Tag: #righttoequality

S.no	Contents
1.	Administrative Discretion: What It Is and What It Means
2.	Motives for the Growth of Discretionary Powers
3.	Indian system of administrative discretion
4.	Indian Constitution and Administrative Discretion
5.	Judicial Control
6.	Judicial oversight of the discretionary administrative powers
7.	Judiciary’s Function and Administrative Discretion
8.	Conclusion and Recommendations

Administrative Discretion: What It Is and What It Means

Administrative discretion is the combination of the phrases administrative and discretion. It refers to the discretion that the administration uses to carry out its duties. We’ll talk about discretion first, then we’ll highlight administrative discretion. Discretion is the capacity to make choices. 

Or, to put it another way, the authority to act by their intelligence. Regarding his property, each person is free to donate, sell, or otherwise dispose of it as they see fit. He can make a will if he decides he wants his property to pass down through his ancestors. He can sell his land if he chooses not to pass it down to his ancestors. Nobody is allowed to impede his independence.

Administrative discretion differs from individual discretion. There is no constraint on personal choice. However, administrative discretion means they have the freedom to choose among the available possibilities. 

Lord Cock – Understanding the difference between truth and lies, right and wrong, and reasonable and outrageous behaviour is the science of discretion. They must not carry out their tasks out of self-interest or to satisfy their desires.

The Supreme Court stated in State of Punjab v. Khan Chand^[1] that the question of specifics must be left in the hands of the authorities working by an enactment due to the complexity of the issues that a modern state must deal with. For the sake of exercising the powers granted to them by an enactment, the relevant authorities must be provided discretion.

In governance and law, administrative discretion is the main source of creativity. All administrative actions must be conducted with great caution. It shouldn’t, however, be allowed to run unchecked lest it become arbitrary and undermine the fundamentals of the rule of law.

Administrative discretion is required

When Dicey created the concept of the rule of law, the laissez-faire philosophy was in vogue. The upkeep of peace and order was the sole responsibility of the police state at the time. More and more nations adopted the idea of a welfare state as the philosophy of laissez-faire fell out of favour over time, and there was a pressing need for both social and economic progress. It is now hard to create a government that can run smoothly without giving the executive discretionary power, whether in communist or capitalist regimes.

Motives for the Growth of Discretionary Powers

The growth of administrative discretion is due to a variety of factors. Some explanations are provided below.

1. Today’s administration has challenging and numerous issues that cannot be resolved by a single rule.
2. Because the majority of those issues are brand-new and are emerging for the first time, a general rule cannot be applied to them.
3. Although it is not always feasible to predict every issue when it does arise and cannot be resolved under the circumstances, administrative authorities must be contacted.
4. Each situation has a unique set of circumstances, thus applying one rule to them all could result in injustice.

Administrative authorities are free to use their authority as they see fit, given the situation. They can create and put into practice a variety of rules to address problems that arise abruptly. But once the administration has addressed every issue and changed the exercises and guidelines in those puzzles. It might lead to a lot of problems, some getting worse—

1. No one may be aware of the regulation that will be applied in his case.
2. Because every situation of the same nature will be handled under different rules, it will be a blatant violation of Article 14, Right to Equality.
3. Administrative officials might abuse their discretion in some circumstances.

The administrative authority must be chosen as a general rule based on the aforementioned arguments.

Administrative authorities must be used equally in all of their tasks, whenever practicable. If it doesn’t continue, it can not only lead to administrative violence but also lose the public’s faith. When using administrative discretion, the administration must take into consideration how comparable situations have been handled in the past; otherwise, this would constitute discrimination and put many barriers in the way of inclusive progress.

Indian system of administrative discretion

India has also adopted the welfare state philosophy; thus it was important to grant the administration discretionary powers because there was only one body that could perform all tasks.

Government participation and interference in all public activity that was done after this notion was adopted. The state now considers the development of the public and the state. Before it, the state performed ministerial duties and thought primarily about itself. It wasn’t interested in any public issues. Now that the state is beginning to consider the general people and their facilities, it has placed the full weight of all obligations on the administration. But without the ability to make decisions, it was impossible.

Administrative officials thought they needed the ability to make decisions immediately. They are powerless to act without it. Therefore, the state granted them discretionary powers. However, no contemporary government can run effectively without giving administrative officials some degree of discretion. The occurrence of specific events or the emergence of specific unanticipated situations determines whether or not action is necessary. They must occasionally be decided, and the administrator must reply by making use of the authority delegated to her.

The Supreme Court had ruled that with regards to the administrative discretion granted by law. The exercise of discretion is anticipated to be fair, just, and reasonable; it cannot be motivated by personal desires or interests. It must not be speculative, arbitrary, or illogical. It must fall within the parameters that are reasonable for a genuine individual.

Indian Constitution and Administrative Discretion

If a law is passed by a capable legislature, it cannot be contested on the grounds of purported bad motives or enigmatic intents. Any statute that grants discretion to the executive must include restrictions on how that discretion may be used. Our constitution contains several clauses that deal with discretion. The highest Executive in India is the President. He used a lot of his discretion. If he determines that any of the conditions listed in Article 352 have arisen, he may declare a national emergency. He has the authority to enact and enforce laws. When there is no majority party, he has the authority to dissolve the Lok Sabha. He is free to create the government at his discretion. Additionally, he has the authority to commute sentences or grant pardons to anyone who has been found guilty of crimes under Articles 72 and 161. A state may also be governed by him as president under Article 356. But there are some limitations to all of these powers. These are not random acts of nature. Even the judiciary has used some discretion; when judges sentence guilty parties, they have control over whether to impose a fine, an incarceration term, or both.

Judicial Control

The entire body of law governing the judicial supervision of administrative discretion is predicated on the idea that the courts, who have the final say in controlling the discretionary powers granted to the administration, are where democracy begins. The absence of judicial oversight of administrative activity may encourage executive overreach. The principles of democracy and the idea of the rule of law would be violated in such a situation.

In the case of Kesavananda Bharti v. State of Kerala^[2], it was decided that judicial control is not only a crucial component of the Indian Constitution but also an element of its fundamental framework, which cannot be altered even through a constitutional amendment. The foundation of judicial oversight of administrative action is the idea that all authority must be exerted within the bounds of the law. The courts do not get involved in administrative decisions unless they are arbitrary or otherwise in violation of the Constitution. The courts have appellate and supervisory jurisdiction when deciding whether an administrative action is legal.

Judicial oversight of the discretionary administrative powers

Because the English parliament is supreme, no statute may be challenged by the judiciary on any basis. No statute can be subjected to judicial scrutiny by a court. However, the court can limit administrative discretion under specific circumstances, including abuse of discretion and supra vires.

The United States of America shares India’s practice of judicial review. The court cannot impose its views instead of using discretion in both countries. For the proper application of the Rule of Law, it must be under control. Administrative discretion must be used by the law, not individual discretion. If the administration is given complete freedom to carry out outsider duties, a dictator may be in place. Therefore, it’s important to limit administrative discretion.

Judiciary’s Function and Administrative Discretion

To limit discretion, the court has adopted many new concepts recently. These justifications successfully exercise discretion. These guidelines are the ultra-vires doctrine and the misuse of administrative discretion, an improper motive, an irrelevant factor, malice, unreasonableness, a violation of protocol, and administrative discretion.

In the case of Ram Manohar Lohia v. State of Bihar^[3], the authority was permitted to hold a person under the defense of India provisions to maintain public order. The petitioner was detained to stop him from engaging in a way that might harm the upkeep of law and order. The court overturned the detention order. The court held that the notion of law and order was more expansive than the notion of public order.

In Air India v. Nargesh Meerza^[4], the issue at hand was the legality of a service regulation put out by Air India that called for the termination of an air hostess’ employment upon the occurrence of her first pregnancy.

The regulation was deemed by the Supreme Court to be highly arbitrary, illogical, offensive to the ideals of a civilized society, and interfering with the natural progression of human nature. It is not a disability, but rather a normal side effect of marriage and an unchangeable aspect of married life. Therefore, it has been demonstrated that administrative discretion is necessary today and that its monitoring is essential. Judicial review is a useful tool for managing it. The judicial assessment of administrative discretion thus has this additional dimension. Everyone is protected from discrimination by Article 14.

Conclusion and Recommendations

Although it must be granted, administrative discretion must be constrained. And a limitation needs to be put in place. It implies that a process should be set up for the administration. So let me highlight a few ideas that are provided below.

1. Administrative personnel cannot achieve their goals without judgment. They are unable to realize the welfare notion, hence the state must grant discretion but not access.
2. Some constraints (restrictions) should be put in place when the state grants discretion.
3. The discretion must be removed while adhering to these limitations.
4. The language of the legislation, which grants discretion, must be unambiguous and explicit.
5. Any person who suffers a discretionary injury must be given compensation.
6. Discretion must be subject to court review on more than just a few grounds, such as mala fide intent, arbitrariness, discrimination, and irrelevant consideration. Likewise on legitimate grounds. because there are more and more problems every day.

Administration in a welfare state cannot function effectively without discretion. It is a requirement for the exercise of authority. But it’s also necessary to set boundaries and standards.

Administrative discretion becomes unconstrained and unchecked. Power corrupts, and absolute power corrupts totally, as Aristotle correctly observed. Discretion fosters innovation in government. All administrative decisions must be made with discretion, but to safeguard the notion of the rule of law in administration, it is also necessary to impound decisions and control discretion, lest instances of injustice go unreported and unpunished.

Even though exercising discretion is essential to running the administration, this cannot be done in its entirety. If discretion is unconstrained, authoritarian rule and the rule of law will cease to exist in the nation. No policy can be carried out in the nation without discretion. Democracy won’t be realized if total discretion is granted.

---

Endnotes:

1. State of Punjab v. Khan Chand, AIR 1974 SC 543
2. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
3. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709
4. Air India v Nergesh Meerza & Ors, 1981 AIR 1829

This article is authored by Karan Gautam, a student of Delhi Metropolitan Education.

This article provides readers with an insight into the concept of the Right to Equality in India and the United States, how the provisions in both countries are applied, and the significant differences in both views.

Introduction

India and USA are two countries that share many similarities. Both countries are affluent in their diversified culture in society, emphasizing a democratic form of government with separation of powers and many other similarities. Even though the provisions and explanations of the term’ Right to Equality’ are quoted in the Constitution of both countries, the principle that things might differ when observed closely works here. The applications given to the same concept and the scope are significantly different in both countries.

The United States did not initially have the ‘Right to Equality’ in its Constitution. The Declaration of Rights from the Bill of Rights expanded this concept of the ‘Right to Equality’ in the United States. It was added as part of the 14th Amendment Act of 1868 in the Bill of Rights, whereas India’s scenario is entirely different. The ‘Right to Equality’ concept was intended to be added to the Constitution in the initial stages, resulting in it being a part of the country’s fundamental rights.[1] This was the initial point of difference between both countries regarding this concept. The main reason for the difference is the category of people in society and the rate of development in various fields.

Even though the application of the concept is different in both countries, where India considers it as a necessity while a country like the USA considers it from the aspect of quality, some basic features of equality are to be implemented in both countries irrespective of the scope. This article gives a deeper analysis of differentiating the right to equality on various grounds in both countries and the areas of development in implementing this provision.

Analysis

• The difference based on provisions:

Similar to the provision under the Bill of Rights in the US, Article 14 in India is the foundation for providing the right to equality in the Indian Constitution. Article 14 has further introduced the concept of ‘reasonable classification,’ which states that people belonging to similar circumstances should be treated equally. Whereas in the United States, the mode for promoting equality is not based on fixing quotas. It is based on passing time-to-time legislation for the underprivileged like women and children and other minorities. In India, Article 14 protects against discrimination based on religion, caste, race, sex, or place of birth. In the case Shayara Bano v. Union of India.,[2] triple talaq was struck down, stating that it is violative of Article 14, whereas the US constitution does not promote social equality per se in this manner. The concept of social equality was not a part of the American Constitution at the time of its framing. For example, the rights of black people were protected only after passing the 14^th and 15^th Amendments.

Traits of Right to Equality in the US in that of Indian affirmative action

The words stated under the equal protection clause of the 14th amendment were directly applied in the Indian Constitution concerning the right to protection of life and personal liberty. The concept of the rational basis test introduced in the US constitution to check the validity of legislation passed was also applied in India through the judicial review process to check the arbitrariness of a law.

The US influence in Indian society is evident when India started framing the Constitution. Dr B.R. Ambedkar, the chairman of the Constitution assembly, was greatly influenced by the US constitution and its frameworks. He belonged to the category of untouchables in India. When he was in Columbia, he highly appreciated the framework of the 14^th amendment act, which protected the rights of the black people of the United States and enhanced their livelihood. Clearly, he also had the same vision to uplift the lives of untouchables and other minority groups in India. He also idolized the famous black reformer and educator Booker T Washington. On the other hand, B.N Rao, the advisor to the constitutional assembly, inspired the Indian Constitution from the views and ideologies of many famous American judges and jurists.

One of the primary reasons for applying US affirmative reforms in India was that both countries political scenarios and cultural backgrounds had similarities. Both the countries and people belonging to different communities in the society. Both countries were federal. At the same time, society’s reaction regarding affirmative action was also the same. Indian states faced opposition from the people over affirmative action even after there was support by the government similar to the United States, where rights provided to black communities were largely opposed by whites.

• Children’s Rights:

When considering the matter of children’s rights, there is no significant difference in provisions between both countries. Both countries have implemented the provision for providing compulsory education to children. The only difference is the age group. In India, compulsory education is 14 years, whereas, in the USA, it is 16 years. Children at 14 years will be way too young to attain sufficient maturity and take up jobs to sustain themselves. Therefore, considering the age of 16 is a better approach to implementing equality in education.

• Gender inequality:

Equality for women regarding education, job opportunities, etc., is a widely debated topic in both nations. Thus, both nations have separate provisions to protect and safeguard women’s rights. Women’s equality and rights protection laws have gained more attention in the USA than in India among various countries because these laws were framed and implemented decades before India’s independence. The concepts like ‘liberal feminism’ and ‘radical feminism’ rose to popularity in the United States and changed people’s stereotypical attitudes and resulted in women’s independence. While discussing the protection of women’s rights in the workplace, India made provisions to tackle this problem only recently through the judgment of Vishaka v. State of Rajasthan. In contrast, this provision in the United States is more enhanced and developed.

Judicial interpretation of the ‘Right to Equality in India and the US

India has derived the concept of ‘equal protection of the law’ from the US through Article 14 of the Indian Constitution. The same concept is brought into the US constitution through the 14^th amendment Act. Right to equality was considered one of the fundamental features of the Indian Constitution in the case of Indra Sawhney v. Union of India.,[3] This provision applies to every individual who comes under the definition of a person, even if it is a corporation, and all people within the boundaries of India, irrespective of citizenship. Equal justice is the motive behind the concepts of equality before the law and equal protection of the law was stated in the case of Ramesh Prasad v. State of Bihar.,[4] The Constitution of India also provides provisions to make reservations for women and children in the country; nothing shall prevent them from doing so. This was to ensure the upliftment of underprivileged groups. This was stated in the case of Choki v. State of Rajasthan.[5]

Three amendments were brought into the United States constitution after the civil war. All these amendments improved the concept of equality in the country by recognizing minority groups in the United States. The 13^th amendment abolished the practice of slavery; the 14^th amendment played a significant role which granted citizenship to minority groups and stated that no person should be denied the right to life and personal liberty within the state and equal protection of laws. In the landmark case of Gitlow v. Newyork[6] the 14^th amendment Act regarding the due process of law was given a much broader interpretation by including the bill of rights. Other essential rights and liberties, such as the right to freedom of religion, the right to a fair trial, and, the right to press, were recognized through selective incorporation. In the case, of Roe v. Wade.,[7] the right to privacy was widely recognized.

The concept of equal protection of the law was recognized through the landmark judgment of Brown v. Board of education, Topeka.,[8] in which it prohibited discrimination on basis of race in public schools. The concept of equal protection was also used to protect rights in the matter of voting, public jobs, etc.

Conclusion and Suggestions

The ideology and views regarding the concept of equality have been formed during different periods and contexts which resulted in the difference in application. India considered equality as a core subject on the other hand the US developed the concepts according to the needs of the society. But the US system and the Indian system are not different. Regarding constitutional law, Indian shares similarities with the United States more than any other country. Both countries give core values to the Constitution with a strong procedure for judicial review, to strike down inconsistent laws.

After analyzing both countries’ approaches towards the concept of equality, it can be understood that either of the approaches can be directly applied as both have positives and flaws. A purely collective approach is not advisable as it puts individuals’ rights at stake. India’s approach is to attain equality in society and protect the rights of individuals whereas, in America, it is more of an individual approach. In India, the society’s mindset should be changed while the government promotes affirmative action. The authorities can initiate a moral approach. There are still barriers to full equality for people belonging to disabled sections, women, economically weaker sections, etc. Government should frame policies to uplift these groups in particular by addressing their needs. In the US, more attention should be given to providing opportunities to attain equal success for individuals, by removing the unequal effects in social groups. While promoting equality and abolition of discrimination, the need to provide equal access to justice should not be ignored.

---

References:

[1]Siddharth Sehgal, Fights for equality: A comparison between India and the US, THE TIMES OF INDIA (Oct. 28, 2013, 18:47 IST), https://timesofindia.indiatimes.com/nri/citizen-journalists/citizen-journalists-reports/siddharth-sehgal/fight-for-equality-a-comparison-between-india-and-us/articleshow/24826436.cms
[2] Shayara Bano v. Union of India, A.I.R. 2017 9 S.C.C. 1 (SC).
[3] Indra Swahney v. Union of India, A.I.R 1993 S.C. 477.
[4] Ramesh Prasad v. State of Bihar, A.I.R 1978 S.C. 327.
[5] Choki v. State of Rajasthan, A.I.R 1957 Raj 10.
[6] Gitlow v. Newyork, 268 U.S. 652 (1925).
[7] Roe v. Wade, 410 U.S. 113.
[8] Brown v. Board of education, 347 U.S. 483 (1954).

This article is written by Vishal Menon, a 2nd-Year student pursuing BBA LLB from Symbiosis Law School, Hyderabad.

INTRODUCTION

Women all across the world have demonstrated that they are vibrant, talented, truthful, and diligent in a variety of disciplines. Their ongoing efforts and contributions to the country’s progress have demonstrated that women are not inferior. Women who are educated and contemporary have let go of their inhibitions and concerns. Females have demonstrated to the world that they can be successful as mothers as well as professionals, academics, bureaucrats, and politicians. However, in previous ages, women could not be so tough and furious. In reality, they were exposed to numerous difficulties and were denied their human rights. Although numerous places in the world still reflect no changes, there has been some progress in the condition of women, and governments and other organisations are also realising the need of preserving women’s human rights.

While India struggled to break free from the constraints of the British Raj, women stepped forward to share the burden. Rani Laxmibai represents the zenith of female strength and courage. Several freedom fighters, including Sarojini Naidu, Sucheta Kriplani, and Vijay Laxmi Pandit, were pivotal in the Indian independence struggle. The woman’s astonishing display of bravery and persistence hinted at her hidden abilities. Mary Kom, Sania Mirza, Saina Nehwal, and Sumitra Mahajan have all made significant contributions to their sports. Modern Indian women have honed their talents and launched a life-long battle against societal restraints, emotional attachments, religious obstacles, and conventional clutches.

Despite these accomplishments, many obstacles remain: harsh laws and societal norms persist, women continue to be underreported at all levels of political leadership, and one in every five women and girls aged 15 to 49 report sexual and physical assault by an intimate partner within a year.

PLIGHT OF WOMEN AND VIOLATION OF THEIR RIGHTS

Women’s feminist groups have worked tirelessly for many years to address these societal injustices, organising support for legislative reform or protesting in the streets to demand that their rights be honoured. New movements have blossomed in the internet era, including the #MeToo campaign, which also emphasises the prevalence of sexual identity abuse and assault. Here are a handful of the many women’s rights abuses that she faces daily:

1. Inequality of Gender

2. Violence against women

3. Sexual Harassment and Violence

4. Discrimination at work

5. Over 500,000 women die each year as a consequence of pregnancy and maternity care-related causes.

6. HIV infection rates among women are increasing at an alarming rate. Because of their financial and social vulnerabilities, young women now make up the bulk of newly infected people aged 15 to 24.

7. Sexual identity abuse kills and disables as many women between the ages of 15 and 44 as cancer. Perpetrators are often unpunished.

8. Globally, women are twice as likely as males to be illiterate.

9. As a result of their working circumstances and characteristics, a disproportionately significant percentage of women are destitute in both developing and affluent countries.

EFFORTS TOWARDS RECOGNISING WOMEN’S RIGHTS BY THE GLOBAL COMMUNITY

UN Women is a United Nations organisation committed to gender equality and women’s empowerment. UN Women was established to accelerate progress in meeting the needs of women and girls worldwide. It works internationally to make the Sustainable Development Goals vision a reality for women and girls, and it advocates for women’s equitable involvement in all aspects of life via four key goals.:

• Women lead, participate in and benefit from governance systems on an equal footing.

• Women and girls participate in, and have a greater impact on, creating long-term peace and resilience, and they benefit equally from natural disaster and conflict prevention, as well as humanitarian assistance.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979) is a landmark international treaty that tackles gender discrimination and offers particular protections for women’s rights. The agreement established a global charter of women’s and girls’ rights, as well as governments’ responsibilities to guarantee that women may enjoy those rights.

UN Women has devised a rapid and focused response centred on five priorities to reduce the impact of the COVID-19 disaster on women and girls while also ensuring long-term recovery benefits them:

1. Gender-based violence, particularly domestic abuse, is minimised and decreased.

2. Social security and economic stimulation programmes assist women and girls.

3. People believe in and practise equal sharing of caring responsibilities.

4. COVID-19 contingency planning and decision-making are led by women and girls.

5. Gender perspectives are incorporated into data and coordination approaches.

In 1946, the United Nations Economic and Social Council formed the Commission on the Status of Women to produce recommendations and reports to the Council on strengthening women’s rights in politics, economics, social order, and education.

THE INDIAN PERSPECTIVE OF WOMEN’S RIGHTS

In the post-independence era, political authorities recognised the importance of women’s liberation in the country’s growth. They recognised that a country’s prosperity cannot occur until women are given equal rights. Unfortunately, the target has yet to be met. Men continue to fail to give women the credit they deserve. It is past time for society to change its perspective on women. Professionally, they must be regarded as equals with their male counterparts.

Because coordinated and integrated measures are essential to ensure the survival, safety, and empowerment of girls, the government has launched the “Beti Bachao, Beti Padhao” programme. Sukanya Samridhi Yojana, a modest deposit plan for the female child, was also introduced as part of the Beti Bachao, Beti Padhao campaign, to prevent gender-biased sex selection elimination and assure the survival and protection of a girl child. Other initiatives include Mahila-E-Haat (a women’s online marketing platform), Mahila Shakti Kendra (a rural women’s empowerment organisation that provides skill development, digital literacy, employment, and health care), and UJJWALA (a women’s empowerment initiative) (scheme for prevention of trafficking and rescue, rehabilitation of women).

The Indian government has currently created and implemented a total of legislation empowering women and girls. These are:

• The Prohibition of Child Marriage Act,2006
• Sexual Harassment of Women at Workplace Act, 2013
• National Commission for Women Act, 1990
• Indecent Representation of Women ( Prevention) Act, 1986
• Equal Remuneration Act,1976
• Medical Termination of Pregnancy Act, 1971
•  Indian Divorce Act, 1969
• Dowry Prohibition Act,1961
• Medical Termination of Pregnancy (MTP) Act ,1971
• Special Marriage Act, 1954

WOMEN’S HUMAN RIGHTS UNDER CONSTITUTIONAL FRAMEWORK

• Article 14 guarantees the right to equality.
• Right against Discrimination- No citizen should be subject to any handicap, liability, limitation, or condition, based solely on religion, race, caste, sex, place of birth, or any combination of these factors
• Consider stores, public restrictions, hotels, and public entertainment venues. The usage of wells, tanks, bathing Ghats, highways, and public resorts is funded entirely or partially by state money or is devoted to the general public. However, under Article 3(3), the state may make special provisions for women as an exemption to the non-discrimination requirements.
• Equal Opportunity in Public Employment- Women have equal opportunities in government employment because there is fairness and equality for all common people, whether males or females, in respect of employment, occupation, or appointment to any office under the state, and no citizen can be unqualified for or discriminated against in respect of any employment or office under the state solely based on religion, race, caste, sex, descent, place of birth, residence, or national origin.
• Right to Freedom of Expression- Women have the right under Article 19 (1) (a) of the Indian Constitution to speak out on any issue that affects them.
• Right to work- Recognizing such a right in its structure, the Indian Constitution, in article 19 (1) (g), grants the right to work to Indian women by giving freedom of employment, profession, and business to all citizens.
• Right to Life and Personal Liberty- Article 21 of the Indian Constitution guarantees all women and men the right to live freely.
• Right against Exploitation- Article 23 of the Indian Constitution safeguards against human trafficking and bonded labour, acting as a safeguard for women’s protection and ensuring their right to work.
• Right to Livelihood- Article 39 (a) states that all citizens, men and women alike, have the right to an adequate means of subsistence. Article 23(3) of the UDHR recognises the same right, stating that everyone who works has the right to reasonable and favourable payment.
• Equal Pay for Equal Labor- Article 39 (d) of the Indian Constitution states that the state should, in particular, direct its policies toward ensuring equal pay for equal work for both men and women.
• Just and Human Working Conditions and Maternity Relief- Article 42 of the Constitution states that the state must provide for just and humane working conditions as well as maternity leave.
• Right of Constitutional Remedies- If any of these fundamental rights are violated, the aggrieved woman can approach the Supreme Court and High Court and file a writ petition under Article 32 and Article 226 to seek redress; however, there is no such mechanism available in the case of Directive Principles of State Policy, which are not enforceable by any court with writ jurisdiction.

CONCLUSION AND SUGGESTIONS

Despite these accomplishments and improvements, there are still considerable issues with implementing these standards. These are graphically shown in the Secretary General’s assessment of conflict-related sexual assault in 2012. Gender-based violence prevails in many settings, and women have restricted access to justice, decision-making, and resources. Previous Secretary-General reports also emphasized the remaining barriers to women’s participation in peace processes and presented extensive ideas and policy measures for United Nations agencies to overcome these barriers more effectively in partnership with other stakeholders.

These unresolved challenges highlight the value of a holistic approach. Because human rights are linked and interdependent, women and girls’ rights in war and post-conflict settings must be prioritised, including civil and political rights as well as social, economic, and cultural rights. The same holds for peace and reconciliation reforms: safeguarding the human rights of all women and girls is important for comprehensive post-conflict development.

For example, achieving socioeconomic rights is crucial for decreasing gender-based violence and allowing women to take more active roles in reconciliation. Absolute poverty and unequal access to land, property, education, and services have been mentioned as reasons for women’s low participation in peace processes and politics, and structural differences, notably socioeconomic inequality, are regularly recognised as underlying causes of gender-based violence. As a result, treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women and the International Covenant on Economic, Social, and Cultural Rights play an important role in ensuring women’s rights during and after the war.

CITATIONS

1. Sustainable Development Goals, https://www.un.org/sustainabledevelopment/gender-equality/
2. Women’s Rights- Amnesty International, https://www.amnesty.org/en/what-we-do/discrimination/womens-rights/
3. United Nation Population Fund; study on the Human rights of Women, https://www.unfpa.org/resources/human-rights-women
4. UN Women, https://www.unwomen.org/en/about-us/about-un-women   

The article is written by Ajita Dixit, who has graduated from ILS, Dehradun and is presently pursuing Master’s in Law.

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.