Tag: #article15

S.no	Contents
1.	Introduction
2.	Reservation for Economically Weaker Sections (EWS)
3.	Impact on Education and Employment
4.	Disagreements and Criticisms
5.	Transformation of the Socioeconomic System
6.	Implications for the Future and Problems

Introduction to the 105th Amendment Act

The Indian Constitution’s 105th Amendment Act, officially known as the Constitution (One Hundred and Fifth Amendment) Act, 2019¹, is a crucial legislative measure that introduced important changes in the field of reservations in India. This amendment passed on January 12, 2019, and adopted on August 5, 2019, marked a turning point in India’s lengthy history of affirmative action legislation.

The major goal of the 105th Amendment Act was to expand reservations to economically disadvantaged sectors (EWS) of the general population. It intended to provide equitable opportunity for individuals who were economically disadvantaged while not belonging to the Scheduled Castes (SC), Scheduled Tribes (ST), or Other Backward Classes (OBC). This modification sought to address the long-standing complaint that reservation systems disproportionately benefited specific castes, potentially leaving economically disadvantaged individuals out of the general category.

The inclusion of Articles 15(6) and 16(6) to the Indian Constitution was one of the significant measures established by this amendment. These provisions allowed the government to give up to 10% reservation in educational institutions and public employment for the EWS², allowing them to enter the intensely competitive Indian education and job sectors.

The passage of the 105th Amendment Act was a watershed point in India’s quest for social justice and equality. It triggered heated debates and discussions on what constitutes “economic backwardness” and the practical implications of such reservations. It generated both support and criticism, as with every big constitutional amendment, prompting a full assessment of India’s complicated confluence of caste, class, and affirmative action.

Reservation for Economically Weaker Sections (EWS)

The Economically Weaker Sections (EWS) quota policy was implemented in India through the 105th Amendment Act, which signified a substantial break from the traditional framework of caste-based reservations. This programme, which went into force in 2019, intends to reduce economic disparities and provide chances to those from economically disadvantaged backgrounds in general. 

Individuals in the EWS category are entitled to up to 10% of seats in educational institutions and government positions under the EWS reservation policy. Individuals or families must meet certain income and wealth requirements to qualify for EWS. The income restriction often takes into account factors such as family income, property, and agricultural holdings. By giving reservation benefits to people who are struggling financially but do not belong to any reserved category, this tactic aims to level the playing field.

One of its main benefits is that the EWS reservation policy does not conflict with currently held reservations for Scheduled Castes (SC), Scheduled Tribes (ST), or Other Backward Classes (OBC). Instead, it adds a new category within the broader category for economically disadvantaged people.

The implementation of EWS reservations has received both praise and criticism. Proponents say that it tackles the issue of economic inequality, while detractors worry about the potential impact on current quotas and call the criteria of economic backwardness into doubt.

Impact on Education and Employment

The 105th Amendment Act’s inclusion of Economic Weaker Sections (EWS) reservations in education and employment has had a significant impact on access to these critical fields. This programme attempted to increase chances for economically disadvantaged individuals in the general category by allocating up to 10% of seats and posts in educational institutions and public jobs to EWS candidates.

The impact has been substantial in the field of education. EWS reservations have increased access to quality education for pupils who would not otherwise have had such possibilities. This change has enhanced competition and diversity in classroom settings, resulting in a more inclusive educational experience. However, it has raised concerns about the infrastructure and resources needed to accommodate the increasing student intake, which might put institutions under strain.

In terms of employment, EWS reservations have opened up new opportunities for job seekers from economically disadvantaged backgrounds. EWS candidates now have more access to government career possibilities in particular. This has the ability to generate greater social inclusion by creating a more varied and representative workforce. However, difficulties occur when attempting to balance the demands of employment quotas with the necessity for merit-based selections.

The impact of EWS reservations on education and employment is a source of contention, with continuous debates over implementation, effectiveness, and the difficult balance between eliminating economic disparities and maintaining the quality and efficiency of these institutions.

Disagreements and Criticisms

Since its beginnings, the 105th Amendment Act, which introduced reservations for the Economically Weaker Sections (EWS), has been the subject of various disputes and critiques. While supporters say that it reduces economic inequality, detractors have legitimate concerns about its possible consequences.

One major point of contention is the notion of “economic backwardness” used to determine eligibility for EWS reservations. According to critics, the income and asset limitations are arbitrary and do not reflect the genuine amount of economic need. This has raised concerns about whether qualified candidates are being denied, despite the fact that persons who are not genuinely economically disadvantaged may profit from the approach.

Another issue is that the existing reservation quotas for Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC) may be diluted. Some are concerned that the 10% EWS reserve may limit possibilities for historically marginalised communities, undercutting the basic purpose of affirmative action policies.

Furthermore, there are issues regarding the viability of efficiently enforcing EWS reservations, particularly in highly competitive industries like as education and public jobs. Critics say that the sudden surge of EWS applicants will strain resources and infrastructure, lowering overall educational and administrative quality.

Critics of the 105th Amendment Act also criticise the timing and intentions for its passage, implying that it was motivated by political considerations rather than a genuine desire to redress economic inequality.

These debates and criticisms underscore the complexities of EWS reservations, as well as the necessity for continual examination and revision to ensure they achieve their intended goals without negatively impacting other marginalised groups.

Transformation of the Socioeconomic System

The 105th Amendment Act’s implementation of the Economically Weaker Sections (EWS) quota policy has the potential to cause enormous socioeconomic upheavals in India. While the entire scope of these changes will become obvious over time, a number of potential consequences can be predicted.

1. Increased Educational Access: EWS reservations give economically disadvantaged people easier access to quality education. As a result, a larger pool of qualified and educated workers from varied origins may emerge, potentially contributing to economic growth and development.
2. Expanded Employment Opportunities: The programme intends to solve unemployment and underemployment among economically disadvantaged groups by reserving government job openings for EWS candidates. This can result in a higher standard of living for EWS households and a decrease in poverty rates.
3. Reduced Income disparity: If implemented correctly, the EWS reservation policy may contribute to lowering income disparity by providing chances to individuals who were previously marginalised owing to economic constraints. EWS reservations can act as a social mobility mechanism, allowing individuals to break the cycle of poverty and access better prospects for themselves and their children.³
4. Diverse Representation: The policy may result in more diverse representation in educational institutions and government bodies in the long run, encouraging a sense of inclusion and equity.
5. Problems and Adjustments: It is crucial to emphasise that the policy offers problems, such as ensuring that infrastructure and resources can meet the increased demand for education and employment possibilities.⁴

The socioeconomic transition brought about by the 105th Amendment Act has a lot of potential, but it also needs to be carefully monitored, evaluated, and adjusted if it is to reduce economic inequities while retaining the effectiveness of institutions and services.

Implications for the Future and Problems

The introduction of EWS reservations in India via the 105th Amendment Act has far-reaching ramifications for the future, as well as a number of obstacles that must be properly addressed.

Future Possibilities:

1. Socioeconomic inclusiveness: EWS reservations have the potential to improve socioeconomic inclusiveness. The strategy attempts to eliminate income disparity and create a more balanced society by offering chances to economically disadvantaged individuals.
2. Diversity in Education and Employment: By including EWS candidates, educational institutions and the workforce can become more diverse. This variety can broaden viewpoints and produce a more welcoming workplace.⁵

Future Obstacles:

1. Effective Implementation: It is a huge problem to ensure that the benefits of EWS reservations reach the intended beneficiaries. Transparent methods and proper implementation mechanisms are critical.
2. Infrastructure and Resources: The unexpected increase in the number of EWS students and job seekers may put educational institutions and government organisations under strain. To handle this transition, adequate infrastructure and resources must be allocated.
3. Balancing current Quotas: Finding the correct balance between EWS reservations and current quotas for SC, ST, and OBC populations is a major difficulty. The strategy should not unintentionally limit chances for historically marginalised communities.
4. Political Manipulation: There is a concern that reserve policies will be manipulated for political advantage. These policies must be safeguarded against abuse.
5. Continuous Evaluation: To assess the long-term impact of EWS reservations, continuous evaluation and policy revisions may be required to guarantee the programme accomplishes its socioeconomic aims.⁶

To summarise, the future of EWS reservations in India is dependent on their efficient implementation, overcoming hurdles, and remaining focused on the larger goal of eliminating economic disparity and promoting a more inclusive society.

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Endnotes:

1.  The Constitution (One Hundred and Fifth Amendment) Act, 2019. “Gazette of India”
2.  The Times of India, “10% quota for poorer sections in general category challenged in Supreme Court,” January 10, 2019.
3. Kumar, S. (2019). “Impact of Reservation Policy in India: A Socio-Economic Analysis.” International Journal of Recent Research Aspects, 6(1), 1-10.
4. Dreze, J., & Khera, R. (2017). “Understanding Leakages in the Public Distribution System.” Economic and Political Weekly, 52(28), 49-55.
5. Kundu, T., & Kanbur, R. (2019). “Economics and Politics of Reservation in India: An Overview of Emerging Issues.” Cornell University ILR School, Ithaca, New York.
6. Thorat, S., & Attewell, P. (2007). “The Legacy of Social Exclusion: A Correspondence Study of Job Discrimination in India.” Economic and Political Weekly, 42(41), 4141-4145.

This article is authored by Srishti Singh, a pass-out student at O P Jindal Global University, Sonipat

Divorce, further referred to here as dissolution of marriage is the process of ending a marriage. The reasons for divorce can vary from irreconcilable differences to infidelity, and the process typically involves legal proceedings to divide assets and determine custody arrangements for any children involved. It pertains to the revocation or restructuring of the constitutionally protected duties and responsibilities of marriage, thereby dissolving this same relationship of matrimony between a married couple under the laws of the specific country or state. Gender justice refers to eliminating the disparities between men and women that are reproduced and produced in the family, market, community, and state.

To address the injustice and discrimination against women and the poor, we must address all of these issues. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Therefore, it is important to consider gender justice when dealing with divorce cases, as women and children are often disproportionately affected by the legal and financial consequences of divorce. Efforts to promote gender equality and address systemic inequalities can help mitigate these negative impacts.

Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. It is important to continue the fight for gender justice and promote women’s rights worldwide. Achieving gender justice requires a comprehensive approach that involves changing social norms, policies, and institutions to ensure that women and men have equal opportunities and resources. This can be achieved through initiatives such as education and awareness campaigns, legal reforms, and the empowerment of women in leadership positions. By working towards gender justice, we can create a more equitable and just society for all. This requires the active participation of individuals, communities, governments, and international organisations.

Divorce under Muslim law 

Well before the Solubilization of the Muslim Marriage Act of 1939, Muslim women had almost no legitimate right to ask their spouses for separation. This highlights the need for continued efforts towards gender justice, particularly in the context of religious and cultural practices that may perpetuate inequality. Such efforts must be inclusive and involve a range of stakeholders to ensure lasting change. This highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. It is crucial to promote legal and social frameworks that protect women’s rights and empower them to make independent decisions about their lives. The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek divorce. However, there is still a long way to go in terms of ensuring gender equality and justice within the Muslim community. Efforts must be made to challenge patriarchal norms and promote education and awareness among both men and women. This will help to create a more inclusive and equitable society where women can fully participate and thrive. In addition, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by simply saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. It is crucial for Muslim leaders and policymakers to work towards abolishing this practise and implementing laws that protect women’s rights in marriage and divorce. This practise is not only discriminatory but also violates the fundamental rights of women. Reforms must be made to ensure that Muslim women have equal rights and protection under the law.

The Dissolution of Muslim Marriage Act of 1939 developed nine grounds on which a Muslim woman could seek redress in court, namely:

1. that the husband’s whereabouts were uncertain for a duration of four years;
2. that the husband neglected or did not provide her monitoring for a duration of two years;
3. that the husband must have been incarcerated for a period of seven years or more; but rather
4. that the husband failed to act, without justifiable suspicion.
5. the husband has been mentally ill for two years, or
6. that she, having been given in marriage by her father or other guardians before the age of fifteen, repudiated the marriage before the age of eighteen.

The Act also gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

 Gender injustice against women

Muslim personal law is seen as having even more gender inequality. As a result, Muslims deserve extraordinary justice. They are not left in charge of deciding how “justice,” “fairness,” and “equity” are attained. In a number of situations, God decrees what is “just” for human society, and humans are compelled to follow these decrees or stipulations from the divine.

This tactic is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a society that is fair and just. This strategic approach, albeit having its detractors, every so often results in the oppression of minority populations within Muslim communities. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. Justice is required in all aspects of life, including business transactions, politics, domestic relationships, legal administration, and intellectual and educational pursuits. It argues that it is evident that Islam places a high value on justice in all aspects of life. With the promise of reward for those who do and punishment for those who do not, Muslims are encouraged to strive for justice and fairness in their interpersonal and societal interactions.

This emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. Striving for justice is thus not only a moral obligation but also a means of achieving spiritual fulfilment and closeness to God.

The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode. The Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration through an ordinance. 

Intentionally, this was done to protect Muslims’ ability to practise their religion freely. In reality, it amounted to violating the rights of women, who make up half of the Muslim population. It was obvious that the move was made to placate the vocal groups and clerics. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. Many Native Americans started to believe the accusation of appeasement. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement proved to be a successful political tactic, as it resonated with a significant portion of the Indian electorate. This allowed them to consolidate their power and implement their agenda, including controversial policies such as the Citizenship Amendment Act. The Citizenship Amendment Act has been criticised for being discriminatory against Muslims and has sparked protests across the country. However, the BJP remains popular among many Hindu nationalists, who see the party as a defender of their interests and values.

Only speaking out when they believed there was a “danger to Islam,” the Muslim leadership has historically been exclusively male and overtly religious. Islam khatre mein is a well-known rant from my generation. In their eyes, women who educate themselves, secure employment, and demand equal treatment pose a clear threat to their authority and status. For them, the equality of women leads to Islam, khatre mein he. They keep saying that Islam granted women’s rights 1400 years ago, but they never give the idea of making those rights a reality. They could not be credited with respect for people of other faiths or tolerance for Muslims who hold dissimilar beliefs. This mindset is not only harmful to women but also to the progress of society as a whole. It is important to challenge these beliefs and promote gender equality for a better future.

In India, a number of laws have been passed with the goal of reducing the gender pay gap and promoting women’s empowerment. Various rights for women in this regard are guaranteed by the Indian constitution. Part III of the Constitution, which deals with fundamental rights, and Part IV, which deals with directives and guiding principles of state policy, provide evidence of this. According to Article 14, everyone shall enjoy equal protection under the law and be treated equally in court. This means that no distinction between men and women should be made by courts or law enforcement organizations. The foundation upon which other laws are created and may be put into effect is the right to equality.

The goal of gender justice cannot be accomplished without the right to equality. The prohibition against discrimination is guaranteed by Article 15. The right to equality and, by extension, the right against discrimination are meant to address the widespread prejudice and bias against women. The special protection for women is discussed in Article 15(3). No matter a person’s sex, they have the right to equal opportunity in terms of public employment under Article 16.

This clause makes it easier for women to start taking part in elections and decision-making. The 74th Amendment, which established a reservation for women in panchayats, is significant to note in this context.

Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and settle anywhere on the subcontinent, and the right to engage in any occupation or business. By granting the freedoms required to function in society, promotes the right to equality. Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and establish oneself in any location, and the right to engage in any occupation or business. By granting the essential liberties required to participate in society, promotes the right to equality.

The right to life is guaranteed by Article 21, and this interpretation has been expanded to include the right to live with dignity. The right against exploitation is protected by Article 23. It forbids the trafficking of people. Part IV of the Constitution is made up of the State Policy Directive Principles.

Lacking a comprehensive democratic vision that would enable Muslims to meaningfully participate in our secular multifaith polity, the All-India Muslim Personal Law Board (AIMPLB) and the Babri Masjid Action Committee failed to achieve their goals. Both bodies kept their discussions to questions of identity. The majority of these organisations’ leaders pretended to be “Muslim leaders,” speaking for the religion’s 12 crore or more adherents. The majority of them developed close ties with various political parties and benefited from their patronage. These connections were never more than personal, and worse, they never resulted in any collective benefits like promoting education or preventing riots for the whole community. Muslims’ poor economic and educational status serves as evidence of this.

The last 15 years have seen a historic shift in the way that women have publicly spoken out against patriarchal practices like instant triple talaq, polygamy, and halala. When everyday women joined the democratic fight against instant triple talaq and for justice within marriage and the family, it would hardly be an exaggeration to say that the religious male leadership was rendered irrelevant. Additionally, women spearheaded the fight for social justice, communal harmony, and the repeal of unjust laws like the CAA-NRC. This shows that despite their disadvantaged economic and educational status, Muslim women have been able to mobilise and lead important social and political movements in their communities. Their activism challenges stereotypes about Muslim women and highlights the potential for empowerment even in the face of systemic oppression. 

Conclusion

Divorce is the process of ending a marriage. It involves legal proceedings to divide assets and determine custody arrangements for any children involved. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. To address the injustice and discrimination against women and the poor, we must address all of these issues. Divorce under Muslim law highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. The Dissolution of Muslim Marriage Act of 1939 gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases. Muslim personal law is seen as having even more gender inequality, and Muslims deserve extraordinary justice. Islam places a high value on justice in all aspects of life and encourages Muslims to strive for justice and fairness in their interpersonal and societal interactions. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. The emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode, where the Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014, as it resonated with a significant portion of the Indian electorate. The Muslim leadership has historically been exclusively male and overtly religious, leading to the view that women who educate themselves, secure employment, and demand equal treatment pose a threat to their authority and status. This mindset is harmful to women and society as a whole, and it is important to challenge these beliefs and promote equality. Muslim personal law is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a fair and just society. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement was a successful political tactic, allowing them to consolidate their power and implement controversial policies such as the Citizenship Amendment Act.

The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek a divorce, but there is still a long way to go in ensuring gender equality and justice. Reform in traditional religious laws and practises are needed to protect women’s rights and empower them to make independent decisions. Additionally, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. Reforms must be made to ensure Muslim women have equal rights and protection under the law, such as the Dissolution of Muslim Marriage Act of 1939. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

This article is written by Aehra Tayyaba Hussain, a student in her1st year at Symbiosis Law School Hyderabad, pursuing a B.A. LLB.

CITATION

(2017) 9 SCC 1

INTRODUCTION

The case of Shayara Bano vs Union of India refers to a landmark judgment by the Supreme Court of India in 2017 that upheld the constitutional validity of the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who challenged the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process.

FACTS

Shayara Bano vs Union of India is a landmark case that challenged the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who had been married to Rizwan Ahmed for 15 years and had two children. In October 2015, her husband divorced her by sending a letter with the word “Talaq” written thrice. Shayara Bano was devastated by the sudden and arbitrary divorce and decided to challenge the practice of Triple Talaq in court.

Shayara Bano’s petition challenged the legality of Triple Talaq, Nikah Halala, and polygamy, which are practices prevalent among the Muslim community in India. Triple Talaq is a practice that allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process. Nikah Halala is a practice where a divorced woman has to marry another man, consummate the marriage, and then get divorced again before remarrying her former husband. Polygamy is a practice where Muslim men are allowed to have multiple wives. Shayara Bano argued that these practices violated her fundamental rights as a woman and went against the principles of gender justice and equality enshrined in the Indian Constitution. She contended that the practices were arbitrary, and discriminatory, and left Muslim women vulnerable to abuse and injustice. She also argued that the practices were not essential to the practice of Islam and should be declared unconstitutional.

PROCEDURAL HISTORY

The case of Shayara Bano vs Union of India was filed in the Supreme Court of India on February 2016. Shayara Bano, the petitioner, challenged the constitutionality of the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying the word “Talaq” three times in one go.

The case was assigned to a five-judge bench of the Supreme Court, which held several rounds of hearings and considered arguments from both sides. The bench was headed by Chief Justice J.S. Khehar and included Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, and Abdul Nazeer. The first hearing in the case was held on May 11, 2017, and the court directed the Union of India to file its response to the petition. The All India Muslim Personal Law Board (AIMPLB) was also allowed to intervene in the case and present its arguments.

The Union of India, represented by the Attorney General, took a neutral stand on the issue and argued that it was up to the Supreme Court to decide whether Triple Talaq was constitutional or not. The AIMPLB, on the other hand, supported the practice of Triple Talaq and argued that it was a matter of personal law and should be left to the community to decide.

The court held several rounds of hearings over the next few months and heard arguments from both sides. The bench also received submissions from several other Muslim women who had been victims of Triple Talaq and other similar practices.

Finally, on August 22, 2017, the Supreme Court delivered its judgment on the case.

JUDGEMENT AND ANALYSIS

This case is a landmark judgment that has inspired many women to make bold movements and is famously known as the judgment that changed India. This landmark case is also known for its unique diversity in the religion of the judges as it was headed by a Sikh Judge followed by judges from other religions namely, Christianity, Islam, Parsi, and a Hindu judge. In this case, Shayara Bano along with 4 other Muslim women was subjected to talaq e biddat also known as instant triple talaq. They demanded that talaq e biddat should be declared unconstitutional because they believed that it violated their fundamental rights. Hence the five-bench constitution bench mentioned before they were formed. It is also quite ironic that there was no women judge on the bench given the fact that the case dealt with gender justice. The verdict of this case was quite unexpected as the Supreme Court neither constitutionally banned nor legally, instead, they set aside the Muslim Personal law related to triple talaq. 2 out of the 5 judges namely CJI Khehar and Justice Nazeer said this law cannot be banned and the other 2 judges namely justice R.F.Nariman and Justice U.U.Lalit declared it unconstitutional. It was read perhaps for the first time that a Muslim Personal Law is also a fundamental right as the law comes under the religion of Islam and people have the right to practice any religion as a fundamental right. Thus, they said the law must not be banned.

On the other hand, the other two judges declared that the act was arbitrary, that is without any application of logic and also violating the fundamental rights of the women, the law is unconstitutional. They read that the Muslim personal is a pre-constitutional law that is not arbitrary and thus is to be banned. The last judge, Justice Kurian Joseph said that triple talaq is unislamic. He went on to justify his statement by stating that for talaq to occur, there are two prerequisites for the same. Justice Kurian Joseph said that for talaq to be valid, there must be reconciliation and arbitration and that in the form of triple talaq, there is no scope for either as it is irrevocable. Reconciliation and arbitration are two essentials of Islam divorce law where both parties may plan to reunite after marriage. Even though the judges did not declare it unconstitutional, it was sent forth to the parliament for implementation. Eventually, on 28 December 2017, the Lok Sabha passed the bill with a majority. 

The question here is whether the passing of the bill is a violation of the Islamic principle or a stepping stone toward women’s empowerment. 

We can see how patriarchal the laws are as the only way in which Muslim women can get separated from their Muslim husbands is by Talaq-e-Tafweez. The wife can approach the court for the dissolution of the marriage under the Muslim Marriage Act, of 1939 if any of the said conditions are practised by the husband. Moreover, it is like an agreement, they don’t have the option to pronounce talaq in different ways as Muslim men do. When talaq-e-biddat was banned in Shayara Bano v. Union of India., some sort of legal protection was awarded to the Muslim women and this landmark judgment was a ray of hope for them. 

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women at the time of divorce can ask their husbands for maintenance only until the Iddat period. If the woman is not in a position to maintain herself and she has not married again, she is not entitled to ask her former husband for maintenance. Its constitutional validity was challenged in the landmark case of Daniel Latifi & Anr., v. Union of India.^[1], where it was argued that the rights of Muslim women are violated under articles 14, 15, and 21 of the constitution. Therefore, it was held that women are to be awarded maintenance under section 125 of CrPC. This section ensured that women in general is protected from destitution and vagrancy and were secular in nature.

These two landmark cases ensured the protection of the rights of women and a better position in society along with giving a wide interpretation of article 44 and the Uniform Civil Code. 

CONCLUSION

Men under Muslim law have the right to marry 4 women at a time whereas women can contractually enter only a single marriage. This clearly shows the patriarchy that women face and their plight when compared to men. In the present world of advanced science, technology, and advanced thinking, where there are different methods that have been developed for the rescue of people like adoption, IVF, etc. the procreation capacity of women cannot be considered a justification for polygamy. In such a scenario, UCC needs a safe and secure future for women in society. This is an important issue in the current scenario because, in many of Islam-practicing countries like Iran, Tunisia, Pakistan, etc. polygamy has already been abolished. It is high time for a country like India which give immense importance to human rights and equality to consider the same.

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ENDNOTES:

1. Daniel Latifi & Anr., v. Union of India., (2001) 7 SCC 740

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

Introduction

India, a country with many ideologies, religions, dialects, castes, and topography, represents unity and integrity. However, when it comes to the Varna System, which divides Indians into Brahmins, Kshatriyas, Vaishyas, and Shudras, there is no such unity displayed (Scheduled Casts, Scheduled Tribe, and Other Backward Communities, the most oppressed ones). As a result, the founders of the Indian Constitution established the principle of the reservation to ensure that every citizen’s social, political, educational, and economic rights and dignity be protected equally.

Current Position

In India, the caste system is profoundly founded in certain theological and social views that are highly conservative, and it has eventually estranged countrymen while categorizing ethnic and minority groups. This socioeconomic marginalization stems from the nebulous and nonsensical Principle of Purity and Pollution, which states that the lower castes are mostly linked with harmful vocations and are hence stigmatized by the society’s mainstream population. The Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes now make up more than half of the country’s population (OBC). Since the dawn of time, the Indian civilization has recognized significant social, educational, and economic disparities among its citizens. Though there was no caste-based divide in Vedic civilization, the rise of Brahminical culture in the Indian subcontinent brought with it the active form of class and caste structure.

The Constitutional provision of reservation

Article 14
Article 14 emphasizes two points: equality before the law and equal protection under the law. Article 14 imposes a duty on the state for the benefit of all people living in India’s territory. As a result, residents are not the only ones who gain from Article 14. Every natural or artificial person, whether a citizen or an immigrant, is entitled to the protections afforded by this article. The reality, on the other hand, frequently paints a different picture.

Article 15(4)
“Nothing in this article or clause (2) of Article 29 shall prevent the state from making any provision for the advancement of any socially and educationally backward classes of citizen or the Scheduled Castes and the Scheduled Tribe.” Such “special provision” as are permissible under clause (4) of Article 15 must, However, those specific provisions are for the progress of persons who fall into those categories, and thus they are not for the advancement of those who are not covered by this clause. Even clause (4) of Articles 15 and 16 cannot be applied to all the vague purposes of the reservation. In the State of M.P v Mohan Singh the Supreme Court verdict that though prisoners were from the backward class they will be equally liable for punishment as of other prisoners as they have broken the law.

Article 16(4B)
“Nothing in this article shall prevent the State from considering any unfilled vacancies of the year which is reserved for being filled up in that year following any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on the total number of vacancies of that year”.

The 50% Rule
In Indra Sawhney vs Union Of India, 1992, the court covered caste-based reservation, ruling that “No reservation or preference provision may be sought with such eagerness as to demolish the fundamental notion of equality.” The Janata Party administration established the Second Backward Groups Commission, or Mandal Commission, in 1979 to identify India’s socially and educationally backward classes. Its chairman is Bihar MP Bindheshwar Mandal. At the time, India had established reservations for Dalits and Adivasis. The Mandal Commission’s report, published in 1980, proposed that quotas be provided to the Other Backward Classes, a large group of castes that fundamentally fulfill the caste system’s “shudra” label. The report was kept in cold storage after Congress regained power shortly after it was filed. Another non-Congress administration, this time led by VP Singh, took a decade to implement the Mandal Commission’s recommendations, sparking widespread protests and the Indra Sawhney case in the Supreme Court.

The concept of ‘Creamy Layer’:
The Supreme Court of India gave birth to the concept of a “Creamy Layer” because the Indian Constitution does not provide for it. It generally refers to that backward caste be it SC, ST, OBC, or even any unreserved one who may be regarded as untouchables or not got enough land, money to live a healthy life and their children will not be able to get the reservation. For the first time, the term creamy layer got introduced by the Sattanathan Commission in 1971 which reported that the “creamy layer” should be exempted from the OBC reservation of civil services, and with that, the “creamy layer” principle has been laid down by Supreme Court for the exclusion of the advanced sections of the backward class groups for reservation. However, it ultimately divided society into backward and forward classes.

Concluding Remarks & Suggestions:

The constitution’s framers aspired to create a casteless and classless society. They wanted to uplift the underprivileged and provide them with a decent existence by concentrating on their job, education, and social standing. In a nutshell, the principle of the reserve was ingrained in the foundations of Equity and Justice. However, over time, the whole thing went off the rails. As a result of evaluating different aspects of the government’s reserve policy covered under Articles 15 and 16, certain flaws in reservation policies have been identified. The authors’ humble proposals for eliminating such shortcomings and achieving the desired aims of reservation policy is as follows:

Despite the government’s haste in implementing the 10% quota for Economically Weaker Sections in the unreserved category, it is past time for it to rethink its strategy on defining poverty levels and ensure that all poor and needy individuals are included.

Above all, the authors argue that it is past time to focus on the fundamental difficulty that the Reservation Laws face, which is nothing more than a defective system for implementing or enforcing the laws or policies that have been enacted. The true beneficiary is poor in information, which is a major worry right now.

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Citation of the case

AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India¹ was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi² and Suresh Kumar Koushal v. Naz Foundation³, which were likewise kept in thought during this case.

ISSUES RAISED

1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
2. Whether S. 377 violates A. 14 and 15 of the constitution?
3. Whether S. 377 infringes the right to privacy under A. 21?
4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

• The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
• The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
• 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
• Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
• It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

• The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
• Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
• The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
• Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
• On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
• For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
   n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution..
3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

Gender is an essential part of human life. Our gender can have an impact on our life duties, rights, and responsibilities, as well as our decisions. These choices and actions are then limited by the laws that govern us, and laws play a significant role in pursuing our gender identity. Today, we live in a society where gender equality and civil rights are promoted by various cultures. To comprehend gender-related rights and legislation, however, one must first dismantle the gender idea. It is a socially and culturally constructed term that separates different qualities between men and women, as well as boys and girls, according to the United Nations. This has something to do with a person’s feminine and masculine qualities.

In fact, when determining gender, one must be aware of the differences in gender and sex definitions. Gender has a social dimension, but sex is a biological trait of a human being generated by the association of its chromosomes and hormones, as previously stated. Margaret Mead described the pioneering concept of separating sex and gender during ancient periods in her book Gender and Temperament in Three Primitive Societies. Gender equality is much more than just men and women. Gender-neutral policies are defined as laws and initiatives that have no unequal influence on multiple groups, whether negative or positive. However, if differences in the social and cultural settings of the groups are not taken into consideration when designing policy, gender equality might be reduced to gender discrimination. This could lead to a system that is useless and fruitless. In reality, the importance of gender equality is linked to civil rights. The United Nations supports a similar theory, stating that equality between men and women is required to uphold human rights.

Section 375 and 376 of the Indian Penal code, 1860. The author discusses the conviction of a man for the rape of a lady. Apart from rape laws, there has been a slew of other measures, such as the Domestic Violence Act of 2005, that are gender-specific and only affect women, such as sexual misconduct or non-consensual, where a perpetrator is invariably a man. Increased societal knowledge of these crimes reveals that the primary motivation for conducting a sexual assault or any form of violence may not only be to satisfy sexual cravings, but also to demonstrate the offenders’ power.

Before any positive outcome in society, we, as individuals, must comprehend the societal ramifications of various movements, society in general, and the backlash. As a result, in order to comprehend society and effect change, one must first grasp its history and evolution across time in order to tackle and address contemporary difficulties. It has been taken into account that, historically, the agenda of Indian women has always focused on improvements in the law concerning rape. Women have always struggled with the expanding concept of rape.

The Mathura rape case was one of the most well-known rulings in the world of law, and it was also the catalyst for numerous changes in criminal law. It is considered to be one of the most important instances in the realm of criminal law and the subject of rape. The Supreme Court ruled in this case that the young woman who had been raped by police officers had given her consent because there were no signs of wounds in the case and because the absence of wounds indicated agreement. Following this case, four law professors wrote an open letter to the Chief Justice of India, expressing their displeasure with the situation. This case sparked a trend in which the victim was no longer blamed and the guilt was shifted to the perpetrator. Another demand made by the protestors was for in-camera procedures and the non-disclosure of the identities of the rape victims.

Gender-neutrality is a nebulous term that has yet to be completely defined. So, what exactly does gender-neutrality entail?

To understand the preceding question, we must first comprehend the concept of “gender” The term “gender” has traditionally been defined as a person who falls into one of two categories: male or female. This concept, however, excludes the “transgender” third gender, which includes the “hijras” and “Kothi’s” as well as communities where people are born with both female and male organs or communities that do not define themselves as belonging to any gender.

The Binary Gender and Gender Neutrality

The fact that males and females are just two races is referred to as gender identity. It rejects the gender-sex divide as a concept. Furthermore, because it only believes in the existence of two genders, it argues that all human beings can act entirely in a feminine manner if they are female, and in a masculine manner if they are male. It completely rejects the idea of the third gender and implicitly criticizes the presence of LGBTQ people. The existence of these ideologies has a direct impact on the civil rights of persons from developing countries. Furthermore, it is particularly unjust to operate under the assumption that the LGBTQ culture does not exist. Only China has seen an increase in its LGBTQ population in recent years, with 3.5 percent of adults in the United States identifying as lesbian, gay, or bisexual. In 2017, about 1.1 million individuals aged 16 and up identified as LGBT and only China has seen an increase in its LGBTQ population in recent years. As a result, before enacting gender-neutral laws and legislation, it is necessary to recognize the meaning of identity. This is critical to ensure that no country draughts a gender-neutral law that favors only two genders while rejecting the others, as is the case with the gender-binary delusion.

It’s crucial to remember that gender isn’t limited to two or more widely recognized ideas. Gender neutrality does not mean promoting policies that favor women and force us to believe that men cannot be raped. Gender neutrality, as the name implies, is a neutral concept that should not be slanted against any group in the country. “It’s time we all understood gender as a spectrum, rather than two sets of conflicting values” Emma Watson stated more eloquently.

Why laws should be gender-neutral?

The initial presumption that women can never be predators stems from the fact that, despite the fact that the laws’ definition of rape mentions multiple ways in which an action could be constituted rape, they would still be perceived as penile-vaginal intercourse by the general public. Because men are often constructed stronger than women in biological respects, this gives the general public the impression that only men can establish dominance.

The second presumption stems from the idea that males can never be raped because they are excited by any sexual act, meaning that they have given their consent. This is to imply that arousal in the male body can be produced by a variety of factors, including the desire to be a willing participant. However, studies have shown that arousal can be produced by a variety of factors, including fear, embarrassment, and anxiety, all of which can lead to erections. There is now an increasing acceptance of the idea that male exploitation does happen. There have also been a few industrialized countries, such as Canada, Finland, Australia, the Republic of Ireland, and the majority of the states in the United States of America, that have accepted unbiased and gender-neutral legislation.

Although the Preamble of India emphasizes ideas of equity and social justice, certain policies and regulations are in direct opposition to these objectives. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redress) Act of 2013 focuses on safeguarding women from all kinds of workplace harassment. It further states that the purpose of this act is to protect women’s fundamental rights to equality and dignity. The point of dispute, however, is that in India, fundamental rights to equality and dignity are not gender-specific, and then how sexual abuse occurs in the workplace. This Act reaffirms the notion that violence is confined to women and that males, or any other group, should never be subjected to it.

In fact, rape is defined as an act of non-consensual sexual activity perpetrated against a woman under section 375 of the Indian Penal Code. This section is also based on the assumption that only a man can rape and only a woman can be raped. The notion of gender equality is supported by a number of judgments and statutes. Iceland, for example, was the first country to establish an equal pay clause in 2018, promoting the idea of a gender-neutral policy. Businesses with 25 or more employees must now submit certifications demonstrating compliance with the fair pay provision. This aims to eliminate the significant salary disparity between men and women, promoting gender equity and equality. In the view of the law, Article 14 states that everyone has the right to equality. This article claims that everyone, nevertheless their gender, is equal.

Article 15 prohibits separation on the basis of gender, i.e., no one can discriminate on the basis of a person’s or a case’s sex, creed, or any other type of discrimination.

Despite the fact that male assaults are less common than female assaults, it is important to recognize that guys are not exempt from the need for legislation to protect them. Equal rights for men in cases of sexual assault does not mean that women are deprived of their rights. Giving males a platform to speak out about their assault and the ability to file complaints would, on the other hand, lessen the toxic masculinity of asserting dominance, hence reducing assault on women, as an assertion of dominance has been the major source of violence against women.

The fear of being judged by society and fearing a backlash from a society that maintains the stigma that “men cannot be victims of the attack” is one of the reasons why men do not open out about being victims of sexual assault against them.

References

1. The Need for enacting Gender-Neutral Laws: A Critical Analysis – Lex Jura Law (wordpress.com)
2. Need for Gender Neutral Laws in India – iPleaders

This article is written by Vidushi Joshi student at UPES, Dehradun.

Women have always played an important role in our civilization’s growth. They are the ones who developed and are a large part of the societal norm. They shape entire generations. Any community’s lifeblood is its women. They are supposed to look after things with all of their hearts while expanding their proportions to assist society’s shared realm, whether at home, at work, or on vacation. In the anthropology group, they are believed to be the most trustworthy.
As a result, women have not been treated equally to men since ancient civilization till now. Men consider women as second-class citizens. They are in a bad situation.

They don’t even have access to constitutionally guaranteed fundamental human rights. Women themselves are terrified of speaking out about this issue for fear of being ostracised from society and denied access to food and other basic necessities if they do. The majority of the time, the issue comes out of a sense of fairness and freedom, when they are denied the opportunity to engage in activities that need independence and are traditionally reserved for males. Due to ill-intentioned and flawed cultural attitudes, Indian women have been prevented from going further and bringing out their personalities in a stronger way. When a woman goes out to look for work, she is regularly interrogated.

The freedom to govern religious issues is guaranteed by Article 26 of the Indian constitution. Every religious denomination or segment thereof, subject to public order, morals, and health shall have the right-To create and maintain religious and philanthropic institutions; to govern its own religious affairs; to own and acquire movable and immovable property and to administer such property in conformity with the law. These guarantees, however, are exclusively available to Indian nationals and not to foreigners.

These, on the other hand, are constitutional provisions that are generally thought to apply to men. Despite Indian constitutions assuring, women in India still do not enjoy the same freedom to participate in, maintain, and oversee religious institutions.

Equality of Opportunity

The right to equality is protected under Articles 14 to 18 of the Indian constitution, and it is widely recognized. “The state shall not refuse to any individual within the territory of India equality before the law or equal protection of the laws,” reads Article 14.

“The state shall not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth, or any of them,” as per Art15.

In matters of public employment, Article 16 provides equal opportunity.

“Untouchability is abolished, and its practice in any form is prohibited,” according to Article 17. Except for military or intellectual differences, Article 18 prohibits the use of titles. It is unlawful to admit titles from different countries, such as knighthood.

Conflicts between religions over women

In all religious customs, rituals, and traditions women are always considered second-class citizens. Superstitions are still being followed till today, those superstitions which were believed back in the past. The condition of Indian women has always been a source of controversy.

Various factors, including religious fundamentalism and irrational concerns arising from the minds of conservative elements of society, have been mentioned for these restrictions. It prevents women from exercising their religious rights and excludes them from religious areas. For example, some elements of the temple’s management do not let women enter and worship deities because they believe that women were not allowed even 1500 years ago and that if they do so, the temple will be destroyed.

Because they are in their reproductive phase, women between the ages of 10 and 50 are impure. Menstruating women are not permitted to enter the shrine. These irrational beliefs ignore the genuine biological phenomena of menstruation, which assists women in becoming mothers.

These irrational and radical pessimistic ideas depict a patriarchal society in which men consider women to be adjutants to themselves. However, thanks to the efforts of Bhoomata brigade leader Tirupati Desai, prohibitions on women entering the temple have been eased in Shani Shingnapur and Haji Ali. This is a significant achievement made possible by women activists, and it has shed light on modern women’s inner strength, which had previously been hidden.

Conservatives still believe in superstitions and myths that were once believed. These fallacies continue to be scrutinized before women’s rights and respect. The priests believe that if the customs are modified, God will become enraged and the cosmos will fall apart as a result of God’s vengeance. Women’s boundaries are being pushed back by these pitiful notions, forcing them to live a life that is pointless. Inside temples and religious institutions, which are virtually entirely ruled by men, there is a great deal of corruption. The authorities believe that including women will have an impact on their unlawful money-making activities, and they will take harsh measures against them. In political drama, many political parties do not support women, believing that doing so would grant women the same status as men and would be completely antagonistic to the culture. Some male political leaders molest women, and they are afraid that if a female leader comes to power, she will expose their crimes and harm their so-called reputation. As a result, in order to overcome such serious issues that exist in society against women, we must enlighten male members of society and convince them that women, too, should have equal standing in all spheres and that there should be no discrimination based on gender. Even at home, we must empower them and instill a desire for women’s education.

References

1. Essay on Religious Liberty and Women Rights (upscbuddy.com)

This article is written by Vidushi Joshi student at UPES, Dehradun.

The caste system is a hierarchical system that divides society into different groups of individuals. According to the Hindu system, these groups are called Varnas. The first or the superior Varna is the Brahmins, who perform rituals at the temple and are considered the most educated and respected. The second Varna is the Kshatriyas, who are warriors. The third Varna is the Vishay’s, who are traders or businessmen. The fourth Varna is the Shudras, who are the working class and are considered very low. Before, there was a fifth group, who were called the ‘untouchables.’ Even though untouchability is removed in society, those individuals are now referred to as Dalits. 

This system of caste has been criticized as the upper caste suppresses the lower caste. To eradicate this issue, the Indian Constitution banned the practice of discrimination based on one’s caste and also provided a reservation system, which reserves a certain number of seats in education and job opportunities for the individuals of the Scheduled Tribes, Scheduled castes, and the OBC’s. 

India has been a country that is very sensitive to topics like caste and religion. Even though laws have been prevailing to eradicate caste discrimination, even now, in the 21st century, case discrimination can be seen in our society. Dalits are still considered low status in society and are not treated well. At times of disasters, Dalits are given no preference in providing safety measures or relief. Dalits also face police brutality, many of which are not even registered according to the National Campaign on Dalit Human Rights (NCDHR). In the current context of COVID-19, Dalits are assigned to cremate the bodies of individuals who died due to the COVID-19. In such situations as well, some individuals from the upper caste refuse to agree to cremate their family member’s body as the rituals are done by a Dalit. These incidents highlight the discrimination that the Dalit face. 

Now, let us look into ‘Dalit Lives Matter’(DLM). The DLM protest was compared to the US protest of Black Lives Matter (which was started after the incident of George Floyd, a black man who died due to police brutality). But unlike racial discrimination, caste discrimination in India is multi-layered. The DLM started in 2020 after the gang rape case of a 19-year-old Dalit girl from the state of UP. The girl was gang-raped by four men and even the police did not take any emergency actions on the same. The girl’s dead body was cremated by the police without the permission of her parents and family, without giving a chance for them to see her before the rituals. This incident shows how caste and gender discrimination and violence still prevails in India. There was various other death that happened over the years, almost all of them left without justice. 

The upper caste is well known for their superior position in society and takes advantage of the same by suppressing the lower caste. But will these Dalits find a way out when they are not educated about their rights, or the ones that try to voice out are being shunned by officials like the police? There are so many cases that happen in rural India that go unregistered and unattended. It is high that the state officials take action against caste discrimination. Nearly a century ago, BR Ambedkar was able to bring in rights for the untouchables because he stood against caste discrimination. Hence, the ruling party or the state officials need to stand against caste discrimination to eradicate such discrimination from society. 

But only movements and protests are also not enough. The Dalit community has been living in the shade for years together now, the injustice that happens to them is something that is normalized that they do not find a way out of this loop. Hence to break this loop, it is important to educate the individuals of the Dalit community on their rights. 

Now, let us apply the principle of Article 15 to this. Article 15 of the Indian Constitution states that the ‘state shall not discriminate any individual based on their religion, place of birth, race, and caste. The state is given such power so that it uses the same for the upliftment of the lower groups of the society and given them an equal place in the society similar to the privileged groups. Hence, this Article can be applied to the current topic of discussion, caste discrimination. This article is an addition to the principle of Article 14, which states that every individual should be treated equally under the law, that is fair and justifiable to all individuals and to remove any kind of discrimination. It gives fair treatment between the equals and unequal. 

These Articles were made under the Constitution because, since the time period of pre-independence, the minority community has been shunned by the upper communities. The State was given the power to make laws to eradicate any such discrimination. Under Article 15, there are Acts like the Scheduled Caste and Scheduled Tribes Prevention Act, 1989, and Caste Disabilities Removal Act, 1850. Anyone who violates the provisions of these Acts can be held liable and given punishment. 

Therefore, these laws should be applied in the matter of Dalit people’s rights and eradicate caste discrimination. New Acts with more strict policies should be initiated by the government that also hold the officials like the police, accountable for their actions on caste discrimination. 

The article has been written by Hiranmayi Rajeev, a 2nd-year law student at Alliance University Bangalore.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith, Jaipur.

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