Author: Sakshi Sharma, university law college Hazaribagh
To the Point
Gender justice in India represents the quest for an equitable society where individuals of all genders enjoy equal rights, opportunities, dignity, and protection under the law. While India has established a robust legal framework and ratified numerous international treaties to eradicate discrimination and violence based on gender, the implementation of these statutes often falls short. The crux of the issue lies not in the absence of progressive legal provisions but in the inconsistency and inadequacy of political will to effectuate these laws uniformly across the socio-political terrain of the country.
This article explores India’s constitutional and statutory promises on gender justice, examines the gaps in political commitment to enforce these laws, scrutinizes landmark case laws, and culminates in recommendations to bridge the divide between law and lived realities.
Use of Legal Jargon
To evaluate gender justice in India, it is imperative to understand key legal concepts:
Substantive Equality vs Formal Equality: Substantive equality goes beyond mere non-discrimination—it requires affirmative measures to address structural disadvantages. Formal equality focuses on equal treatment under law without regard to socio-economic realities.
Due Process and Procedural Efficacy: Refers to the requirement that legal proceedings respect fundamental rights, including fair investigation and trial.
Judicial Activism vs Judicial Restraint: The former denotes courts proactively interpreting or expanding legal rights, whereas the latter emphasizes deference to legislative intent.
Mens Rea and Vicarious Liability: While mens rea refers to the mental element in crimes (e.g., intent in sexual offences), vicarious liability involves holding one person responsible for the actions of another (e.g., employer liability in workplace harassment).
Remedial Legislation: Laws enacted to redress historical or social injustices—such as Protection of Women from Domestic Violence Act 2005 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
The Proof
Constitutional Guarantees
The Constitution of India provides a firm foundation for gender justice:
Article 14: Guarantees equality before the law and equal protection of the laws.
Article 15(1): Prohibits discrimination on the basis of sex.
Article 15(3): Permits special provisions for women and children.
Article 16: Ensures equality of opportunity in public employment.
Article 21: Protects life and personal liberty, interpreted expansively to include dignity, bodily autonomy, and privacy.
Directive Principles of State Policy (DPSP): Articles 39(a), 39(d), and 42 call for equal pay for equal work, care for children and women, and just conditions of work, respectively.
Analysis: While these constitutional provisions embody progressive ideals, translating them into enforceable rights has been uneven. Gender parity in political representation, labour force participation, and protection from gender-based violence remain pressing challenges.
Statutory Framework
India’s legislative architecture includes several gender-centric statutes:
The Protection of Women from Domestic Violence Act 2005 (PWDVA): Recognises various forms of domestic abuse and provides civil remedies.
Sexual Harassment of Women at Workplace Act 2013: Mandates internal complaints committees and grievance mechanisms.
Prohibition of Child Marriage Act 2006: Abolishes child marriage and prescribes penalties.
Criminal Law (Amendment) Act 2013 & 2018: Expands definitions and penalties for sexual offences, introduces offences such as stalking and acid attack.
Maternal Benefit Acts and Schemes: Provide for maternity leave and healthcare support.
Proof of Legal Promise: The breadth of these laws suggests a comprehensive statutory recognition of gender injustice and an aspirational commitment to redress it.
Gaps in Political Will and Implementation
Despite strong legal formulations, effective enforcement remains inconsistent. A few key fault lines include:
Under-Resourced Institutions: Courts, police, and bureaucratic agencies often lack the training, sensitivity, and resources to implement gender laws effectively.
Societal Attitudes and Patriarchy: Deeply entrenched patriarchal norms influence the attitudes of law enforcement agencies, judiciary, and the public, leading to victim-blaming and delayed justice.
Political Prioritisation: Gender issues sometimes become collateral in electoral politics, with political discourse focusing on symbolism rather than structural reforms.
Data Gaps: Inadequate data collection and analysis on gender crimes impede evidence-based policy making and monitoring.
Intersectional Disadvantages: Women from marginalised communities (scheduled castes, tribes, religious minorities) face compounded discrimination that is not always addressed in mainstream implementation strategies.
Case Laws
The Indian judiciary has played a pivotal role in interpreting gender justice norms:
Vishaka v. State of Rajasthan (1997): A watershed judgment where the Supreme Court laid down binding guidelines to prevent sexual harassment at the workplace, filling the legislative vacuum. These guidelines were subsequently codified into law in 2013.
Anuj Garg v. Hotel Association of India (2007): The Supreme Court struck down discriminatory practices in employment that prohibited women from working in certain establishments, affirming substantive equality.
Nipun Saxena v. Union of India (2019): The Supreme Court emphasised the need for sexual harassment committees in educational institutions to ensure safe environments for students and staff.
Lalita Kumari v. Government of Uttar Pradesh (2014): Mandated registration of First Information Reports (FIRs) upon receipt of information prima facie disclosing a cognisable offence, strengthening procedural protection for victims.
Shayara Bano v. Union of India (2017): Declared the practice of triple talaq unconstitutional, reinforcing gender justice in personal law.
Each of these cases underscores judicial activism in interpreting constitutional guarantees to protect gender rights, particularly where legislative or executive action lagged.
Conclusion
Gender justice in India presents a dichotomy between legal promises and political will. Constitutional provisions, robust statutes, and progressive judicial pronouncements paint an image of a legal system committed to gender equality and dignity. However, the translation of these legal assurances into reality is uneven and hindered by systemic patriarchy, institutional inertia, and political ambivalence.
The challenge is not merely the enactment of laws but ensuring their effective implementation, consistent enforcement, and cultural acceptance. To bridge the law–practice gap, it is essential to strengthen institutional capacities, cultivate political accountability, mainstream gender in public policy, and foster societal transformation through education and awareness.
Legal reforms must be complemented by political resolve—a commitment to allocate resources, reform administrative processes, and support civil society efforts. Only then can India’s constitutional and statutory commitments to gender justice become lived realities for all genders.
FAQs
- What is meant by gender justice?
Gender justice refers to the equitable treatment of all people regardless of gender, ensuring equal rights, protection, opportunities, and access to justice, both in law and in practice.
- Does the Indian Constitution guarantee gender equality?
Yes. Articles 14, 15, and 16 of the Constitution prohibit discrimination on the basis of sex, and Articles 39 and 42 provide for affirmative action and welfare measures.
- Why is political will essential for gender justice?
Political will ensures that laws are effectively implemented through adequate policy support, resource allocation, accountability mechanisms, and public advocacy, beyond their mere existence on paper.
- What role has the judiciary played in gender justice in India?
The judiciary has been instrumental in expanding rights through interpretative judgments, filling legislative gaps, and enforcing constitutional guarantees, as demonstrated in cases like Vishaka and Shayara Bano.
- Are India’s anti-gender discrimination laws effective?
While the legal framework is comprehensive, effectiveness varies due to enforcement challenges, societal attitudes, and institutional constraints. Ongoing reforms and consistent political commitment are needed for tangible impact.
