial constraints do not hinder access to justice
• Article 42: Mandates fair working conditions and maternity relief for women.
• Article 46 : Provides for the advancement of the educational and economic interests of the weaker sections of society, including the Scheduled Castes and Scheduled Tribes.
• Article 51A(e): Encourages citizens to renounce derogatory practices against women and work towards a just society.
• Article 243D: Reserves a minimum of one-third of seats for women in Panchayats and Municipalities, respectively, fostering gender representation.

Legal Developments for Gender Justice

• Hindu Codes Bill, 1955 : A historic reform granting women equal rights in marriage, divorce, and inheritance within Hindu personal laws.
• Dowry Prohibition Act, 1961 : Aimed at eliminating dowry practices that contribute to violence against women.
• Protection of Women from Domestic Violence Act, 2005 : Safeguards women from domestic violence in its various forms, including financial, emotional, sexual, and physical assault.
• Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: Ensures a safe working environment, addressing workplace harassment. This Act was passed in response to the historic Vishakha judgment (1997).
• Criminal Law (Amendment) Act, 2013: This legislation, also known as the Nirbhaya Act, brought significant changes to sexual offense laws by imposing stricter penalties for voyeurism, acid attacks, rape, and stalking, and by redefining the concept of consent.
• Maternity Benefit (Amendment) Act, 2017: Extends maternity leave from 12 to 26 weeks and introduces childcare provisions, including work-from-home opportunities.
• Transgender Persons (Protection of Rights) Act 2019: Recognizes transgender rights and prohibits discrimination against them. It guarantees them access to public services, healthcare, work opportunities, and education.

Case Laws concerning Gender Justice

• Dattatreya Motiram More v. State of Bombay, 1952: This case addressed the reservation of seats for women. The Hon’ble Bombay High Court ruled that the State can discriminate in favor of women against men, but it also cannot discriminate in favor of men against women.
• C.B. Muthamma v. Union of India, 1979: The Hon’ble Supreme Court found that the Indian Foreign Service (IFS) rule requiring a woman to resign upon marriage was against gender justice. This provision was declared unconstitutional and was struck down.
• Nargesh Meerza v. Air India, 1981: The Hon’ble Supreme Court highlighted the injustice faced by women in the workforce due to arbitrary termination policies based on marital status. It struck down Air India’s policy requiring air hostesses to resign upon marriage, reaffirming that marriage should not be a basis for employment discrimination.
• Randhir Singh v. Union of India, 1982: This case involved the doctrine of equal pay for equal work. The Supreme Court ruled that this doctrine applies equally to both men and women.
• Indra Sawhney v. Union of India 1992: Although not exclusively about gender, this case addressed the reservation of seats for women in local bodies. The judgment underscored the necessity of gender representation in decision-making bodies, fostering increased participation of women.
• Vishaka v. State of Rajasthan, 1997: The Hon’ble Supreme Court established guidelines to prevent sexual harassment of women at the workplace. The court held that it is a woman’s fundamental right to work with dignity, and gender-based harassment violates the right to life and liberty under Article 21.
• Githa Hariharan v. Reserve Bank of India, 1999: The Hon’ble Supreme Court ruled that both the father and mother are natural guardians of a minor Hindu child. The mother cannot be considered the natural guardian only after the father’s death, as this would be discriminatory and against the welfare of the child.
• Srivastava & another v. Chandigarh Administration, 2009: The Hon’ble Supreme Court recognized women’s autonomy over their bodies and invalidated the requirement for pre-abortion approval by a medical board as an infringement on privacy and personal liberty.
• Mukesh & Anr. v. State of NCT of Delhi, 2017: Known as the Nirbhaya case, this case highlighted the significance of violence against women, which needs to be dealt with, and brought about a remarkable shift in the laws dealing with sexual offences.
• National Legal Service Authority v. Union Bank of India & Ors, 2014: The Hon’ble Supreme Court acknowledged that transgender individuals are deprived of basic human rights guaranteed under the Constitution of India. The Court ruled that transgender people are included in the Indian Constitution and therefore have the same rights as everyone else. Article 14 ensures equality to ‘any person,’ which includes men, women, and transgender individuals, and guarantees them equal protection under the law. As a result of this ruling, schools, banks, and other institutions are required to update their application forms. From now on, a single mother has the right to admit her child without having to provide the father’s name.
• Charu Khurana v. Union of India, 2015: The Hon’ble Court struck down the provision that denied female workers membership as make-up artists and hairdressers. It ruled that gender discrimination cannot be tolerated and that equality requires equal opportunities for women.
• Shayara Bano v. Union of India, 2017: This case challenged the practice of instant triple talaq among Muslims. The Hon’ble Supreme Court declared it unconstitutional, emphasizing the importance of gender justice and equality in upholding fundamental rights.
• Indian Young Lawyers Association v. State of Kerala, 2018: This case was about the Sabarimala Temple Entry where the Hon’ble Supreme Court permitted women of all ages to enter the Sabarimala temple, thus denying a long-standing ban against menstruating women. The judgment stressed the importance of equality as well as the dignity of all genders within society.
• Joseph Shine v. Union of India, 2018: The Hon’ble Supreme Court decriminalized adultery by striking down Section 497 of the Indian Penal Code (IPC). The Court held that the provision was unconstitutional, as it violated Articles 14, 15, and 21 of the Constitution. Criminalizing adultery was found to be in conflict with the principles of gender justice and equality, as it treated women as the property of their husbands.
• Navatej Singh Johar v. Union of India, 2018: This landmark decision was a milestone in the recognition of the rights of the LGBTQ+ community by decriminalizing consensual homosexual relations between adults and upholding values of equality and personal choice.
• Vineeta Sharma v. Rakesh Sharma (2020): The court held that daughters have the same coparcenary rights as sons by birth, regardless of whether the father is alive or deceased.
• Secretary, Ministry of Defence v. Babita Puniya and Others (2020) : The Supreme Court directed the grant of Permanent Commission to women in the Indian Army, challenging gender-based stereotypes and ensuring equal opportunities in the armed forces.

Challenges and ways forward to achieve Gender Justice

Despite significant advances in gender justice, majorly through landmark judgments by the High Courts, Supreme Court, and new legislative provisions, gender justice has not been achieved in its totality. Several challenges still persist, and addressing these challenges is crucial for achieving true gender justice:

Education: Illiteracy is a major contributor to gender inequality. A gender-sensitive education system and awareness programs are essential to address basic needs and rights. Such initiatives should aim at developing critical thinking skills and dealing with social inequities and stereotypes, which are core to gender justice.

Financial Dependency: Commonly, due to responsibilities in the family, women are forced to be financially dependent on men, which in turn drives them to give up or compromise on their career aspirations. Even when they are working, women and other marginalized groups tend to be the least paid in comparison to their male counterparts, and this makes it difficult for them to know about their rights, which prevents them from accessing legal services or representation. That is why it is very important to improve legal aid services in such a way that the high costs of services do not become an impediment to access to justice.

Gender Inclusivity in the Courts: The presence or predominance of male judges may give rise to patriarchal-based decisions, as seen in the case of Sri Rakesh B vs. State of Karnataka (2020), where anticipatory bail was granted by the Karnataka HC to the accused of a rape case because the male judge presiding over the case stated it was “unbecoming of an Indian woman to fall asleep” after the rape, and that this is not the way “our women react when they are ravished.” In the case of  Kailashwati v. Ayudhiya Prakash (1977), Justice S.S. Sandhawalia held that it is the wife’s duty to provide her husband with conjugal companionship at the place where he chooses to reside. These are just a few examples, but there are many more instances where women are subjected to male dominance. This highlights the urgent need to increase women’s participation in the judiciary, not only to promote inclusiveness but also to ensure gender balance and deliver fairer judgments.

Gender-Neutral Laws: Gender-neutral laws are of immense necessity. For instance, though women’s rights to inheritance have been recognized, transgenders remain outside the prescribed guidelines contained in various laws, especially the Hindu Marriage Act or the Special Marriage Act. This means that it is important to ensure that all genders have equal civil rights, including inheritance, which is crucial for achieving true gender equality.

Inclusive Safety Disparity: Women are significantly more likely to suffer severe injuries or fatalities in frontal car crashes compared to men. This increased risk stems from the fact that current car safety models are designed primarily based on average male physiology, which fails to account for the distinct physiological differences between genders.^[4] Therefore, a solution to this problem would be to incorporate all safety solutions that will be needed by both active genders, which are men and women, respectively.

Tackling these problems requires constant work both from the law and society in general in order to foster an environment where both gender equality and gender justice are enjoyed.

International Approaches to Gender Equality

The international community, with its various structures and pronouncements, has made commendable progress towards the equality of genders. The original UN Charter was a bold initiative, which set, for the first time ever, the foundations of the United Nations on the principles of human rights and gender equality. The Universal Declaration of Human Rights of 1948 also professes that all human beings are created equal and states that no one should be discriminated against on the basis of their gender. The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both adopted in 1966, stress non-discrimination in opportunity and treatment for all persons.^[5]

The Convention on the Elimination of All Forms of Discrimination Against Women (1979) aims at fighting discrimination against women and gender inequality^[6]. The Gender Equality Strategy 2014-2017 of the Council of Europe contains five strategic objectives, which are: Combating gender stereotypes and sexism; Preventing and combating violence against women; Ensuring equal access for women to justice; Achieving balanced participation of women and men in political and public decision-making; and Integrating gender perspectives in all policies and measures.

Gender equity, as defined by UNICEF, means the enjoyment of the same rights, resources, respect, and opportunity by women and men, girls and boys. Gender equity does not mean treating everyone the same, but it guarantees them equal opportunities. In Great Britain and many other European countries, gender equality is taught in schools as part of the national curriculum, and the teaching of sex education focuses on how it affects society and its values. The United Nations Population Fund supports the need for strategic changes in reproductive health, gender employment, educational improvement, and political representation to attain gender parity. This is further supported in the context of the Sustainable Development Goals (SDGs), especially with regard to SDG 5, which is dedicated to achieving gender equality and empowering all women and girls; and SDG 10, which aims at addressing inequalities within and between countries.

On top of that, the World Economic Forum lauds how the gender health gap will be addressed economically, estimating that closing this gap would increase gross domestic product by one trillion U.S. dollars^[7]. Addressing women’s health issues has the potential to transform the lives of 3.9 billion women. Even with all these attempts, gender equality is still ranked 129th out of 146 countries compared to the 127th rank the previous year, owing to embedded cultural practices that are predominantly male-oriented. The Gender Equality Index 2024^[8] estimates the level of gender equality globally on economic, educational, health, and political dimensions and indicates that more needs to be done to ensure and fight for equal opportunities among all genders and to eliminate gender stereotypes and inequalities for the growth of society and the country.

Conclusion

“Fighting for gender equality is not a battle against men; it is a struggle against outdated traditions and societal norms. It is about challenging systemic biases and breaking free from the constraints that dictate different standards for men and women. Society must rise to recognize that men and women are equal partners in life, each with their own identity and worth.” – Dr. Justice A.S. Anand

In our country, several legal measures have been put in place in favor of gender justice. They are, however, not the real problem, the quandary is how to achieve de facto equality and not merely de jure equality. It is imperative that all and sundry treat each other with similar respect and opportunities, and leave behind disputing conventions that regard girls and transgender people as a burden. This necessitates a change in the idea, and the laws need to be developed from a woman’s perspective. The judiciary needs to abandon the old stereotypes, and the culture has to change to be all-encompassing, or else gender equality will only be a wish.

Before aspiring for Atmanirbhar Bharat, it is imperative to achieve gender equity. Women should not need to win medals at the Olympics, nor should transgender persons have to excel in their fields to earn respect and equal opportunities. Real development will come when all are equal by default, and there will be no need to achieve anything to prove oneself. There is a need to fix misogynistic and transphobic issues. For any gender justice and development to be attained, there is a need to create a culture where everyone is respected and given equal opportunities and representation. The implementation of a Uniform Civil Code in India could also help in transcending civil discrimination against all, a system where there do not exist personal laws that discriminate against people based on religion, caste, gender, or tribe, but rather a more universal approach to civil laws. Such initiatives will promote the growth of an abiding society of justice and equality that will contribute to the peace of society and the development of the nation.

This article is authored by Ms. Renisha Sharma, student at Institute of Law, Nirma University.

^[1] C.B. Naveen Chandra, “Concept of Gender Justice in India: A Constitutional Perspective,” 11 IJCRT 215, 215-225 (2023).

^[2] ibid.

^[3]UN General Assembly, “Universal Declaration of Human Rights,” 217 A (Paris, 1948).

^[4] Geraldine Herbert, “Why Are New Cars Designed and Tested with Only Male Bodies in Mind?” Euronews (May 6, 2023).

^[5] Daizy Thakur, Gender Equality and Human Rights in India: Issues and Perspectives, III GAP INTERDISCIPLINARITIES 1, 1-5 (2024).

^[6] Tannvi & Sharmila Narayana, The Challenge of Gender Stereotyping in Indian Courts, 8 COGENT SOCIAL SCIENCES 1, 1-11 (2022).

^[7] Kelle Moley, ‘Closing the Gender Health Gap Is a $1 Trillion Opportunity,’ Nature (2024).

^[8] World Economic Forum, ‘Global Gender Gap Report 2024’ (2024).