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GENDER JUSTICE: A COMPARATIVE STUDY OF UK, USA, EU AND INDIA

In most ancient societies women have been considered men’s inferiors physically and intellectually. Through out most of ancient Greece and Rome, women enjoyed very few rights. Marriages were arranged, women had no property rights and were not entitled to education. In ancient China, the yin and yang philosophy reinforced the notion of women’s inferiority. The yang (male) always dominated the Yin (female). China also devised one of the most repressive customs of foot binding for women, rendering the woman uncomfortable and dependent on family and servants. According to Hindu laws of Manu as put forth in the Manusmriti, women were subservient to male relatives, widow remarriage was not allowed and the law sanctioned the practice of Sati, a truly atrocious practice. Wearing bangles is also understood to be a form of fetters/shackles. Under common law of England, a married woman hardly had any rights; she had no rights to her property after marriage. In the early history of the United States, women and children were considered as a man’s possession.

Over the centuries, as traditional patriarchal customs and laws became more deeply entrenched, women’s lives became more restricted and oppressed. Most women were still denied education and their lives revolved around home making and managing. We still see this custom today in a lot of families. The main focus of this article is on gender customs and laws in the United States of America, United Kingdom, European Union and India.

THE THIRD GENDER:

The word ‘Gender’ in archaic use includes men and women only. But in recent times society has come to acknowledge transgender people (Hijras). This is also better known as the third gender. The term ‘gender justice’ denotes that all people having same or different gender will be treated with equality, justice and fairness and shall not be discriminated against on the basis of their gender. It is equality of all sexes.

GLOBAL VIEW ON GENDER JUSTICE

Equal participation by women and men in both economic and social development, and women and men benefiting equally from societies’ resources is crucial for achieving gender justice.

The UNIFEM (United Nations Development Fund for Women) was created in 1976 to provide technical and financial assistance for women’s empowerment. The Convention on the Elimination of all forms of Discrimination against Women (CEDAW) was adopted in 1979 by the UNGA. It is sometimes described as an international bill of rights for women. It is of significance that the United States is the only developed nation not to ratify this convention.  The Decade for Women (1976-1985) and four world conferences on women (between 1975 and 1995) contributed significantly to raising awareness and commitment to gender equality and gender justice.

In July 2010, the United Nations General Assembly created UN Women, the United Nations Entity for Gender Equality and the Empowerment of Women. In doing so, UN Member States took an historic step in accelerating the Organization’s goals on gender equality and the empowerment of women.[1] Apart from that the Commission on the Status of Women, a global policy making body of ECOSOC is dedicated exclusively to gender equality and advancement of women.

The UNDP has developed the two most well known gender justice indexes – Gender Related Development Index and the Gender Empowerment Measure to compare and rank member states with regard to gender justice performance. [2] India is ranked 113 in the Gender Related Development Index, while USA is 16th and UK is 10th.[3]

Gender Justice : An overview

Laws in the United Kingdom:

The first major feminist work called ‘A vindication of the Rights of woman’ was authored by Mary Wollstonecraft of Britain in 1792 in which she argued for increased educational opportunities and political equality with men. The parliament granted voting rights in the year 1918 to women over the age of 30. It was in 1928 that suffrage was extended to all women over 21, giving them complete political equality with men. Margaret Thatcher went on to become the worlds first woman prime minister in 1979.

To address discrimination at the work place The Equal Pay Act of 1970 was enacted which allowed workers to claim equal pay for equal work and for work of equal value. The Sex Discrimination Act, 1986 also deals with sex equality laws.

Abortion has been legal in Great Britain since 1967. There is no time limit on performing abortions to save the woman’s life. Two medical practitioners must agree that the woman is not more than 24 weeks pregnant and that continuing the pregnancy would involve greater risk to her or the child.

All working women are entitled to 14 week maternity leave, mandated by the Employment Protection Act, 1975. This same benefit is not extended to men. They are only entitled to a minimum of 2 weeks paternity leave, which has been introduced as late as 2003.

The Domestic Violence, Crimes and Victims Act, 2004 deals with domestic violence. Efforts have been made to make the judicial system and the police force more sensitive to the needs of victims in cases of domestic violence to counter act the problem.

Rape is a statutory offence under The Sexual Offences Act, 2003. A woman can be prosecuted for sexual assault under UK law, a progress we have yet to see in Indian Law. Life imprisonment is the maximum punishment for the offence of Rape, it being a harsh crime. The UK is one of the few countries to offer sexual assault victims financial compensation and also to make marital rape a criminal offence. Laws in most countries haven’t progressed to address marital rape.

Prostitution itself is legal but a number of related activities such as soliciting in a public place and keeping a brothel are outlawed. The Sexual Offences Act, 2003 has made the word ‘prostitute’ gender neutral including in its purview now not only women but other genders too. This has been a marvellous step towards achieving gender justice. The Policing and Crime Act, 2009 makes forced service by a prostitute a strict liability offence (even if the client did not know the prostitute was forced).  

And lastly the Female Genital Mutilation Act 2003 makes the perverse traditional ritual of female genital mutilation (mainly of immigrants from Africa and Asia) illegal.

With regard to the third gender, Parliament passed the Gender Recognition Act 2004, which effectively granted full legal recognition for transgender people. They need only demonstrate that they have lived in the acquired gender for two years and continue to do so until death.

Law in the United States:

The Women’s Rights Convention, New York in 1848 specifically marked the beginning of the American movement towards achieving gender justice. It asserted that all men and women were equal and most importantly demanded the right to vote, formally launching the American campaign for women’s suffrage. In 1920 this demand was met by the Congress.

There have also been various movements for an increase in political representation since.

The Civil Rights Act, 1964 and Equal Pay Act, 1963 guarantee equal employment opportunities and renders it unlawful to discriminate on the basis of sex. The Supreme Court has ruled sexual harassment as a form of sex discrimination.

The Family and Medical Leave Act, 1993 permits any employee, male or female, to take upto 12 weeks of unpaid leave per year for maternity leave or child care.

The ruling in Roe v. Wade given by the Supreme Court put to rest the controversial issue of Abortion and it is now legal in every state. It determined that every woman has a right to self determination and abortion falls under right to privacy. Her decision should be free from unwarranted governmental intrusion into such a fundamental matter.

In 1994, the Violence against Women Act declared domestic violence a federal crime, recognising violent crimes against women as violations of their civil rights and entitling them to sue for damages. What strikes as most affirmative is that the traditional privilege of ‘spousal immunity’ has been done away with. Now, the prosecutors can encourage abused wives to testify against the husbands who perpetrate violence.

Rape is one of the most underreported of all crimes. Penalties for convicted rapists vary according to age of victim, weapon used, Sexually transmitted diseases and pregnancy etc. The average term is 10 years in prison. It is a commendable fact that marital rape is illegal in all states of the United States of America.

With regard to Prostitution, it is illegal in all states except Nevada and punishable with a fine and/or imprisonment. Laws have also been passed rendering female genital mutilation a federal crime.

There is no federal law designating transgender as a protected class, or specifically requiring equal treatment for transgendered people. Around 13 states outlaw discrimination based on gender identity including the third gender.

Laws of European Union:

The efforts of the EU to facilitate gender justice have been substantial historically and are still ongoing. The EU is to launch a European Gender Justice Index in the near future as a measuring scale of gender injustice. Making this index is part of implementing the platform of action agreed upon at the UN fourth world conference on Women in Beijing in 1995.[4]

The EU is also empowered by treaty to promote equality between men and women and to combat other forms of discrimination. Article 21 of the Charter of Fundamental Rights of the European Union prohibits discrimination on grounds of sex and other constants. The treaty of Amsterdam, 1999 reinforced existing provisions in the EC treaty on preventing pay related discrimination between men and women (Article 141). It has gone a step ahead by promoting equality and to eliminate inequality between men and women in general (Articles 2 and 3 of the EC Treaty). [5] The current situation in the EU is still disheartening - Women are still  under-represented in economic and political decision-making positions, although their share has increased over the last decade. The division of family responsibilities is still very unequal between women, there is gender pay gap of about 18% and men and women are the main victims of gender based violence.[6] 

A number of directives are based on Article 141 and the principle of equality between the sexes is also clearly established by the treaty of Lisbon. Council of ministers of the European Economic Community, now the European Union issued Directive 2002/73 of 2002 which amends the Council Directive from 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. The amended Directive defines and recognises harassment and sexual harassment as a form of discrimination based on sex. The principle of Equal Treatment is the fundamental principle in relation to sex-inequalities and work and it springs from the liberal idea of Formal Equality. [7]Another directive grants a three month leave period to both men and women in case of birth of a child or adoption. Directive 2006/54 incorporated the principle of equal pay for men and women.

Laws in India:

Women’s groups started emerging in India in the early 1900s and at first focused on social reform. They have also campaigned vigorously and successfully for social and political equality with men. In 1950 women and men over the age of 21 were granted voting rights. Indian patriarchal society not only harbours a culture of violence against women in the form of dowry, domestic violence and female infanticide, it also manifests in government policies towards women. The unequal representation of Indian women in national political parties is all the more disquieting given that the Indian constitution guarantees gender equality in the Articles 325 and 326. [8] Despite the deeply ingrained patriarchal attitude prevalent in India, it is one of the few countries ever to have elected a woman prime minister: Indira Gandhi. We still haven’t secured 33% reservation for women in parliament and state assemblies, despite the Women’s Reservation bill being close at hand for so long.

The Constitution of India has various provisions to ensure equality of the sexes and also to dismantle the prevalent imbalances in gender hierarchy. Article 14 of the Constitution states that there shall be equality before the law and equal protection of the law. Article 15 safeguards the right against discrimination. The Constitution also provides for positive discrimination and affirmative action on some counts. Article 15(3) permits special provisions for women. Article 16 provides equal opportunity with respect to public employment and they shall not be discriminated on the basis of sex of the person. Article 21 guarantees the right to life, the interpretation which has been broadened to include the right to live with dignity. Article 23 guarantees the right against exploitation. It prohibits traffic in human beings.

The directive Principles of State Policy also provide measures for gender equality. Article 39(a) aims at providing the right to adequate means of livelihood for men and women, equally. Article 51(A)(e) of the Constitution provides that it will be the duty of every citizen to renounce practices derogatory to the dignity of women.

The Indian Constitution calls for eight years of compulsory education for girls and boys aged 6 to 14. However, women still lag far behind men and rural women are twice as likely to be illiterate compared to their urban counterparts. The legal marriage age is 21 for males and 18 for females. A recent law commission has recommended to equalise the marriage age for both men and women to 18 but this has yet to be implemented. Personal laws of Hindus and Muslims dictate different codes of conduct regarding marriage and divorce.

The people of India are guaranteed equal pay for equal work by the Constitution and reinforced by the 1975 Equal Remuneration Act. The drawback is that this law does not apply to agriculture , the area where most women in India are employed. Gender based pay scales with lower wages for female workers are not uncommon.  Today we observe a shift towards the service sector by working women but no occupational field is impervious to gender injustice as of today. It is also horrifying to note that there is no statutory enactment in India against sexual harassment at work place. But in the absence of a law, the Supreme Court has laid down certain guidelines pertaining to sexual harassment at the work place in the landmark case of Vishakha and others v. State of Rajasthan. Women are entitled to maternity benefits under the Employees’ State Insurance plan, which provides a 90 day paid leave. The central government has endorsed the concept of paternity leave for the same duration for men, but this cannot be enforced in the private sector.

A woman does not have a right to Abortion in India. The Medical Termination Of Pregnancy Act, 1971 legalises abortion only in certain circumstances - to preserve the woman’s physical and mental health, rape and incest cases or when the fetus suffers severe abnormalities. There is no provision in the Act which allows abortion on the basis of the will of the woman. Section 312 of the Indian Penal Code, defines the offence of 'causing miscarriage'. It states that whoever voluntarily causes a woman with child to miscarry shall, if not in good faith ,be punished with imprisonment of upto 3 years or fine or both. A woman who causes herself to miscarry is within the scope of this section. This form of oppression violates the fundamentals of justice. Women are entitled to their opinion and choices.

The Domestic Violence Act, 2005 was enacted to curb the onslaught of domestic violence. It is the first of its kind in India. An important advance made by the Act in understanding the nature of domestic violence has been in the combination of civil and criminal remedies. The number of cases of domestic violence in India are on the rise. This may also be due to greater reporting of Domestic Violence Cases. 

The struggle of Kiranjit Ahluwalia (1989)who burnt her husband to death in response to ten years of physical, psychological and sexual abuse , fictionalised in the movie ‘Provoked’ has raised awareness of domestic violence and changed the definition of the word provocation in cases of battered women.

Campagns such as the‘bell bajao’campaign seek to show that the domestic violence is a social issue and should not be brushed under the carpet as a private matter of the family.  

A great majority of Sexual assaults go unreported. Section 397 of the Indian Penal Code penalises the offence of Rape. The Average penalty is seven years of imprisonment. It is unfortunate to note that marital rape is not yet an offence in India, as it is in most developed countries. The only semblance to marital rape is where the husband has intercourse with his wife without her consent during separation, where the punishment is lighter. (2 years)

Rape is a perverse form of subjugation of women by men. It is a crime of violence, not sex primarily. Some scholars opine that the Indian Law on rape is gender biased and male oriented. Gender neutral rape laws in India have been proposed but are yet not acted upon. If the legislature responds to this proposed reform favourably, we will have reached a step further in achieving gender justice.

Commercial sex work i.e the exchange of sexual services for money is legal in India but related activities such as soliciting in public places, owing a brothel, kerb crawling and pimping are illegal. The primary law dealing with sex workers is the Immoral Traffic (Suppression) Act of 1956. Male prostitution is not recognised in the Indian Constitution. In order to achieve gender justice, male sex workers should also be given recognition in order to avail of their basic rights.

There are a few contentious issues which are peculiar to developing countries like India. Because of the tremendous preference for sons over daughters, female infanticide is not uncommon. The law bans infanticide and imposes penalties of life imprisonment or death. Harsh punishment has also been ineffective as a deterrent. The age old custom of Sati, in which the widow is burnt alive on her husbands funeral pyre, has been abolished since 1829 under the aegis of Lord William Bentinck, and the government eventually passed the Commission of Sati Prevention Act to prevent its occurrence and curb its glorification. [9]

Another oppressive tradition of giving dowry has been ablolished by The Dowry Prohibition Act, 1961, which imposes stiff fines and minimum imprisonment of 5 years in prison for violation.

With disregard to the third gender, Indian laws recognize only two genders, so getting ration cards or other documents is a formidable task for the transsexuals. Tamil Nadu is the first state in India that has allowed the transsexuals to indicate their sex as ‘T’ Though the transsexuals got the right to vote in 1994, they had to declare their sex as ‘M’ or ‘F’ in the gender columns. Only very recently, the Election Commission allowed them to indicate their sex as ‘O’, or Others. [10] Panna is the first transgender person in India to have the letter ‘E’ for Eunuch stamped on her passport. 

CONCLUSION:

The idea of formal equality can be traced back to Aristotle and his dictum that equality meant

“things that are alike should be treated alike”.  This is the most widespread understanding of equality today. Equality as formal equality has an important role in the law and policy of many countries with advanced equality and non-discrimination provisions. For instance, it forms the conceptual basis of the term “direct discrimination” utilised in the UK or the guarantee of ‘equal protection of the laws’ contained in the United States Constitution.

Despite this formal equality, few would argue that gender asymmetries have disappeared.

Positive action is a way of attaining substantive equality. Substantive equality is a concept of equality that is concerned with the ensuring ability of persons to compete on an equal basis, having regard to various obstacles (including discrimination) that may impede this equality of opportunity. [11]While laws to eliminate discrimination are necessary to achieve gender justice, substantive equality encourages the state to move a step ahead and introduce positive action. This positive or affirmative action helps secure equal opportunities for all genders.  

Written by:

Vera Shrivastav, IV Yr, Symbiosis Law School

Oindree Sengupta, IV Yr, Symbiosis Law School


[1] www.unwomen.org

[2] Gender Justice in the European Union – Catherine Holst.

[3] Human Development Report; gender related development index

[4] Gender Justice in the European Union – Catherine Holst.

[5] European Commission Justice – ec.europa.eu

[6] European Commission Gender Equality – ec.europa.eu

[7] Gender Equality in European Community law – Hanna Gedin

[8] Wanted women in parliament -

[9] Central Sati Act, an analysis – Maja Daruwala

[10] The life of Hijras, transgender, or the third gender in india – Uma Shankari

[11] European Union Charter of Fundamental rights - commentary

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