HTLS column by Indira Jaising: Towards equality, but still a long way to go
The Indian Constitution guarantees to every citizen the right to equality and to women the guarantee of non-discrimination based on sex. Despite this, the 1975 report on the status of women, aptly titled “Towards Equality” articulated in no uncertain terms that “large masses of women in this country have remained unaffected by the rights guaranteed to them by the Constitution and the laws enacted since Independence”.HTLS2016 Updated: Nov 24, 2016 08:16 IST
The Indian Constitution guarantees to every citizen the right to equality and to women the guarantee of non-discrimination based on sex. Despite this, the 1975 report on the status of women, aptly titled “Towards Equality” articulated in no uncertain terms that “large masses of women in this country have remained unaffected by the rights guaranteed to them by the Constitution and the laws enacted since Independence”.
Many of us had already crystallised different responses to the challenge of gender justice and were part of people’s movements for social justice. Progress in the direction of equality did not come easy. Deep-rooted patriarchy and misogyny proved more difficult to uproot than we had imagined.
During this period, it was the brave mothers of women, who were dying in the matrimonial home, who led the movement, demanding accountability from the police.
While laws were changing we still found ourselves caught between the sheer urgency and clamour for justice, and a system bordering on apathy and indifference.
Even while women’s rights advocates were recognised for the many contributions they made, including making governance of law more women friendly and gender responsive, we failed to acquire the political voice and clout that was needed for transformative change. Our contributions came in the form of untiring work to strengthen legislative, policy and programme frameworks, evolve protocols and standard operating procedures, empower grassroots women to spearhead transformative processes, and putting in place a monitoring framework based on international standards drawn from conventions to which we were a party. India has signed the Convention for the Elimination of Discrimination Against Women on July 30, 1980 and ratified it on July 9, 1993 with certain reservations and we used it effectively to achieve accountability from duty-bearers and those in position of power and authority.
It was the Nirbhaya incident which brought the nation to a virtual standstill and was a critical turning point for the women’s movement. It became clear that the lack of legal, administrative and societal framework to deliver gender justice was about the complete absence of any regulatory framework to make the system accountable and answerable for violence against women. Without security in public spaces, the right to life was threatened and all other rights lost meaning. From regulating private contract carriers and taxicabs, from police surveillance to street lighting, everything was missing from legislative and regulatory frameworks. While India transitioned from dismantling the public sector to privatisation, it failed to simultaneously put in place strong regulatory bodies to regulate private services.
The setting up of the Justice Verma Commission was followed by legislative amendments that set in place a gender justice framework based on respect for autonomy and personhood of the woman, and accountability of duty-bearers. These changes had a positive impact on the attitude towards women in the public domain and in the judiciary.
We were seeing the making of a robust legal framework for gender justice; no act of violation even by the most rich and powerful could be overlooked or be quietly settled and nothing, which was even regarded as sacrosanct by tradition, such as the denial of temple entry and triple talaq was stopping women from demanding that privileges be dismantled and removed. The media played a positive role in exposing uninvestigated crime, not allowing it to go without public challenge.
The new laws also brought with it uncomfortable issues; death penalty which women opposed, was introduced for causing death or resulting in persistent vegetative state of victim. The age of consent for consensual sexual intercourse was increased from 16 to 18, with devastating consequences for young adults. Mandatory reporting by health professionals could lead to access to health services going underground. Rape within marriage is still not an offence.
This feeling of new-found confidence soon gave way to new concerns. With a highly polarised polity that we see today, women are being caught in the crossfire between the forces representing the authority of the State and those contending against it.
We are witnessing the steady erosion of citizenship rights with women impacted adversely. To give just one example, on the issue of representation, the insistence of a minimum educational qualification for candidates wanting to enter the electoral fray for local self-government or legislature in Rajasthan and Haryana, led to their disenfranchisement especially for SC and ST women. Apart from the divisive polity, we are also witnessing an unprecedented effort to redefine the core values of the nation that we had developed after six decades of legal and constitutional struggles.
All of this militates against the ethical underpinnings of the Constitution of which gender justice is an integral part. It is here that the women’s movement is making common cause with all other democratic movements, for justice to women requires the guarantee to justice to all. It is the very Constitution that we have to defend against sectarian attacks from within.
Going ahead, we need to ensure that gender justice gets ensconced firmly in the constitutional principle of equality and social justice which in turn means respecting a democratic framework where citizens, and in this case, citizenry from marginal communities are empowered and given the right to representation, participation and ownership.
(The author is former additional solicitor general and senior advocate, Supreme Court)