March 8 is celebrated as the ‘International Women’s Day’. The theme chosen by the United Nations for this year is ‘Gender equality today for a sustainable tomorrow’. This is an occasion to dream of a gender equal world, a world free from bias, stereotypes and discrimination. It is equally to imagine a world that is diverse, equitable and inclusive; a world where intrinsic difference between man and woman is valued, respected and celebrated. It is also a moment to reflect on the historical, cultural, and political achievements of women in society. 

The battle for gender equality is about confronting the battles of the mind. History is replete with examples where women have been denied their just entitlements under law and the right to fair and equal treatment in the workplace. Specious reasons have been advanced to justify the denial, including their physiology. 

However, as pertinently observed by Justice D.Y. Chandrachud in Lt.Cdr.Annie Nagaraja (2020), “…A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field. A level-playing field ensures that women have the opportunity to overcome their histories of discrimination with the surest of responses based on their competence, ability and performance.” 

Laws premised on sex-based stereotypes are constitutionally impermissible. They are outmoded in content and stifling in means. Harmful gender stereotypes and wrongful stereotyping perpetuate inequalities and result in violation of human rights of women.
No policy or law that prescribes patterns of discrimination and disadvantage or ends up perpetuating the oppression of women could pass scrutiny. Barriers that prevent women from enjoying full and equal citizenship are liable to be dismantled. Indirect and systemic discrimination is antithetical to substantive equality. It causes economic and psychological harm to women and is affront to dignity. 

Calling for a New Social Contract        

The present challenges to gender equality call for a new social contract by addressing pervasive inequalities and structural discrimination, with measures grounded in human rights. It also means a more just distribution of power, resources and opportunities in favour of women and achieving equality by embracing diversity.

Equality has the power to break the gender bias, cycles of poverty and tackle the root causes of conflict and crisis. This understanding makes us to choose a path that brings us close towards a future with equality at its core by collective action.

A new social order shall be just, correlating between governments and their people, rebuilding trust and ensuring a life of dignity for all, particularly for women. Gender Equality and non-discrimination should be assigned a seat at the heart of sustainable development.  

Eleanor Roosevelt, the American political diplomat and a lifelong humanitarian, posed a question and proceeded to answer the same. “Where do universal human rights begin? In small places, close to home -- so small that it cannot be seen on maps of the world.

Unless they have meaning there, they may not have meaning elsewhere. Concerted citizen action to uphold them close to home is required, failing which, we shall look in vain for progress in the larger world.” 

In Shayara Bano’s case (2017), the Supreme Court declared that Muslim Personal Law (Shariat) Application Act,1937 which recognized triple talaq, that allows a Muslim man to break marital ties as per his whims, was ‘manifestly arbitrary’ since the practice violated the rights to equality, freedom and life of women. Beyond the declaration of law, what makes it appealing and securing value addition is that the Judgment explicitly recognizes arbitrariness in law as amounting to violation of equality.     

Governmental action must address equality by reducing inequalities and advancing human rights. Today and every day, we must continue to work for justice, equality, dignity and human rights for all.

Gender discrimination

Gender discrimination based on intrinsic biological differences between man and woman threatens both human dignity and development of persons and societies. Why should you discriminate against women in public service, education and in employment? Lord Denning in his treatise ‘Due Process of Law’ canvasses the proposition that a woman feels as keenly, thinks as clearly, as a man. She, in her sphere, does work as useful as man does in his. She has as much right to her freedom to develop her personality to the full as in the case of a man. 

We cannot dogmatize or universalize that men and women are equal in all occupations and situations. However, we need not wait for gender charity to hold that if a man has a right, a woman also has the same right, other things being equal. Our struggle for freedom was also a battle against women’s thraldom. If the Government as the surrogate of the Legislature makes rules allergic to gender parity, such rules cannot be sustained.

The declarations of the Supreme Court in C. B. Muthamma (1979); Nargesh Meerza (1981); Voluntary Health Association of Punjab (2013); Charu Khurana (2015); Babita Puniya (2020); Lt. Col. Nitisha (2021) cases have shown that archaic provisions which are discriminatory against women cannot pass the constitutional test of gender equality.

A society that does not respect women cannot be considered to be civilized. A Welfare State is the one that promotes justice based on equal rights, status and opportunities, both for men and women. Days are gone when women are treated as fragile, feeble, dependent and subordinate to men. Swami Vivekananda once said: “Just as a bird cannot fly with one wing, a nation cannot march forward with men alone and leaving the women behind”. 

Gender Justice

Realization of gender justice involves achievement of intrinsic human rights. Equality cannot be achieved without equal rights, status and opportunities. If women are debarred at the threshold to enter into the sphere of profession for which they are eligible and qualified, it will not be possible to conceive of equality. It also clips her capacity to earn livelihood which affects her individual dignity. 

It is true that some affirmative measures in the realm of women empowerment was taken with our 73rd and 74th Constitutional Amendments becoming operative. These Amendments envisaged reservation of seats for women in local bodies with a view to enable them to participate more effectively in democracy at the grassroots. However, very little has been accomplished and much remains as undone. Women should be made to become real parties in the decision-making process in democracy governed by rule of law.

CEDAW: The Golden Key
           
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by UN General Assembly in 1979, defined clearly discrimination against women and also set up an agenda of action to end discrimination. It is the golden key to unlock the door of gender justice. Discrimination has been defined broadly to include any distinction, exclusion made against women on the basis of sex which has the effect of impairing the equality of men and women in respect of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

State Parties to the Convention are obligated to condemn discrimination against women in all forms and to pursue a policy of eliminating discrimination. State Parties owe the responsibility to embody the principle of equality of men and women in their national Constitutions and ensure through laws or other means practical realization of the principle. The existing laws, regulations, customs and practices constituting discrimination against women requires to be modified and to take measures to ensure the full development and advancement of women. 

Our country as a participating State has ratified the Convention in 1993, acceded to it and reiterated that discrimination in all forms against women shall be eliminated. However, it is a fact that our perceptions on the role of women in society still remain to be corrected. Gender equality is not something achieved merely in the pursuit of culinary excellence or sharing the household responsibilities or by cooking together. Life is not only what you bake it. 

I am not here exposing the feminist jurisprudence, but only discussing the concept of gender equality and status of women in the light of the Indian Constitution and International Instruments and how these fountain documents can play a significant role in bringing gender equality. In spite of several decades of independence, the constitutional guarantee of gender equality awaits implementation in the country. Dr. B. R. Ambedkar, the chief architect of our Constitution, attempted to draw the relationship between caste and gender and in the attempt stressed: “Progress of a nation is measured by the progress made by women.” 

Equality as the touchstone of our Constitution envisages equality of status and opportunity on equal terms in favour of women. It is also a protection against indirect discrimination. A woman has the right to define and determine herself, to make choices conducive to her dignity, personality, individual autonomy and personal integrity. If the true concept of equality means treating the like as alike, State cannot discriminate against women, but it is always open to the State to discriminate in favour of women considering their role in society. Pandit Jawaharlal Nehru once said: women have the right to equality and equity.

Fountain Head of all Laws    

The Constitution of India is the fountain head of all laws and equality is the fountain head of justice. Women’s rights are equally human rights. Secondary role ascribed to women should be metamorphosed to the primary one. Fundamental Rights constitute the heart of the Constitution intended to protect equally the dignity of women. 

Women suffer discrimination in silence in the form of inequalities, indignities, and inequities. Though the compassionate Constitution has envisaged specific rights in favour of women as to metamorphose abstract ideals into a concrete form and further to provide for the upliftment of women in a male-dominated chauvinistic society, there still remains grey areas which requires to be filled up by social engineering on a massive scale. 

The equal protection clause of the 14th Amendment was invoked by United States to achieve true gender equality. However, in India, the equality clause of the Indian Constitution has not been adequately put to use to end gender bias and discrimination.

Be it in the Heart

Gender equality must live in the heart of everyone and not on the tables. Infringement of the same is against the spirit of the Constitution, whether it is committed by an individual or the State. There is still a need for change in attitudes and mindsets to recognize our constitutional value that women are equal citizens. 

Justice Ruth Bader Ginsburg of the US Supreme Court aptly remarks: “I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks”. The participative dimension of substantive equality must facilitate full participation of women in society, both socially and politically. This occasion reminds us of the need for sharing the responsibility to usher in the dawn of a new era of freedom, dignity and equality to both men and women alike to achieve gender justice. 

(The writer is a prominent Lawyer, an acclaimed writer and a distinguished academician based in Kochi)