Gender Justice and Human Rights.

Introduction

The application of the facts of rational inheritance with certain inalienable rights bestowed upon
people as to what is right and what is wrong. Any injustice and discrimination among any gender
is totally rejected upon the facts that all are provided with certain rights as per right to life and
liberty and in this era of constitutional governance, every person as well as every government is
bound to abide and implicate justice to all. But the facts and reality does not comply with each
other and the reality remains the same and we see some communities as well as gender are
fighting for their basic rights. Theories based upon such rights have found a prominent place as
well as recognition. However, a universal declaration of human rights 1 defines these facts very
clearly and states the theory of doctrine of inalienable rights. Gloria Steinem said “A gender-
equal society would be one where the word ‘gender’ does not exist: where everyone can be
themselves.”

In India

The Constitution of India promise to safeguard its citizen from their social, economical, political,
belief, faith and worship and other rights to uplift and to promote fraternity and unity among its
people. India has a signed MoU’s with the Universal Declaration of Human Rights; a number of
fundamental rights provided to its citizen are being guaranteed in part III of the Indian
constitution (Article 12 to 35) which tends to resemble with the Universal Declaration of Human
Rights. Some of them are

1. Protection of life and personal liberty is mentioned in Article 3 in Universal Declaration

whereas in the Indian Constitution it is mentioned in Article 21.
2. Protection of slavery and forced labor is mentioned in Article 4 in Universal Declaration
whereas in the Indian Constitution it is mentioned in Article 23.
There are other few articles resembling as such.

1
Art 1 to 6, Universal Declaration of Human Rights, 1948.
In Kesahavananda Bharti v. State of Kerala,2 the Supreme Court observed the following that the
Universal Declaration of human rights may not be a legally binding instrument but it shows how
India understood the nature of human rights at the time when the constitution was adopted. S.M.
Sikri in the same case observed, “I am unable to hold these provisions to show that rights are not
natural or inalienable rights. As a matter of fact India was a party to the Universal Declaration of
Rights…… and that Declaration describes some fundamental rights as inalienable.”

In M.C.Mehta v. State of Tamil Nadu,3 the Supreme Court ordered the State Governments to
fulfill the intentions of the Child Labour (Prohibition and Regulation) Act, 1986 and also ordered
the offending employers to pay compensation of Rs.20, 000/- for every child employed. The
Inspectors under the Act would see that the employers offending the Act must pay Rs.20, 000/- a
sum which would be known as Child Labour Rehabilitation-cum-Welfare fund. The Fund would
be deposited in a high yielding scheme of any nationalized bank. In this case, the Supreme Court
also required the States to fulfill the ten directions given in the judgment. From the above
judicial decisions, it is evident that by way of Public Interest Litigation, the Judiciary strives hard
to eliminate child labour.

The movement initiated by Dr. B.R.Ambedkar against such discriminations for the backward
society and women’s also gives us the information’s about the culture justice and equality that
India had been giving to its people in past, no matter what were the impacts of the Indian
Constitutions upon people and the system but the truth remains the same that the response of
mainstream political system had a “marginal approach” to such issues and only included it in
context to social, political and economic aspects. In fact in India particularly the situation is
pathetic where major portion of the population belongs to poor, illiterate, unhygienic living and
lack proper recreations and exploitation of women and children, racial discrimination, leads to
mass hunger and violations of freedom and hence peep out.

According to a report4 on girl child in Punjab and Haryana have had the worst sex ratio in the
country which accounted worst sex ratio as well as missing of girl child was a common
phenomenon. Another report5 shows that in India abortion of female fetuses is common practiced

2
AIR 1973 SC 1461
3
AIR 1997 SC 699
4
2001 Census
5
International Development Research Centre
and there have been a number of attempts to understand the root causes of this problem. Some of
the study says it is because of traditional view that a girl child in India has to leave the house
after her marriage and the parent has to pay dowry, whereas a boy child doesn’t leave the house
after marriage and the parent doesn’t have to pay any dowry instead they receive it and such
social preference for sons has also been a growing masculinization of Indian society. Such
thinking leads to inequality between female – male ratio in the population and this approach also
gives us the matter of gender injustice in matter of life and death.

In recent times participation by women has increased enormously and a number of women
occupying top leading position as sports person, film stars and civil society activists. Women are
determined towards making their way out and changing the tradition – a society that was entirely
male-dominated in 1947. But with changing tradition where women’s doing so much within the
span of three generation, India has also seen a sharp rise in crime, assault, rape etc against them
too. But all the branches of government – legislative, executive and judiciary at center as well as
in state and local levels have taken the responsibility towards empowerment of women.
Whatever the reason may be, but in the end duty of government and its citizen to protect all their
rights of those who are victims as well as take due care in formulating and bringing in practice of
such policies and laws that provides a total protection of women and children. In protecting the
women, the Indian Judiciary has removed all the procedural shackles and has completely
revolutionized constitutional litigations. The judiciary has encouraged widest possible coverage
of the legislations by liberal interpreting the terms. The judiciary has shifted from doctrine
approach to the pragmatic approach, which was conducive to all interests in the society. The
Courts have shown to greater enthusiasm in granting the constitutional provisions for all women.

The vibrant judiciary has recently exalted the dignity of women by its golden judgments. In
Municipal Corporation of Delhi v. Female Workers 6, the Supreme Court extended the benefits of
the maternity Benefit Act 1961 to the Muster Roll (Daily Wagers) female employees of Delhi
Municipal Corporation. In this case, the court directly incorporated the provisions of Article 11
of the CEDAW 1979 into the Indian Law. The fundamental discrimination that is responsible for
human-rights violation against trans people and the rights provided to them only exist on papers
but in reality they are denied not only fundamental rights but also right to equality, health,
dignity and security.
6
AIR 2000 SC 1274
In UN

Accomplishing similarity between men and women and removing all forms of discrimination
against women are indeed the groundlaying human rights and UN values. Women all around the
world achieving new heights and on the other side also suffering violation of their human rights
too. Though exorbitance of legislations exists but due to an ineffective enforcement which results
in women exploitation by the male dominated society. Male dominated society has found ways
to circumvent the provisions of the Act and act as a blockade against women empowerment. The
UN has a long bygone times of inscribe women’s human rights and much has been walked up
but still some gaps remain untraveled which needs to be completed as soon as possible because
in realities women situation are changing constantly.

In 1948, the status of women received very little emphasis at the international level. But the first
draft of the Universal Declaration of Human Rights exhibited a fair degree of gender
insensitivity by starting off its first article with the statement “All men are brothers.” Thanks to
the efforts of the Commission on the Status of Women (and Eleanor Roosevelt) the draft was
changed – first to apply to “all people” and finally to “all human beings”. The Universal
Declaration of Human Rights – like its progeny, the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Political Rights Civil and
Political Rights (both adopted in 1966) –explicitly forbade discrimination on the basis of sex, but
there was little attention to the specific needs and concerns of women. It was 13 more years
before the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) articulated women’s rights as human rights in detail, in 1979. International court of
justice in the Genocide case7 stated that states should not be able to opt out of the fundamental
human rights has merits, for states, the process can be more complicated.

Ephrahim v. Pastory8-This case involved a constitutional challenge to a Tanzanian customary

law that prevented women from selling clan land. The High Court of Tanzania relied on the
Convention on the Elimination of all Forms of Discrimination against Women, the International
Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights
in holding that the equality guarantees in the Tanzanian Bill of Rights override customary law.

7
1951, ICJ Reps 15
8
1990 LRC (Const) 757
The Court used the international commitments to strengthen its case that the customary law in
question was contrary to the Tanzanian Bill of Rights.

Dawood v. Minister of Home Affairs9 - South African courts have consistently used international
human rights instruments by virtue of section 39 of the South African Constitution, which
mandates the use international law as a guide to the interpretation of the Bill of Rights. This case
considered the constitutionality of a statutory provision saying that an immigration permit could
be granted to a spouse of a South African citizen residing in South Africa only if that spouse had
a valid temporary residence permit. This provision resulted in long periods of separation for
many spouses. Although the South African Constitution does not explicitly protect the right to
family life or the right to cohabit, the Constitutional Court relied on the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights and the African Charter
on Human and People’s Rights in finding that the right to family life and the right to cohabit was
protected by the South African Constitution and that there was a constitutional violation in this
case.

It must be admitted that there are a number of nations and interest groups which use the language
of human rights in the service of their own political, economic or military ends. It is prudent to
remember that the Declaration was conceived of as a broad standard which would be brought to
life in a variety of legitimate ways. As one member of the panel of philosophers which assisted
with the drafting put it at the time, many different kinds of music could be played on the
document’s thirty strings. This flexibility does indeed open the door to political manipulation,
but it does not completely erode the force of the common standards articulated in the Declaration
for a common humanity. The Universal Declaration of Human Rights is not universally
observed, but it continues to have a real and undeniable force in the world. As one of the original
drafters stated, the main goal of the Declaration is not merely to punish those who violate human
rights but “to build up better human beings”.10

TOTAL EQUILTY [TRANS PEOPLE]

All human being is guaranteed inalienable human rights in respect with international as well as
national standard. For many a reason Trans people, these rights exist only in accordance to paper
9
2000 (1) SA 997
10
A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, by Mary Ann Glendon
(2001)
only. Tran’s people are gainsaying not only fundamental rights to equality, dignity, health, and
security but also their personhood is always in question and the society too has not accepted it
and hence they experiences discrimination and violence time to time. Whether it be India or any
country trans people thole from a lack of legal identity, equality and protection which result in
non-discrimination in all spheres of life based on their gender identity or gender expression. In
many countries trans women are legally identified as male and are not able to transform their
gender on any id proof, this problem is not only suffered by trans women but trans men too
suffer it. Trans people not only suffer identification and fundamental rights problem but also
suffer from basic day to day problem even impossible to survive. The government and other
local bodies guarantees many rights and security to women, men and children’s but when it
comes to trans people nothing has been done in past but now various judicial power of different
countries helping them out to recognizing their mistake and trying to extend constitutional rights
to them. In 2007, the Supreme court of Nepal hearing was before a bench of two judges (justice
Bala Ram KC and justice Pavan Kumar Ojha). 11 The bench started by expressing the possibility
that the case could be resolved through a consultative process , Thereafter the court observed and
gone through various article from academic publication. The bench also observed the case of
Lawrence v Texas12 by the American psychiatric Association; explanations of distinctions
between ‘sexual orientation’ and ‘gender identity’ were also looked upon. In 2007, the Supreme
Court of Pakistan directed the National Database and Registration Authority to add a “third
gender” column to national identity cards for trans people, thus giving them the right to register
to vote. In 2014, India’s Supreme Court in the case National legal services authority v union of
India13, directed the government to recognize trans people as a third gender and trans women
who identify as female, and trans men who identify as male, while guaranteeing the right to
equality under the country’s constitution. It called for special health and welfare programmers to
support the needs of trans people. Argentine activists and lawmakers succeeded in passing a
Gender Identity Law in 2012, the first of its kind in assuring access to legal gender recognition to
trans people without judicial, psychiatric or medical intervention, and in accessing free and
voluntary health care for transition. In 2014 Denmark passed a law that permitted citizens to

11
Since the hearing was conducted in Nepal the observer were unable to follow every detail and nuance of the case
despite able translation provided by a colleague.
12
539 U.S. 558 (2003)
13
(2014) 5 SCC 438
change their legal gender identity without needing to undergo sterilization or surgery, which had
previously been required.

There should be a change in the thinking process of people about trans and they should to be
given importance and involvement in policy and strategy formulation, they should be given equal
rights and legal support services. We should help trans to come up themselves rather than
discriminating them and laughing at them. Support services for trans people who experience
violence as well as bring up awareness program like training on trans people for health-care
provider and law- enforcement officer.

CONCLUSION

Gender and injustice is a problem that is seen all over the world and there are certain attitudinal
changes, women as well as Trans will continue to get a raw deal. They all need to be educated
and feed with all information so that no one can outrage them. In the same scenario there are
certain things which need to be looked upon also. Sometime providing so much protection and
rights to women also portray that the sense of total equality is not served and disappointment
prevail against such issues. In aspect to judiciary, we see such practice and hence it should be
amended so as all human being are treated equally. A similar offence committed by both men
and women results in committing a crime against the state. According to adversarial system both
the parties place their evidence and upon which the punishment is summoned. The punishment
awarded to them for similar offence varies and a woman in comparison to men gets severe
punishment. On the other hand side a woman for the same offence, awarded with less severe
14
punishment. For illustration – A man committing an offence of murder is awarded under
section 302 either death sentence or life imprisonment but a woman charged under section 300
gets a punishment of either life imprisonment or fine. The condition of the prison and treatment
also vary as per gender. Male generally suffer a harsh period in prison where as women suffer
less as when compared to male.

After researching upon the topic we find some suggestion that needed to mention before winding
up our work.

14
Section 299 to304, Part II , I.P.Code
1. The work done till date for uplifting the lower caste and poor people is not enough and
therefore more work must be done in order to lift the concern people of our society.
2. The government should form a rigid body in order to implicate and check that all the laws
are implicated properly and this body also has a direct contact with people belonging to
minority section.
3. Programs should be conducted by various governments as well as other NGO’s to bring a
change in thinking and to uplift women.
4. Government should provide financial help to not only scheduled cast and tribes women’s
but also to those who are not financially weak.
5. The kind of help and support that judiciary provided to women is a lesson to other wings
of constitution and they should do the same.
6. New laws and amendment of old laws should be done to uplift the women status.
7. Empowerment of trans people and legal support services for trans people.
8. It is essential to involve trans communities in monitoring and evaluation processes to
enhance and support data collection and ensure that data accurately reflect the
community’s experiences.
9. Implementing community monitoring systems will encourage trans participation and
increase capacity for collecting data relevant to those receiving services.
10. Such systems can be designed by including trans people on local, regional, and national
program design and review committees.
11. Trans-led organizations can establish their own monitoring processes by periodically
surveying their client base about key services they are receiving or rights violations they
are experiencing. In certain locales, trans communities can use social media networks
such as Facebook and Twitter to report on health services, health outcomes and
violations.