GS PAPER Polity, Governance and IR 2023 Question 12

12. Explain the constitutional perspectives of Gender Justice with the help of relevant Constitutional Provisions and case laws. 15

Gender justice is the concept of ensuring that no one is discriminated or denied justice on the basis of their gender. The Constitution of India, as a living document, reflects the aims and aspirations of the people to achieve gender justice in a progressive society. The Constitution provides various provisions to protect and promote the rights and interests of women and other genders, who have historically faced oppression and marginalization in the patriarchal society.

Some of the constitutional perspectives of gender justice are:

• • The Preamble of the Constitution declares the commitment to secure justice, equality, and dignity for all citizens, irrespective of their gender.
  • Article 14 guarantees equality before the law and equal protection of laws to all persons, without any discrimination based on gender or any other ground.
  • Article 15 prohibits discrimination by the state on the grounds of religion, race, caste, sex, or place of birth. It also empowers the state to make special provisions for the advancement of women and children, as well as for socially and educationally backward classes.
  • Article 16 ensures equality of opportunity in matters of public employment, and prohibits discrimination on the grounds of sex or any other ground. It also allows the state to make reservations for women and other backward classes in public services.
  • Article 21 guarantees the right to life and personal liberty to all persons, which has been interpreted by the Supreme Court to include various dimensions of gender justice, such as right to privacy, right to health, right to reproductive choice, right to dignity, right to livelihood, right to education, right to shelter, and so on.
  • Article 23 prohibits trafficking in human beings and forced labour, which are often linked to gender-based violence and exploitation.
  • Article 24 prohibits employment of children below the age of 14 years in any factory or mine or any other hazardous occupation, which protects them from gender-specific harms such as child marriage, child prostitution, and child labour.
  • Article 39 directs the state to secure certain principles of social and economic justice in its policies, such as equal pay for equal work for men and women, adequate means of livelihood for all citizens, protection of health and strength of workers and children, prevention of abuse and exploitation of children and women, and promotion of equal justice and opportunity for men and women.
  • Article 42 directs the state to make provision for securing just and humane conditions of work and for maternity relief for working women.
  • Article 51A imposes certain fundamental duties on every citizen, such as to renounce practices derogatory to the dignity of women, to uphold and protect the sovereignty, unity and integrity of India, and to promote harmony and the spirit of common brotherhood among all people transcending religious, linguistic and regional or sectional diversities.

• The Supreme Court of India has played a vital role in advancing gender justice through its judicial activism and interpretation of the constitutional provisions. Some of the landmark judgments that have upheld gender justice are:

• • C.B. Muthamma v. Union of India, where the Supreme Court struck down a discriminatory rule that required female diplomats to obtain prior permission from the government before getting married or resign from service if they did so without permission.
  • Vishaka v. State of Rajasthan, where the Supreme Court laid down guidelines to prevent sexual harassment at workplace, which was later codified by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • NALSA v. Union of India, where the Supreme Court recognized the rights of transgender persons as a third gender under Article 14 and 21, and directed the state to take measures to ensure their welfare and inclusion in society.
  • Shayara Bano v. Union of India, where the Supreme Court declared the practice of triple talaq as unconstitutional and violative of the rights of Muslim women under Article 14 and 21.
  • Navtej Singh Johar v. Union of India, where the Supreme Court decriminalized consensual homosexual relations between adults under Section 377 of the Indian Penal Code, 1860, and affirmed their rights under Article 14, 15, 19, and 21.
  • Joseph Shine v. Union of India, where the Supreme Court struck down Section 497 of the Indian Penal Code, 1860, which made adultery a criminal offence only for men who had sexual intercourse with a married woman without her husband's consent. The court held that this provision was discriminatory against both men and women, as it treated women as property of their husbands and denied them agency over their sexuality.

These are some examples of how the Constitution provides a framework for achieving gender justice in India. However, there are still many challenges and gaps in implementation that need to be addressed by legislative reforms, administrative actions, social awareness, and cultural change. Gender justice is not only a legal issue but also a human rights issue that affects all aspects of life. Therefore, it is essential that all stakeholders work together to ensure that every person enjoys equal rights and opportunities, regardless of their gender.