gender justice

Guru Ghasidas Central UniversityThe School of Law

Koni Road, Bilaspur, Chhattisgarh- 495009

Session- 2013-14 (3rd Semester)

Constitutional Law

“Gender Justice”

Guided by: -Submitted by:-Mr. Samar Narayan Upadhyay Smritti Shaji Mathew

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Assistant Professor Student of B.com LL.B

ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude

and deep regards to my guide Mr. Samar Narayan Upadhyay for

his exemplary guidance, monitoring and constant

encouragement throughout the course of this thesis. The

blessing, help and guidance given by him time to time shall

carry me a long way in the journey of life on which I am

about to embark.

I also take this opportunity to express a deep sense of

gratitude to Mr. Pravesh Dalei, (HOD) Law department, GGV

for his cordial support, valuable information and guidance,

which helped me in completing this task through various

stages.

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I am obliged to staff members of Law Department, GGV for

the valuable information provided by them in their

respective fields. I am grateful for their cooperation

during the period of my assignment.

Lastly, I thank almighty, my parent, sister and friends for

their constant encouragement without which this assignment

would not be possible.

Thanks to all!

TABLE OF CONTENTS

PREFACE

TITLE PAGE………………………………………………………………………………………..1

ACKNOWLEDGEMENT…………………………………………………………………………..2

TABLE OF CONTENTS…………………………………………………………………………....3

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HEADINGS

I. INTRODUCTION……………………………………………………………………………4

II. GENDER JUSTICE IN CONSTITUTION……………………………….………………….5

III. HUMAN RIGHTS AND GENDER JUSTICE IN INDIA…………………………………..12

IV. GENDER VIOLENCE STATISTICS ACROSS THE WORLD……………………………14

V. WORK PLACE FOR SEXUAL HARASSMENT…………………………………………..17

VI. THE GENDERED FACE OF POLITICAL VIEWS………………………………………..19

VII. FIVE SIMPLE RULES FOR REPORTING IN GENDER VIOLENCE…………………...21

VIII. CASE LAWS………………………………………………………………………………..22

IX. CONCLUSION……………………………………………………………………………..23

BIBLOIGRAPHY………………………………………………………………………..……………24

I. INTRODUCTION

Our Constitution is the basic document of a country having a speciallegal holiness which sets the framework and the principal functionsof the organs of the Government of a State. It also declares theprinciples governing the operation of these organs. The Constitution

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aims at creating legal norms, social philosophy and economic valueswhich are to be affected by striking synthesis, harmony andfundamental adjustment between individual rights and social interestto achieve the desired community goals.

Gender equality is always escaped the constitutional provisions ofequality before the law or the equal protection of law. This isbecause equality is always supposed to be between equals and sincethe judges did not concede that men and women were equal. Genderequality did not seem to them to be a legally forbidden inequality.

Gender justice has remained an illusion despite various legislative,judicial and administrative efforts to achieve it. The subjugation ofwomen throughout India continues to prevail in varying degrees. Womenare subjected to discrimination, rape and domestic violence. Thescenario continues to worsen despite the fact that the IndianConstitution provides special protection to women, apart from thefundamental rights to which she is entitled. In December 2012, Rapeand killing of the 23 years old girl student invoked country wideagitation. The rape cases of foreign tourists also tarnished theimage of the country at global level resulting in 25 percent declinein foreign tourist arrivals in India during the first quarter of theyear 2013. Dowry deaths are rampant and women remain deficient interms of their representation at every level. The situation doesn’tchange even if India has remained under women leadership at higherlevels for decades. Prime reason for this state of affairs seems tobe the presumption that mere legislations suffice to transform thestatus of women within the society. Not many attempts have been madeto ascertain the real impact of legislative measures aimed atemancipation and empowerment of women. Indifference towards thisaspect has led to a degree of complacency within the system.Therefore, the idea of gender justice, not only regarding women ingeneral but also for different gender identities, must be realized inrelation to law as there is a need to focus on the evaluation andimpact assessment of some of the laws that have been recently enacted

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or are in the process of enactment. The issue must be discussed invarious contexts such as the socio-economic development, history,religion, politics, health and environment.

II. GENDER JUSTICE IN CONSTITUTION

In spite of women contribution in all spheres of life and they enjoya unique position in every society and country of the world, but theysuffer in silence and belong to a class which is in a disadvantagedposition on account of several barriers and impediments. India, beinga country of paradoxes, is no exception. Here too, women, apersonification of Shakti, once given a dignified status, are in needof empowerment. Women’s empowerment in legal, social, political andeconomic requires to be enhanced. However, empowerment and equalityare based on the gender sensitivity of society towards theirproblems.

In India, the Constitution makers while drafting the Constitutionwere sensitive to the problems faced by women and made specificprovisions relating to them. In various articles, not only mandatesequality of the sexes but also authorizes benign discrimination infavour of women and children to make up for the backwardness whichhas been their age-old destiny. But categorical imperativesconstitutionals by the Founding Fathers are not self acting and canacquire socio-legal locomotion only by appropriate State action.

Our Constitution is the basic document of a country having a speciallegal holiness which sets the framework and the principal functionsof the organs of the Government of a State. It also declares theprinciples governing the operation of these organs. The Constitution

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aims at creating legal norms, social philosophy and economic valueswhich are to be affected by striking synthesis, harmony andfundamental adjustment between individual rights and social interestto achieve the desired community goals. The Constitution of Indiacontains various provisions, which provide for equal rights andopportunities for both men and women. The silent features are:-

a) PREAMBLEThe Preamble contains the essence of the Constitution and reflectsthe ideals and aims of the people. The Preamble starts by saying that“We, the people of India”, give to ourselves the Constitution. Thesource of the Constitution is thus traced to the people, i.e. men andwomen of India, irrespective of caste, community, religion or sex. Themakers of the Constitution were not satisfied with mere territorialunity and integrity. If the unity is to be lasting, it should bebased on social, economic and political justice. Such justice shouldbe equal for all. The Preamble contains the goal of equality ofstatus and opportunity to all citizens. This particular goal has beenincorporated to give equal rights to women and men in terms of statusas well as opportunity.

Political RightsEven though the fact that women participated equally in the freedomstruggle and, under the Constitution and law, have equal politicalrights as men, enabling them to take part effectively in theadministration of the country has had little effect as they arenegligibly represented in politics. There were only seven womenmembers in the Constituent Assembly and the number later decreasedfurther. Their representation in the Lok Sabha is far below theexpected numbers. This has led to the demand for reservation of 33%seats for women in the Lok Sabha and Vidhan Sabha. Politicalempowerment of women has been brought by the 73rd and 74thAmendments1 which reserve seats for women in Gram Panchayats andMunicipal bodies. Illiteracy, lack of political awareness, physicalviolence and economic dependence are a few reasons which restrainwomen from taking part in the political processes of the country.

1 73rd and 74th Amendments of the constitution

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Economic RightsAt hand there has been series of legislation conferring equal rightsfor women and men. These legislations have been guided by theprovisions of the fundamental rights and Directive Principles ofState Policy. Here again there is a total lack of awareness regardingeconomic rights amongst women. Laws to improve their condition inmatters relating to wages, maternity benefits, equal remuneration andproperty/succession have been enacted to provide the necessaryprotection in these areas.

Social justiceFor providing social justice to women, the most important step hasbeen codification of some of the personal laws in our country whichpose the biggest challenge in this context. In the area of criminaljustice, the gender neutrality of law worked to the disadvantage of awoman accused because in some of the cases it imposed a heavy burdenon the prosecutor, for e.g. in cases of rape and dowry. Certain areaslike domestic violence and sexual harassment of women at theworkplace were untouched, unthought-of. These examples of genderinsensitivity were tackled by the judiciary and incorporated intobinding decisional laws to provide social justice in void spheres.Although a Uniform Civil Code is still a dream in spite of variousdirections of the Court, the enactment of certain legislations likethe Pre-Natal Diagnostic Techniques (Prevention of Misuse) Act andthe Medical Termination of Pregnancy Act prevent the violation ofjustice and humanity right from the womb. In spite of these laws,their non-implementation, gender insensitivity and lack of legalliteracy prevent the dream of the Constitution makers from becoming areality. They prevent the fulfillment of the objective of securing toeach individual dignity, irrespective of sex, community or place ofbirth.

b) FUNDAMENTAL RIGHTS:Part III of the Constitution consisting of Articles 12-35 is theheart of the Constitution. Human Rights which are the entitlement ofevery man, woman and child because they are human beings have beenmade enforceable as constitutional or fundamental rights in India.The framers of the Constitution were conscious of the unequaltreatment and discrimination meted out to the fairer sex from time

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immemorial and therefore included certain general as well as specificprovisions for the upliftment of the status of women.

Justice Bhagwati in Maneka Gandhi v. Union of India2 said:

"These fundamental rights represent the basic values cherished by the people of this countrysince the Vedic times and they are calculated to protect the dignity of the individual andcreate conditions in which every human being can develop his personality to the fullestextent."

Article 14 guarantees that the State shall not deny equalitybefore the law and equal protection of the laws;

Article: 14 Equality before LawThe State shall not deny to any person equality before the law or the

equal protection of the laws within the territory of India.

Article 15 prohibits discrimination against any citizen on theground of sex: and

Article 15 (3) empowers the state to make positive discrimination infavour of womenand child;

Article: 15 Prohibition of discrimination on grounds of religion, race, cast, sex, or placeof birth

(1) The state shall not discrimination against any citizen on grounds only of religion, race,cast, sex, or place of birth or any of them.

(3) Nothing in this article shall prevent the State from making any special provision forwomen and children.

Accordingly Article 15(1) prohibits gender discrimination and Article15(3) lifts that rigour and permits the State to positivelydiscriminate in favour of women to make special provisions toameliorate their social condition and provide political, economic andsocial justice. The State in the field of Criminal Law, Service Law,Labour Law, etc. has resorted to Article 15(3) and the Courts, too,

2 AIR 1978 SC 597

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have upheld the validity of these protective discriminatoryprovisions on the basis of constitutional mandate,

Article 16 provides for equality of opportunity in matter ofpublic employment’

Article: 16 Equality of opportunity in matters of public employment(1) There shall be equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the state.(2) No citizens shall, on grounds only of religion, race, cast, 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.

The Constitution, therefore, provides equal opportunities for womenimplicitly as they are applicable to all persons irrespective of sex.However, the Courts realize that these Articles reflect only de jureequality to women. They have not been able to accelerate de factoequality to the extent the Constitution intended. There is still aconsiderable gap between constitutional rights and their applicationin the day-to-day lives of most women. At the same time it is truethat women are working in jobs which were hitherto exclusivelymasculine domains. But there are still instances which exhibit lackof confidence their capability and efficiency. There remains a longand lingering suspicion regarding their capacities to meet thechallenges of the job assigned

In case of C.B. Muthuamma v. Union of India3, a writ petition wasfiled by Ms Muthuamma, a senior member of the Indian Foreign Service,complaining that she had been denied promotion to Grade I illegallyand unconstitutionally. She pointed out that several rules of thecivil service were discriminatory against women. At the verythreshold she was advised by the Chairman of the UPSC against joiningthe Foreign Service. At the time of joining she was required to givean undertaking that if she married she would resign from service.Under Rule 18 of the Indian Foreign Service (Recruitment, Cadre,Seniority and Promotion) Rules, 1961, it was provided that no marriedwoman shall be entitled as of right to be appointed to the service.

3 AIR (1979) 4 SCC 260

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Under Rule 8(2) of the Indian Foreign Service (Conduct andDiscipline) Rules, 1961, a woman member of the service was requiredto obtain permission of the Government in writing before her marriagewas solemnized. At any time after the marriage she could be requiredto resign if the Government was confirmed that her family anddomestic commitments were likely to come in the way of the due andefficient discharge of her duties as a member of the service. Onnumerous occasions the petitioner had to face the consequences ofbeing a woman and thus suffered discrimination, though theConstitution specifically under Article 15 prohibits discriminationon grounds of religion, race, caste, sex or place of birth andArticle 4 provides the principle of equality before law.

The Supreme Court through V.R. Krishna Iyer and P.N. Singhal, JJ,held that:

"This writ petition by Ms Muthamma, a senior member of the Indian Foreign Service,bespeaks a story which makes one wonder whether Articles 14 and 16 belong to myth orreality. The credibility of the Constitutional mandates shall not be shaken by governmentalaction or inaction but it is the effect of the grievance of Ms Muthamma that sex prejudiceagainst Indian womanhood pervades the service rules even a third of a century afterFreedom. There is some basis for the charge of bias in the rules and this makes the ominousindifference of the executive to bring about the banishment of discrimination in the heritageof service rules. If high officials lose hopes of equal justice under the rules, the legal lot of thelittle Indian, already priced out of the expensive judicial market, is bestleft to guess."

In case of Air India v. Nargesh Meerza4

Nargesh Meerza filed a writ petition, In this case, the air-hostesses of the Air-India International Corporation had approachedthe Supreme Court against, again, discriminatory service conditionsin the Regulations' of Air-India. The Regulations provided that anair-hostess could not get married before completing four-years ofservice. Usually an air-hostess was recruited at the age of 19 yearsand the four-year bar against marriage meant that an air-hostesscould not get married until she reached the age of 23 years. If she

4 AIR (1981) 4 SCC 335

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married earlier, she had to resign and if after 23 years she gotmarried, she could continue as a married woman but had to resign onbecoming pregnant. If an air hostess survived both these filters, she'continued to serve until she reached the age of 35 years. It wasalleged on behalf of the air-hostesses that those provisions werediscriminatory on the ground of sex, as similar provisions did notapply to male employees doing similar work.

The Supreme Court upheld the first requirement that an air-hostessshould not marry before the completion of four years of service. Thecourt held that:

"It was a sound and salutary provision. Apart from improving the health of the employee ithelps a great deal in the promotion and boosting up of our family planning programme."

However, this argument given by the Court came in for criticism thatas the requirements of age and family planning were warranted by thepopulation policy of the State and once the State had fixed the ageof marriage, i.e. 18 years, the reasoning advanced for upholding therule was a camouflage for the real concern.

The Supreme Court struck down the Air-India Regulations relating toretirement and the pregnancy bar on the services of Air-hostesses asunconstitutional on the ground that the conditions laid down thereinwere entirely unreasonable and arbitrary. The impugned Regulation 46provided that an air hostess would retire from the service of thecorporation upon attaining the age of 35 years or on marriage, if ittook place within 4 years of service, or on first pregnancy,whichever occurred earlier. Under Regulation 7, the Managing Directorwas vested with absolute discretion to extend the age of retirementprescribed at 45 years. Both these regulations were struck down asviolative of Article 14, which prohibits unreasonableness andarbitrariness.

In Sarita Samvedi v. Union of India5,

5AIR 1996 (2) SCC 380

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The Supreme Court held invalid a provision of the Railway BoardCircular dated 27th December, 1982 which restricted the eligibilityof a married daughter of a retiring official for out-of-turnallotment of a house, to situations where such a retiring officialhad no son or where the daughter was the only person prepared tomaintain the parents and the sons were not in a position to do so.This was held to be discriminatory on the ground of sex.

Reservations of seats for women in local bodies or in educationalinstitutions have been upheld. The Supreme Court in Govt. of A.P. v.P.B. Vijayakumar6 held that reservation to the extent of 30% made inthe State Services by the Andhra Pradesh Government for womencandidates was valid. The Division Bench of the Supreme Courtemphatically declared that the power conferred upon the State byArticle 15(3) is wide enough to cover the entire range of Stateactivity including employment under the State. The power conferred byArticle 15(3) is not whittled down in any manner by Article 16.

In Madhu Kishwar v. State of Bihar7, the Supreme Court dealt with thevalidity of the Chotanagpur Tenancy Act, 1908 of Bihar which deniedthe right of succession to Scheduled Tribe women as violative of theright to livelihood. The majority judgment however upheld thevalidity of legislation on the ground of custom ofinheritance/succession of Scheduled Tribes. Dissenting with themajority, Justice K. Ramaswamy felt that the law made a gender-baseddiscrimination and that it violated Articles 15, 16 and 21 of theConstitution. In his dissenting judgment he said:

"Legislative and executive actions must be conformable to and for effectuation of thefundamental rights guaranteed in Part III, Directive Principles enshrined in Part IV and thePreamble of the Constitution which constitute the conscience of the Constitution. Covenants ofthe United Nations add impetus and urgency to .eliminate gender-based obstacles anddiscrimination. Legislative action should be devised suitably to constitute economicempowerment of women in socio-economic restructure for establishing egalitarian socialorder."

6 AIR 1995 (4) SCC5207 AIR (1996) 5 SCC 145

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Gender equality becomes elusive in the absence of right to livewith dignity.

Article 21 Protection of life and personal liberty.

“No person shall be deprive of his life or personal liberty except according to procedureestablished by law.”

Denial of right of succession to women of Scheduled Tribes amounts todeprivation of their right to livelihood under article 21; MadhuKishwar v. State of Bihar

In Vishaka v. State of Rajasthan8, the Supreme Court, in the absenceof legislation in the field of sexual harassment of working women attheir place of work, formulated guidelines for their protection. TheCourt said:

"Gender equality includes protection from sexual harassment and right to work with dignitywhich is a universally recognized basic human right. The common minimum requirement ofthis right has received global. In the absence of domestic law occupying the field, toformulate effective measures to check the evil of sexual harassment of working women at allworkplaces, the contents of international conventions and norms are significant for thepurpose of interpretation of the guarantee of gender equality, right to work with humandignity in articles 14, 15, 19(1}(g) and 21 of the Constitution and the safeguards againstsexual harassment implicit therein and for the formulation of guidelines to achieve thispurpose."

Article 23 prohibits trafficking in human beings and forcedlabour ;

Article 23 of the Constitution specifically prohibits traffic inhuman beings. Trafficking in human beings has been prevalent inIndia for a long time in the form of prostitution and selling andpurchasing of human beings.

c) DIRECTIVE PRINCIPLES OF STATE POLICY :-

8 AIR 1997 SC 3011

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However Directive Principles of State Policy are not enforceable inany court of law they are essential in the governance of the countryand provide for the welfare of the people, including women. Theseprovisions are contained in Part IV of the Constitution. FundamentalRights furnish to individual rights while the Directive Principles ofState Policy supply to social needs.

Article: 39 certain principles of policy to be followed by thestate.

The State shall, in particular, direct its policy towards securing - (a) That the citizen, men and women equally, have the right to an adequate means oflivelihood; (d) That there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age ofchildren are not abused and that citizens are not forced by economic necessity to enteravocations unsuited to their age or strength;Article 39(a) directs the State to direct its policy towards securingthat citizens, men and women, equally have the right to an adequatemeans of livelihood.

Article 39(d) directs the State to secure equal pay for equal workfor both men and women. The State in furtherance of this directivepassed the Equal Remuneration Act, 1976 to give effect to theprovision.

Article 39(e) specifically directs the State not to abuse the healthand strength of workers, men and women.

Article: 42 Provision for just and humane conditions of work andmaternity relief.—

The State shall make provision for securing just and humane conditions of work and formaternity relief.

Article 42 of the Constitution incorporates a very importantprovision for the benefit of women. It directs the State to makeprovisions for securing just and humane conditions of work and formaternity relief. The State has implemented this directive by

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incorporating health provisions in the Factories Act, MaternityBenefit Act, Beedi and Cigar Workers (Conditions of Employment) Act,etc.

Uniform Civil Code

Article 44 Uniform civil code for the citizens.—The State shall Endeavour to secure for the citizens a uniform civil code throughout theterritory of India.

Article 44 directs the State to secure for citizens a Uniform CivilCode applicable throughout the territory of India. Its particulargoal is towards the achievement of gender justice. Even though theState has not yet made any efforts to introduce a Uniform Civil Codein India, the judiciary has recognised the necessity of uniformity inthe application of civil laws relating to marriage, succession,adoption, divorce, maintenance, etc. but as it is only a directive itcannot be enforced in a court of law.

However, one of the most dynamic members of the Assembly, Shri K.M.Munshi, expressed his opinion that: "if the personal law of inheritance, succession,etc. is considered as a part of religion, the equality of women can never be achieved."

III. HUMAN RIGHTS AND GENDER JUSTICE IN INDIA

Gender injustice is a problem that is seen all over the world. Butunless there are certain attitudinal changes, women will continue toget a raw deal. They need to be educated. Educated mothers take careof their children irrespective of the boys or girls.

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It is well known fact that the education of a girl is the educationof family continuing its impact on the future generations while theeducation of a boy is the education of a single person.  Women  hasto be treated as equal partners in decision-making and implementationrather than as beneficiaries. The development of a nation dependsupon GDI that is, Gender Development Index and HDI that is HumanDevelopment Index. Our country ranks 98 for the former and 127 forlatter.

In these days of globalization, the global picture of women is mostignoble and inequitable. Women constitute 50 per cent of the world'spopulation, and account for 66 per cent of the work done, but theyhave only a share of 10 per cent in the world's income and own oneper cent of the world's property.

Gender equity: Engendering all areas of public policy, elimination ofadverse sex ratio, and provision of support services to workingwomen, taking into account the multiple burden on a woman's day today life. The psychology of industries in India weighs heavily against women.One of the reasons is that women in industry are to be givenpreferential welfare and social facilities and benefits. To avoidthis, in the post-independence era, industries have preferred toreduce the number of women employees.. In 1995, the UNDP introduced methods of calculating a gender-relateddevelopment index (GDI) and a gender empowerment measure (GEM). Inthe Human Development Report 1997, a methodology was introduced forcalculating a Human Poverty Index (HPI) based on deprivations inbasic human needs. The Human Development Report 2001 has introducedindicators for measuring Technology Achievement (TAI). In HDI, GDI,GEM, HPI and TAI, India occupies a deplorably low position, althoughsome marginal improvement has been noted in HDI in recent years. Themajor contribution of the human development reports is in sensitisingnations on the need to accord greater priority to basic needs likenutrition, education, health, sustainable livelihoods and gender andsocial equity. As a result, political leaders in developing countries

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are now aspiring to work for a better rank for their countries inHDI. In India, this has resulted in Rajasthan, Madhya Pradesh andTamil Nadu developing State level human development reports. To thisextent, measurement and ranking are exerting a beneficial impact onpriorities in public policies and investment.  The development of anation depends upon GDI that is, Gender Development Index and HDIthat is Human Development Index.

There are many causes that add to gender in-justice, and almost eachand every cause is the creation of human being. Whose main task isthe protection of human rights of each and every human aroundhim/her-all the humans present on this mother planet the Earth. Thetwo main causes regarding the same  In different parts of the world, male chauvinism in different degreeshas led to gender injustice. In some developed countries too, womenwere accorded the right to vote very late. They had to launch adetermined struggle to secure the right of adult franchise. Even whenwomen secured the right to vote, initially they did not receive inthe legislatures the recognition they deserved on the basis of theirmerit and ability.

If the social-reform programme is to be pursued vigorously, certainattitudinal changes are urgently called for. These compromise changeof context, change of relations and change of values. Without such acomprehensive culture, the battle for gender justice cannot be won.

In India, with a highly utilitarian approach, poor parents do notaspire for a female child for two selfish reasons. Firstly, becauseof the fabulous dowry to be paid on the daughter's marriage, parentsconsider a daughter as a "financial liability". And, secondly,because the daughter has to leave the parents' house after marriage,she is no longer considered useful as an earning member of thefamily.The instinctive urge, particularly of poor parents, is to prevent thebirth of a female child. The most astounding statistics reveal thatin a prominent hospital in Mumbai, the pre-sex determination testsrevealed that during 1978-1982; nearly 8,000 pregnant women were

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expected to give birth to a female child. But to prevent this, 7,999of them underwent abortions.

IV. GENDER VIOLENCE STATISTICS ACROSS THE YEARS.

The following table primarily draws on multiple issues of “Crime inIndia,” the flagship report of the National Crime Record Bureau.“Crime in India” was first published in 1955. The objective of thistable is to provide a snapshot of the incidence of gender violence in

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India in the decades since independence. We have chosen to includefigures at ten-yearly intervals starting from 1955, plus the fivemost recent reports, 2005, 2006, 2007, 2008 and 2009. Until 1971,kidnapping and abduction appears to be the only included form ofviolence that could be classified as gender violence. In 1971, rapebegan to be recorded. In 1989, a separate chapter on “Crimes againstWomen” began to be included, compiling data on IPC crimes as well ascrimes for which special laws had been adopted.

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21

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V. WORK PLACE FOR SEXUAL HARASSMENT

A workplace is any physical or virtual space where workingrelationships exist, where employer-employee relations exist. Itincludes places and even vehicles that the employee visits and usesduring the course of employment. There are at least three distinctkinds of workplaces - the corporate world, the unorganized sectorthat employs a large percentage of India’s population and thedomestic workplace.

What is workplace sexual harassment? The Supreme Court of India has defined workplace sexual harassment asunwelcome sexually determined behaviour, whether directly or byimplication. This includes: physical contact and advances; a demandor request for sexual favours; sexually coloured remarks; showingpornography; and any other unwelcome physical, verbal or non-verbalconduct of sexual nature. (Vishaka & others v State of Rajasthan &others) The Protection of Women against Sexual Harassment at

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Workplace Bill (2010) bases its definition on the same Supreme Courtrecommendations.

In spite of having so many enactments dealing with women andjudgments of the Supreme Court protecting women the downtrodden andpoor conditions of women has not been improved and she still facesall types of atrocities and legislature and judiciary somehow failsto provide respect to women in society.

The Universal Declaration of Human Rights, 1948Art. 16: (1) Men and women of full age, without any limitation due torace, nationality or religion, have the right to marry and found afamily. They are entitled to equal as to marriage, during marriageand its dissolution.

(2) Marriage shall be entered into only with the free and fullconsent of the intending spouses.(3) The family is the natural and fundamental group unit of societyand is entitled to protection by society and the State.

The International Covenant of Civil and Political Rights, 1966Art.3: Places and obligation on all covenanting parties to: “…undertake to ensure the equal rights of men and women to theenjoyment of all Civil and Political rights set forth in the presentCovenant”.

Art. 23: 1. The family is the natural and fundamental group unit of society

and is entitled to protection by society and the State.2. The right of men and women of marriageable age to marry and to

found a family shall be recognized.3. No marriage shall be entered into without the free and full

consent of the intending spouses.4. States parties to the present Covenant shall take appropriate

steps to ensure equality of rights and responsibilities ofspouses as to marriage, during marriage and as its dissolution.In the case of dissolution, provision shall be made for thenecessary protection of any children.

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International Covenants on Economic, Social and Cultural Rights, 1966Artt.7: Obligates state parties to: “recognize the right of everyoneto the enjoyment of just and favourable conditions of work whichensure, in particular:

(a) Remuneration which provides all workers(b) Safe and healthy working conditions;(c) Equal opportunity for everyone to be promoted in his

employment to an appropriate higher level, subject to noconsiderations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hoursand periodic holidays with pay, as well as remuneration forpublic holidays’

The Declaration on Elimination of Violence against Women (DEVW) 1993Art. 14: State should develop penal, civil, labour and administrativesanction and domestic legislation to punish and redress wrongs causedto women; women who are subjected to violence should be provided withthe access to the mechanism of justice and, as provided for bynational legislation, to just and effective remedies for the harmthat they have suffered; State also informed women of their rights inseeking redress through such mechanisms.

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VI. THE GENDERED FACE OF POLITICAL VIOLENCE

What is political violence? “Political violence” may be used as a rubric to describe violenceundertaken by states, groups or individuals to make a politicalpoint, assert their domination over another (state/group/individual)and/or achieve their political ends. Political violence may bedirected by individuals towards individuals but it is seldompersonal. Thus, a rape that occurs as part of a riot is verydifferent from marital or date rape. Political violence primarily takes place in the public sphere whichin turn, is a term encompassing all the media, discourses, sites andformats where individuals exchange ideas about public affairs,including community issues. Riots, elections, state violence againstsocial/people's movements and extremists using gender violence, aresome of the settings in which political violence takes place.

Rape has been a weapon of war through the ages; conflict situationsalso make abduction, trafficking, forced impregnation and sexualslavery possible because of the breakdown of social and politicalorder. Violence that singles out lifestyle or dress choices as partof a cultural or moral policing agenda is also political violence

Unlike gender violence that takes place in the private sphere in thehome, in the workplace gendered political violence receives more

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attention either because it becomes a part of the revenge discourseor because human rights activists make an issue of it. The result isan emerging climate of intolerance towards gendered politicalviolence even though people may tolerate high levels of other kindsof political or gender violence

Legal context There is a growing consensus in international civil society on theimportance of eliminating gender violence. The first sign ofattitudinal shift was the indictment by the International CriminalTribunal in 1996 of eight Bosnian Serb military officers charged withraping Muslim women during the Bosnian war. The judgment focusedsolely on the sexual assault charges, pinning responsibility onindividual officers for the deeds of their subordinates. It thusrecognised rape and sexual assault as crimes against humanity.

In 2000, the UN Security Council passed Resolution 1325, whichaffirms the importance of including women in the peace process, andalso clearly enjoins conflict parties “to protect women and girlsfrom gender-based violence, particularly rape and other forms ofsexual abuse…” (UNSCR1325: Article 10: 2000). It also emphasizes thatthere should be no amnesty for acts of “sexual and other violenceagainst women and girls.” (UNSCR 1325: Article 11: 2000) Moreover,UNSCR 1325 places its provisions in the context both of a decade ofUN activism as well as a range of existing international legalregimes that have taken cognizance of sexual violence and rape inconflict settings, from the Geneva Conventions to the Rome Statutes.

In the last three years, three more UN Security Council Resolutionshave signaled a fast-diminishing tolerance towards gender violence inconflict situations. UNSCR 1820 (2008) is strongly worded, demandinga cessation of sexual violence against women and girls by all sidesin a conflict and also notes that “rape and other forms of sexualviolence can constitute a war crime, a crime against humanity, or aconstitutive act with respect to genocide.” (Article 4) UNSCR 1888(2009) points to the role that UN peacekeepers could play to protectwomen and girls from sexual violence. UNSCR 1889 (2009) reaffirms theimportance of bringing women to the peace table. But voting for aresolution at the United Nations and finding ways to bring its

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essence home are different, and UNSCR 1820 recognizes this, urgingthe UN to support legal reform and capacity-building at national andlocal levels as well, so that there is no impunity at any level.

When gender violence is political violence? Politics thickens the silence that surrounds gender violence. Inconflict and riot situations, it is very hard to reconstruct thesequence of events and pin responsibility. Formal investigation andtrial take places in a charged atmosphere, where any finding and anypunishment are likely to be contentious. Moreover, if states areconsidered to act with impunity, little accountability is possiblewith violent non-state actors. The power politics of a custodialsetting also results in custodial rape very possibly beingunderreported and undercounted

Problems of reporting and investigation have consequences fordocumentation, as the Gender Violence Report has maintained.Therefore, we know these things happen, but cannot assert withcomplete certainty what their frequency is, whether things aregetting worse, how many complaints are properly investigated or howmany culprits are punished. In the absence of this information, thesilence around gender violence thickens into invisibility, whichpolitically defined interests then institutionalize.

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VII. FIVE SIMPLE RULES FOR REPORTING IN GENDER VIOLENCE

1. USE ACTIVE VOICE IN REPORTING CRIMES RELATED TO GENDER VIOLENCE. For example: “A 32-year-old man allegedly raped a 23-year-old woman…”instead of “a 23-year-old woman was raped by a man….”

2. INTERVIEW APPROPRIATE EXPERTS WITH EXPERTISE AND PERSPECTIVE ONTHE ISSUE. For example: It is important to guard against the common, butmistaken, assumption that anyone who works on "women's rights" isqualified to comment on a case of gender violence; and important totake the trouble to find people with the right, relevant expertise.

3. LINK THE SPECIFIC INSTANCE TO LARGER ISSUES. For example: An incident of honour killing following aninter-caste/inter-community marriage offers an opening for commentaryand features to extend to broader questions relating to caste andpatriarchy; traditional beliefs and customs that take the force oflaw; as well as the absence of laws to cover many kinds of genderviolence.

4. UNDERTAKE MORE FOLLOW-UP STORIES AND STORIES THAT HIGHLIGHTTRENDS. For example: After the initial reports on a given instance of rape ormolestation, in addition to follow-up on the specifics of thatinvestigation and trial, ancillary reportage could highlight othercases of sexual harassment and abuse in similar circumstances(employers, government officials, relatives, as the case may be) and

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delayed, miscarried justice; impunity and social costs of suchviolence.

5. FOCUS ATTENTION ON THE MANY FORMS OF GENDER VIOLENCE, DEBILITATINGEVEN WHEN THEY ARE NOT DRAMATIC. For example: A dowry-related murder or suicide may have been precededby other forms of domestic violence, including psychological andeconomic abuse, which require probing and may provide useful evidenceof the continuum of violence leading to death. Indeed, these areworthy of attention even when there is dramatic incidents of assault,battery or death to cover.

VIII. CASE LAWS

1. Maneka Gandhi V. Union of India, AIR 1978 SC 597.

2. C. B. Muthuamma V. Union of India, AIR 1979 (4) SCC 260.

3. Air India V. Nargesh Mirza, AIR 1981 (4) SCC 335.

4. Sarita Samvedi V. Union of India, AIR 1996 (2) SCC 380.

5. Govt. of A.P. V. P.B. Vijaykumar, AIR 1995 (4) SCC 520.

6. Madhu Kishwar V. State of Bihar, AIR 1998 (5) SCC 145.

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7. Vishaka and others V. State of Rajasthan, AIR 1997 SC 3011.

IX. CONCLUSIONIt is a harsh reality that women have been ill treated in everysociety for ages an India is no exception. The irony lies in factthat in our country where women are worshipped as Shakti, theatrocities are committed against her in all sections of life. She isbeing looked down as commodity or as a slave, she is not robbed ofher dignity and pride outside her house but she also faces ill-treatment and other atrocities within the four walls of her house.

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They considered as an object of male-sexual enjoyment andreproduction of children. They are real dalits (downtrodden) of thesociety. They are discriminated at two levels. Firstly, they sufferbecause of their gender and secondly, due to grinding poverty.

After Independence the founder father of nation, wanted to reform thesociety and were keen to establish an egalitarian society. To achievethis end they used law as an instrument to check the genderdiscrimination, numbers of laws were enacted to meet this end but dueto strong patriarchal mentality and unfavourable social environmentthey failed to accomplish their goals.

It is said that the law without the public opinion is nothing but thebundle of papers. The gap between the men and women cannot be bridgedby just enacting laws without any public support and opinions.

In India the most of the laws were not effective as they were aheadof public opinions and willingness of the people to change thesociety and give the women the status of equality in society toolacked, so in order to give women their respective position in thesociety strong public opinion should be created through educations,seminars and by taking the help of various other instruments of thesociety such as media etc, so that people of the society should geteducated about and change their centuries old thinking and willinglyimplement the laws enacted for the emancipation for women.

So In my opinion to improve the status of the women in the societythe need of the hour is that laws should be enacted but they shouldbe backed by strong willingness and public opinions because so longas conservative social thinking remains deep rooted in the societylaws will not be able to achieve their ends. It must be asserted thatsocial reforms is in social thinking, behaviour and law should beeffective only if they are backed by major section of the society.

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BIBLIOGRAPHY

BOOKS REFERRED -

1. Shukla V. N. .; The Constitution of India; Eastern BookCompany.

2. Jain M.P.; Indian Constitutional Law; Lexis Nexis.

3. Pandey J. N.; Constitutional Law of India; Central LawAgency, Allahabad.

WEBSITES REFERRED-

4. www.legalmatch.com

5. www.lawteacher.net

6. www.gonzaga.edu

7. www.thefreedictionary.com

8. www.monash.edu.au

9. www.sixthformlaw.info

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10. www.wikipedia.com

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