Gender or No Gender Justice
The following is post is the same as posted on www.theanalysis.org
It is an article , an article that reflects my perspective about the law in our nation regarding gender.
You can get more such legal articles on the aforementioned site , India's first open online discussion forum.
It is an article , an article that reflects my perspective about the law in our nation regarding gender.
You can get more such legal articles on the aforementioned site , India's first open online discussion forum.
The article talks in brief about the intersection between the law and the gender justice. The piece throws light on some major judicial pronouncements that were rendered to strike the equal balance between the law and the gender justice, by our judiciary. The recognition of ‘third gender’ is also an important element of this article and whether LGBT community can have a status of equality and dignity or not, talks Ashna Jha
-Ashna Jha is pursuing law (BA., LL.B.) from Rizvi Law College, Mumbai.
We all talk about as to how the rights should be equal, how and what can be done to make justice equal and impartial. What has the society and most importantly judiciary contributed towards making this nation free of the tag of being biased “sexually?”
There is not one but a number of judgements that at one point depict gender equality but on the other hand violates certain fundamental rights on the name of religion and the so called on going orthodox tradition.
Let us consider some landmark cases like that of Shah Bano Begum [1](Mohd. Ahmed Khan v. Shah Bano Begum) where a 62 year old divorced Muslim lady was denied of her basic rights in the final judgment by the apex court on the name of religion. Muslim Personal Law was the law that was used in the aforementioned matter. Though, initially the judgement was given in favour of Shah Bano but later on it was criticised by the Muslim leaders. It triggered controversy about the extent of having different civil codes for different religions, especially for Muslims in India. On the other hand there is the eminent matter of Sarla Mudgal [2](Sarla Mudgal, President, and Kalyani & Ors. Vs. Union of India & Ors) whose husband was charged under Section 494 of the Indian Penal Code which lays down the punishment for bigamy. A crime for which a person is convicted when one marries someone else during the lifetime of their spouse or during the legal validity of the marriage. In this case justice prevailed and the judgement paved way for a healthy judiciary in the nation. The need for Article 44 was argued upon, which is regarding a Uniform Civil Code or a common law irrespective of the religion for the crime committed. Lack of Article 44 just paves a path for the culprits to get away easily without being penalised at the name of religion.
On one half we are progressing towards equality but that equality still lacks for the LGBT community.Section 377 of the IPC which describes such relations against nature and invalid on grounds of cruelty. In the landmark judgement of NazFoundation [3](Naz Foundation v. Govt. of NCT of Delhi) the Delhi High Court had legalised such relationships. A two judge bench of High court in its judgement mentioned that it is a violation of fundamental rights if consensual sex between two homosexual partners is considered as a crime. If such a relation was to be viewed with criminal eyes then Article 14 (right to equality and equal protection of law), Article 15(forbids discrimination based on certain characteristics, including sex), Article 21 (Right to life and personal liberty) would be violated.
Supreme Court on an appeal made against the judgment reverted the order. The Supreme Court decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the merits. Since then this community, which is considered as a minority is being denied of their rights. So if considered a minority, why not give them certain rights that they deserve like other minorities. Or if not to consider them minorities then at least not discriminate on humanitarian grounds.
To take a note of the fact divorce and marriages take place judicially under the respective Marriage and Divorce Acts where two individuals get along or decide to get apart on mutual understanding, then why is living or marrying the person you love irrespective of the sex considered illegal? It is either politics or the game of orthodox thinking that is resulting in the violation of certain fundamental rights like Article 14, 15, 19, 21 and many more.
Moreover the most important aspect being that of our nation’s law being derived or rather the same being implemented, as laid down by the Britishers back in the 19th century. When we are following the law made by the rulers back in the history, why not implement the same rights of equality as it prevails now in the United Kingdom. Politics and caste system of votes (a system where voters are lured to vote the candidate of his/her caste) has led to the current inequality scenario in our nation.
Our constitution denies discrimination on the grounds of sex yet there is discrimination everywhere. I’m not saying that women should be given more rights or gays, lesbians or transgender should be awarded with a special status but all we could do is grant fair judgement on the grounds of love, respect and humanity.
The Vogue Empower Video or The LGBT PRIDE PARADES or the frequent protests in our nation is just a way to let the sleeping minds be aware of what should be considered for, in reality making this nation a Developing Nation . A nation can only develop in complete sense when it grants equality irrespective of the gender and orientation along with technological advancements.
However the recent bill, declaring transgender as a third gender can be considered just a beginning towards the long awaited equality but still there’s still a lot more to cover. In this matter of National Legal Services Authority Vs Union of India and others[4] , the need of considering the pain and agony suffered by transgender was highlighted. They were being denied of fundamental rights. Our constitution clearly states there should be no discrimination of grounds of sex (Article 15) or profession nor deny any person their personal liberty and the right to move. After this judgment a committee was framed to look into the problems suffered by transgender or popularly known as Hijras in India.
Gender or no gender justice is basically freeing India from the orthodox locks and traditional caps.
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