Author: Archi Agarwal
Student of Department of Law, Aligarh Muslim University, Aligarh
Gender inequality is the belief that men and women are not equal and women are considered to be in an inferior position as compared to women. The presence of gender inequality in our society and their mind-set that only men can hold important positions and family was only the responsibility of women. But in reality, women are working in the same capacity as a man in all the work areas and at all levels of society. Women have all the skills and knowledge needed to succeed in any profession they choose.
WHAT IS GENDER INEQUALITY?
In general terms inequality refers to the provision of unequal opportunities and rewards to people belonging to their different social positions or status within a group or society. Gender inequality is defined as discrimination that is practiced against men or women based on sex.
Traditionally, women are looked upon as weaker sex. They are thought of having less capacity than men have. Discrimination against women is more pronounced in Indian society.
GENDERING LEGAL HISTORY
Pre 19th Century – Law operated as a barrier to restrict women’s mobility and access to resources
Denial right to education
Dependence of women on men – no class of own
Denial of right to property
In the 19th Century – women used the law proactively to gain rights, women worked to alter the law to try to change gendered realities. For example, Anti-Sati law, Anti dowry law, widow remarriage act.
In the 21st Century – Activists in the legal arena have changed the law to embody gender. But law's male bias is still prevalent enough to make legal doctrine more sensitive to men’s claims than to women.
ASSUMPTION OF MAINSTREAM LEGAL SCHOLARSHIP
Law is a relatively autonomous social practice, discrete from politics, ethics and religion. The Feminist theory seeks to reveal that how the law reflects, procreate, shows, constructs and reinforces power relations along sexually patterned lines: while doing so, it questions law’s claims to autonomy and represents it as a practice which is continuous with deeper social, political, and economic forces which constantly seep through it’s supposed boundaries.
Language of law has almost exclusively been men-white, educated, economically privileged men.
Only man has the power to shape it, to define it, and to interpret it and give it meaning according to their understanding of the world and people “other” than them.
In Mackinnon's view, law constructs knowledge which claims objectivity, but objectivity, in actual fact, expresses the male sentiments.
Law is patriarchal does not mean that women have not been taken into account or comprehended by law. Women have obviously been the subjects or inspect targets of many laws.
But it is men’s perception of women, women’s nature, women’s capacities, and women’s experiences – women refracted through the male eye – rather than women’s definitions, that has informed law.
FEMINIST LEGAL THEORY
Committed to a social constructionist stance.
The power and meaning of sex/gender is not a product of nature but was of culture.
Gender relations are open to reversion through the modification of powerful social institutions such as law.
Two main schools of feminist legal thought:
Liberal Feminism – Committed to the ideals of gender neutrality and equality before the law. Its attention is essentially involved, seeing law as a tool of feminist strategy, and the impact of law as the basis for feminist critique.
Difference Feminism – Sceptical about the possibility of neutrality; it has an implicit commitment to more complex ideas of equality which accommodates and values, whilst not fixing, women’s specificity as ‘women’. It has a focus not only on the symbolic and dynamic aspects of law but also on its instrumental aspects.
WOMEN’S LEGAL STATUS
Women’s right is protected by international human rights treaties, particularly the (CEDAW) Convention on the Elimination of All Forms of Discrimination Against Women. This states the principles of no discrimination based upon sex (art. 2) and of affirmative action (art. 4) and has stipulations specifically adoring to rural women (art. 14).
The National legal system and women’s legal status within them differ greatly from country to country. Simultaneously, influences and exchanges, both coercive and voluntary, have determined similarities across countries.
Customary law is a body of rules finding its legitimacy in “tradition”, i.e. in its claim to have been applied for time immemorial. The Customary law content is exceptionally diverse, possibly varying from village to village.
GENDER EQUALITY AND LEGAL PLURALISM
In Social system which recognizes more than one source of law, a situation of legal pluralism arises. Different legal Institutions and underlying norms coexist, reinforcing, contradicting and complementing each other. In such societies, everyday transactions such as marriage, inheritance and land exchange fall into the jurisdiction. Gender relations took squarely at the convergence of these unlike, often contending, normative orders: a country may be a testifier to an international agreement on anti-discrimination against women and ensure equal opportunities for all, and also confers authority on the customary legal system to resolve inheritance disputes. Discrimination against women is a result of not of anyone different systems, but rather from their combinations.
WOMEN’S REPRESENTATION IN THE LEGAL SYSTEM
Despite inroads, barriers are still apparent.
Women lawyers are marginalized in judgeships, full partnerships in legal firms, law colleges.
The “mommy track” effect
Women outshine in all educational tracks except law school
INEFFECTIVE JUSTICE STRUCTURES
Gender bias and lack of sensitivity. Justice mechanisms may be gender-based discrimination or lack gender sensitivity. For example, there are still prevailing beliefs within justice Institutions that domestic violence and marital rapes are private matters and not properly within their jurisdictions.
Limited capacities – Even where Judges, Magistrates and justice personnel, in general, are not biased and understand gender issues, they may not have the skills or the institutional capacity to address gender inequalities.
CONSTITUTIONAL PROVISIONS FOR WOMEN
Our India’s constitution focuses not only on granting equal rights to women but also focuses on empowering them in society in order that they don’t face any kind of discrimination and segregation financially, economically and politically. Even though some constitutional provisions like Article 14, 15, 16, 39 and 42 of the Indian Constitution deals with gender justice and equality. There are certain other articles also that especially promote the idea of women empowerment in society. Like Article 51 (A)(e) deals with the sense of brotherhood, Article 243(D)(3) states that the 1/3 of the total number of seats reserved for women in panchayat and is to be filled by direct election. Article 243(D)(4) states that 1/3 of the total number of seats should be reserved for women as a chairperson in the office of Panchayat. Similarly, Article 243(T)(3) and 243(T)(4) deals with reservation of seats for women in Municipality.
WOMEN AND PROPERTY LAW
Hindu Succession Act, 1956 – The act applies to Hindu, Buddhist, Sikhs and Jains. Before the act came into force a Hindu woman did not have absolute control over the property. She had an only limited estate. This act came into force on June 17, 1956, with a view of conferring absolute ownership on Hindu females in the property.
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Rights-based (civil) law
Recommended the right to live with dignity
India's first law to delineate Domestic violence in a comprehensive manner
Provides a Legal right to live a life free of savagery
Emergency orders to stop domestic violence
LAWS RELATED TO MARRIAGE
Hindu Widow Remarriage Act, 1865
Brahmo Samaj Marriage Act, 1872
Uniform Civil Code – UCC means a uniform personal law on such matters as marriage, divorce, maintenance, adoption, guardianship and succession, regardless of one’s religion.
The first attempt by the government to recognise dowry as a social evil and to curb its practice is the Dowry Prohibition Act, 1961.
The Dowry Prohibition (Amendment) Act, 1984 makes the offence cognizable by enlarging the meaning of the term Dowry i.e any property agreed to be given in connection with a marriage to the bride or bridegroom or any other person is considered as Dowry.
Although most of the laws in India are indeed meant for both male and female still discrimination against women did not come to end in society. Only the effective enactment and the proper implementation of gender-sensitive legislation would be successful in increasing the coverage of these crimes. The legal definition of rape must be reassessed, sexual assault must be categorized in compliance with the varying degrees of harm caused by each, and each must always be described comprehensively.
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2. Nicola Lacey, Unspeakable subjects (1998).
3. Hilaire Barnett, Sourcebook on feminist jurisprudence (2012).
4. Katie L Gibson, Ruth Bader Ginsburg’s Legacy of Dissent: Feminist Rhetoric and the Law (3 ed. 2018).
5. Judicial Power, Democracy and Legal Positivism (Applied Legal Philosophy), (1 ed. 2017).
6. Gender and law: Women's rights in agriculture, (2006).
The Role of Law and Justice in Achieving Gender Equality, WORLD DEVELOPMENT REPORT 2012 GENDER EQUALITY AND DEVELOPMENT (2011), Available at: https://www.researchgate.net/publication/279639581_Role_of_Law_and_Justice_in_Achieving_Gender_Equality.
Yash Singh, Gender Neutral Laws in India (2020)
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