Gender and Education

UNIT 3 GENDER AND LAW

N. Vasanthi
Structure

3.1 Introduction
3.2 Objectives
3.3 Concept of Gender Equality
3.4 Definition of Law
3.5 Gender Equality and the Indian Constitution
3.5.1 Equality Provisions in the Constitution
3.5.2 Test of Discrimination
3.5.3 Special Provisions in the Constitution
3.5.4 Right to Life

3.6 Gender Equality: A Survey of Legislations

3.6.1 Personal law
3.6.1.1 Hindu Succession Act, 1956
3.6.1.2 Muslim women’s (Protection of Rights on Divorce) Act, 1986
3.6.1.3 Hindu Minority and Guardianship Act, 1956
3.6.1.4 Prohibition of Child Marriages Act, 2006
3.6.2 Gender Specific Legislations
3.6.2.1 The Protection of Women from Domestic Violence Act 2005
3.6.2.2 Pre Natal Diagnostics Techniques Act (Regulation and Prevention of
Misuse) 1994 (PNDT) Act
3.6.3 Gender Specific Legislation in Labour law
3.6.3.1 Equal Remuneration Act, 1976
3.6.3.2 Maternity Benefit Act, 1961

3.7 Let Us Sum Up

3.8 List of Abbreviations Used
3.9 Table of Cases Cited in the Unit
3.10 Unit End Questions
3.11 References
3.12 Suggested Readings

3.1 INTRODUCTION
In the last Unit we read about how education as an institution impacts
gender. Here in this unit we are going to study how law as an institution
and machinery affects gender. Law is supposed to be gender neutral but in
reality is gender blind. Though law has provided protection to women as a
special category of citizens but it fails to implement the provisions in letter
and spirit. Here, the intention is to give a deeper insight into the interplay
of gender and law and its provisions to bring about gender equality in Indian
society. 239
Gender and Institutions
3.2 OBJECTIVES

• Explain the definition and sources of law;

• Introduce various laws that deal with gender equality;

• Understand the role that law can play both as a facilitator to gender
equality and to restrict gender equality ;

• Discuss case law that deal with the issue of gender equality and the
views taken by various courts;

• Understand various aspects of gender equality; and

• Discuss various legislative/ legal provisions for women.

3.3 CONCEPT OF GENDER EQUALITY

As you have read in the earlier Block on Concepts, Gender, is a social

construct which allocates roles and responsibilities, duties and rights of
men and women, disentitles women to the right to equality. The Convention
on the Elimination of Discrimination against Women (CEDAW) defines
discrimination in terms of the exercise and enjoyment of rights by women.
Article 1. As per the Convention, the term “discrimination against women”
shall mean any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other
field.

Women are entitled to enjoy several rights, guaranteed to all from their
conception, the Universal Declaration of Human Rights states. Human Rights
are the basic rights which everyone inherit from the moment they are
conceived in the mother’s womb.

These may be both in the public and private sphere. Public rights include
rights such as right to freedom, freedom also from violence, the right to
work and economic empowerment, the right to education, health and
reproductive rights, political representation and an active participation in
public life. Private rights include rights such as a right against violence
within the home, rights within the family-marriage, divorce, alimony,
succession and custody of children and the right to sexuality, dignity, respect
and privacy.

Law can play the roles of both restricting as well as enabling gender
equality. Law which is intended to apply equally to all persons, often
results in being discriminatory to women. In the past half a century constant
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efforts have been made to counter discrimination that women face and to Gender and Law

ensure gender equality for women. Several new legislations are being passed
and older legislations modified to ensure that they are compatible with the
assurance of gender equality. The need for legal reform speaks of the deep
rooted discriminatory practices that need to be addressed by law.

Box 3.1

It is important to define what is meant by law here. Law as an

institution is created by several processes — local, national and
international. Law may be made by custom, by legislation, by the
judiciary and also by scholars and by international conventions,
declarations and protocols

3.4 DEFINITION OF LAW

There are various definitions of law, sometimes defined as the disobedience

of which invites sanction, and as that which is observed by the people and
not merely laid down by texts, law is that made by judges etc. Various
schools of Jurisprudence deal with the various definitions of law.

We can use a definition of law given by the Supreme Court in Narsingh

Pratap Deo v.

State of Orissa that

“.. stated broadly, a law generally is a body of rules which have been
laid down for determining legal rights and legal obligations which are
recognized by courts.”

The main sources of law are

i) Custom

ii) Legislation

iii) Constitution

iv) International Conventions and

v) Judicial precedents

An example of each of the above forms of law is:

i) A valid Hindu marriage is dictated according to the customs of each

sect of the Hindu religion.

ii) Parliament as well as state legislatures make law such as the Indian
Penal code.

iii) Fundamental Rights such as the right to equality are guaranteed by the
Constitution.

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Gender and Institutions iv) CEDAW (Convention on the Elimination of all forms of Discrimination
Against Women)

v) Vishakha judgement by the Supreme Court which lays down the law on
sexual harassment of women at the workplace.

Law as a social institution dominated by men, is a reflection of social power

and gender perspectives, are then necessary to empower women by
influencing these institutions. Feminist jurisprudence points out the process
of law which both by overt and covert means reinforces inequality. The
denial of economic, political and hence social power needs to be addressed
to bring out any semblance of gender equality. It is pointed out that in
criminal law several offences against women were not even considered as
crimes or were trivialized (Rob White, 2004).

Feminist jurisprudence points out that it is important to understand the

way in which law is made and interpreted as an act of power. Thus law
made without representation by women and without considering the effect
on women has had the detrimental effect of adversely affecting women’s
right to equality. The formal exclusion of women from law making processes
is only now being addressed and we are seeing a different vision of equality
emerging. Once considered as merely housewives who needed to be protected
by the law, the law is now changing to empower them to. We have moved
from protection to empowerment. This change in perspective needs to be
carried out in all the laws and hence gender and law is not one body of
law but a perspective-a gendered perspective that needs to be taken to all
laws. We must bear in mind that gender and law cannot be a distinct area
of law but rather a perspective taken towards law. Gender impacts cut
across laws and it is important to use gender perspectives while examining
laws and their impact on women. Gender perspectives are used to examine
the discrimination faced by women sometimes by the law and sometimes
law as an instrument to restore equality.

We will examine how various laws affect women’s right to equality and the
response from the Constitution, legislature and the judiciary to the
discrimination faced by women. The module will first look at the issue of
gender equality and Indian Constitutional law and then look at legislative
responses to the issue of gender equality.

3.5 GENDER EQUALITY AND THE INDIAN

CONSTITUTION

This section discusses the concept of gender equality in the Constitution of

India. The Constitution of India is the source of all law and governance in
India. It was drafted by a Constituent Assembly and in its preamble guarantees
242 to all its citizens’social, political and economic justice. We will use this as
a starting point to examine the relationship between gender and law. The Gender and Law

Constitution of India is supreme law and all other laws must confirm to it.
By way of Article 13 of the constitution any law that is violative of part III
i.e. of the fundamental rights of the people, must be declared to be void.

Constitutional law deals with the issue of gender equality at two broad
levels; at one level through fundamental rights, by assuring equality to all
and prohibiting discrimination and another by making special provisions for
women to ensure that economic, political and social justice is achieved.

3.5.1 Equality Provisions in the Constitution

Part III of the Indian Constitution enumerates fundamental rights. Article 14
to 18 are termed as the equality clauses. Article 14 sets out the broad right
to equality by stating that all persons (not only citizens) are entitled to
equality before the law and the equal protection of law. Article 15 prohibits
discrimination on the basis of caste, religion and sex among other grounds.
Article 16 provides for equality of opportunity and Article 17 prohibits the
practice of untouchability and Article 18 deals with abolition of titles.

Article 14 states that there shall be equality before the law and equal
protection of the law. The first test of equality is the test of reasonable
classification. Article 14 imposes a general obligation on the state to ensure
that there is no arbitrary classification that results in discrimination. This
broad protection provides women with a tool to combat discrimination on
the basis of gender. Thus, though gender as a social construct is not expressly
mentioned in the constitution it has been understood that when discrimination
is based on sex alone it constitutes an arbitrary action. If sex is coupled
with any other consideration, the discrimination is not on the basis of sex
alone and is valid.

The reasonable classification test used under Article 14 is used to determine

whether the distinctions made between different classes is a valid or an
invalid classification based on whether it is reasonable or not. The test of
reasonableness used is a two fold test.

• One, that the classification is reasonable and not arbitrary and

• Two to see if the classification bears a reasonable nexus to the object

of the legislation.

Thus, if a distinction is made between men and women in the manner of

recruitment i.e. women need not apply for certain jobs, in order for the
distinction to be valid; it needs to be demonstrated in what way women
cannot perform the job. If the distinction is based on valid grounds then
the discrimination is valid. If the distinction is based on invalid grounds, i.e.
women cannot ride a cycle, women are pregnant, women are inefficient,
then the discrimination is said to be based on gender, i.e. a social construct
of ability of a person, is a class based discrimination which is based on 243
Gender and Institutions consideration beyond a person’s control and not on the basis of her ability
and hence is an arbitrary classification and violative of the reasonable
classification principle under Article 14. In a series of cases the Supreme
Court of India has examined if it was valid to have separate cadres for men
and women, separate eligibility criteria for men and women, whether it
was valid to terminate women’s employment on pregnancy or child birth,
whether women had to take permission to get married, whether women
after marriage needed to prove that they were capable to performing well,
whether a women’s employment could be terminated on marriage, whether
men and women performing same or similar work needed to be paid equally
and so on and so forth.

The court has held in the following cases:

Anuj Garg and Ors vs Hotel Association of India &Ors, that it is discriminatory
for the State to prohibit the employment of women in certain places. The
State government had prohibited the employment of women in bars beyond
certain hours. The court ruled that it was an infringement of the right to
employment. The role of the State in protecting women must not result in
the denial by the State of employment.

In Air India vs Nergesh Meerza and Ors, the Supreme Court has ruled that
it was violative of Article 14 that a women’s employment be terminated on
her first pregnancy. The decision of the Corporation to terminate the
employment of the air hostess on first pregnancy was viewed by the court
as abhorrent, callous and cruel. The court also believed that this was an
insult to Indian womanhood.

In Narasu appa mali vs the State of Bombay the constitutional validity of

the Bombay Prevention of Hindu Bigamous Marriages Act,1946 was challenged
on the ground of violation of Article 14 and 15 of the Constitution. It was
contended on behalf of those convicted of bigamy in these cases that it was
invalid to make a law applicable only to Hindus and not to Muslims. The
court without entering into the validity of the law said that it was within
the power of the state to legislate on any particular issue and it was not
violative of Article 14 to only include Hindus and make polygamy an offence
only for Hindu men.

But on the other hand, the court ruled that the personal law i.e. law
relating to marriage etc was not law within Article 13 and hence Hindu law
which permitted polygamy. Many other discriminatory practices were not
violative of the right to equality. The court further held that the institution
of polygamy was based on various social, economic and religious grounds
and not based on sex alone and hence could not be held to be violative of
Article 14.

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In C B Muthamma vs Union of India, the court had to examine the validity Gender and Law

of the Indian Foreign Service Rules 1971, which provided that a woman
officer had to take written permission before getting married and married
women were barred from entering service. The court struck them down as
being violative of Article 14 since no such requirement was made for men
and it was discriminatory to impose such restrictions on women.

In A N Rajamma vs State of Kerala and Ors, the court was dealing with the
Special Rules for the Kerala Last Grade Service. The rules provided that
only male candidates would be considered for certain jobs. The Court
holding that to exclude women for jobs was violative of Article 14 directed
that the Kerala Public service Commission in future notification employ
women for those jobs.

3.5.2 Test of Discrimination

Along with the test of reasonable classification two other tests of equality
are used. They are the test of arbitrariness and the test of discrimination.
Both these criteria are often used along with the reasonable classification
test. Classification made by lawmust not be arbitrary or discriminatory.

In addition to classification, arbitrariness is sometimes used as a stand

alone criterion to test state action both legislative as well as executive
action of the State. In Menaka Gandhi vs Union of India, Menaka Gandhi
was denied her passport, which she claimed violated not only her right to
travel and her right to freedom of speech, (she was scheduled to deliver
a talk) but also her right to life which meant a right to live with dignity,
which could not be denied unless the procedure by which she was denied
these rights was reasonable. In this case, even without a classification by
law, but merely by an executive action, i.e. denial of passport, resulted in
an infringement of rights which violated the reasonable clause presumed
within Article 14 which prohibits arbitrariness. The test of arbitrariness
thus, was used without involving the reasonable classification test.

In Air India vs Nargesh Meeraza case referred to above, airhostesses working

with Air India could be granted an extension in their service, on the
recommendation of their manager. No criteria were prescribed for the
manager to exercise his discretion. The court struck down this provision
also as being arbitrary and hence violative of Article 14.

In addition to Article 14, Article 15 (1) of the COI prohibits discrimination

on the basis of sex alone. Article 15 (1) of the Constitution says,

“The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth, or any of them.”

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3.5.3 Special Provisions in the Constitution
Article 15 (3) allows the state to make special provisions with regard to
women by stating that “Nothing in this Article shall prevent the State from
making any special provision for women and children.”

This special treatment is held to be a part of the right to equality and not
an exception to equality. The clause has been used by the state for a
variety of situations ranging from justifying adultery provisions to reservation
of seats and jobs for women. In State of AP vs P B Vijayakumar, it was held
that while 30% of posts in the said categories could be reserved for women,
it was also open for women to compete for posts in other categories on an
equal basis with men.

This clause is part of the right against discrimination with an

acknowledgement by the court that the rights to equality is not achieved
by a prohibition of discrimination but also needs proactive steps by the
state to achieve equality. Special provisions for the representation of women
in local governance are also made by Articles 243 D and 243T. Articles 243
D and 243 T are found in Part IX and IX A of the Constitution. These parts
were introduced in the constitution by way of amendments to provide for
a three tier government or what can also be called decentralized government.
These parts bring the panchayats and Municipalities and elections to these
bodies within the constitutional framework. While providing for elections to
these bodies Articles 243 D and T provide for the representation of women
in these local bodies. Not less than one third of the total number of seats
to be filled by direct elections in these bodies and they must be reserved
for women.

This is the first step towards ensuring equal participation of women in

political life. These provisions have brought sweeping changes in the
constitution of these bodies. The Women’s Reservation Bill which will
introduce reservation for women in parliament is pending before the
parliament.

3.5.4 Right to Life

Article 21 of the Constitution of India guarantees the right to life to all
persons which shall not be denied except in accordance with the provisions
of law. This provision finds a place along with other provisions on the rights
of persons accused of crime and was accordingly construed in the initial
period of Indian independence. After the case of Menaka Gandhi vs Union
of India, the right to life has been removed from its position merely as a
protection to persons accused to crimes, but is interpreted widely to mean
a right to live with dignity and liberty. After this case the right to life has
been interpreted broadly to include a variety of rights from the right to
environment to the right against sexual harassment. Both the Domestic
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Violence Act as well as the sexual harassment case highlight the relationship Gender and Law

of the right to life with freedom from violence and harassment. The Right
to life has been used along with other rights, such as the right to equality,
the right to freedoms to incorporate a broader set of rights. In Madhu
Kishwar v State of Bihar, the court held that the denial of the right to
succession to women of Scheduled Tribes amounts to deprivation of their
right to livelihood under Article 21.In Vishakha v State of Rajasthan, the
court held that the right against sexual harassment was derived from Articles
14, 15 and 21.

Check Your Progress:

1) Define law what are the sources of enactment of laws.

2) Write a note in your words on the notion of gender equality as

enshrined in the Indian Constitution.

3.6 GENDER EQUALITY: A SURVEY OF LEGISLATIONS

This section has three subsections. It looks at various legislations that deal
with gender equality. The areas chosen are:

i) Personal law and some legislations that deal with women’s rights to
property, maintenance, custody and against child marriages, and

ii) Some specific legislations made with a view to eliminate discrimination

against women such as the PNDT Act and Domestic Violence Act, and
also

iii) Legislationsensuring economic rights at work for women.

3.6.1 Personal Law

After India gained Independence several laws were made to replace religious
laws. Civil and Criminal law limit the application of religious law by not
permitting the use of relilgious laws for civil and criminal disputes.The
Constitution also direct the State to have a uniform civil code. Although a
uniform civil code could not be accomplished, all personal laws have been
amended to some extent and several legislations have been passed reforming
Hindu law in areas such as marriage, divorce, succession and adoption.
Personal laws refer to those religious laws that are still in force in the
areas of family such as marriage, divorce, adoption and succession. It is
also called family law and each religion has its own set of laws applicable
to it.

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Gender and Institutions
3.6.1.1 The Hindu Succession Act, 1956
Customary Hindu Law did not allow for women to succeed to property nor
own property in their own name. According to Manu Dharma Shastra women
needed to depend on their fathers, husbands and sons for their sustenance.
Women did not have a birth right in their family property. Women were
allowed right to maintenance/sustenance but property did not vest in them.
The Hindu Code was seen as a major reform in Hindu law and for the first
time gave women a right to succeed to property even though it did not
grant full equality. Amendments to the Hindu succession Act in 2005 now
secure equal shares for women even in co-parcenary property. Before
this amendment only men could be co-parcenors and men had a birth right
in the co-parcenary property. The Act by deleting section 4 (2) of the Hindu
Succession Act made women’s right to inherit agricultural land equal to that
of men.

3.6.1.2 Muslim Women’s (Protection of Rights on Divorce) Act,

1986

This Act marks an important chapter in the history of women’s right to

equality in India. The Act was passed to overrule a decision of the Supreme
Court which ruled that the secular law of maintenance was not in conflict
with personal law. The case involved a Muslim woman, Shah Bano, who on
being divorced by her husband, a lawyer, claimed a right to maintenance
under section 125 of the Criminal Procedure Code. The petition was allowed
and the matter was appealed up to the Supreme Court. The Court ruled in
favour of the women and said that the secular law in terms of Section 125
was not in conflict with the personal law of Muslims which did not provide
for the payment of any maintenance beyond the period of iddat (which
lasts for three months after divorce).This was interpreted as an interference
with religious laws and that the courts did not have a right to interpret the
Koran. Consequently, the Muslim Women’s (Protection of Rights on Divorce)
Act, 1986 was passed which prevented Mulsim women from claiming rights
under the Criminal Procedure Code.

This Act was challenged as unconstitutional but the court held in Daniel
Latifi v. Union of India that in view of their interpretation of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 the provisions of this Act
were not in violation of Articles 14 and 21 of the Constitution.

This approach of the Supreme Court and of the Legislature has been criticized
as denying women the right to equality and using personal law to perpetuate
discrimination against women. When it has already been observed that for
centuries women were denied equality by customary laws, to continue their
enforcement, must be held to be violative of the right to equality.

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3.6.1.3 Hindu Minority and Guardianship Act, 1956 Gender and Law

Section 6 of the Act provides for a natural guardian and states that in the
case of a boy or an unmarried girl the father and after him the mother is
the natural guardian of the child except that in case of a child below the
age of 5, the mother is the natural guardian. In case of illegitimate children
the natural guardian is the mother. This provision was challenged as
discriminatory and violative of the principle of equality under Article 14 in
the caseof Githa Hariharan v. Reserve Bank of India.. The court had to
decide whether the rules of the Reserve Bank which did not permit the
mother to act as natural guardian were violative of Article 14. The Reserve
Bank rules stated that a mother can be a natural guardian only in the
absence of the father following section 6 of the Hindu Minority and
Guardianship Act. A three judge Bench of the Supreme Court did not hold
section 6 as invalid as being discriminatory. It merely held that the section
be read down to mean that mother can also be a natural guardian and the
words ‘after’ appearing in section 6 does not necessarily mean the death
or abandonment of the father.

It is disheartening to note that in the case of personal law the courts have
not struck down customary law which is discriminatory towards women.

3.6.1.4 The Prohibition of Child Marriage Act, 2006

The Prohibition of Child Marriages Act, 2006 was passed repealing the
earlier Child Marriage restraint Act, 1929 after the perceived failure of the
earlier legislation on child marriages. The new act specifically prohibits
child marriages and prescribes a higher penalty for persons involved in
solemnisation of child marriages and also provides for authorities responsible
for the prevention of child marriages. It also makes the marriage voidable
at the option of parties and also void if made in contravention of an
injunction order restraining the marriage.The new act provides for the
prevention, protection and prosecution of offenders. One of the new features
makes it a specific offence for a male adult to marry a minor. Other
features are to provide that no women can be subject to imprisonment for
abetting a child marriage though for others there is a punishment of
imprisonment as well as a fine.

3.6.2 Gender Specific Legislations

The legislations mentioned above are general legislations applicable to all

citizens including women. Article 15(3) allows the state to make special
provisions for women and children. Legislations applicable to women alone
are discussed here.

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3.6.2.1 Protection of Women from Domestic Violence Act, 2005
This Act was drafted after the issue of domestic violence was widely reported
and brought to fore by women’s groups in India and across the world. The
Act in its preamble states that this act is being passed keeping in view
Articles 14, 15 and 21 of the Constitution. This legislation is new in India
but several countries have recognised this particular form of violence for
several decades now. It must be seen as a major victory of women’s groups
to be able to bring this legislation. The term domestic violence for the first
time has been defined by this act. The need for the Act was felt because
there are no provisions in ordinary criminal law dealing with offences of
this nature. The significance of domestic violence is that it is violence
that women face within their homes at the hands of their family and not
outside it. The ordinary criminal law takes into account crimes that place
within and outside the home but do not provide for this nature of offence.
This legislation was drafted only after it was brought to the notice of the
State that the police do not register cases of domestic violence under
ordinary criminal law.

It is also significant to note that this is not a purely criminal legislation. The
distinctiveness of this offence is that the violence is between people who
live together and their relationship is not terminated.

This legislation is different from ordinary civil and criminal law. The remedies
provided are not the remedies provided by criminal law i.e. they do not
only contemplate that the perpetrator will be jailed but that the women
are protected. The entire focus of the legislation is on providing support to
the woman who is facing violence rather than on the perpetrator. This is
called a victim centric approach. The major difficulty with criminal law
is that there is no place in it for the victim. Her needs and demands are
not considered by the court and she is not heard. The focus of criminal law
is on the accused and the need to prove guilt not to support the victim of
violence.

Domestic violence is defined in the Act as comprising of

• any act, omission or commission or conduct,

• physical, mental, economic, sexual, verbal, emotional abuse,

• harassment for dowry,

• acts of threatening to abuse the victim or any member of her family.

The Act provides for protection officers and contemplates a range of relief’s.
This includes the right to reside in the shared household even though it
does not confer on her a right of ownership over the property and is a right
against dispossession. The law provides women with protection officers and
service providers which are notified shelter homes and medical facilities
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and counselors to conduct counseling on the direction of the court and Gender and Law

welfare experts to assist the court.

The Act provides for speedier access to law by providing for a variety of
rights both civil and criminal in nature to prevent the women from running
around different courts.

The reliefs are injunctions against violence, custody of children and monetary
reliefs.

3.6.2.2 Pre-Natal Diagnostic Techniques Act (Regulation and

Prevention of Misuse) 1994 (PNDT) Act

The preference for a male child is one of the worst forms of discrimination
that women in India face. Since custom requires that sons are necessary for
this life and the after life and women prohibited from economic activity.
This preference for sons lies at the root of all discrimination that women
face through out their life. The decline in the number of girls born raises
serious concerns(Leela Visaria 2003).Although other efforts are on to mitigate
this social perception and the killing of girl children before they are born
must be considered as a heinous crime. The PNDT Act was passed after it
was shown that the incidence of sex selective abortions was on the increase
and that modern technology was being misused to abort girl children. The
act was passed after several years of activism by several groups including
health and women’s groups. The Act provides for the regulation of the use
of prenatal diagnostic technologies especially in relation to sex determination.
The Act prescribes the procedure for registration of establishments which
carry out these tests and for the cancellation or suspension of registration.
The implementation of the Act is still lacking and a Public Interest Litigation
was filed to ensure that states take steps to ensure the implementation of
the Act. The Act has been amended in 2003 following the Public Interest
Litigation and directions of the Supreme Court that there has been slow
implementation of the Act.

3.6.3 Gender Specific Legislation in Labour Law

Labour law i.e law relating to employment of women has been a major ares
which has witnessed discrimination against women. The denial of equal
wages for equal work has led to the impoverishment and lack of social
standing for women. Apart from equal wages various forms of discriminatory
treatment has been meted out to women. Thus special legislation was
required to bring about a parity in treatment of women at workplaces.

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3.6.3.1 Equal Remuneration Act, 1976
The act was passed in the year 1975 which was being celebrated as the
International Women’s Year, and to implement Article 39 of the Constitution
of India which provided for equal pay for equal work for both men and
women. The Act provided for the payment of equal wages to men and
women who were doing the same or similar work.

In Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa

and Another, the court was considering the claim to equal pay on the basis
of same or similar work. The facts of the case showed that women
stenographers were paid differently from men on the ground that it was
possible for men to work late and on holidays where women who were
taken in only as personal secretaries were assumed not to be able to do this
work and hence paid less than men. In this case the designations for men
and women were kept separate, only women were recruited into jobs which
were paid less and the jobs men were recruited for, even though the work
done was similar or same were paid more. The court ruled that if same or
even similar work is done by men and women, to pay them differently
violated Article 14 of the Constitution. The Act however remains to be
implemented in the informal sector, where perceptions of men being stronger
and working longer influences the wages paid to women. The fact of women’s
socially inferior position also contributes to differences in wages. The
categories of work that men carry on are by definition termed as more
strenuous and the category of jobs termed as women’s work are understood
as less strenuous and hence paid less. For example ploughing, done exclusively
by men, is deemed to be harder work than standing for hours and planting
seedlings which is done by women and hence paid lower.

3.6.3.2 Maternity Benefit Act, 1961

The Maternity Benefit Act was passed in the year 1961 to provide for the
regulation of the employment of women in certain establishments for certain
period before and after child birth and to provide for maternity benefit and
other benefits. The Act may be applied to all establishments, industrial,
commercial or otherwise on notification by the respective state governments.
The Act extends to all women whether employed directly or through any
agency in any establishment. In order to claim a benefit under the Act the
woman must have worked for a period of 160 days in a period of 12 months
before she makes the claim. The amount of maternity benefit may be paid
in advance to the woman. The benefit is the average daily wage that the
woman was entitled to during the period of absence.

In Municipal Corporation of Delhi vs Female Workers (Muster Roll) and

another, the court ruled that legislations like the Maternity Benefit Act,
which was a welfare legislation must not bedenied on technical grounds like
the absence of a regular master servant relationship. As long as the work
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that was being done was the work of the municipal corporation, the Gender and Law

corporation had the obligation to respect the rights of workers who were
entitled to maternity benefit. The Corporation had contended before the
court that the central civil service rules as well as the Maternity Benefit
Act or the Employees State Insurance Act could not be extended to these
women as they were on daily wage. This interpretation of the court is a
positive interpretation not confining the application of the act to only the
formal sector.

3.7 LET US SUM UP

The issues of gender equality are being factored into the law but there is
a long way to go before it can be said that society is gender friendly and
that laws that are made by society are gender friendly. The factoring in of
gender issues has been possible due to the immense efforts undertaken by
civil society groups, women’s organizations to make the state and its
institutions gender sensitive and friendly.

The Court used Article 14,15,19 and 21 innovatively by stating that sexual
harassment at work place violated the right to equality and the right to live
with dignity and the right to work under Article 21.

Similarly women’s groups have actively pursued the Domestic Violence Act
as well as the PNDT Act. New initiatives of women’s groups are on
amendments to the Indian Penal Code particularly on the section dealing
with offences against women.

Important questions of personal law and the applicability of Muslim personal

law to issues like child marriage are also pending before the Supreme
Court. The court has not taken a stance that personal law which is
discriminatory must be held violative of the fundamental right to equality.

The need therefore to continue to raise issues of gender sensitivity and

using a gender lens to look at issues continues to assume a great significance.

3.8 LIST OF ABBREVIATIONS USED

AIR : All India Reporter

SCC : Supreme Court Cases

SC : Supreme Court

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Gender and Institutions
3.9 TABLE OF CASES CITED IN THE UNIT

• Anuj Garg and Ors vs Hotel Association of India &Ors, (2008) 3 SCC

• Narasu appa mali vs the State of Bombay A.52 Bom 84

• Air India vs Nergesh Meerza and Ors, AIR 1981 SC

• C B Muthamma vs Union of India, AIR 1979 SC 1868,

• AN Rajamma vs State of Kerala and Ors,1983 LabIC 1388,

• Menaka Gandhi vs Union of India AIR 1978 1 SCC 248

• State of AP vs P B Vijayakumar, 1994 SC 544,

• Madhu Kishwar v State of Bihar, 1996 5 SCC 125,

• Vishakha v State of Rajasthan, AIR 1997 SC 3011

• Daniel Latifi v. Union of India (2001 7 SCC 740)

• Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228)

• Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa

and Another, 1987 AIR (SC) 1281

• Municipal Corporation of Delhi vs Female Workers (Muster Roll) and

another, 2000 AIR (SC) 1274

3.10 UNIT END QUESTIONS

1) What is the understanding of gender equality that one gets after reading
the introduction? What are the specific legal provisions that address
the issue of gender equality?

2) Discuss if the law is gender conscious and gender friendly?

3) What are the legal reforms that have been carried out that raise
consciousness of gender?

4) What are the pending legal reforms that need to be carried out to
ensure gender equality?

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3.11 REFERENCES

Desai, Mihir (2004, November-December). ‘Court’s flip flop on personal

laws’. Combat Law, 3(4).

Jaisingh, Indira (2004). (Ed). Law relating to sexual harassment at the

workplace. The Lawyers Collective. Universal Law Publishing Co.

Jaisingh, Indira. (2000). ‘Gender Justice and the Supreme Court’. In B.N.Kirpal
& others (Eds.), Supreme but not infallible: Essays in honour of the Supreme
Court of India. OUP.

Kannabiran, Kalpana (2009, October 31). ‘Judicial meanderings in Patriarchal

Thickets: Litigating sex discrimination in India’. Economic and Political
Weekly, XLIV.

Lawyers Collective in collaboration with the ICRW supported by UN Trust

Fund to End Violence against Women. (2009). ‘Staying alive’. Third monitoring
and evaluation report 2009 on the Protection of Women from Domestic
Violence Act 2005.

Sivaramayya, B. (2000). ‘Gender Justice’, Fifty years of the Supreme Court

of India: Its grasp and reach. Oxford: Indian Law Institute.

White, Rob & Haines, Fiona (2004). Crime and Criminology: An Introduction.
(pp. 119). New York: Oxford University Press.

3.12 SUGGESTED READINGS

Jaisingh, Indira. (2000). ‘Gender Justice and the Supreme Court’. In B.N.Kirpal
& others (Eds.), Supreme but not infallible: Essays in honour of the Supreme
Court of India. OUP.

Kannabiran, Kalpana (2009, October 31). ‘Judicial meanderings in Patriarchal

Thickets: Litigating sex discrimination in India’. Economic and Political
Weekly, XLIV.

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