Charting The Course Of Gender Equality In Decision-Making

Shivangi Mishra

Jean Jacques Rousseau, who championed the cause of individual liberty and political equality disappoints by expressing reservations in awarding women their bereaved equality in equality with men. Rousseau averred that the mutual duties of the two sexes cannot be equally binding on both and it is wrongful of women to complain of the inequality of man-made laws as the disputed inequality does not germinate from man’s caprice or prejudice but from reason. It is linearly inferable that Rousseau found it reasonable to create a system of inequality between men and women. Moreover, he reduced women to creatures functioning exclusively for procreation and nurture. Rousseau’s intellectual bandwidth conceived a world where among all social roles, women were entrusted with the care of children, and men in turn were the sole caretakers of women, “she to whom nature has entrusted the care of the children must hold herself responsible for them to their father”[1]

Rousseau indulged in academic catastrophes in remarking that intellectual pursuits were beyond the feminine domain. If women’s status were to undergo a progressive metamorphosis, the fundamental unit of society, that is, the family had to be uplifted from the shackles of patriarchalism intrinsic to the seventeenth century zeitgeist and the traditional assignment of gender roles that were overwhelmingly premised on biological but not cognitive differences. Taking a progressive stride, Hobbes advocated that each parent, father and mother must partake equally in familial decision-making. Locke, further raised hopes by contending that parents have a joint dominion over their children[2].

Progressive Strides in Cementing Women’s Socio-Political Position through Joint Efforts by Political Scientists and Women Advocates

Jeremy Bentham, an ardent feminist pressed for universal suffrage and secret ballot, thereby advocating women’s active participation in the decision-making process[3]. In the backdrop of a systemic and institutional framework fraught with gender stereotypes and dogma, we may understand how women have struggled to elevate their standing in the societal ladder by relying on legal as well as extra-legal channels. The primeval discourse on women’s rights began floating along legal channels in the Abolition movement of 1830s. While lending their exuberant participation in the movement for abolition of slavery, participant women discerned that unlike their male counterparts, they could not effectively function through formal conduits. Sojourner Truth, one of the forerunners in the quest to gender equality, jubilantly consumed herself in the struggles and challenges wrought by the movement. When Sojourner Truth quipped, “I sell the shadow to support the substance”, she lent fiery opposition to commodification of human worth, calling upon to muster all creative energies to annihilate slavery in every form. In the abolitionist and temperance movements, women expressed pervasively through art, imagery and words of gumption. Unhesitant, they chose to question. Tireless efforts to grant women their basic rights finally culminated in the Seneca Falls Declaration formulated in 1948 that was spearheaded by Elizabeth Cady Stanton and Lucretia Mott. The Convention brought laws pertaining to marriage, property and conditions of employment under the radar of scrutiny.

Welcome Intervention by Indian Supreme Court: Concretising Professional Equality through Legal Recognition

In this global historical backdrop, it becomes the primordial objective of the interpreters and formulators of justice to equitably assimilate women within the folds of gainful employment by dispelling unfounded averments asserted by opponents. Reflecting identical concerns, the Indian Supreme Court has pronounced,

Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination.”[4]

While the Apex Court, in its esteemed wisdom benignly acknowledged the need to consolidate women’s basic rights, in its fiasco of attributing “self-sacrifice and self-denial” as feminine virtues, the Court resonated with popular stereotypical consciousness of reducing women to puppets who readily sacrifice their liberties.

The Supreme Court has broadened the vistas of the concept of gender equality by introducing the ideal of parity in the film industry infamously fraught with gender bigotries. It invalidated rules on differentiation between specialised make-up artists and hair dressers operating exclusively on gender-based grounds. In Charu Khurana v. Union of India[5], the Court recognised that,

As it appears though there has been formal removal of institutionalised discrimination, yet the mindset and the attitude ingrained in the subconscious have not been erased. Women still face all kinds of discrimination and prejudice.”

The judicial pronouncement in Valsamma Paul v. Cochin University[6] adduces the fact that attainment of levels of self-actualisation and fundamental freedoms by women and their equal participation in political, social, economic and cultural spheres are concomitants of national development.

Conferring the Benefits of Substantive Equality through the Landmark Pronouncement in Lt. Col Nitisha v. UOI

While the string of cases mentioned above invariably exhibit Supreme Court’s tilt to structurally underpin and formally recognise the need to facilitate and enhance women’s participation in professional spheres and their consequent assimilation in prime/apex positions, it was only in the year 2021 that the SC demonstrated its emboldened resolve to confer upon women the benefits accruing from the ideal of “substantive equality” in its verdict in Lt Col Nitisha v. Union of India[7]. In a trend-setting and first-of-its-kind judgment where the Supreme Court cited a coterie of American and Canadian cases including Griggs v. Duke Power[8] and Fraser v. Canada[9] before raising the clarion call to identify, evaluate and annihilate the tool of indirect discrimination from all realms of professional employment. While serving as a pioneer in Indian jurisprudence by incorporating for the first time, the principle of substantive equality within the corpus of Article 14, the Lt. Col Nitisha pronouncement, marking a welcome transition, ensured that the ideal of equality is not merely protected by the letter of law, rather, equality is resoundingly achieved as an outcome by application of corresponding constitutional provisions on equality. In the instant case which brewed up as a reaction against the Apex Court’s decision in Secretary, Ministry of Defence v. Babita Puniya[10], the bone of contention underscored by the petitioner was unequal age-scales and time yardsticks in connection with physical tests/ examinations when compared with prevailing age-scales for male candidates. While lady officers were made to undergo grueling physical examinations during their late thirties, the age bracket assigned for male officers was mid-/late twenties. In the present verdict the Court identified the disparate age-bracket(s) as a means to perpetuate indirect discrimination and scrapped the practice, thereby giving leverage to the concept of substantive equality.

Social and Constitutional Safeguards for Professional Participation of Women

In the yesteryear socio-political landscape, the powers to govern, lead and make decisions were touted as exclusive entitlements of men. We witness sporadic ripples in today’s landscape, however, there is a welcome yet sly departure in art and aesthetics. The patriarchs of all times have displayed unprecedented generosity in letting women emancipate themselves from the clutches of stereotypical propositions of confinement through their ingress into aesthetic fields requiring finesse, just so as to ensure their absence in decision-making.

Qasab: Kutch Craftswomen’s Producer Co. Ltd is a producer company owned by traditional craftswomen that has come out to be unparalleled in the sphere of sustainable ingenuity. The thrust of the Company is premised on ways in which sustainable development and social development can be linked. Its chief objective remains to preserve the traditional art of the Kutch region. The success of Qasab, the collective enterprise may be attributed to the skill and craft of thousands of women artisans employed by the enterprise[11].

Even though the trajectory of female progress has been soaring steadily, their piecemeal growth in administrative and decision-making appointments alludes stagnancy. For women, the reins of power, authority and governance have remained illusory. The combined synergy of Article 14[12] and judicial activism has proved efficacious in achieving gender parity in professional spheres. In Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa[13]the Court actively undertook to bridge gender chasms in matters involving technique and professional expertise. In the instant case, the Court stressed for judicious consideration of the principle of equal pay for equal work while negating discrimination between a male stenographer and a female stenographer. The Court opined that the management must at all costs refrain from making any distinction in connection to gender of the employees especially when the nature and essence of the work is identical. The Court reiterated the need to establish equality in employment by drawing identical lines of remuneration when the work discharged betrays difference in terms of quality and skill.

The Constitution of India, in an attempt to cement the position of women in executive forums, has designed provisions at incipient and fundamental levels like Municipalities and Panchayats. Articles 243D (3)[14], 243T (2)[15], 243T (3)[16], 243T (4)[17] and 243T (5)[18] promote the participation of women in the executive set-up at the grass root level.

In the verdict pronounced in Charu Khurana, the Supreme Court reiterated the need to assimilate women in the executive pedestals of power by asserting that in the backdrop of the 73rd and 74th Amendments to the Constitution women must be able to partake in the democratic decision-making process with enhanced exuberance.

Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity.”

By raising the clarion call against gender disparity in decision making portfolios, the Courts have, in a string of verdicts, accorded judicial recognition to the concept of gender parity in employment. It was also highlighted that the principle of gender equality together with the cherished ideal of introducing symmetry in the social and professional standing of women has been the treasured goals enshrined in the Constitution of India[19]. The 73rd and 74th Amendments to the Constitution were an outcome of the Constitution’s quest for ensuring equal participation of women in the Panchayati Raj system. The instant verdict is indicative of the fact that the Court emphatically safeguards the fundamental right of women to practice any profession, or to carry on any occupation, trade or business in accordance with the provisions of Article 19(1) (g)[20] and admonishes the practice of any variant of discrimination that springs up from gender stereotypes and prejudices.

Furthermore, by virtue of Article 15(3)[21], the State Legislature is empowered to make special provisions for women and children whenever social dynamics necessitate. Clause 1 of Article 16[22]confers upon every citizen, (including women) the benefit of equality of opportunity in matters relating to employment or appointment to any office under the State. Articles 14[23] and 15(1)[24] further cushion the rights and claims of women by bestowing upon them the protective ideals of equality before the law and equal protection of law assorted with a shield prohibiting all forms of discrimination.

International Legal Landscape: Acknowledgement of the Rights of Working Women in International Conventions

Rising from municipal boundaries so as to situate focus in the international realm, we may delineate that there exists a strong wave of consciousness blanketing international circuits with floating ideals of equal participation, dignified treatment, equal opportunities and just desert.

Article 21 of the Universal Declaration of Human Rights[25] proclaims that every person is entitled to participate in the functioning of a democracy and matters pertaining to formulation of policies decided by the government of his or her country. Equal access to power, decision-making and leadership at all levels is an indispensable precondition for the proper functioning of a liberal democracy. Equal participation of men and women in political affairs is a beacon of progress and development as it makes the governmental transactions representative, responsible and responsive. Equality in participation enhances awareness that further streamlines the fastidious process of knowing the ground realities for the government striving to strike the chord of accountability. Thence, well-informed citizenry would shed insights on the policies of the government of the day and bolster the process of achievement of the virtues of accountability and transparency. This design ensures that the interests of women shall be taken into account in policy-making. In spite of these remedial maneuvers, women, have traditionally been excluded from power and decision-making processes. Equal participation still remains an evasive reality due to stiff resistance from conventional and regressive segments of the society.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[26] provides the basis for realising equality between women and men by creating a pedestal through which women have equal access to, and equal opportunities in, political and public life, including the right to vote and to contest elections, as well as the right to hold public office at all levels of government as enshrined in Article 7, CEDAW. State parties agree to take all appropriate measures to overcome historical discrimination against women and obstacles to women’s participation in decision-making processes as per the letter and spirit of Article 8, along with the safeguards provided in Article 4 with respect to legislation and temporary special measures. The Committee on the Elimination of Discrimination against Women consistently expresses concern over the shoddy implementation of Articles 7 and 8 of the Convention. The Fourth World Conference on Women, held in Beijing in 1995, brought attention to the persisting inequality between men and women in decision-making circles. The Beijing Declaration and Platform for Action recognizes women’s unequal share of power and decision-making as one of the twelve critical areas of concern. The Platform for Action outlines concrete actions to ensure women’s equal access to, and full participation in power structures and decisional processes and to increase the capacity of women to participate in decision-making and leadership. Women, in the contemporary age have gained the right to vote, and possess de jure equality, in nearly all Member States of the United Nations. A report by UN indicates that “despite forming at least half the electorate in most countries, they continue to be underrepresented as candidates for public office”[27].

Conclusion: A Statistically Skewed Scenario for Women as Professionals?

Existing figures fall shy of realising the target of ensuring 30 percent of women in decision-making appointments by 1995 as endorsed by the UN Economic and Social Council. The figure of 30 percent forms the “critical mass”, believed to be imperative for women to make a visible impact on the style and content of political decision-making. Since 1995, women’s visibility in, and their impact on public life has enlarged. Women continue to have to choose between career and child-rearing responsibilities, which leads many of them to opt out of competition for the top-level jobs. Statistics allude that woman “lack an enabling environment for their career advancement and empowerment”. Women are, more often than not, absent from top executive portfolios, especially in the traditionally male-dominated spheres of business and politics. In national governments where women hold ministerial functions, their portfolios are typically limited to social, family and cultural affairs[28].

Photo Source: socialistsanddemocrats.com

About the author

Shivangi is a law graduate from Jamia Millia Islamia, New Delhi. Through her writing, she endeavours to strike a chord of symphony between the rigours of law and softer nuances of interdisciplinary reasoning.

      References 

  1. Jean Jacques Roussaeu, Emile (1762). 

  2. Gordon J. Schochet, Patriarchalism in Political Thought (Basil Blackwell, Oxford 1975) 71. 

  3. Mary Peter Mack, Jeremy Bentham: An Odyssey of Ideas, 1748-1792 (Heinemann London 1962) 323. 

  4. Madhu Kishwar v. State of Bihar (1996) 5 SCC 125. 

  5. 2014 SCC Online SC 900. 

  6. (1996) 3 SCC 545. 

  7. Writ Petition (Civil) No 1109 of 2020. 

  8. 401 US 424 (1971). 

  9. 2020 SCC 28 (CanLII). 

  10. 2020 SCC 28. 

  11. Shweta Mittal; Vishal Gupta; Manoj Motiani; Qasab: Kutch Craftswomen’s Producer Co. Ltd, Asian Case Research Journal (Vol.22 2018). 

  12. Article 14, The Constitution of India. 

  13. 1987 2 SCC 469. 

  14. Article 243D (3), The Constitution of India. 

  15. Article 243T (2), The Constitution of India. 

  16. Article 243T (3), The Constitution of India. 

  17. Article 243T (4), The Constitution of India. 

  18. Article 243T (5), The Constitution of India. 

  19. Articles 14, 15, The Constitution of India. 

  20. Article 19 (1) (g), The Constitution of India. 

  21. Article 15(3), The Constitution of India. 

  22. Article 16(1), The Constitution of India. 

  23. Article 14, The Constitution of India. 

  24. Article 15(1), The Constitution of India. 

  25. Universal Declaration on Human Rights, 1948. 

  26. Convention on the Elimination of All Forms of Discrimination against Women, 1979. 

  27. Division for the Advancement of Women, Department of Economics and Social Affairs, (available at: https://www.un.org/womenwatch/daw/egm/eql-men/index.html, accessed on: 23 Apr 2019, 3:50 pm). 

  28. Id. 

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