PATRIARCHY TO PARITY

by Parul Mangal and Surbhi Agarwal, Faculty of Law, University of Delhi


“How important it is for us to recognize and celebrate our heroes and she-roes!”

― Maya Angelou


Patriarchy generally refers to the hierarchical power relation in which men are dominant and women are subordinate. The subordination of women is explicit in both private and public spheres. Women though worshiped, yet their situation has been grim.

“Every child deserves to reach her or his full potential, but gender inequalities in their lives and in the lives of those who care for them hinder this reality.” According to UNICEF “across India gender inequality results in unequal opportunities, and while it impacts on the lives of both genders, statistically it is girls that are the most disadvantaged. Most women and girls in India do not fully enjoy many of their rights due to deeply entrenched patriarchal views, norms, traditions and structures. India will not fully develop unless both girls and boys are equally supported to reach their full potential. Providing girls with the services and safety, education and skills may enable them to fully develop and contribute to India’s growth.”[1]

India still lags behind in becoming a “Gender Equal” nation. There are many impediments in accomplishing this vital ambition. To acquire the global spectrum, it has become necessary to allow girls/women to elevate their talent and contribute to the economy and security of the nation.


CONSTITUTIONAL PROVISIONS PROMOTING GENDER EQUALITY

Even our Constitution envisages the principle of gender equality in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles of State Policy namely, Articles 14, 15, 16, 39(d) and so on. Article 14 has used the expression “person”. Articles 15 and 16 have used “citizen” and “sex”. These expressions which are “gender neutral” evidently refer to “human beings” taking within their sweep males, females as well as transgenders.


Article 14[2] permits reasonable classification but prohibits class legislation, therefore classification must be founded on intelligible differentia having rational relation to the object sought to be achieved by the Act. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law. In Anuj Garg[3]case, the respondents prohibiting employment of women in hotels and bars serving liquors was challenged being violative of gender equality. The Supreme Court held that such restrictions are discriminatory on ground of sex and are therefore violative of Article 14. Such restrictions cannot be compromised on ground of security of women. Similarly, in Mary Roy[4] case, the woman opposed the inheritance law where daughter had been denied the property of his father as it causes injustice based on gender. The Court held that no personal law can be prioritized or held above the Constitution and hence if any act invalidates the significance and importance of the provisions of the Constitution then such a provision shall be held void. Thus the succession under the Travancore Succession Act 1916 because of its discriminatory nature towards women was made inapplicable.

Hence, above cases highlight significant aspect of Equality among Equals, giving parallel rights, workspace to the women alongside men. Article 14 brings an impeccable impact on the development of the nation by uplifting women. Gender equality is not confined to physical equality but also covers equality in cerebral opportunity viz. if a man can be a father and CEO then, a woman can also be a mother and a CEO without any questioning. The best example today is the Prime Minister of New Zealand, JACINDA ARDER, who has achieved the ambitious goal of not only controlling but eradicating the outbreak of COVID-19. After this success, the world has started believing in better development of a nation by a woman than a man.


Article 15[5] prohibits discrimination on the basis of sex. “Discrimination” means unjust treatment or treating one in a less favorable manner than another under similar circumstances. Perusing CEDAW[6] Article, the Bill of rights of women, it is crystal clear that apart from right to work being an inalienable right of a person, it has commended the right to same employment opportunity, application of same criteria for selection in matter of employment eliminating discrimination against women. In Vasantha R.[7]case, the Court observed that the discrimination on ground of sex is impermissible in law. Section 66(1)(b) of the Factories Act in so far as it imposes a restriction on the employment of women during night shifts was held to be unconstitutional as it violates Articles 14, 15 and 19(1)(g).


Article 16(1)[8] guarantees “equality of opportunity to all citizens in matters relating to employment” under the State. Those who are similarly grouped are entitled to equal treatment. Discrimination is a double edged weapon which operates in favor of some but against some others. Not only the State is required to protect the women from discrimination but it is the fundamental duty of every individual to ensure that the dignity of women is protected.


Article 39(d)[9] makes the State constitutionally bound to provide “Equal Pay for Equal Work”. In Mackinnon Mackenzie & Co. Ltd.[10] case, Court observed that there was discrimination in payment of wages to lady stenographers. The Court made it mandatory to pay equal remuneration to lady stenographers as their male counterparts. Hence, to abolish the age old attitude of the society towards women, the concept of equal remuneration for equal amount of work irrespective of gender has to be appreciated. Even in the film industry which is playing a great influential role, the value of the cheque of actress is always less than that of an actor, though the effort put in by both is identical. Inequalities are being curbed but at a very low pace.


One step towards establishing a gender neutral nation was taken up by the Court by procuring “PERMANENT COMMISSION FOR WOMEN IN ARMY”. In Babita Puniya [11]case, an assessment was done on the implication of a specific provision (Section 12 of 1950 Act) restricting the entry of women into the Armed forces and the steps taken by the Union Government to grant PCs to women SSC officers in streams in which they have been commissioned. The engagement of women officers in the Army has been an evolutionary process. The women officers were initially inducted in 1992 under WSES for 5 years. This was extended for further 5 years. As a part of the pool of officers engaged as SSC officers, the tenure was extended to 14 years. Following the decision of Delhi High Court, Government granted women officers PC in 8 arms/services at par with their male counterparts.

The Supreme Court observed that the policy decision of the government is “recognition of the right of women officers to equality of opportunity”. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet is equality of opportunity for all citizens in matters of public employment under Article 16(1). The decision of government over the grant of PCs to women officers recognizes that “physiological features of a woman have no significance to her equal entitlements under the Constitution”. The submissions made by government were based on sex stereotypes. The statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood” is a strong stereotype which assumes that domestic obligations rest solely on women. Another submission premised on “inherent physiological differences between men and women” i.e. women cannot undertake tasks that are “too arduous” do not constitute a constitutionally valid basis for denying equal opportunity to women officers. The role played by women officers towards growth of the nation is sought to be diluted by the submissions made by government. These assertions emphasize the need for change in mindsets to bring about true equality in the Army. The factual situation manifests women officers of Indian Army bringing Laurels to the force; their track record of service to the nation is beyond reproach. But by attacking on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of Indian Army-men & women who serve as equal citizens in a common mission. Time has come for realizing that women are not adjuncts to male but they are at par. The Court held that an absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. The blanket non-consideration of women for criteria or command appointments is unjustifiable and cannot be sustained in law. So, all SSC women officers are entitled to PCs with all consequential benefits. This decision has expedited the struggle to establish a Gender Equal nation where Wo-Man will be projected as a “Working Man”.


Therefore, to build “Aatmanirbhar Bharat” we first need to respect the ability of a woman to become “Self-dependent”. The upbringing of a girl overhearing her dependence on father, on husband and finally on son should be transformed making her independent and self-sufficient. It is gratifying to watch the existing patriarch community getting revolutionized, progressing from the ideology of male chauvinism towards gender parity.


[1] https://www.unicef.org/india/what-we-do/gender-equality [2] Article 14 of the Constitution of India: Equality before law [3] Anuj Garg v. Hotel Association of India AIR 2008 SC 663 [4] Mary Roy v. State of Kerala AIR 1986 SC 1011 [5] Article 15 of the Constitution of India [6] Convention on the Elimination of All Forms of Discrimination against Women- https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Introduction.aspx [7] Vasantha R. v. UOI & Ors. (2001) IILLJ 843 Mad [8] Article 16 of the Constitution of India [9] Article 39(d) of the Constitution of India [10] Mackinnon Mackenzie & Co. Ltd v. Audrey D’Costa AIR 1987 SC 1281 [11] The Secretary, Ministry of Defence v. Babita Puniya & Ors on 17 February 2020 (The Authors are second prize winners of Article Writing Competition)